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TC Packet 08-10-2021_______________________________________________________________________________ MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AVON ELEMENTARY AND AVON PUBLIC LIBRARY IF YOU HAVE ANY SPECIAL ACCOMMODATION NEEDS, PLEASE, IN ADVANCE OF THE MEETING, CALL TOWN CLERK BRENDA TORRES AT 970-748-4001 OR EMAIL BTORRES@AVON.ORG WITH ANY SPECIAL REQUESTS. AVON TOWN COUNCIL MEETING AGENDA TUESDAY, August 10, 2021 MEETING BEGINS AT 5:00 PM (ALL START TIMES LISTED IN RED ARE APPROXIMATE) Hybrid meeting; in-person at Avon Town Hall or virtually through Zoom AVON TOWN COUNCIL PUBLIC MEETING BEGINS AT 5:00 PM 1. CALL TO ORDER AND ROLL CALL 5:00 2. APPROVAL OF AGENDA 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS 4. PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA Public comments are limited to three (3) minutes. The speaker may request an additional one (1) minute, which may be approved by a majority of Council. 5. BUSINESS ITEMS 5.1. Public Hearing: Second Reading of Ordinance 21-09 Approving Code Text Amendments to Chapter 7 of the Avon Municipal Code (Town Planner David McWilliams) (10 Minutes) 5:05 5.2. Public Hearing: Second Reading Ordinance 21-05 Concerning the Management of Plastic Products (Town Attorney Paul Wisor) (10 Minutes) 5:15 5.3. Work Session: Recall Election Update (Town Clerk Brenda Torres) (20 Minutes) 5:25 5.4. Resolution 21-18 Approving an Intergovernmental Agreement to Participate in the November 2, 2021 Coordinated Election with the Eagle County Clerk and Recorder; Ordering a Recall Election for November 2, 2021; and Setting Forth the Applicable Candidate Deadlines for the Recall Election (Town Clerk Brenda Torres) (5 Minutes) 5:45 5.5. Resolution 21-17 PEG Grant Fund Request (Assistant Town Manager and Finance Director Scott Wright) (10 Minutes) 5:50 5.6. Presentation: Incentives for E-Bike Purchases (Marketing & Communications Manager Elizabeth Wood) (15 Minutes) 6:00 5.7. Work Session: Use Tax and Short-Term Rental Tax (Assistant Town Manager and Finance Director Scott Wright and Town Manager Eric Heil) (45 Minutes) 6:15 5.8. Work Session: July 22, 2021, Rain Event Damage and Future Mitigation Actions (Town Engineer Justin Hildreth and Public Works Director Gary Padilla) (15 Minutes) 7:00 5.9. Presentation: Consideration to support the CC4CA Policy Statement Updates (General Government Intern Emily Myler) (10 Minutes) 7:15 5.10. Notice of Award – Rec Center Pool Repairs (Town Engineer Justin Hildreth) (5 Minutes) 7:25 5.11. Notice of Award – Metcalf Road Culvert (Town Engineer Justin Hildreth) (5 Minutes) 7:30 5.12. Remodeling 351 Benchmark Road (Old Fire Station) for Transit Driver Housing (Town Manager Eric Heil) (25 Minutes) 7:35 6. MINUTES 6.1. Approval of July 13, 2021 Regular Council Meeting Minutes (Town Clerk Brenda Torres) (5 Minutes) 8:00 _______________________________________________________________________________ MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AVON ELEMENTARY AND AVON PUBLIC LIBRARY IF YOU HAVE ANY SPECIAL ACCOMMODATION NEEDS, PLEASE, IN ADVANCE OF THE MEETING, CALL TOWN CLERK BRENDA TORRES AT 970-748-4001 OR EMAIL BTORRES@AVON.ORG WITH ANY SPECIAL REQUESTS. 7. WRITTEN REPORTS 7.1. Monthly Financials (Senior Accountant Joel McCracken) 7.2. Quarterly RETT Report (Accountant Kristin Martinez) 7.3. Mi Casa Avon Update (General Government Manager Ineke de Jong) 7.4. July 20th, 2021 Planning and Zoning Commission Meeting Abstract (Planner David McWilliams) 7.5. Draft July 20th Finance Committee Meeting Minutes (General Government Intern Emily Myler) 7.6. Water District and Authority Unification (Mayor Sarah Smith Hymes and Town Manager Eric Heil) 7.7. Upper Eagle Regional Water Authority July 22, 2021 Meeting Summary (Mayor Smith Hymes) ** Indicates topic will be discussed at future agenda’s 8. MAYOR AND COUNCIL COMMENTS & MEETING UPDATES (15 MINUTES) 8:05 9. ADJOURN 8:20 Public Comments: Council agendas shall include a general item labeled “Public Comment” near the beginning of all Council meetings. Members of the public who wish to provide comments to Council greater than three minutes are encouraged to schedule time in advance on the agenda and to provide written comments and other appropriate materials to the Council in advance of the Council meeting. The Mayor shall permit public comments for any action item or work session item and may permit public comment for any other agenda item, and may limit such public comment to three minutes per individual, which limitation may be waived or increased by a majority of the quorum present. Article VI. Public Comments, Avon Town Council Simplified Rules of Order, Adopted by Resolution No. 17-05. FUTURE AGENDAS AUGUST 24 o Ordinance 21-XX: Department Reorganization o Work Session: 5-year CIP o Resolution 21-XX: Use Tax Ballot Question o Resolution 21-XX: Short-Term Rental Tax Ballot Question o Budget Amendment 2022 Budget Supplemental 2. o Ordinance 21-11 Amending Section 5.08.170(e) of the Avon Municipal Code to Permit Administrative Approval of Special Event Liquor Permits o Public Hearing: Second Reading of Ordinance 21-10 Enacting Chapter 2.05 of the Avon Municipal Code – Removal of Council Members o Recycling Update (Walking Mountains - Nina Waysdorf) SEPTEMBER 14 o Presentation: Municipal Broadband Study Results o Presentation: Community Survey Results o Work Session: Recycling for Multi-Family and Climate Action Investment Matrix Page 1 of 3 Staff Review Recommendation TO: Honorable Mayor Smith Hymes and Council members THRU: Matt Pielsticker, AICP, Planning Director FROM: David McWilliams, AICP, Town Planner RE: PUBLIC HEARING on Ordinance 21-09 Approving Code Text Amendments to Chapter 7 of the Avon Municipal Code DATE: July 26, 2021 STAFF REPORT OVERVIEW: This staff report contains one application for consideration by the Town Council: Code Text Amendment (“CTA”) for various sections of Avon Development Code (“ADC”). SUMMARY: Town Council directed staff to initiate various CTAs and staff included other sections in need of modification. Best practice includes a yearly review of the ADC to determine if updates or edits are necessary. Attached to this report is draft Ordinance 21-09 with CTA language included, with strike-out indicating language to be deleted and underline indicating language to be adopted. Second Reading and this Public Hearing were continued from the July 13, 2021 regular meeting due to time limitations. LIST OF PROPOSED CHANGES: The following bullets, with associated ADC sections, are discussed in this report. Additional sections are included in the Ordinance due to removal of cross-references. • Development Plan and Design Review - 7.16.080 and 7.16.090 • Public Facility District wording - 7.20.080(e) • Industrial – Commercial Employment Zone District Wording - Table 7.20 – 13 • Employee housing mitigation clarification - 7.20.100 • Parking and loading language - Table 7.28-2 • Fence Standards – 7.28.080(b) • Exterior Lighting - 7.28.090 • Sign Code - digital signs and window signs- 7.34 PROCESS: The Planning and Zoning Commission (“PZC”) reviews CTA applications and provides a recommendation to Council after conducting a public hearing. Council acts upon CTA applications through Ordinance, after conducting first and second readings and a public hearing. PZC ACTION: After a work session and a public hearing, staff updated the language of certain sections due to feedback. The PZC voted unanimously (6-0) to recommend Town Council approve the CTA. Since that time, staff included additional sections containing cross-references for modification. Planning & Zoning Public Hearing Recommendation to Council Town Council First and Second Reading - Ordinance Page 2 of 3 RECOMMENDATION: I recommend that Town Council approve second reading of Ordinance 21-09. RECOMMENDED MOTION: “I move to approve Second Reading of Ordinance 21-09, approving Code Text Amendments to Chapter 7 of the Avon Municipal Code.” Design Review into Development Plan- 7.16.080 and 7.16.090: This change incorporates all relevant design review procedures within one section. The design review procedure is slated to be removed because it is never a process independent from development plan. Formatting is also now consistent with other chapters, with listed purpose statements. Combining the sections makes the ADC more approachable. Staff kept the majority of the Development Plan section intact and added applicable language from the Design Plan purposes and review criteria. This way, all the relevant information from the two sections is captured in one. Public Facility District wording 7.20.080(e): This proposed modification clarifies that public employee housing is intended within the district. “Government employee housing and Community Housing” was added to Table 7.24-1, Allowed Uses in 2019 and this modification reinforces that point. This change further clarifies the intent of the Town to develop housing on PF zoned land (Swift Gulch site). Light Industrial – Commercial Wording – Table 7.20 - 13: Accessory Dwelling Units (“ADU”) are a specific type of development, which is tied to a primary residence. Including the phrase “ADU” in this section is contrary to its universally understood definition. Also, staff removed the word “Employment” from the Table name, as it only appears in this table. Parking and loading language - Table 7.28-2: Current language is unclear for parking requirements of multi-family development (i.e. 2 bedroom requirements) and needs to be continually clarified by staff to potential applicants. Based upon discussion with the PZC, staff proposes additional “Dwelling, Multi-Family (Short-Term Rental Overlay) with Parking Management Plan” and “Accommodation” categories to differentiate and address common development types. Multi-family construction is now proposed to be broken down by bedroom count, removing the 2,500 sq. ft. threshold as directed by the PZC. Exterior Lighting - 7.28.090: This amendment ties the lighting code from Chapter 15.30 (building) to Chapter 7 (development). This will make enforcement easier during the application process and during any code compliance cases, but policy remains the same. Fence Design Standards – 7.28.080(b): The PZC recommendation to Council included the following redline to the Wildridge fencing material section: (i) Fence material shall be wood and no more than four (4) feet in height. Architectural mesh is allowed if it allows for small game to move through. CODE TEXT ANALYSIS RECOMMENDED MOTION Page 3 of 3 Pursuant to the direction received at first reading, staff has removed the architectural (screen) mesh recommendations from PZC. This will result in the continued practice of bringing Alternative Equivalent Compliance (AEC) applications to PZC if architectural mesh or chicken wire are proposed to be included in fence applications that include . I am suggesting inclusion of the other recommended changes to the Wildridge Fencing Section, which include changes to the maximum fenced area and setbacks from property lines. See Section 16 of the Ordinance for the remaining changes to the fencing standards. Sign code update- illuminated signs and window signs- 7.34: Town Council directed staff to limit digital signs (for example, menu boards) on private property. Currently, “digital display” signs are permitted as freestanding or wall-mounted signs on arterial streets. The change allows only the Town of Avon to install them, for government use. Also, a small change in window signs is proposed to clarify allowances for illuminated signs. According to the ADC Sec. 7.16.040(c), Review Criteria, the Town Council shall use the following review criteria as the basis for recommendations and decisions on applications to amend the text of the Development Code: 1. The text amendment promotes the health, safety and general welfare of the Avon community; 2. The text amendment promotes or implements the goals and policies of the Avon Comprehensive Plan; 3. The text amendment promotes or implements the purposes stated in the Development Code; or 4. The text amendment is necessary or desirable to respond to changed conditions, new planning concepts or other social or economic conditions. Staff Response: The Application addresses Town needs for administrative ease and maintains the current aesthetic of the Town better than the current ADC. It promotes the health, safety and welfare of the community and implements goals and policies of the Comprehensive Plan and Avon Community Housing Plan. Comprehensive Plan goals and policies relating to the CTA are below: Goal A.1: Promote a compact community form. Policy F.1.8: Promote Town Center development that minimize automobile travel. Goal G.3: Discourage air, water, light, and noise pollution. Policy G.3.2: Enforce the use of “Dark Sky” compliant fixtures. The CTA implements the ADC purposes, including (l): “Promote architectural design which is compatible, functional, practical and complimentary checking to Avon's sub-alpine environment”. Attachment: Ordinance 21-09 REVIEW CRITERIA: CODE TEXT AMENDMENT Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 1 of 17 ORDINANCE NO. 21-09 APPROVING CODE TEXT AMENDMENTS TO CHAPTER 7 OF THE AVON MUNICIPAL CODE WHEREAS, pursuant to C.R.S. §31-15-103 and §31-15-104, and pursuant to the home rule powers of the Town of Avon (“Town”), the Town Council has the power to make and publish ordinances necessary and proper to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of its inhabitants; and WHEREAS, Town Council initiated a code text amendment application for changes to sections of Chapter 7 including: Violations - §7.04.160; Development Review Procedures and Review Authority - Table 7.16-1; General procedures and requirements - §7.16.020(c)(2); Design Review and Development Plan - §7.16.080 and §7.16.090; Review Procedures - §7.16.150; Dimensions for the Town Center District - Table 7.20-9; Public Facilities (PF)- §7.20.080(e); Light Industrial and Commercial Employment District - Table §7.20-13; Employee housing mitigation - §7.20.100; Restaurant - §7.24.060(g)(1); Off-Street Parking - Table §7.28-2; Electric Vehicle Parking - §7.28.020(g)(iv); Alternate Screening - 7.28.060(d)(4); Fence Design Standards - §7.28.080(b); Exterior Lighting - §7.28.090(c)(6); Definitions - §7.34.010(b); Permitted Signs Generally - §7.34.010(d); Lighting - §7.34.010(e)(5); Master Sign Programs - §7.34.010(h)(2); Prohibited signs - §7.34.010(i); and WHEREAS, the code text amendments are in conformance with Avon Comprehensive Plan Goals A.1 and 3.4, and Policies F.1.8 and G.3.2; and WHEREAS, the code text amendments will help implement the Avon Community Housing Plan; and WHEREAS, the Town Council finds that the code text amendments will promote the health, safety and general welfare of the Avon community; and WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirement of Section 6.5(d) of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, has determined to take final action on this Ordinance prior to concluding the public hearing on second reading. 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. Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 2 of 17 Section 2. Amendment to Chapter 7.04.160 - Violations. Chapter 7.04.160 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: (c) Transfer or Sale of Interest Prior to Final Subdivision Approval. It is unlawful for any person to transfer or sell or agree to sell any lot, tract, parcel, site, separate interest (including a leasehold interest), condominium interest, timeshare estate or any other division within a subdivision within the Town until such subdivision has been approved in writing by the Town Council and a plat thereof recorded in the office of the Eagle County Clerk and Recorder. A written agreement to sell a condominium unit prior to final subdivision approval shall not constitute a violation of this Section if: the written agreement is expressly conditioned upon approval of the Town Council of the final subdivision plat and all related documents, the preliminary plan has been approved by the Town Council, the building or property to be subdivided has received design review development plan approval (if applicable), the written agreement provides that the prospective buyer or purchaser is entitled to terminate the written agreement and is entitled to receive the full amount of any monies deposited and the form of the written agreement has received approval by the Town Attorney prior to using the form of such written agreement with a prospective purchaser or buyer. Section 3. Amendment to Table 7.16-1 - Development Review Procedures and Review Authority. Table 7.16-1 is hereby amended to read as follows with strike-out indicating language to be deleted: Procedure Notice Requirements* Director PZC TC Comprehensive Plan Amendment (§7.16.030) R H-R H-D Code Text Amendment (§7.16.040) R H-R H-D Rezoning (§7.16.050) M R H-R H-D Planned Unit Development (§7.16.060) Administrative PUD D A Minor PUD Amendment M R H-R H-D Lot Split PUD Amendment for Wildridge PUD M R H-R H-D Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 3 of 17 Major PUD Amendment M R H-R H-D Preliminary PUD M R H-R H-D Final PUD M R H H-D Subdivision (§7.16.070) Administrative Subdivision D A Minor Subdivision D A Preliminary Plan M R H-R H-D Final Plan M R H-D Development Plan (§7.16.080) Minor D or R H-D A Major R H-D A Major in Town Core R H-R H-D Design Review (§7.16.090) D or R H-R or H-D H-D or A Special Review Use (§7.16.100) M R H-D A Variance (§7.16.110) M R H-D A Alternative Equivalent Compliance (§7.16.120) R R-D or R A or R-D Right-of-way Vacation (§7.16.130) M R H-D Vested Property Right (§7.16.040) M R H-R H-D Location, Character and Extent (§7.16.150) R H-D A Sign Plan (§7.16.160) Minor D or R H-D A Major R H-D A Appeal (§7.16.160) H-D Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 4 of 17 Annexation (§7.36) M R H-R H-D 1041 Permit (§7.40) R H-R H-D Historic and/or Cultural Preservation Designated (§7.50) H-D Section 4. Amendment to Chapter 7.16.020(c)(2) – General procedures and requirements. Chapter 7.16.020(c)(2) is hereby amended to read as follows with strike-out indicating language to be deleted: Referral to Other Agencies. Development applications may be referred to other agencies for review and comment. The Director shall attempt to identify appropriate referral agencies and shall consider the comments from referral agencies as part of the staff review and report. The Planning and Zoning Commission and Town Council may determine that referral of a development application to an agency for review and comment is appropriate where such referral agencies may provide comments relevant to evaluating the development application for compliance with the review criteria. Referral of development applications to other agencies shall provide a minimum time frame for review and comment of fourteen (14) days for development plans, design review, variances, amendments to text of the Development Code and minor subdivisions; and twenty-one (21) days for preliminary subdivision, planned unit development, planned unit development amendments, rezoning and 1041 permits; however, the time frame for review and comment may be extended if the development application presents technical issues which require additional review, if additional information is provided by the applicant or the application is modified. Referral agencies may include, but are not limited to: Section 5. Amendment to Chapter 7.16.080 - Development plan. Chapter 7.16.080 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: The purpose of the development plan review process is to ensure compliance with the development and design standards and provisions of this Development Code. It is designed to encourage quality development reflective of the goals, policies and objectives of the Comprehensive Plan. (a) Purpose. The general purpose of the development plan review process is to ensure compliance with the development and design standards of the Development Code prior to the issuance of a building permit or concurrent with other required permits and to encourage quality development reflective of the goals and objectives of the Avon Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 5 of 17 Comprehensive Plan. Specific purposes of development plan review include, but are not limited to the following: (1) To prevent excessive or unsightly grading of property that could cause disruption of natural watercourses or scar natural landforms; (2) To ensure that the location and configuration of structures, including signs and signage, are visually harmonious with their sites and with surrounding sites and structures and that there shall be conformance to the Comprehensive Plan of the Town; (3) To ensure that the architectural design of structures and their materials and colors are visually harmonious with the Town's overall appearance, with natural and existing landforms and with officially approved development plans, if any, for the areas in which the structures are proposed to be located; and (4) To ensure that plans for the landscaping of property and open spaces conform with adopted rules and regulations and to provide visually pleasing settings for structures on the same site and on adjoining and nearby sites. (ab) Applicability. A development plan shall be required for all new development and any modification to an existing development or development plan. (bc) Development Plan Categories. Categories of development plans are established and defined as follows for the purpose of determining the appropriate development plan review procedure: (1) Major Development Plan. Major development plans include all new building construction over six hundred (600) square feet; (2) Minor Development Plan. Minor development plans include the following: (i) All new building construction six hundred (600) square feet or less; (ii) Modifications to Dumpster locations; (iii) Screen wall modifications; (iv) Landscape modifications, including but not limited to removal of existing vegetation and addition of new vegetation; (v) Deck modifications, including but not limited to additions, new construction and materials or color modifications; (vi) Mechanical equipment modifications; (vii) Modifications to the exterior of an existing building, including but not limited to windows, doors, minor architectural details, colors and materials; (viii) Modifications to approved development plans which result in a ten-percent or less increase to lot coverage; ten-percent or less increase to building height; ten- percent or less increase to the amount of square footage of a land use or structure and does not result in a change in the types of uses in the project; (ix) Modifications to approved development plans which do not change the character of the approved design; and Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 6 of 17 (x) Other similar changes to a structure or property that do not significantly impact the site layout or design of a building. (cd) Review Procedures. The general review procedures described in Section 7.16.020, General procedures and requirements, shall apply to development plan applications. All development plan applications shall also comply with the procedures listed in Section 7.16.090, Design review. Specific additions and modifications to the general review procedures are identified below. (de) Notice and Hearing. PZC shall review and render a decision or recommendation on the development plan application after conducting a public hearing. Town Council shall conduct a public hearing when reviewing a Development Plan applicable in the Town Core. Notice of the public hearing shall be published and posted in accordance with Subsection 7.16.020(d)(1) and mailed notice is not required. The decision of PZC may be appealed to the Town Council pursuant to Section 7.16.160, Appeal. The Director shall not conduct a public hearing for administrative review and decision on development plan applications. (ef) Review Authority. The review authority for a development plan application shall be determined by the subdivision category. (1) Major Development Plan. The Director shall review and provide a recommendation to the PZC on all major development plan applications. The PZC shall render the final decision on a major development plan, unless the application is located within the Town Core. The decision of the PZC may be appealed to the Town Council pursuant to Section 7.16.160, Appeal. If an application is located within the Town Core, the Director shall review and provide a recommendation to the PZC. The PZC shall review and provide a recommendation to the Town Council. The Town Council shall render the final decision on a major development plan within the Town Core. (2) Minor Development Plan. The Director shall review and render decisions on all minor development plan and minor sign plan applications. The decision of the Director may be appealed to the Town Council pursuant to Section 7.16.170, Appeal. The Director may refer to the PZC any plan application that the Director determines warrants review by the PZC. (fg) Review Criteria. The following review criteria shall be considered as the basis for a decision on development plan applications: (1) Evidence of substantial compliance with the purpose of the Development Code as specified in Section 7.04.030, Purposes; (2) Evidence of substantial compliance with Section 7.16.090, Design review; (3) Consistency with the Avon Comprehensive Plan The design conforms with the Avon Comprehensive Plan and other applicable, adopted plan documents; (4) Consistency with any previously approved and not revoked subdivision plat, planned development or any other precedent plan or land use approval for the property as applicable; (5) Compliance with all applicable development and design standards set forth in this Code, including but not limited to the provisions in Chapter 7.20, Zone Districts and Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 7 of 17 Official Zoning Map, Chapter 7.24, Use Regulations and Chapter 7.28, Development Standards; and (6) That the development can be adequately served by city services, including but not limited to roads, water, wastewater, fire protection and emergency medical services.; and (7) The development design relates conforms with the character of the surrounding community; or, where redevelopment is anticipated, relates the development to the character of Avon as a whole. (gh) Expiration. A development plan approval expires pursuant to Subsection 7.16.020(h). (hi) Revocation. Approved site plan documents shall be binding upon the applicants and their successors and assigns. No permit shall be issued for any building or structure or use that is not in accord with the approved documents or any approved modifications thereto. The construction, location, use or operation of all land and structures within the site shall conform to all conditions and limitations set forth in the documents. No structure, use or other element of approved design review documents shall be eliminated, altered or provided in another manner unless an amended site plan is approved. Any deviation from the approved development plan as approved shall be grounds for revocation of the development plan approval. Section 6. Amendment to Chapter 7.16.090 - Design review. Chapter 7.16.090 is hereby deleted in its entirety. Section 7. Amendment to Chapter 7.16.150(b) – Review procedures. Chapter 7.16.150(b) is hereby amended to read as follows with strike-out indicating language to be deleted: Applications for location, character and extent shall follow the general review procedures set forth in Section 7.16.020, General Procedures and Requirements. Applications for location, character and extent may be initiated by the owner or the governmental body having jurisdiction over the public facility. Applications for location, character and extent may be combined with other application procedures and submittal requirements, including but not limited to development plan, design review and subdivision. The failure of the PZC and Council to act within sixty (60) days from and after the date of official submission of a complete application to the Town shall be deemed approval of such application. Section 8. Amendment to Table 7.20-9 Dimensions for the Town Center District. Table 7.20-9 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Table 7.20-9 Dimensions for the Town Center District Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 8 of 17 Min. Lot Size (acres or sq. ft.) Min. Lot Width (feet) Max. Lot Coverage (%) Min. Landscape Area (%) Min. Front Setback (feet) Min. Side Setback (feet) Min. Rear Setback (feet) Max. Building Height (feet) n/a n/a 50 [5] 20 0 [1, 4] 7.5 [2] 10 [3] 80 [1] Infill development shall match the smallest setback of existing, adjacent structures. [2] TC abutting a residential district shall match the side yard setback standards of that district. [3] When abutting a public street, alley or public right-of-way. The rear setback for TC abutting a residential district shall be 20 feet, regardless of the location of any street, alley or ROW. [4] Nonresidential development that incorporates public space such as a plaza or courtyard into the building design may increase the front setback by up to 20 feet to accommodate that area up to 40% of the front building line. [5] May be increased to 80% if employee housing mitigation is provided in accordance with Section 7.20.100. Section 9. Amendment to Chapter 7.20.080(e) - Public Facilities (PF). Chapter 7.20.080(e) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Public Facilities (PF). The PF district is intended to provide sites for public uses such as community centers, police and fire stations, and governmental facilities, government employee housing, and Community Housing. The uses permitted in this district are identified by location in the Avon Comprehensive Plan. Unless otherwise set forth in the Avon Comprehensive Plan, the following dimensional requirements shall apply for the Public Facility (PF) zone district: Section 10. Amendment to Table 7.20-13 Dimensions for the Light Industrial and Commercial Employment District. Table 7.20-13 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Table 7.20-13 Dimensions for the Light Industrial and Commercial Employment District Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 9 of 17 USE TYPE Min. Lot Size (acres or sq. ft.) Min. Lot Width (feet) Max. Lot Coverage (%) Min. Landscape Area (%) Min. Front Setback (feet) Min. Side Setback (feet) Min. Rear Setback (feet) Max. Building Height (feet) Max. Density Residential Mixed Use or IC 21,780 sq. ft. 100 50 20 25 7.5 10 48 See footnote [1] Community Housing 21,780 sq. ft. 100 50 20 25 7.5 10 48 10 du/acre [2] [1] Accessory dDwelling units which are accessory to the commercial use are permitted as a special review use pursuant to Section 7.16.100. The maximum density residential in a mixed use project shall be no more than four (4) ADU per acre; provided, however, on lots located on less than one (1) acre in size, the Maximum Residential shall be four (4) ADU per lot. [2] Additional Water Rights Dedication. The dedication of additional water rights may be required as a condition to approval of development which exceeds the meter size assigned to the property. The Town may accept cash-in-lieu of dedication in accordance with a water rights dedication impact fee schedule adopted by ordinance if the Town has adequate availability of surplus water rights as determined by the Town Council in its sole discretion. Section 11. Amendment to 7.20.100 - Employee housing mitigation. Chapter 7.20.100 is hereby amended to read as follows with underline indicating language to be adopted: (b)Applicability. This Section shall apply to new multi-family residential (3 or more units), commercial, accommodation units, industrial and other non-residential development within the Town. This Section applies to all entities, including private and non-profit entities. All Employee housing mitigation dwelling units required in Table 7.20-14 below are applied to the maximum residential density of the development. Section 12. Amendment to Chapter 7.24.060(g)(1) - Restaurant. Chapter 7.24.060(g)(1) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: An eating and drinking establishment allowed under this Code may provide outdoor seating areas for customers following design review development plan approval and issuance of a liquor license. The approval of outdoor seating shall be reviewed against the following criteria: Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 10 of 17 Section 13. Amendment to Table 7.28-2 - Off-Street Parking. Table 7.28-2 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Use Category Use Type Parking Requirement Residential Uses Residential and Accommodation Uses Dwelling, Single-Family, Duplex 2 per unit; 3 per unit for units over 2,500 sq. ft. Dwelling, Multi-Family Studio/ Lock off/ Accommodation unit 1 per unit 1 bedroom – 1.5 per unit /DU over 2,500 sq. ft. All others- 2 per unit Dwelling, Multi-Family (Short-Term Rental Overlay) with Parking Management Plan 1 per unit, plus Guest Parking Guest Parking for Multi-Family 3-5 units - 2 spaces 5-10 units - 3 spaces 11-15 units - 4 spaces 16-20 units - 5 spaces 21-25 units - 6 spaces Over 25 units - 7 spaces plus 1 space for each 5 units in excess of 25 up to a maximum of 10 additional spaces. Group Living Group Homes 1 per bed plus 1 per 100 sq. ft. of GFA Retirement home, nursing home or assisted living facility 1 per 4 beds and 1 per employee with consideration to the number of shifts worked. Use Category Use Type Parking Requirement Public and Institutional Uses Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 11 of 17 Community Services Art gallery or museum 4 per 1,000 sq. ft. GFA Community centers 4 per 1,000 sq. ft. GFA Government services, offices and facilities 4 per 1,000 sq. ft. GFA Library 4 per 1,000 sq. ft. GFA Religious assembly 4 per 1,000 sq. ft. GFA Day Care Child care center 2 per 1,000 sq. ft. GFA Preschool, nursery school 2 per 1,000 sq. ft. GFA Educational Facilities College or university (non-exempt) 4 per 1,000 sq. ft. GFA School, K-12 (public and private) 4 per 1,000 sq. ft. GFA School, vocational-technical and trade 4 per 1,000 sq. ft. GFA Health Care Facilities Medical center/ hospital 4 per 1,000 sq. ft. GFA Medical and dental clinics and offices 4 per 1,000 sq. ft. GFA Urgent care facility 4 per 1,000 sq. ft. GFA Parks and Open Space Golf course 4 per green Commercial Uses General Commercial Uses unless otherwise stated 4 per 1,000 sq. ft. GFA Food and Beverage Services Restaurants, bars and taverns 1 per 60 sq. ft. of indoor seating area. Office Administrative and professional offices 3 per 1,000 sq. ft. GFA Recreation and Entertainment, Outdoor commercial recreation/ Determined by the Director Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 12 of 17 Outdoor entertainment Recreation and Entertainment, Indoor Indoor commercial recreation/ entertainment Determined by the Director Accommodation Lodging, Hotel 1 per unit Wholesale Business Wholesale business 1 per 800 sq. ft. GFA Industrial Service General Industrial Uses unless otherwise stated 1 per 800 sq. ft. GFA Section 14. Amendment to 7.28.020(g)(iv) Electric Vehicle Parking. Chapter 7.28.020(g)(iv) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Electric Vehicle Parking. As required by Section 15.28, Electrical Vehicle Charging Standards, Avon Buildings and Construction, the quantity and location of EV parking spaces must be demonstrated at design review development plan. Section 15. Amendment to 7.28.060(d)(4) Alternate Screening. Chapter 7.28.060(d)(4) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Alternate Screening. Mechanical equipment that is not screened in full compliance with the screening standards of this Section shall be reviewed in accordance with Section 7.16.09080, Design Review Development plan. Alternate screening methods may include, but shall not be limited to, increased setbacks, increased landscaping, grouping the equipment on specific portions of a site, architectural features and painting. Section 16. Amendment to 7.28.080(b) Fence Design Standards. Chapter 7.28.080(b) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: (1) Within the Wildridge Subdivision and RLD Zone Districts. All fences require approval from the Town. Although discouraged in Wildridge and Wildwood, in all instances fences should complement the property and landscape rather than contain the property. Fences that delineate property boundaries are not permitted. Fences will be considered for approval by staff only when demonstrated by the applicant that the design is consistent with the following criteria: Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 13 of 17 (i) Fence material shall be wood and no more than four (4) feet in height; (ii) Fences shall be constructed using a split rail design with no more than two (2) horizontal rails; (iii) Fences shall not delineate be located closer than 7.5 feet from the property lines; (iv) Fences shall not enclose an area of two thousand (2,000) one thousand two hundred (1,200) square feet or more; (v) Fences shall ensure that wildlife migration is not negatively affected with the proposed fence design; (vi) If a fence is part of a multi-family project, approval shall be received from the association and the fence design shall be integrated with the overall landscape design of the property; and (vii) If a fence is located on a duplex property, written approval shall be received from the adjoining property owner and the fence design must be integrated with the overall landscape design. (viii) If a fence is intended to enclose an area containing more than fifty percent (50%) edible food crops, the design must be consistent with the following criteria: (A) Have a maximum height of six (6) feet; (B) Have a maximum area of two hundred (200) square feet; (C) Be at least fifty percent (50%) open; (D) Fences with wire mesh are encouraged over solid wood; and (E) Fences enclosed on the top and greenhouses are considered accessory structures. Section 17. Amendment to 7.28.090(c)(6) Exterior Lighting. Chapter 7.28.090(c)(6) is hereby amended to read as follows with underline indicating language to be adopted: Exterior Lighting: (1) The location and design of exterior lighting shall comply with Section 15.30, Outdoor Lighting Standards, Avon Buildings and Construction. Section 18. Amendment to 7.34.010(b) - Definitions. Chapter 7.34.010(b) is hereby amended to read as follows with underline indicating language to be adopted: Foot-candle means a unit of incident light (on a surface) stated in lumens per square foot and measurable with an illuminance meter, a.k.a. footcandle or light meter. One (1) footcandle is equal to one (1) lumen per square foot. Town of Avon sign means a sign erected, installed, or maintained by the Town of Avon for any public purpose, or a sign located on a building owned by the Town. Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 14 of 17 Section 19. Amendment to 7.34.010(d) – Permitted Signs Generally. Chapter 7.34.010(d) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: (7) Town of Avon Government signs (exempt, including any digital displays). (13) Window Signs (exempt, as long as square footage and type requirements are met). Section 20. Amendment to 7.34.010(e)(5) – Lighting. Chapter 7.34.010(e)(5) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Lighting shall be of no greater wattage than is necessary to make the sign visible at night, and should not reflect unnecessarily onto adjacent properties. Lighting sources, except neon tubing, should not be directly visible to passing pedestrians or vehicles, and should be concealed in such a manner that direct light does not shine in a disturbing manner. Internally Lit signs shall not be illuminated when the business is closed. (8) Digital Displays, Electronic Message Centers, and electronic changeable copy signs. Auto-oriented electronic messages, images, and/or changeable copy signs are permitted along arterial streets only for gasoline pricing, parking garage stall counter displays, drive-thru menu boards, drive-thru lane informational signage, provided that they meet the following criteria: i. Such signs shall be equipped with automatic dimmers, which shall be programmed to not exceed three tenths (.3) footcandles over ambient light levels. ii. Signs shall not cause distractions to drivers with moving images or similar effects. iii. Individual letters are limited to 17 inches in height. iv. Digital signs are included in sign area calculations. v. Drive-thru signs shall be oriented to face the interior of the lot and include adequate screening to not impact the view of neighboring properties or the adjacent street. Section 21. Amendment to 7.34.010(h)(2) – Master Sign Programs. Chapter 7.34.010(h)(2) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Master Sign Programs are encouraged for all properties and are required as a part of the design review development plan process for all proposed projects. Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 15 of 17 Section 22. Amendment to 7.34.010(i) – Prohibited signs. Chapter 7.34.010(i) is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: (9) Signs erected on public rights-of-way, except government Town of Avon signs. Section 23. 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 24. Effective Date. This Ordinance shall take effect thirty days after the date of final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 25. 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 26. No Existing Violation Affected. Nothing in this Ordinance shall be construed to release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability incurred, or any cause or causes of action acquired or existing which may have been incurred or obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall be treated and held as remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or declaring such penalty or liability or enforcing such right, and shall be treated and held as remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and appeals pending before any court or administrative tribunal. Section 27. Codification of 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 Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 16 of 17 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 28. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. [SIGNATURE PAGE FOLLOWS] Ord 21-09 Chapter 7 Amendments August 10, 2021 Page 17 of 17 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on June 22, 2021 and setting such public hearing for August 10, 2021 at the Council Chambers of the Avon Municipal Building, located at One Hundred Mikaela Way, Avon, Colorado. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ADOPTED ON SECOND AND FINAL READING on August 10, 2021. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk APPROVED AS TO FORM: ____________________________ Paul Wisor, Town Attorney 970-300-4373 pwisor@garfieldhecht.com TO: Honorable Mayor Smith Hymes and Council members FROM: Paul Wisor, Town Attorney RE: Ordinance 21-05 – Concerning the Management of Plastic Products DATE: July 6, 2021 SUMMARY: Proposed Ordinance 21-05 seeks to codify certain efforts to manage the consumption of plastics with the Town of Avon. First, Ordinance 21-05 amends Section 8.38.020 of the Avon Municipal Code (the “Code) to alter the definition of “Reusable Bag” to ensure reusable bags utilized in Avon are truly reused. Second, Ordinance 21-05 prohibits the use of expanded polystyrene food containers by retail food establishments. This ban on expanded polystyrene takes effect January 1, 2024. Ordinance 21-05 is presented to Council in light of the passage of HB-21-1162, which is discussed further below. BACKGROUND: In order to fully understand the purpose for Ordinance 21-05, it is necessary to review existing state law, previous ordinances considered by Council as well as legislation recently passed by the Colorado General Assembly. Local Preemption - §25-17-104, C.R.S. Since 1989, Colorado law provided “no unit of local government shall require or prohibit the use or sale of specific types of plastic materials or products or restrict or mandate containers, packaging, or labeling for any consumer products.” This prohibition has prevented most municipalities from regulating plastics within their respective jurisdictions. Plastic Bags Notwithstanding the prohibition found in §25-17-104, C.R.S., in October of 2017, the Town Council adopted Ordinance 17-08, which promoted the use of reusable bags by prohibiting disposable plastic bags and requiring a charge for the use of disposable paper bags at grocers and other retailers. Town Council adopted Ordinance 17-08 in order to address the environmental and health problems associated with such use, and would relieve Town taxpayers of the costs incurred by the Town in conjunction therewith. Ordinance 17-08 permits and encourages the use of reusable bags as an alternative to disposable plastic bags. Pursuant to Ordinance 17-08, Section 8.38.020 of the Avon Municipal Code defines “Reusable Bag” as follows: 1. Is designed and manufactured to withstand repeated uses over a period of time. 2 2. Is made from a material that can be cleaned and disinfected regularly; 3. Is at least two and one-fourth (2.25) mils thick if made from plastic; and 4. Has the capability of carrying a minimum of eighteen (18) pounds. Recently, the Town learned a local retailer is proposing to use a plastic bag that purportedly meets the criteria above. While the plastic bag in question meets the letter of the law, it does not meet the spirit or intended purpose of 17-08 as the plastic bag would likely not be considered reusable by most consumers and will likely be discarded after a single use. Therefore, Town Council provided direction to amend the Avon Municipal Code so plastic bags will not qualify as a “Reusable Bag.” Page 2 of 3 Expanded Polystyrene. Since 2017, taking action to reduce the use of polystyrene-based disposable food service ware by food vendors in Avon has been a priority of Council. Reduction of polystyrene is also an identified goal with the Climate Action Plan for the Eagle County Community. In 2017 Council held two work sessions on the topic and conducted outreach to the Avon business community. Council renewed its efforts in 2019 by holding another working session and conducting additional outreach to the business community. Ultimately, Council adopted Ordinance 19-11, which would have banned the use of expanded polystyrene by food vendors serving prepared food. Ordinance 19-11 was condition on the passage of SB 20-252, which would have removed the prohibition on local government regulation of plastics found in §25-17-104, C.R.S. The General Assembly ultimately failed to pass SB 20-252, and Ordinance 19-11 did not take effect. HB 21-1162 In light of the failure of SB 20-252, HB 21-1162 was introduced during the 2021 legislative session. Though it took many different forms during the legislative process, the General Assembly approved HB 21-1162, which achieved three main goals: 1) it removes the prohibition on local government regulation of plastics beginning July 1, 2024; 2) phases in a plastic bag fee in 2023 and bans plastic bags in 2024; and 3) bans the use of expanded polystyrene food containers in 2024 with an indefinite grace period for polystyrene products in the possession of retail food establishments as of January 1, 2024. ORDINANCE 21-05: Ordinance 21-05 amends the Town’s definition of “Reusable Bag” as part of its effort to limit plastic bags in Avon. Specifically, Ordinance 21-05 adopts the definition of Reusable Bag found in HB 21-1162 which provides: • Is designed, manufactured, for at least one hundred twenty-five uses • Can carry at least twenty-two pounds over a distance of one hundred seventy-five feet; • Has stitched handles; and • Is made of cloth, fiber or other fabric or a recycled material such as polyethylene terephthalate. It is believed this revised definition will guard against the use of bags that may technically have fit the previous definition of “Reusable Bag” but which bags would likely have been treated as regular plastic bags and discarded after one use. Second, Ordinance 21-05 adopts the provisions found in HB 21-1162 which prohibits retail food establishments from using expanded polystyrene to serve ready to eat food. “Ready-to-eat” food means food that is cooked or otherwise prepared in advance for immediate consumption. This provision will take effect January 1, 2024. Beginning July 1, 2024, the Town may impose more stringent restrictions than set forth in HB 21-1162. FINANCIAL CONSIDERATIONS: There is no financial impact to the Town. RECOMMENDATION: Staff recommends adoption of Ordinance 21-05. Page 3 of 3 PROPOSED MOTION: Ordinance 21-05: “I move to approve on Second Reading Ordinance 21-05, amending certain portions of Section 8.38.020 of the Code, enacting Chapter 8.50 – Prohibition On Use of Expanded Polystyrene Food Containers.” Paul Wisor ATTACHMENTS: Ordinance 21-05 Ord 21-05 Management of Plastic Products [July 13, 2021] Page 1 of 7 ORDINANCE NO. 21-05 CONCERNING THE MANAGEMENT OF PLASTIC PRODUCTS WHEREAS, pursuant to §31-15-103 and §31-15-104, C.R.S. and pursuant to the home rule powers of the Town of Avon (“Town”), the Town Council has the power to make and publish ordinances necessary and proper to provide for the safety, preserve the health, promote the prosperity, and improve the morals, order, comfort, and convenience of its inhabitants; and WHEREAS, in October of 2017, the Town Council adopted Ordinance 17-08, which promoted the use of reusable bags by prohibiting disposable plastic bags and requiring a charge for the use of disposable paper bags at grocers and other retailers which would help address the environmental and health problems associated with such use, would relieve Town taxpayers of the costs incurred by the Town in conjunction therewith, and would be in the best interest of the public health, safety and welfare of the citizens of the Town; and WHEREAS, in promoting the use of reusable bags, Ordinance 17-08 specifically defines the term “reusable bag” as a bag that: 1. Is designed and manufactured to withstand repeated uses over a period of time. 2 2. Is made from a material that can be cleaned and disinfected regularly; 3. Is at least two and one-fourth (2.25) mils thick if made from plastic; and 4. Has the capability of carrying a minimum of eighteen (18) pounds. WHEREAS, an Avon retailer has proposed introducing a new type of reusable plastic bag to be provided to patrons at no cost to carry purchased items; and WHEREAS, the proposed new reusable plastic bags are made of 2.25 mil thick plastic, purportedly can be reused up to 125 times, carry 18 pounds, and can be cleaned and disinfected regularly in compliance with Ordinance 17-08; and WHEREAS, Town Council and Town staff have examined the proposed resusable plastic bags, and have determined such bags are unlikely to be reused and are likely to be treated as traditional plastic bags, including being disposed of in a manner that creates they precise environmental and health impacts Ordinance 17-08 seeks to avoid; and WHEREAS, the Town Council finds that amending the definition of “reusable bag” to more clearly clarify such bags shall not be disposed of like traditional plastic bags will achieve the overall goals of Ordinance 17-08 and will promote the health, safety and general welfare of the Avon community; and WHEREAS, polystyrene foam is a petroleum-based, lightweight plastic material commonly used as food service ware by retail food vendors operating in the Town of Avon; and Ord 21-05 Management of Plastic Products [July 13, 2021] Page 2 of 7 WHEREAS, polystyrene foam, which means and includes blown polystyrene and expanded and extruded foams (sometimes incorrectly called StyrofoamTM, a Dow Chemical Company trademarked form of polystyrene foam insulation) that are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques, including, but not limited to, fusion of polymer spheres (expandable bead polystyrene), injection molding, foam molding, and extrusion-blow molding (extruded foam polystyrene), has also become a problematic environmental pollutant given its non-biodegradability and nearly non-reusable nature; and WHEREAS, there is no economically feasible means of recycling polystyrene foam locally; and WHEREAS, polystyrene foam is a common pollutant that fragments into small, non- biodegradable pieces that are difficult to clean up and are ingested by aquatic life and other wildlife; and WHEREAS, effective ways to reduce the negative environmental impacts of disposable food service ware include reusing or recycling food service ware and using compostable materials made from renewable resources such as paper, cardboard, corn starch, potato starch, and/or sugarcane; and WHEREAS, the Town desires to restrict the use by food vendors of polystyrene foam disposable food service ware; and WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirement of Section 6.5(d) of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, has determined to take final action on this Ordinance prior to concluding the public hearing on second reading. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Amendment to Section 8.38.020 – Definition of Reusable Bag. Section 8.38.020 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: Reusable bag: a bag that: 1. Is designed, manufactured, for at least one hundred twenty-five uses to withstand repeated uses over a period of time. Ord 21-05 Management of Plastic Products [July 13, 2021] Page 3 of 7 2. Is made from a material that can be cleaned and disinfected regularly Can carry at least twenty-two pounds over a distance of one hundred seventy-five feet; 3. Is at least two and one-fourth (2.25) mils thick if made from plastic Has stitched handles; and 4. Has the capability of carrying a minimum of eighteen (18) pounds Is made of cloth, fiber or other fabric or a recycled material such as polyethylene terephthalate. Section 3. Addition of Chapter 8.40 to Title 8 of the Avon Municipal Code. Chapter 8.50, “Prohibition on Use of Expanded Polystyrene Food Containers” is added to Title 8, “Health and Safety,” of the Avon Municipal Code to read as set forth in Exhibit A: Addition of Chapter 8.50 to Title 8 of the Avon Municipal Code, attached hereto. Section 4. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 5. Effective Date. This Ordinance shall take effect thirty days after the date of final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 7. No Existing Violation Affected. Nothing in this Ordinance shall be construed to release, extinguish, alter, modify, or change in whole or in part any penalty, liability or right or affect any audit, suit, or proceeding pending in any court, or any rights acquired, or liability incurred, or any cause or causes of action acquired or existing which may have been incurred or obtained under any ordinance or provision hereby repealed or amended by this Ordinance. Any such ordinance or provision thereof so amended, repealed, or superseded by this Ordinance shall be treated and held as remaining in force for the purpose of sustaining any and all proper actions, suits, proceedings and prosecutions, for the enforcement of such penalty, liability, or right, and for the purpose of sustaining any judgment, decree or order which can or may be rendered, entered, or made in such actions, suits or proceedings, or prosecutions imposing, inflicting, or declaring such penalty or liability or enforcing such right, and shall be treated and held as Ord 21-05 Management of Plastic Products [July 13, 2021] Page 4 of 7 remaining in force for the purpose of sustaining any and all proceedings, actions, hearings, and appeals pending before any court or administrative tribunal. Section 8. Codification of 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 9. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. [SIGNATURE PAGE FOLLOWS] Ord 21-05 Management of Plastic Products [July 13, 2021] Page 5 of 7 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on June 22, 2021 and setting such public hearing for July 13, 2021 at the Council Chambers of the Avon Municipal Building, located at One Hundred Mikaela Way, Avon, Colorado. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ADOPTED ON SECOND AND FINAL READING on August 10, 2021. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk APPROVED AS TO FORM: ____________________________ Paul Wisor, Town Attorney Ord 21-05 Management of Plastic Products [July 13, 2021] Page 6 of 7 EXHIBIT A: ADDITION OF CHAPTER 8.50 TO TITLE 8 OF THE AVON MUNICIPAL CODE CHAPTER 8.50 PROHIBITION ON USE OF EXPANDED POLYSTYRENE FOOD CONTAINERS Section 8.50.010 Definitions. Section 8.50.020 Prohibited use of expanded polystyrene food containers. Section 8.50.030 Exemptions. Section 8.50.040 Violation and Penalties. 8.50.010 DEFINITIONS. For the purposes of this chapter, the following terms have the following meanings: (a) “Container” means a receptacle upon which or inside which food may be placed for consumption, whether or not the receptacle can be fully closed. Container includes hinged food containers, plates, bowls, cups, and trays. (b) “Expanded Polystyrene” means and includes blown polystyrene commonly known as called StyrofoamTM, and any other expanded or extruded foam consisting of thermoplastic petrochemical materials utilizing a styrene monomer and processed by techniques that may include: 1) For expandable bead polystyrene, fusion of polymer spheres; 2) Injection Molding; 3) Foam molding; and 4) For extruded foam polystyrene, extrusion blow molding. (c) “Food” means any raw, cooked, or processed edible substance, ice, beverage, or indgrediebt used or intended for use or for sale, in whole or in part, for human consumption. Food does not include a drug, as that term is defined in §25-5-402(9), C.R.S., as amended. (d) “Ready-to-eat” means food that is cooked or otherwise prepared in advance for immediate consumption. (f) "Retail food establishment” has the same meaning as set forth in §25-4-1602(14), C.R.S., as amended, except retail food establishment does not include farmers markets and roadside markets as described in §25-4-1602(14)(j), C.R.S., as amended. (g) “School” has the same meaning as set forth in §23-3.9-101(6), C.R.S., as amended. 8.50.020 Prohibited use of expanded polystyrene food containers. (a) Except as provided in subsection (b), effective January 1, 2024, a retail food establishment shall not distribute an expanded polystyrene product for use as a container for ready-to-eat food in the Town. (b) If a retail food establishment purchased expanded polystyrene products before January 1, 2024, the retail food establishment may distribute any remaining inventory of the expanded polystyrene products then purchased for use as containers for ready-to-eat food in the Town until the inventory is depleted. Ord 21-05 Management of Plastic Products [July 13, 2021] Page 7 of 7 8.50.030 EXEMPTIONS. The following distribution of polystyrene product shall be exempt from this Section 8.50: (a) Distribution of a polystyrene product that is regulated as a drug, medical device or dietary supplement by the Food and Drug Administration n the United States Department of Health and Human Services under the “Federal Food, Drug and Cosmetic Act 21 U.S.C. Sec 321 est seq., as amended; and (b) Distribution of a polystyrene product by a school. 8.50.040 VIOLATIONS AND PENALTIES. Any person violating any of the provisions of this Chapter shall be deemed to have committed a civil infraction for each and every day or portion thereof during which any infraction is committed, continued or permitted and shall be subject to the penalties contained in Chapter 1.09 of this Code. (970) 748-4001 btorres@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Brenda Torres, Town Clerk; Eric Heil, Town Manager RE: Recall Election Process Overview DATE: Updated August 10, 2021 SUMMARY: This report provides an overview of the recall election process for Council. This report is presented for the purposes of providing interested parties with the timeline for the Avon Recall election as well as other pertinent details related to the recall e lection. The statutory procedures for municipal recall elections are set forth in Part 5. Officer’s Recall, Title 31. Government – Municipal, Colorado Revised Statutes (“CRS”). BACKGROUND: In 2020, several Avon citizens formed the Avon Recall Committee for the purpose of recalling Mayor Sarah Smith Hymes, Councilor Tamra N. Underwood, Councilor Amy Phillips and former Councilor Jennie Fancher. (NOTE: The recall effort was not applicable to Councilor Amy Phillips due to the timing of the November 3, 2020 regular election at which Councilor Amy Phillips was elected for 2 nd term and the recall effort was not applicable to former Councilor Jennie Fancher due to the timing of finishing her 2nd term in office). The Town of Avon and the Avon Recall Committee interpreted the required number of signatures for a valid recall petition differently. The Town of Avon filed a Declaratory Judgment action in Eagle County District Court to request a court ruling on the interpretation of the required number of signatures in December, 2020. Judge Granger ruled in favor of the Avon Recall Committee and issued an order on June 23, 2021 for the Town of Avon to conduct a recall election. The two officers who are subject to the recall effort submitted a message on July 28, 2021, stating that they were not protesting the Certificate of Sufficiency. This message is included as Attachment A. SETTING RECALL ELECTION DATE: The petitions for recall along with the Certificates of Sufficiency are submitted to the Avon Town Council as the governing body on August 10, 2021, as the first regular meeting after the withdrawal of the Notice of Appeal. The Avon Town Council must set a recall election date not less than 30 days nor more than 90 days from the date of submission of the recall petition. The date of submission of the recall petitions to the Avon Town Council is August 10, therefore, the timeframe to set a recall election is September 8, 2021 to November 8, 2021. The Avon Town Council may to conduct the recall election on November 2, 2021, as a coordinated election with Eagle County for cost savings and efficiency. The statutory language is reprinted as follows: CRS §31-4-503(4) When such recall petition is determined sufficient, the municipal clerk shall submit said petition, together with a certificate of its sufficiency, to the governing body of such municipality at the first meeting of such body following expiration of the period within which a protest may be filed or at the first meeting of such body following the determination of a hearing officer that a petition is sufficient, whichever is later. The governing body shall thereupon order and fix a date for the recall election to be held not less than thirty days nor more than ninety days from the date of submission of the petition to the governing body by the municipal clerk and determine whether voting in the recall election is to take place at the polling place or by mail ballot; but, if a regular Page 2 of 5 election is to be held within one hundred eighty days after the date of submission of said petition, the recall election shall be held as a part of said regular election. Note that the November 2, 2021 election is a “general election” but not a “regular election” fo r the Town of Avon, which is held in November of even numbered years. A special election conducted by the Town of Avon would cost approximately $15,000-$20,000. A coordinated election with the Eagle County is estimated to cost $3,000, saving the Town of Avon $12,000 to $15,000, not including staff time dedicated to conducting an independent mail ballot election . RECALL ELECTION SCHEDULE: The following schedule anticipates that the Avon Town Council will approve November 2, 2021 as the recall election date. Date Event July 22 Avon Town Clerk Issues Certificates of Sufficiency. Section 31-4- 503(4). C.R.S. August 10 Avon Town Clerk delivers Certificates of Sufficiency to Avon Town Council. Section 31-4-503(4), C.R.S. August 10 Avon Town Council orders and fixes date for recall election (likely November 2, but no later than November 8). Section 31-4-503(4) August 11 First day to candidates may circulate nominating petitions. Section 31- 4-503(4)(b), C.R.S. August 27 Last day to file petition and affidavit to be a candidate in the recall election. 31-4-503(4)(b); 1-5-203(3)(a) August 27 Last day for officers to be recalled to file statement regarding recall. Section 31-4-503(3)(a) September 3 (12:00 p.m.) Deadline to resubmit candidate petitions. Section 31-10-302(4), C.R.S. September 3 Last day to for Avon Town Clerk to certify ballot content to Eagle County Clerk and Recorder. Section 1-5-203(3)(a), C.R.S. October 22 Last day for Town of Avon Clerk to provide notice of election. Section 31-4-503(2), C.R.S. October 27 Last day to sign Affidavit of Intent to be a Write-In Candidate. AMC 2.28.010. November 2 Recall election held (unofficial results released). Section 1-1-104(6.5), C.R.S. November 10 Last day for ballots cast by military and overseas electors to be received by the county clerk in order to be counted. Section 1-8.3-113(2), C.R.S. November 24 Last day to complete the canvass and submit official abstract of votes cast for the Coordinated Election to the Secretary of State. Section 1- 10-102(1), C.R.S. CANDIDATE PETITIONS: CRS §31-4-503(4)(b) cross references CRS §31-4-302 Nomination of Municipal Officers. Candidate petitions will be available at 8:00 a.m. on August 11, 2021, at the Town Clerk’s office. There must be a separate candidate petition for each officer sought to be recalled. Candidate petitions must have a minimum of ten (10) valid signatures for the candidate petition to be valid. Upon receipt of the Candidate Petitions, the Town Clerk will promptly review the Candidate Petitions to determine Page 3 of 5 that the signatures are sufficient. If the signatures are not sufficient, the candidates have until September 3, 2021 to resubmit. Each registered elector may only sign ONE Candidate Petition for each officer sought to be recalled. If an elector signs more than one Candidate Petition for an office sought to be recalled, the earliest signature counts. CRS §31-10-302(5) provides, “. . . if a registered elector’s signature appears on more than one nomination petition for a particular office, the clerk may utilize the date of signing indicated on the nomination petitions to determine which signature was valid when affixed to the nomination petitions. If the date of signing does not clarify which signature was valid, all signatures of such registered elec tor shall be rejected.” BALLOT CONTENT: The Eagle County Clerk and Recorder is responsible for producing the 2021 ballots if the Recall Election is conducted as a coordinated election . As part of conducting a coordinated election with the Town, Eagle County is responsible for including the Town of Avon’s ballot questions related to the recall (as well as any other ballot questions which the Avon Town Council may refer). With respect to the recall, there will be two sections related to the recall. The first section would address the recall of Mayor Smith Hymes and the second section would address to the recall of Councilor Underwood. Each section will contain four parts to appear in the following order: 1. The reasons for the recall as set forth in the recall petition, not to exceed 200 words. This rationale has already been provided by the Recall Committee and is restated below: The Avon Recall Committee believes that [Avon Mayor Sarah Smith Hymes/Avon Council Member Tamra Underwood] is acting contrary to Avon residents’ desires. For example, the Vail Daily reported member’s arrogance, that there is no appetite among taxpayers to use public funds to move the barn, and quoted a council member stating “I do not support sending this to the ballot, because it won’t pass” Citizen’s pressured the council to do a public survey about spending millions to move the barn. The survey revealed a whopping 891 against the move and only 104 for it. It is clear that [Sarah Smith Hymes, Council Member Tamra Underwood] is putting her own opinion in front of those of the community. [Sarah Smith Hymes, Tamra Underwood] has not eliminated a 2% Avon real estate transfer tax. This tax can result in a $20,000 expense to buyers or sellers of a $1 million property in Avon. The tax is collected even if the property has decreased in value. This tax is not imposed in neighboring EagleVail, Edwards or Singletree. It puts property sellers at a disadvantage when compared to other communities. The HUGE additional tax is not borrowed money and can cause sales to fall through if buyers don’t have the additional cash to close. 2. The officer to be recalled may provide a justification to stay in office and to vote no on the recall “. . . in not more than three hundred words . . .” which shall be printed on the ballot. This written statement must be provided by Friday, August 27, 2021. Page 4 of 5 3. The following question: “Shall (name of person against whom recall petition is filed) be recalled from the office of (title of office)?” Following such question shall be the words "YES/FOR" and "NO/AGAINST." Voters will be able to indicate their preference by filling out an oval located on the left side of the ballot. Prior to 2014, voters were required to allocate a vote with respect to this question in order to vote for a successor candidate. This is no longer the case. 4. There shall also be printed the names of those persons who have been nominated as candidates to succeed the person sought to be recalled. The name of the person against whom the petition is filed shall not appear on the ballot as a candidate for the office. All candidates on the ballot shall be listed in alphabetical order. The list of candidates to succeed the person sought to be recalled must be separate for each officer sought to be recalled. A line for write-in candidates after the listed candidates will also be included. WRITE-IN CANDIDATES: AMC 2.28.010 states that Write-In Candidates may submit an affidavit no later than five days before election date, which is October 27, 2021. The ballot questions must be printed before that deadline date, so they will need to be printed with a line for Write-In Candidates. In accordance with AMC 2.28.010, the Town does not count any write-in candidates if an affidavit is not received at least five days prior to the Recall election date. TOWN CODE AND POLITICAL SIGNS: No political signs may be erected on any Town right-of-ways or Town property. AMC 7.34.010(i)(9) states that prohibited signs include, “Signs erected on public right -of- ways, except governmental signs.” Citizens are allowed to hold signs or wear sandwich board signs and stand or march on Town right-of-ways or Town property provided that they are not obstructing traffic, not obstructing public access to or through Town properties, or creating a safety hazard. FAIR CAMPAIGN PRACTICES ACT: The Fair Campaign Practices Act restricts Town officials (both elected and employees) from using Town resources to advocate for or against an officer sought to be recalled or advocate for or against any candidate to replace an officer sought to be recalled . ELECTION RESULTS: If a majority of those voting on the question to recall vote “no”, the officer subject to recall shall continue in office. If a majority of voters vote “yes”, such incumbent shall be removed from such office. If the vote in such recall election recalls the officer, the candidate who has received the highest number of votes for the office thereby vacated shall be declared elected for the remainder of the term . Mayor Sarah Smith Hymes current term ends on November 1, 2022 and she is term limited. Councilor Tamra Underwood’s current term ends on November 1, 2022 and she is not term limited. If there are no candidates in the recall election, then the office shall be deemed vacant. Thank you, Brenda and Eric ATTACHMENT A: Message from Mayor Sarah Smith Hymes and Councilor Tamra Underwood Page 5 of 5 ATTACHMENT A From: Tamra Underwood <tunderwood@avon.org> Sent: Wednesday, July 28, 2021 3:15 PM To: Brenda Torres <btorres@avon.org>; Eric Heil <eheil@avon.org>; Paul Wisor <pwisor@garfieldhecht.com> Cc: Sarah Smith Hymes <shymes@avon.org>; Council Everyone Group <council@avon.org> Subject: Recall Notice Brenda, Eric and Paul: As you know, we have a Certificate of Sufficiency protest period expiring today at 5pm. After much work and thought, and although we have material and substantive grounds to do so, we have decided to not submit new protests today. We are certain we’ve made abundantly clear our vigorous objections to the violations of the 1st and 14th amendments of the US Constitution. We also stand by our respective conditionally-filed protests properly submitted to Brenda’s office on November 10, 2020; the Recall Committee and its circulators have never prosecuted the recalls in good faith and they have continually abused process as well as Avon’s electors and other residents, duly-elected public servants and professional staff. It is so regrettable that this stressful and expensive matter was not concluded back on November 10th, when the Recall Committee’s protest period expired, as it should have. Because it is in the best interests of Avon, its taxpayers and others to avoid additional recall expense and drama, we hereby waive our protest period. Sincerely, Sarah & Tamra cc: the five Avon Town Council members who are not targeted for recall [Do not Reply All; this is not a meeting.] Sarah Smith Hymes SHymes@Avon.org Mayor Avon, Colorado Tamra Nottingham Underwood TUnderwood@Avon.org Councilor, Avon Town Council Avon, Colorado 970-748-4001 btorres@avon.org 970-300-4373 pwisor@garfieldhecht.com TO: Honorable Mayor Smith Hymes and Council Members FROM: Paul Wisor, Town Attorney; Brenda Torres, Town Clerk RE: Resolution 21-18 DATE: August 1, 2021 SUMMARY: Resolution 21-18 authorizes the execution of an IGA permitting the Town of Avon to participate in the Eagle County coordinated election to be held on November 2, 2021. The Resolution further establishes the November 2, 2021 coordinated election as the date on which the recall election to recall of Mayor Sarah Smith Hymes and Councilor Underwood will be conducted. Finally, Resolution 21-18 sets for applicable deadlines for candidates seeking to succeed any officers recalled at the November 2, 2021 coordinated election. BACKGROUND: On July 22, the Town Clerk issued Certificates of Sufficiency, which respectively set forth that sufficient valid signatures were gathered to trigger a recall election for Mayor Sarah Smith Hymes and Councillor Tamra Underwood pursuant to the requirements of Article XXI of the Colorado Constitution, Section 31-4-501, et seq., C.RS. and Section 3.5 of the Town of Avon Charter. Pursuant to §31-4-503(4), C.R.S., the Avon Town Council is required to order and fix a date for the recall election to be held not less than thirty (30) days nor more than ninety (90) days from August 10th (the date of which the Certificates of Sufficiency are delivered to Avon Town Council). State statute provides candidates seeking election in a recall election shall have not less than ten (10) calendar days beginning on the first calendar day after the Avon Town Council sets the date for the recall election within which to circulate nominating petitions. However, a recall election may only be conducted as part of a coordinated election if the content of the recall election ballot is finally determined by the date for certification of the ballot content for the coordinated election to the county clerk, which, for the 2021 election, is September 3rd. Given the Eagle County Clerk and Recorder is conducting a coordinated election on November 2, 2021, the November 2, 2021 coordinated election is one of the dates at which the recall election may be held under the recall statute. In order to order to participated in the Eagle County coordinated election, Town Council must approve and intergovernmental agreement regarding the election. PROPOSED RESOLUTION: In light of the statutory requirements set forth above, Resolution 21-18 accomplishes the following: •Authorizes the execution of the IGA to participate in the Eagle County coordinated election to be held on November 2, 2021. •Declares the Town of Avon will be participating in the November 2, 2021 election. •As the coordinated election falls within the statutory required timeframe in which to conduct an election, the Resolution sets the coordinated election as the date on which the recall election will be held. •Provides candidates have until August 27, 2021 at 5:00 p.m. to submit petitions and affidavits to the Town Clerk declaring their candidacy the succeed an officer recalled in the recall election. Under state statute, petitions require ten valid signatures from voters registered and eligible to vote in Avon elections. Page 2 of 2 •Provides candidates who have submitted petitions by August 27, 2021 may cure any deficiency is such petition. FINANCIAL CONSIDERATIONS: Per the IGA, the Town is responsible for its pro rata share, which is estimated to be $2,500, which is significantly less than the $15,000-$20,000 a Town-run election would cost were the Town to decide not to participate in the coordinated election.. RECOMMENDATION: Staff recommends approval of Resolution 21-18. PROPOSED MOTION: “I move to approve Resolution 21-18, approving an IGA to participate in the November 2, 2021 coordinated election, setting November 2, 2021 as the date of the recall election and setting forth applicable deadlines for recall candidates.” Thank you, Paul and Brenda ATTACHMENTS: Exhibit A – Resolution 21-18 WHEREAS, pursuant to §31-4-504(4.5), C.R.S., a recall election may only be conducted as part of a coordinated election if the content of the recall election ballot is finally determined by the date for certification of the ballot content for the coordinated election to the county clerk; and Resolution 21-18 (Setting Date for Coordinated Election and Recall Election) Page 1 of 5 RESOLUTION 21-18 APPROVING AN INTERGOVERNMENTAL AGREEMENT TO PARTICIPATE IN THE NOVEMEMBER 2, 2021 COORDINATED ELECTION WITH THE EAGLE COUNTY CLERK AND RECORDER; ORDERING A RECALL ELECTION FOR NOVEMBER 2, 2021; AND SETTING FORTH THE APPLICABLE CANDIDATE DEADLINES FOR THE RECALL ELECTION WHEREAS, the Town of Avon, Colorado (the “Town”), is a duly organized and existing home- rule municipality of the State of Colorado, created and operating pursuant to Article XX of the Constitution of the State of Colorado and its Home Rule Charter of the Town of Avon, Colorado (the “Town Charter”); and WHEREAS, the members of the Town Council of the Town of Avon (the “Council”) have been duly elected and qualified; and WHEREAS, the Eagle County Clerk and Recorder is conducting a coordinated election pursuant to the Uniform Election Code of 1992, being Articles 1 to 13 of Title 1, C.R.S. (the “Uniform Election Code”) on November 2, 2021; and WHEREAS, the Eagle County Clerk and Recorder submitted to the Town Clerk an Intergovernmental Agreement with the Eagle County Clerk and Recorder concerning the November 2, 2021 general election for Town Council Approval; and WHEREAS, on July 22, the Town Clerk issued Certificates of Sufficiency, attached hereto as Exhibit A, which respectively set forth that sufficient valid signatures were gathered to trigger a recall election for Mayor Sarah Smith Hymes and Councilor Tamra Underwood pursuant to the requirements of Article XXI of the Colorado Constitution, Section 31-4-501, et seq., C.RS. and Section 3.5 of the Town of Avon Charter; and WHEREAS, pursuant to §31-4-503(4), C.R.S., the Avon Town Council is required to order and fix a date for the recall election to be held not less than thirty (30) days nor more than ninety (90) days from the date hereof and determine whether voting in the recall election is to take place at the polling place or by mail ballot; and WHEREAS, the November 2, 2021 coordinated election is one of the dates at which the recall election may be held; and WHEREAS, pursuant to §31-4-504(4)(b), C.R.S., candidates seeking election in a recall election shall have not less than ten (10) calendar days beginning on the first calendar day after the Avon Town Council sets the date for the recall election within which to circulate nominating petitions; and Resolution 21-18 (Setting Date for Coordinated Election and Recall Election) Page 2 of 5 WHEREAS, pursuant to §31-10-302(4), C.R.S., September 3, 2021 is the last day on which the Town may certify ballot content to the Eagle County Clerk and Recorder for the November 2, 2021 coordinated election; and WHEREAS, the Avon Town Council finds that a sixteen (16) day period for the nomination of candidates to succeed the officers sought to be recalled is reasonable to provide fairness and opportunity to such candidates, and for such candidates to have an additional seven (7) days thereafter to cure any defects by the September 3, 2021 deadline; and WHEREAS, pursuant to §31-4-504(3)(a), the ballot content shall include the rationale for the recall as set forth in the petitions demanding the recall. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. All action heretofore taken (not inconsistent with the provisions of this resolution) by the Town and the officers thereof, directed towards the election and the objects and purposes herein stated is hereby ratified, approved and confirmed. Section 2. Unless otherwise defined herein, all terms used herein shall have the meanings defined in the Uniform Election Code, C.R.S. Title 1, Article 1. Section 3. The Avon Town Council hereby approves the Intergovernmental Agreement between the Town of Avon and the Eagle County Clerk and Recorder regarding the conduct of the November 2, 2021 coordinated election, substantially in the form attached as Exhibit B (the “Election IGA”), and authorizes the Town Clerk and Deputy Town Clerk to take whatever action is necessary to coordinate the mail ballot election. Section 4. The Town Clerk is hereby appointed as the designated election official of the Town for purposes of performing acts required or permitted by law in connection with the election. Section 5. The Avon Town Council hereby specifically approves the expenditure of the Town’s pro rata share of the actual costs for the Eagle County Clerk and Recorder to conduct the coordinated election, including the Town’s pro rata share of the costs of printing and mailing the ballots and all other election expenses pursuant to the terms of the Election IGA. Section 6. The Avon Town Council hereby orders a recall election for Mayor Sarah Smith Hymes and Councilor Tamra Underwood be conducted pursuant to the mail ballot coordinated election to be held on November 2, 2021. Section 7. The Avon Town Council hereby establishes August 27, 2021 at 5:00 p.m. as the deadline for candidates to file their nomination petitions to succeed the person sought to be recalled and for officers to be recalled to submit a statement of up to three hundred (300) words regarding the recall to be included in the ballot content. Resolution 21-18 (Setting Date for Coordinated Election and Recall Election) Page 3 of 5 Section 8. The Avon Town Council hereby establishes September 3, 2021 at 12:00 p.m. as the deadline for candidates who have previously filed their nomination petitions by the August 27, 2021 deadline to to resubmit candidate petitions if such petitions had were previously deemed insufficient by the Town Clerk. Section 9. The officers of the Town are hereby authorized and directed to take all action necessary and appropriate to effectuate the provisions of this resolution. Section 10. If any section, paragraph, clause or provision of this resolution shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section, paragraph, clause or provision shall in no manner affect any remaining provision of this resolution. Section 11. All resolution or parts of resolution inconsistent herewith are hereby repealed to the extent only of such inconsistency. This repealer shall not be construed to revive any resolution or part of any resolution heretofore repealed. Section 12. The effective date of this resolution shall be immediately upon adoption. INTRODUCED, READ, AND ADOPTED by the Town Council of the Town of Avon on the 10th day of August 2021. By:____________________________ Attest:___________________________________ Amy Phillips, Mayor Pro-Tem Brenda Torres, Town Clerk Resolution 21-18 (Setting Date for Coordinated Election and Recall Election) Page 4 of 5 Exhibit A Resolution 21-18 (Setting Date for Coordinated Election and Recall Election) Page 5 of 5 Exhibit B Resolution 21-18 Exhibit A Exhibit A Abstract of 2018 Avon Town Council Election Resolution 21-18 Exhibit A Candidate Party Total Chico Thuon 999 18.93% Tom Ruemmler 398 7.54% Scott Prince 780 14.78% Sarah Smith Hymes 774 14.67% Tamra Nottingham Underwood 824 15.62% Adrienne Perer 543 10.29% Russell J. Andrade 626 11.87% Mick Van Slyke 332 6.29% Total Votes 5,276 Total Unresolved Write-In 0 Total Times Cast 1,984 / 3,621 54.79% Undervotes 2,660 Overvotes 0 Candidates for TownCouncil (Vote for 4) Candidate Party Total YES 13,763 80.92% NO 3,246 19.08% Total Votes 17,009 Total Unresolved Write-In 0 Total Times Cast 22,692 / 36,367 62.40% Undervotes 5,680 Overvotes 3 Colorado Supreme Court Justice - Gabriel (Vote for 1) Candidate Party Total YES 13,308 79.14% NO 3,507 20.86% Total Votes 16,815 Total Unresolved Write-In 0 Total Times Cast 22,692 / 36,367 62.40% Undervotes 5,876 Overvotes 1 Colorado Court of Appeals Judge - Dailey (Vote for 1) 11/21/2018 10:26:50AMPage: 7 of 15 Resolution 21-18 Exhibit A Resolution 21-18 Exhibit A Exhibit A Abstract of 2018 Avon Town Council Election Resolution 21-18 Exhibit A Candidate Party Total Chico Thuon 999 18.93% Tom Ruemmler 398 7.54% Scott Prince 780 14.78% Sarah Smith Hymes 774 14.67% Tamra Nottingham Underwood 824 15.62% Adrienne Perer 543 10.29% Russell J. Andrade 626 11.87% Mick Van Slyke 332 6.29% Total Votes 5,276 Total Unresolved Write-In 0 Total Times Cast 1,984 / 3,621 54.79% Undervotes 2,660 Overvotes 0 Candidates for TownCouncil (Vote for 4) Candidate Party Total YES 13,763 80.92% NO 3,246 19.08% Total Votes 17,009 Total Unresolved Write-In 0 Total Times Cast 22,692 / 36,367 62.40% Undervotes 5,680 Overvotes 3 Colorado Supreme Court Justice - Gabriel (Vote for 1) Candidate Party Total YES 13,308 79.14% NO 3,507 20.86% Total Votes 16,815 Total Unresolved Write-In 0 Total Times Cast 22,692 / 36,367 62.40% Undervotes 5,876 Overvotes 1 Colorado Court of Appeals Judge - Dailey (Vote for 1) 11/21/2018 10:26:50AMPage: 7 of 15 Resolution 21-18 Exhibit A Intergovernmental Agreement Between the Eagle County Clerk and Recorder and ______________________ Concerning the Tuesday, November 2, 2021 Coordinated Elecon THIS Intergovernmental Agreement between the Eagle County Clerk and Recorder and ____________________________________ concerning the Tuesday, November 2, 2021 Coordinated Elecon is made on _______________________. RECITALS WHEREAS , pursuant to C.R.S. § 1-7-116 (1) (a) the Clerk will serve as the coordinated elecon official for the Coordinated Elecon, and in accordance with state law, will conduct the Coordinated Elecon on behalf of all parcipang polical subdivisions having jurisdicon within the boundaries of Eagle County; and WHEREAS, C.R.S. § 1-7-116 (2) requires each polical subdivision for which the Clerk will conduct the Coordinated Elecon to enter into an agreement with the Clerk concerning the conduct of the Coordinated Elecon, to be signed no later than seventy (70) days prior to the scheduled elecon; and WHEREAS , the Polical Subdivision intends to submit one or more ballot issue(s) at the Coordinated Elecon; and WHEREAS , the County Clerk and the Polical Subdivision wish to clarify their responsibilies and memorialize their agreement with respect to the conduct of the Coordinated Elecon. NOW THEREFORE, in consideraon of the above premises and the promises contained herein, the pares agree as follows: I. Coordinated and Designated Elecon Officials A.Except as otherwise provided in this secon, the Eagle County Clerk and Recorder (“Clerk”) shall act as the Coordinated Elecon Official for the conduct of the Elecon for the Polical Subdivision for all maers in the Uniform Elecon Code which require acon by the Coordinated Elecon Official. B.The Polical Subdivision shall name a Designated Elecon Official (“DEO”) who shall act as the Eagle County 2021 Coordinated Elecon IGA Page 1 Town of Avon August 11, 2021 the Town of Avon Resolution 21-18 Exhibit B primary liaison between the Polical Subdivision and the Clerk. Nothing herein shall be deemed or construed to relieve the Clerk or the Governing Body of the Polical Subdivision from their official responsibilies for the conduct of the Elecon. C. Jurisdiconal Limitaon This Agreement shall apply only to the poron of the Polical Subdivision within the boundaries of Eagle County. D. Clerk’s Contact Officer The Clerk hereby designates Stacey Jones, Eagle County Chief Deputy Clerk and Recorder ( stacey.jones@eaglecounty.us ; phone 970-328-8726), as the “ Contact Officer ” to act as the Clerk’s primary liaison with the Polical Subdivision for all purposes relang to the Elecon. The Contact Officer shall act under the authority of the Clerk. II.Clerk Responsibilies The Clerk will perform all dues in substanal compliance with applicable provisions of the Elecon Code of 1992, Colorado Title 1, C.R.S. as amended (“Elecon Code”); the Elecon Rules promulgated by the Colorado Secretary of State, as may be amended from me to me; and any then-current policy direcves of the Colorado Secretary of State, if applicable. A. Preparaon for Elecon 1. The Clerk hereby provides the Polical Subdivision with a Street Locator Report (Appendix B), lisng all residenal street addresses situated within the Polical Subdivision’s boundaries, as currently configured in Colorado’s statewide voter registraon database (“SCORE”). 2. The Clerk shall manage all voter registraon records and correspondence. 3. The Clerk shall supply, deliver, and set-up all vong equipment and other items necessary to conduct the Elecon. 4. The Clerk shall appoint eligible electors as elecon judges, arrange for their compensaon, and provide elecon judge training in advance of the Elecon. 5. The Clerk shall include on the ballot all content mely cerfied by the Polical Subdivision in accordance with law; contract for the prinng of ballots, ballot envelopes, and other printed materials reasonably necessary to conduct the Elecon; and arrange for payment to the prinng vendor(s). 6. The Clerk shall publish and post a noce of elecon as required by 1-5-205 C.R.S. in the Eagle Valley Enterprise , the Vail Daily , the Aspen Times Weekly, and El Montanes no later than twenty (20) days prior to the Elecon. Eagle County 2021 Coordinated Elecon IGA Page 2 Resolution 21-18 Exhibit B 7. The Clerk shall perform all required acceptance tesng, hardware diagnosc tesng, and logic and accuracy tesng of Eagle County’s vong system and components in substanal compliance with Condions of Use applicable to Eagle County’s vong system as cerfied by the Colorado Secretary of State. B. Conduct of Elecon 1. The Clerk shall designate the proper number and locaons of voter service and polling centers. All vong locaons will be accessible to voters with disabilies. 2. The Clerk shall provide for the security and processing of all mail ballots and for the verificaon of electors’ signatures on the self-affirmaon printed on the mail ballot return envelopes. 3. The Clerk shall issue mail ballots and electronic transmission ballots to and accept voted mail and electronic transmied ballots from military and overseas voters in substanal compliance with the deadlines and delivery methods mandated by applicable provisions of federal and state law, including the Uniformed and Overseas Cizens Absentee Vong Act, all as amended. 4. The Clerk shall conduct the required post-elecon risk liming audit. 5. The Clerk shall conduct any mandatory or permissive recount. 6. The Clerk shall appoint canvass board and risk liming audit board members, oversee the conduct of the canvass and risk liming audit, and cerfy official results of the Elecon. 7. The Clerk shall provide an official Cerficaon of Elecon to the Polical Subdivision aer the official close of the Elecon. Any addional Cerficates of Elecon which are required by law to be forwarded to another division of government shall be the responsibility of the Polical Subdivision. 8. The Clerk shall preserve all elecon records relang to the Elecon for at least twenty-five months pursuant to 1-7-802 C.R.S. 9. The Clerk shall be the final decision maker on any substanve and procedural issues regarding the conduct of the Elecon. C. Ballot Issue Noce (“TABOR Noce”) 1. The Clerk shall prepare and mail a combined ballot issue noce in substanal compliance with Arcle X, Secon 20 of the Colorado Constuon (“TABOR”) and applicable provisions of the Elecon Code and Elecon Rules. As nearly as praccable, the noce shall be in the order the ballot issues will appear on the ballot. 2. The Clerk shall mail the ballot issue noce not less than thirty (30) days prior to the Elecon, pursuant to Colorado Constuon Arcle X, Secon 20(3)(b) and 1-1-106 C.R.S. The Clerk Eagle County 2021 Coordinated Elecon IGA Page 3 Resolution 21-18 Exhibit B shall determine the least cost method for mailing the ballot issue noce, but at a minimum, the ballot issue noce shall be addressed and mailed to eligible voters at each address in Eagle County where one or more registered voters of the Polical Subdivision and of any other parcipang enty resides. Nothing herein shall preclude the Clerk from mailing the TABOR Noce to persons other than voters of the Polical Subdivision if such mailing arises from the Clerk's efforts to mail the combined TABOR Noce for all parcipang enes at the least cost. III. Polical Subdivision Responsibilies A. Contact Liaison The Polical Subdivision shall idenfy a “Designated Elecon Official” (DEO) to act as a liaison between the Polical Subdivision and the Clerk/Contact Officer. The DEO shall be responsible for the final approval of ballot content and TABOR Noce content. To meet statutory and prinng deadlines, the DEO shall respond to all Elecon-related wrien correspondence, electronic correspondence, phone calls, text message, or any other communicaon from the Clerk/Contact Officer as soon as possible and no later than four (4) hours from the me of delivery by the Clerk/Contact Officer . If the DEO cannot respond within 4 hours, an alternave official may respond on the DEO’s behalf. Failure to respond to correspondence within 4 hours shall constute approval allowing the Clerk to move forward. 1. The Polical Subdivision has designated _________________________________________ whose mailing address is _____________________________________________________ and whose phone number is___________________________________________________ and whose cell phone number is _______________________________________________ and whose email address is____________________________________________________ and whose fax number is______________________________________________________ as its DEO for the purpose of the Elecon. B. Cerficaon of Address Ranges 1. The Polical Subdivision shall verify and cerfy to the Clerk (Appendix C) that all address ranges and street names actually situated in the Polical Subdivision are accurately and completely stated in the Address Library Report aached hereto as Appendix B. 2. In connecon with such Address Library Report verificaon and cerficaon, the Polical Subdivision shall note any address ranges or street names within the Polical Subdivision that are inaccurately or incompletely stated in or omied from the Address Library Report, and cerfy on the Statement of Cerficaon (Appendix C) the accuracy and completeness of the remainder of the Address Library Report. 3. If the cerficaon is not provided by the date specified herein, the Polical Subdivision may not parcipate in the Elecon or the Clerk may build the elecon on the assumpon that the Address Library Report aached hereto as Appendix B is both complete and accurate, as the Clerk in her discreon may decide. The Polical Subdivision shall deliver to the Clerk its Eagle County 2021 Coordinated Elecon IGA Page 4 Brenda Torres, Town Clerk PO Box 975, Avon, CO, 81620 (970) 748-4001 - btorres@avon.org (970) 949-9139 Resolution 21-18 Exhibit B Statement of Cerficaon (Appendix C) and accuracy of the Address Library Report, with notaons regarding inaccuracies and omissions by the seventy (70) days before the elecon, no later than 3:00 p.m. Mountain Standard Time on Tuesday, August 24, 2021. C. Ballot Content 1. Definions of Ballot Issue and Ballot Queson: a. TABOR “Ballot issue” means a state or local government maer arising under secon 20 of arcle X of the state constuon, as defined in secons 1-41-102(4) and 1-41-103(4), respecvely. b. “Ballot queson” means a state or local government maer involving a cizen peon or referred measure, other than a ballot issue. 2. The Polical Subdivision shall be solely responsible for determining whether a ballot issue, ballot queson, candidate contest, or candidate is eligible and properly cerfied for the ballot. 3. The Polical Subdivision shall provide a cerfied copy to the Clerk of all ballot content (candidate contests, ballot issues, and ballot quesons in order) referred by the Polical Subdivision for the Elecon pursuant to secon 1-5-203: a. Notwithstanding any other provision of this Agreement, the Polical Subdivision shall not cerfy any single ballot issue or ballot queson in excess of two hundred and fiy words (inclusive of the tle) unless the Clerk provides wrien consent in advance. b. Such cerfied ballot content shall be delivered to the Clerk as an email aachment in Word format (see secon C.2.g on pg. 6 for full required formang of ballot and TABOR content), at the earliest possible me and in no event later than 3:00 p.m. Mountain Standard Time on Friday , September 3, 2021 (Appendix A), pursuant to secon 1-5-203, C.R.S., as amended. c. The Polical Subdivision that issues cerfied ballot content pursuant to 1-5-203, C.R.S. shall be solely responsible for the accuracy of the informaon contained in the cerficate. Any error that can be corrected pursuant to 1-5-412, C.R.S. shall be corrected at the expense of the Polical Subdivision whose designated elecon official issued the incorrect cerficaon. Such costs include but are not limited to staff me to reprogram elecon content, addional required logic and accuracy tesng, reprinng of ballot and ballot materials, and staff me required to make correcons. d. All ballot content cerfied by the Polical Subdivision shall ulize the exact language and order as such ballot content is to appear on the printed official and sample ballots for the Elecon. The list of candidates/quesons must be typed exactly as it is to appear on the ballot, including correct order, tle, capitalizaon, spelling, spacing, and punctuaon. Eagle County 2021 Coordinated Elecon IGA Page 5 Resolution 21-18 Exhibit B i. For candidates, specify exact tles of offices, the order of the names to appear for each office, and the order of offices. ii. For issues, specify the ballot tle and the order of the issues (per C.R.S., Clerk determines specific numbering on the ballot). iii. If the Polical Subdivision has a TABOR issue on the ballot, the issue text must be typed in all uppercase as is dictated by law (e.g. TABOR Amendment). iv. If the Polical Subdivision has a non-TABOR queson on the ballot, the queson must be typed in mixed case. v. Ballot Issues or Quesons Vote Choice must be formaed as follows: _____YES/FOR _____NO/AGAINST It is at the discreon of the Clerk to change the formang on the ballot to match this formang if it is not cerfied in this requested format. e. The Polical Subdivision has the responsibility to proofread and edit the text of the ballot proof before the Clerk will authorize prinng of the ballots. From the me the Clerk delivers via email the ballot proof, the Polical Subdivision has (four) 4 hours to proofread, correct if necessary, sign, and return the proof to the Clerk . The Polical Subdivision’s failure to disapprove and correct errors within that me shall constute an approval of the ballot proof. Aer final approval of the ballot proof, the Polical Subdivision assumes all responsibility and cost for any judicial proceedings related to any errors within the text of their issue, queson, or contest on the printed ballots. f. The Polical Subdivision authorizes the Clerk to correct typographical errors and omissions and determine the appropriate ballot queson number or leer upon designaon of the ballot number or leer by the Clerk. g. The Polical Subdivision shall cerfy its ballot content via email to the Clerk and Contact Officer in conformance with the following formang guidelines: i. Soware: Microso Word '03 or later (not as a PDF) ii. Spacing: Single iii. Font Type: Arial Narrow iv. Font Size: 8 point v. Jusficaon: Le vi. All Margins: 0.5 inches vii. Language: English viii. Delivery Medium: Email aachment to regina.obrien@eaglecounty.us and stacey.jones@eaglecounty.us Submissions not meeng these requirements may be rejected by the Clerk. h. Spanish language translaon of the ballot content is required to be submied by the Polical Subdivision to the Clerk by Monday, September 27, 2021. Translaon of TABOR Noce content is not required but is strongly encouraged. Eagle County 2021 Coordinated Elecon IGA Page 6 Resolution 21-18 Exhibit B i. The Polical Subdivision must provide an audio recording of each candidate’s name. The DEO or candidate may leave an audio recording of the candidate’s name, exactly as cerfied for the ballot, on the voicemail of the Clerk (970-382-8783) or Contact Officer (970-328-8726). This audio recording must be provided no later than the deadline to cerfy ballot content, Friday, September 3, 2021 by 3:00 p.m. Mountain Standard Time (Appendix A). D.Ballot Issue Noce (“TABOR Noce”) 1. The Polical Subdivision shall receive, store and prepare TABOR Noce content according to the provisions set forth in Arcle X, Secon 20 of the Colorado Constuon (TABOR Amendment) and 1-7-901, 1-7-902, 1-7-903, 1-7-904, and 1-7-908 C.R.S. 2. The Polical Subdivision shall transmit via email the summaries, fiscal informaon, and all other required material to the Clerk no later than forty-three (43) days, Monday, September 20, 2021 (Appendix A) before the Elecon in final wrien form in accordance with the formang guidelines for ballot cerficaon (see formang bullet points listed in secon C.1.g). Submissions not meeng these requirements will be rejected by the Clerk. 3. The Polical Subdivision shall incorporate in its TABOR Noce content a local office address and telephone number specific to the Polical Subdivision or the Polical Subdivision DEO to enable voters to reach the Polical Subdivision directly. The Clerk shall respond to all correspondence and inquiries that the Clerk receives within its experse relang to elecon procedures, but the Clerk shall refer inquiries concerning the substance of the ballot issues, ballot quesons, candidates, or the operaons of the Polical Subdivision to the Polical Subdivision’s DEO. 4. The Polical Subdivision has the responsibility to proofread and edit the text of the TABOR Noce proof before the Clerk will authorize prinng of the TABOR Noce. From the me the Clerk delivers via email the TABOR Noce proof, the Polical Subdivision has four (4) hours to proofread, correct if necessary, sign, and return the proof to the Clerk . The Polical Subdivision’s failure to disapprove and correct errors within that me shall constute an approval of the TABOR Noce proof. Aer final approval of the TABOR Noce proof, the Polical Subdivision assumes all responsibility and cost for any judicial proceedings related to any errors within the text of their issue or informaon presented on the TABOR Noce. E.Cancellaon of Elecon 1.In the event that the Polical Subdivision resolves not to hold the Elecon, noce of such cancellaon shall be provided to the Clerk immediately. The Polical Subdivision shall not cancel its parcipaon in the Elecon aer the twenty-fih (25) day before the elecon , Friday, October 8, 2021 (Appendix A), pursuant to secon 1-5-208(2), C.R.S., as amended. 2.The Polical Subdivision shall provide noce by publicaon of the mely cancellaon of the Elecon and a copy of the noce shall be posted in the Office of the Clerk, in the office of the Designated Elecon Official, in the primary building of the Polical Subdivision, and, if Eagle County 2021 Coordinated Elecon IGA Page 7 Resolution 21-18 Exhibit B the Polical Subdivision is a special district, in the office of the division of local government. The Polical Subdivision is solely responsible for delivering such posngs to each enty. 3.The Polical Subdivision shall be responsible for all expenses incurred on its behalf to the date that noce was received by the Clerk together with all expenses incurred thereaer which could not be avoided by reasonable effort. All costs incurred or contracted for by the Clerk to support the Polical Subdivision’s poron of the TABOR Noce shall be reimbursed by the Polical Subdivision. 4.Upon receipt of the invoice, the Polical Subdivision shall promptly pay the Clerk the full actual costs of the acvies of the Clerk relang to the Elecon incurred both before and aer the Clerk’s receipt of such noce. F.Other Responsibilies 1. The Polical Subdivision shall exercise all reasonable diligence, care, and control in providing these services to the Clerk. 2. The Polical Subdivision’s DEO or assigned representave shall assist with equipment logic and accuracy tesng, post-elecon canvass, and risk liming audit as requested by the Clerk. 3. The Polical Subdivision shall give assistance and informaon to the Clerk on any maer to ensure the smooth and efficient operaon of the Elecon (such informaon not to include legal advice). 4. The Polical Subdivision shall adhere to all applicable provisions of C.R.S. which are necessary or appropriate to the performance of the above dues. 5. The Polical Subdivision shall follow the addional responsibilies in which non-resident property owners may be eligible to vote as set forth in Appendix D hereto. IV. Miscellaneous A. Costs 1.The Clerk shall keep accurate accounts of all costs incurred to prepare for and conduct the Elecon, including but not limited to costs incurred for supplies, prinng, ballot inseron and mailing, legal and other noces, temporary labor, compensaon of elecon judges, overme pay for staff, and other expenses aributable to the Clerk’s conduct of the Elecon on behalf of the Polical Subdivision. Clerk may give the Polical Subdivision general esmates of cost but such esmates are not binding. The Polical Subdivision is responsible for the pro rata share of actual costs as determined by the Clerk. 2.The Clerk shall charge to the Polical Subdivision its pro rata share of all costs and expenses reasonably incurred in connecon with the preparaon, prinng, labeling, postage, and mailing for the ballot issue noce. Said expenses shall be prorated among all Polical Subdivisions parcipang in the ballot issue noce. Eagle County 2021 Coordinated Elecon IGA Page 8 Resolution 21-18 Exhibit B 3.The Clerk shall charge and allocate to the Polical Subdivision its pro rata share of the direct costs of the Elecon, and all direct and indirect costs and expenses incurred by the Clerk to remedy, resolve, or reconcile the Polical Subdivision’s failure or omission to mely perform any of its obligaons under this Agreement, without regard to whether the Polical Subdivision rescinds its intent to parcipate in the Elecon. 4.In the event an interested party is not liable for payment of costs incurred in connecon with a mandatory or permissive recount of, or elecon contest relang to, one or more candidate contests, ballot issues or ballot quesons cerfied by the Polical Subdivision, the Clerk shall charge any and all direct and indirect costs and expenses reasonably incurred by the Clerk to conduct or parcipate in any such recount or ballot contest. If more than one polical subdivision parcipang in the Elecon is involved in any such recount or elecon contest, the costs thereof shall be prorated between the Polical Subdivision and such other parcipang enes. 5.The Polical Subdivision assumes all responsibility and cost for any judicial proceedings regarding whether or not issues legally belong on the ballot and any other challenges, both pre- and post-elecon, relang to the queson of the Polical Subdivision. 6.The Clerk shall submit to the Polical Subdivision an invoice for the Polical Subdivision’s pro rata share of direct and indirect costs incurred in connecon with the Polical Subdivision’s parcipaon in the Elecon within ninety (90) days aer the Elecon (Appendix A). 7.The minimum charge for coordinang the Elecon with the Clerk for coordinang enes with 300 or fewer acve voters on Elecon Day shall be $500.00. The minimum charge for coordinang enes with 301 or more acve voters on Elecon Day shall be $1000.00. 8.In addion, there will be a surcharge for coordinaon and administraon of non-resident, property owner ballot mailing of $1000.00. 9.The Polical Subdivision shall remit all payments due to the County upon receipt of an itemized statement by February 28, 2022 (Appendix A). B. Indemnificaon To the extent permied by law, the Polical Subdivision agrees to indemnify, defend, and hold harmless the County, its officers and employees, from any and all losses, costs, demands, or acons arising out of or related to any acons, errors or omissions of the Polical Subdivision in compleng its responsibilies relang to the Elecon and related tasks. C. Reasonable Care The County and its employees, agents, representaves, or other persons acng under the direcon or control of the County shall use reasonable care in carrying out their obligaons under this Agreement. Eagle County 2021 Coordinated Elecon IGA Page 9 Resolution 21-18 Exhibit B D. Noces Any and all noces required to be given by this Agreement, unless otherwise set forth herein, are deemed to have been received and to be effecve: ●three days aer they have been mailed by cerfied mail, return receipt requested to the address as set forth below; or ●immediately upon hand delivery to Regina O’Brien, Clerk; or ●immediately upon receipt of confirmaon that a fax or e-mail was received. To Clerk: Regina O’Brien Eagle County Clerk and Recorder P.O. Box 537 Eagle, CO 81631 Fax: 970-328-8716 Email: regina.obrien@eaglecounty.us Time is of the Essence Per 1-7-116(2) C.R.S. this Agreement must be signed and returned to Regina O’Brien, Clerk and Recorder, seventy (70) days before the Elecon, Tuesday, August 24, 2021 (Appendix A). The statutory me requirements of the Uniform Elecon Code and the me requirements set by the Secretary of State in the Rules and Regulaons Governing Elecon Procedures shall apply to the compleon of the tasks required by this Agreement. In witness whereof, the Pares hereto have executed this Agreement to be effecve this day: ___________ (Date) ________________________________________ Designated Elecon Official Date For _____________________________________ (Polical Subdivision) ________________________________________ Regina O’Brien Date Eagle County Clerk and Recorder Eagle County 2021 Coordinated Elecon IGA Page 10 08/11/2021 08/11/2021 Town of Avon Resolution 21-18 Exhibit B Appendix A CALENDAR OF EVENTS AND DEADLINES FOR NOVEMBER 2, 2021 COORDINATED MAIL BALLOT ELECTION While this calendar may not include all elecon dates, some key dates are idenfied for reference. Dates double underlined are key delivery dates of informaon from you to the Clerk’s office. Polical Subdivisions planning to coordinate with the Clerk’s office should be aware of the following deadlines: ●Friday, July 23, 2021 – 100 days prior - If by 100 days before the elecon, a Polical Subdivision has taken formal acon to parcipate in an elecon that will be coordinated by the Clerk, the Polical Subdivision shall nofy the Clerk in wring. C.R.S. 1-7-116(5), 1-1-106(5) ●July 26 – 30, 2021 – IGAs will be mailed to parcipang enes. IGA will include address ranges that need to be verified and cerfied before or on the date the IGA is due. Polical Subdivisions with property owner ballots should also review Appendix D in the IGA and contact the Eagle County Assessor’s office to secure the parcular property owner list. ●Tuesday, August 24, 2021 @ 3:00 p.m. MST – 70 days prior - Polical Subdivisions parcipang in the elecon must return signed IGAs to the Clerk. C.R.S. 1-7-116(2). Polical Subdivisions must verify and cerfy that all address ranges situated in the Polical Subdivision (Appendix B) are accurate and complete, note any changes or inaccuracies, and cerfy no later than 70 days prior to Elecon (Appendix C). Please submit sooner if possible . ●Friday, September 3, 2021 @ 3:00 p.m. MST – Last day for the DEO from each Polical Subdivision to cerfy the ballot text and provide audio recordings of candidate names to the Clerk; deadline is 3:00 p.m. Please submit sooner if possible . C.R.S. 1-5-203(3)(a) ●Monday, September 6, 2021 – Last day for Polical Subdivisions with property owner ballots to cerfy the revised Assessor’s property owner list to the Clerk. Please submit sooner if possible . ●Week of September 13, 2021 – Equipment and Logic and Accuracy Tesng ●Tuesday, September 14, 2021 – Deadline for Polical Subdivisions with property owner ballots to cerfy the military and overseas (UOCAVA) voter list to the Clerk. ●Saturday, September 18, 2021 – No later than 45 days prior – Deadline to send mail ballots to military and overseas voters (UOCAVA voters). C.R.S. 1-8.3-110(1) ●Monday, September 20, 2021 – 43 days prior - Polical Subdivisions shall deliver the full text of any required ballot issue noces (e.g. TABOR Noce) and pro/con statement summaries to the Clerk in order to be included in the issue mailing. C.R.S. 1-7-904 ●Monday, September 27, 2021 - Spanish translaon of ballot content due to the Clerk (TABOR Noce content is not required to be translated). ●Friday, October 1, 2021 – 30 days prior – Last day for the Clerk to mail out TABOR Noce(s). C.R.S. 1-1-106(5) ●Friday, October 08, 2021 – 25 days prior - Last date for Polical Subdivision to cancel elecon or withdraw ballot issue or queson C.R.S. 1-5-208(2) Appendix A connued on page 2 Eagle County 2021 Coordinated Elecon IGA Page 11 Resolution 21-18 Exhibit B Appendix A – Connued (page 2) CALENDAR OF EVENTS AND DEADLINES FOR NOVEMBER 2, 2021 GENERAL MAIL BALLOT ELECTION ●Friday, October 8 - Friday, October 15, 2021 – Ballots must be mailed, except for UOCAVA voters. C.R.S. 1-7.5-107(3)(a)(I). 24-hour ballot drop boxes open in Avon, Edwards, Eagle, Gypsum, El Jebel, Basalt, and Vail. ●Monday, October 25, 2021 – Voter Service and Polling Centers open. C.R.S. 1-5-102.9(2) ●Monday, October 25, 2021 – 8 days prior - Last day to register to vote to receive a mail ballot. Aer this date voters may pick up ballots in person at any Voter Service and Polling Center. C.R.S. 1-2-201(3)(b)(III) ●Tuesday, November 2, 2021 – Elecon Day - Polls open 7:00 a.m. – 7:00 p.m. All ballots must be in the hands of the Clerk by 7 PM on Elecon Day to be counted. ●Wednesday, November 24, 2021 – Deadline to cerfy elecon results. Official results will be forwarded to Polical Subdivisions. C.R.S. 1-10-102(1), 1-10-103(1) ●Monday, February 7, 2022 – Last day for the Clerk to mail invoices to Polical Subdivisions for their share of elecon as well as any recount costs. ●Monday, February 28, 2022 – Last day for Polical Subdivisions to submit payment for elecon and recount costs to the Clerk's office. Eagle County 2021 Coordinated Elecon IGA Page 12 Resolution 21-18 Exhibit B Appendix B STREET LOCATOR REPORT FOR NOVEMBER 2, 2021 COORDINATED MAIL BALLOT ELECTION Eagle County 2021 Coordinated Elecon IGA Page 13 Resolution 21-18 Exhibit B Appendix C STATEMENT OF CERTIFICATION – STREET LOCATOR REPORT FOR NOVEMBER 2, 2021 COORDINATED MAIL BALLOT ELECTION I, ___________________________________, as Designated Elecon Official for______________________________________, (hereinaer “Polical Subdivision”) do hereby cerfy that the Street Locator Report provided to the Polical Subdivision has been reviewed, correcons made, and to the best of my knowledge, I believe it is a true and complete list of the addresses located within the Polical Subdivision. Designated Elecon Official Signature Date for _____________________________________ (Name of Polical Subdivision) Eagle County 2021 Coordinated Elecon IGA Page 14 Brenda Torres Town of Avon Town of Avon 08/11/2021 Resolution 21-18 Exhibit B Appendix D PROPERTY OWNER BALLOTS – TITLE 32 This appendix defines responsibilies when conducng an elecon for a Polical Subdivision (governed under Title 32) in which property owners who are not Eagle County residents but are registered electors in the State of Colorado may be eligible to vote. Property owner self-affirming oaths must be signed and returned to the County Clerk’s Office before ballots are sent to eligible property owners. Overview - Property Owner Ballots Property owner ballots are special ballots that contain only those ballot contests cerfied by Polical Subdivisions in which owners (and their spouses or civil union partners) of real and personal property are eligible to vote as long as they reside outside of the Polical Subdivision but are registered to vote in Colorado (32-1-103(5) C.R.S.). If a person resides in and is registered to vote in the Polical Subdivision, and also owns addional property in the Polical Subdivision, the Clerk will issue the voter a regular Eagle County ballot style that contains all of the contests in which they are eligible to vote in a given elecon, including the ballot content referred by the Polical Subdivision. If a person resides outside of the Polical Subdivision, owns property within the Polical Subdivision, and is registered to vote in the State of Colorado, the county will issue a property owner ballot containing only the contests referred by the Polical Subdivision. This ballot will be sent only aer the self-affirming oath has been returned by the voter to the Clerk and aer the Clerk has verified the voter’s eligibility in the statewide voter registraon system. If the property owner does not specify a ballot mailing address on the self-affirming oath, t he property owner ballot will be sent to the mailing or ballot mailing address on record in the statewide voter registraon system. Property owners who are registered voters outside of the State of Colorado are not eligible to vote a property owner ballot. Responsibilies of the Coordinang Polical Subdivision Street Locator Report 1. Review the Street Locator Report provided from the Clerk’s office (Appendix B). 2. Verify and cerfy all addresses listed in the address library report are within the Polical Subdivision and Eagle County 2021 Coordinated Elecon IGA Page 15 Resolution 21-18 Exhibit B are accurate and complete (with no omissions). All changes or inaccuracies must be idenfied by the Polical Subdivision, the list cerfied by the Polical Subdivision (Appendix C), and returned to the Clerk no later than 3:00 p.m. Mountain Standard Time on Tuesday, August 24, 2021 , seventy (70) days before the elecon. Please submit sooner if possible . The Polical Subdivision is responsible for the accuracy of this report. Overseas and Military Voter List 1. Secure the Colorado Statewide Overseas and Military Voter (UOCAVA) list from the Clerk. Property Owner List 1. Secure the Polical Subdivision Property Owner list from the Eagle County Assessor’s Office. 2. Remove all non-human property owners (e.g. trusts, LLCs, Corporaons, etc.) from the Assessor’s list. 3. Cerfy the revised Assessor’s list that excludes non-human enes and UOCAVA voters in Excel format to the County Clerk by Monday, September 6, 2021 . Please submit sooner if possible . Polical Subdivision is responsible for the accuracy of this list. 4. Cross-reference the state-wide Overseas and Military voter (UOCAVA) list with the property owner list to determine if there are any Polical Subdivision property owners on the UOCAVA list. It is the responsibility of the Polical Subdivision to cerfy the list of any UOCAVA property owners to the Clerk by Tuesday, September 14, 2021 , to ensure statutory delivery of UOCAVA property owner ballots ( NOTE : UOCAVA ballots must be sent by Saturday, September 18, 2021 (1-8.3-110(1) C.R.S)). 5. Secure the supplemental Polical Subdivision Property Owner list from the Eagle County Assessor’s Office no later than Wednesday, October 13, 2021 (20 days before the elecon). This supplemental list shall contain the names and addresses of all recorded owners who became owners no later than Monday, October 11, 2021 (22 days prior to the elecon). 6. Cerfy the revised supplemental Assessor’s list that excludes non-human enes and UOCAVA voters in Excel format to the County Clerk by Friday, October 15, 2021 . Please submit sooner if possible . Polical Subdivision is responsible for the accuracy of this list. Responsibilies of the County Clerk and Recorder 1. Aer receiving the cerfied property owner list from the Polical Subdivision, as well as the supplemental list, prepare and send the property owner TABOR Noce to the property owner households listed on the cerfied property owner list(s). (Arcle X, Sec.20(3)(b)). This Noce may be combined with other TABOR noces or mailed separately at the discreon of the Clerk. 2. A self-affirming oath will be sent to each household that must be returned by each eligible elector Eagle County 2021 Coordinated Elecon IGA Page 16 Resolution 21-18 Exhibit B (1-13.5-202, C.R.S and 32-1-103(5), C.R.S.). 3. Upon return to the Clerk of the signed self-affirming oath, determine if the individual is a registered voter in the State of Colorado but does not reside in the Polical Subdivision. 4. Prepare and send property owner ballots to all eligible electors entled to vote by virtue of a self-affirmaon (32-1-806, C.R.S). 5. Record each property owner ballot returned and signature verified. 6. Process ballots in the counng room. 7. Tabulate and cerfy results. Eagle County 2021 Coordinated Elecon IGA Page 17 Resolution 21-18 Exhibit B (970)748-4055 swright@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Scott Wright, Finance Director RE: PEG Grant Request DATE: August 2, 2021 SUMMARY: Attached to this report is a grant funding request from J.K. Perry, Executive Director of High Five Access Media, for PEG fees collected by the Town in 2020 in the approximate amount of $8,000. The funds requested would be used to purchase a video production switcher used to produce multi-camera live events. Council action on the attached Resolution No. 21-17 is requested. BACKGROUND: Section 9.5 of the Town’s current franchise agreement with Comcast provides that Comcast will collect and provide to the Town a $0.50 per subscriber monthly fee as capital support for PEG (Public, Educational and Governmental) access. The PEG fee is to be used solely for capital costs related to PEG access equipment and facilities. Historically PEG fees have been granted to assist with capital costs associated with providing community coverage of government meetings, free access to media education and facilities, and low-cost production services. Previous grants include $9,000 given in June 2019 and $18,000 paid directly from Comcast in April 2017. FINANCIAL CONSIDERATIONS: Actual PEG fees collected by the Town in 2020 were $8,135.40. The requested grant was not included in the original 2021 budget. If the resolution is approved, an appropriation of $8,000 for PEG grants will be included in the supplemental budget amendment to be presented to Council at the August 24th Town Council meeting. PROPOSED MOTION: “I move to approve Resolution No. 21-17, a resolution to approve a request for grant of PEG funds.” Thank you, Scott ATTACHMENTS: Attachment A – Resolution No. 21-17 Attachment B – Avon PEG Grant Fund Request from High Five Access Media TOWN OF AVON, COLORADO RESOLUTION NO. 21-17 SERIES OF 2021 A RESOLUTION TO APPROVE A REQUEST FOR GRANT OF PEG FUNDS WHEREAS, The Town Council of the Town of Avon has collected PEG fees from cable subscribers during the 2020 calendar year in the amount of $8,135.40; and WHEREAS, a request has been made to the Town of Avon from the local public access television station, High Five Media Access, for an allocation of such funds in the amount of $8,000 for video production equipment, which is an appropriate purpose as set forth in the Town’s cable franchise agreement. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. That the attached request for a grant of $8,000 of PEG funds is hereby approved. Section 2. That an appropriation in the amount of $8,000 will be included in a supplemental amendment of the 2021 Town of Avon budget. ADOPTED this 10th day of August, 2021. AVON TOWN COUNCIL By:___________________________ Attest:________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ATTACHMENT A High five access media Avon PEG Grant Funds Request 2020 Council and staff, Thank you for the opportunity to present our proposal for PEG Grant funds. Each year, Comcast subscribers in Avon pay a PEG fee that is designated in the Avon/Comcast franchise agreement to be used for capital improvements by the local community access media center. In years past, the PEG Grant totaled more than $10,000, but in recent years has declined to about $8,000. This fund is intended for High Five Access Media to purchase cideo-related equipment for the community. As always, we strive to improve the quality of production and distribution for residents, cable subscribers and internet users. At the same time, we balance our mission to provide the tools and training for the community to produce their own media and express their ideas, advocate for causes and become civically engaged through cable television and the web. The following equipment purchase proposal helps High Five Access Media achieve its mission. First, a quick history of recent PEG Grant purchases. In 2019, approved our request to purchase a cinema camera and stabilizer for both community producers and in-house projects, and a new video-editing computer for staff. With PEG funds available in 2020, High Five Access Media proposes making the following purchase with a grant of approximately $8,000 from the Town of Avon: Video Production Switcher – $8,000. The cost of this system and accessories is estimated at $13,700. High Five will invest the remaining $5,700 between the grant amount and full cost. The unit it will replace was purchased in 2016 and has reached its life expectancy and is exhibiting signs of breaking down. We use this switcher to produce both in-house and volunteer, multi-camera live events in the field, such as high school plays, lectures, concerts and community events. An example of the system is attached. As always, feel free to contact me if you have any questions or concerns. Thank you, J.K. Perry Executive Director High Five Access Media jk@highfivemedia.org ATTACHMENT B 6/29/2021 NewTek TriCaster Mini Advanced HD-4 SDI FG-002881-R001 B&H Photo https://www.bhphotovideo.com/c/product/1556124-REG/newtek_fg_002881_r001_tricaster_mini_advanced_hd_4.html/print 1/1 The Professional's Source Since 1973 420 9th Ave. at 34th St. in New York City www.bhphotovideo.com Sales: 2125026248 Customer Service: 2122397765 $8,635.68 List Price $9,995.00 You Save $1,359.32 (14%) Key Features Simultaneously Broadcast, Stream, Record Switch between 4 SDI or 8 NDI Sources Up to 1080p29.97 Resolution Support Two SDI Program Outputs Built-In Full-Featured Control Software Live Streaming & Social Media Publishing 1TB Internal SSD Storage Eects, Titles & 3D Virtual Sets Keyboard & Mouse Included Optional Control Panel Supported In the Box NewTek TriCaster Mini Advanced HD-4 SDI Keyboard Mouse Cable Retention Bracket Limited 1-Year Warranty © 2000-2021 B & H Foto & Electronics Corp. 420 9th Ave, New York, NY 10001 Privacy & Security User Agreement & Disclaimer Export Policy California Privacy Notice Site Map Prices, specications, and images are subject to change without notice. Not responsible for typographical or illustrative errors. Manufacturer rebates, terms, conditions, and expiration dates are subject to manufacturers printed forms NYC DCA Lic.: Elec. Store #0906712 Elec. & Home App. Serv. Deal. #0907905; Sec. Hd. Deal. Gen. #0907906 We close every Friday afternoon to Saturday evening for Shabbos. Weekend Hours Accessibility Statement NewTek TriCaster Mini Advanced HD-4 SDI BH #NEFG002881R • MFR #FG-002881-R001 Authorized Dealer In Stock ATTACHMENT B (970) 748-4087 ewood@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Elizabeth Wood, Communications & Marketing Manager RE: E-bike Purchase Incentive DATE: July 20, 2021 SUMMARY: Electric bikes (e-bikes) are gaining popularity as members seek alternative ways to run errands, commute to work, reduce carbon emissions, and get some exercise. An e-bike is a motor assisted ride that combines conventional bike mechanics with a battery and motor which takes some of the effort out of pedaling. According to Marketsandmarkets.com, the global e-bike market is projected to grow at a compound annual growth rate of 9.01% by 2025. Key factors in driving this growth are increasing concerns about emissions, traffic congestion, growing bicycle tourism industry and rapid urbanization. New e-bikes range in price from $1,500 to $6,500 and up. Currently, Holy Cross Energy (HCE) offers a $200 rebate for e-bike purchases to customers with a Holy Cross Energy account who are offsetting vehicle miles. It is their most popular rebate, and in 2020 and thus far in 2021, HCE issued more than 520 rebates. In other parts of the country, many communities have partnered with local electric companies to offer instant rebates. The Edwards Metro District also offers a $200 e-bike purchase rebate for full-time residents who intend to use the e-bike to offset vehicle miles. There is a limit of two rebates per household. The program started at the beginning of the summer and they have issued 25 rebates. In 2021, they budgeted for 50 rebates. The minimum purchase amount to qualify for both programs is $500 and purchases can be made at online or at brick-and-mortar retailers. Receipts must be submitted electronically within six months of purchase. The City of Ann Arbor, Michigan has partnered with local e-bike vendors to offer a $100 discount for elect e-bikes and a $50 credit toward accessories. The pilot program is only valid at local bike vendors (not online). In Contra Costa County, California, residents can apply for a $150 rebate towards the purchase of any e-bike, e-bike conversion kit, or electric moped. The rebate is raised to $300 for low-income households. Similarly in the City of Healdsburg, California, the City offers rebates between $300-$700 depending on income level and where the bike is purchased. REQUESTED COUNCIL DIRECTION: Staff asks that Council consider a rebate for e-bike purchases made at Avon brick-and-mortar retail locations in the 2022 budget. Earmarking $20,000-30,000 as a rebate incentive will allow 100-150 Avon residents to receive a $200 financial rebate. Thank you, Liz 970.748.4004 eric@avon.org TO: Honorable Mayor Smith Hymes and Council FROM: Eric Heil, Town Manager RE: Work Session: Use Tax and Sales Tax Ballot Questions DATE: August 5, 2021 SUMMARY: This report presents information and options for a Use Tax ballot question and a Short-Term Rental Tax ballot question for Council discussion and consideration. Both questions are presented as methods to establish a dedicated funding source for Community Housing. Council must take action to refer a ballot question or questions at the next Council meeting on August 24, 2021 if Council desires to refer a question to the November 2, 2021 general election. The Town of Avon is conducting the November 2, 2021 general election as a coordinated election with Eagle County, so the only extra cost for referring ballot questions is the cost of staff time to prepare voter information required by the Tax Payor Bill of Rights and prepare a factual statement with pro and con statements as allowed by the Fair Campaign Practices Act. Use Tax materials that were previously presented to Council and presented to the Finance Committee are attached to this report. REQUESTED DIRECTION: Direction is requested from Council if Staff should prepare a Resolution to refer one or both proposed ballot questions to the November 2, 2021 election and prepare first reading of an Ordinance to amend the Avon Municipal Code and implement one or both ballot questions if passed. USE TAX: Staff prepared materials for a Use Tax for construction materials to replace the current Sales Tax on construction materials. These materials were introduced to Council at the July 13, 2021 regular meeting and presented to the Finance Committee on July 19, 2021. The Colorado statutory scheme for Sales Tax contemplates the Use Tax as a complimentary and companion tax. A Use Tax to compliment a Sales Tax is very common. Vail, Red Cliff, Minturn, Eagle and Gypsum all have a Use Tax to compliment their Sales Tax at the same rate as their Sales Tax (except Gypsum – which as a 4% Sales Tax and 3% Use Tax). Vail adopted its 4% Use Tax in 2007 and the revenues are dedicated to capital improvements. Minturn adopted its 4% Use Tax in 2018 and it is dedicated to capital improvements. Red Cliff adopted its 3% Use Tax in 2020. Administration: Imposition of Sales Tax on construction materials is administratively cumbersome for the Town, contractors and material suppliers because it requires each vendor of construction materials to pay the Sales Tax separately. A Use Tax is very easy to administer because a formula is used that is applied at the time of building permit and is paid as one lump sum payment. The formula takes the estimated value of the building, assumes that ½ of the cost is for materials and ½ is for labor, and applies the Use Tax rate to the portion that is for materials. Example: New home construction estimated to be $1,000,000. Assumption is that 50% of the estimated value is for materials, or $500,000. A 4% Use Tax rate would amount to $20,000. Imposition of Use Tax versus Sales Tax: The Use Tax would be applicable for all construction projects that require a building permit, including remodels and additions that require a building permit. In addition, once the Use Tax is paid to Avon, any construction materials purchased in another municipality (i.e. Eagle, Lakewood, Glenwood Springs) would be exempt from paying up to 4% of a Sales Tax to another municipality. Page 2 of 7 Example: Contractor purchases $50,000 of construction materials in the City of Glenwood Springs for a project in Avon. The Contractor shows the 4% Use Tax payment in Avon when purchasing those supplies. The City of Glenwood Springs Sales Tax is 3.7%. The Contractor would be exempt from paying the 3.7% City of Glenwood Springs Sales Tax. The imposition of a sales tax on construction materials applied to any construction materials that are delivered on-site in Avon and construction materials that are purchased by a contractor outside of Avon and installed on-site in Avon. The imposition of a sales tax on construction materials does not apply when a home owner purchases construction materials outside of Avon and takes possession of those materials outside of Avon. For example, a Do-It-Yourself home remodel project owner who purchases building supplies outside of Avon and takes possession of those supplies (i.e. loads the supplies in truck) and drives back to Avon with those building supplies would not be required to pay the Avon sales tax on those building supplies because the retail sale occurred outside of Avon). Example: A DIY owner purchases $20,000 in materials to remodel a kitchen and the building permit valuation is $40,000. Under the 4% sales tax, the DIY owner does not pay any Avon sales tax if the building materials are purchased outside of Avon and the DIY owner picks up the materials outside Avon and transports the materials back to the house. Under a 4% Use Tax, the DIY owner would pay $800 at the time of applying for a building permit. Increase in Revenues: The imposition of a Use Tax on construction materials is expected to generate more revenues than the imposition of Sales Tax on construction materials. The average revenues for Sales Tax on construction materials for the last seven years has been $399,000 per year. The formula for a 4% Use Tax on construction materials would have generated on average $610,000 per year over the last ten years. A Use Tax on construction materials is expected to generate approximately 54% more revenues than a Sales Tax on construction materials. Allocation of Use Tax Revenue: The proposed ballot question would dedication 100% of the Use Tax revenues to the Community Housing Fund. An alternative is to dedicate 50% to the General Fund (or the Capital Improvements Fund) and 50% to the Community Housing Fund. The advantage of splitting the Use Tax revenue would be to not significant reduce current revenues that go to the General Fund and to allow 50% of revenues generated in the Village (at Avon) to be used for defeasance of debt paid by Town of Avon’s tax credit obligation. Splitting a 4% Use Tax 50% to General Fund (or CIP Fund) and 50% to Community Housing is estimated to generate $305,000 per year for the General Fund (or CIP Fund) and $305,000 to the Community Housing fund. We are currently discussing the potential applicability of a Use Tax in the Village (at Avon) with Traer Creek, LLC. The Use Tax revenues generated in the Village (at Avon) would need to be used in the Village (at Avon) during the period of tax credits under the terms of the existing Development Agreement. Implementation of Use Tax: The details of implementation and administration of a Use Tax occurs through adoption of Use Tax regulations in the Avon municipal code. Vail’s Use Tax regulations are attached as an example, which is fairly standard. FINANCE COMMITTEE REVIEW AND COMMENTS: The Finance Committee reviewed the proposed Use Tax on Construction materials had these comments and questions. My responses are provided in italics. Page 3 of 7 A. Does the Town think it’s leaving money on the table with the current sales tax? Yes, based on the typical Use Tax calculation formula and reviewing total value of construction, we estimate that the Town is only collecting 65% of the revenues that should be generated from a 4% Sales Tax on construction materials. B. The use tax would be paid on only 50 percent of the total construction cost because it is assumed that is the cost of materials vs. labor for most projects. What happens if some projects pay more or less than 50 percent of the total costs on supplies? A typical Use Tax ordinance, like Vail’s, would include provisions whereby the either the Town or the taxpayer could request an audit of the actual cost of construction materials use and if the results are less than the amount paid, the taxpayer would receive a refund within 30 days, or if more, the taxpayer would be required to pay the increased amount. In practice, audits are rarely performed because the details of the building are all shown at building permit level and it is common for both the Town and contractor to agree on the building valuation at the time of issuing a building permit. C. Besides easier administration, what are the other benefits of this tax? A Use Tax is much easier for contractors and does not require additional administration on their side. A Use Tax is expected to generate 54% more revenue than the Sales Tax on Construction materials because we anticipate the Use Tax will capture the revenue from the tax on the value of all construction materials rather than the Sales Tax on construction materials which is failing to collect nearly a third of the total retail transactions. D. Who is ultimately responsible for paying the tax? The property owner is ultimately liable and if there is a failure to pay the Use Tax, the Town may impose a lien on the property. Practically, the contractor pays the Use Tax at the time of applying for a building permit. E. Can the Town do more audits on the current construction material sales tax? Yes, the Town can perform more audits. Audits do create more work for Town, which is often performed by third party consultants, and create more work for contractors. The experience is unenjoyable all around which is a reason contractors tend to prefer the imposition of a Use Tax over the Sales Tax. F. Would the Town refund money if costs are lower than predicted? Yes, see the answer to B above. G. Are community housing projects exempt from this tax? Yes, we expect that AMC Chapter 3.14 Community Housing Incentives would be amended to exempt Use Tax from qualifying Community Housing projects. H. Tax exemptions up front are easier than refunds after the fact. True I. How much of the estimated construction value in Town last year came from big developers vs. private projects? We have not been able to compile that information. This information could be presented for the August 24, 2021 Council meeting. Page 4 of 7 J. Can the tax pay for staff working on community housing projects? Yes. Depending upon legal review of the final wording of the ballot question and the proposed amendments to the Avon Municipal Code to implement a Use Tax, this revenue source could be used to support all “soft” costs, including Town staff time. Currently, a portion of the Capital Improvements Fund and Real Estate Transfer Tax revenues are used to support the Engineering staff which implements and oversees Capital Improvements. K. Would part the revenue from the tax go towards community housing or all of it? Council direction would determine that. RECOMMENDATION: I recommend strong consideration for referring a 4% Use Tax ballot question to the Avon voters. The implementation of a Use Tax to compliment a Sales Tax is very common and has been adopted by all other municipalities in the Eagle River Valley in Eagle County. The benefit and efficiency in administration and collection would be a significant enhancement over the imposition of a Sales Tax on construction materials. A Use Tax that was dedicated 50% or 100% to Community Housing would create a dedicated revenue source that would support Community Housing efforts. The long-term benefits of more efficient administration and improved revenue collection of the Use Tax in the Village (at Avon) is substantial enough to warrant strong consideration for this reason alone. SHORT TERM RENTAL TAX: The Avon Finance Committee discussed a short-term rental tax. A Short- Term Rental Tax would be applicable to consideration received for a short-term rental (less than 30 days) for any property that is not assessed as a commercial property. Commercial Hotels (e.g. Comfort Inn) would not be required to pay a Short Term Rental Tax. Avon has received increased revenues from short-term vacation rentals since the Town has been able to enter into revenue collection agreements with major vacation rentals companies like Air BnB. Town of Crested Butte adopted a 5% “Excise Tax” on Short-Term Rentals in 2017 for affordable housing. Town of Telluride adopted a 2.5% “Excise Tax” on Short-Term Rental dedicated to affordable housing in November 2019. Projected Revenues: Based on 2019 Accommodation Tax numbers and calculating that Short-Term Rentals are approximately 2/3rds of the Town’s Accommodation Tax revenues, each 1% Short-Term Rental Tax is anticipated to generate $227,500. A 2% Short-Term Rental Tax would generate $455,000 and a 4% Short-Term Rental Tax would generate $910,000. Tax versus Regulations/Restrictions of Short-Term Rentals: Short-Term Rentals have gained attention during the current housing climate. Many mountain communities are considering restrictions on Short-Term Rentals. During a recent Colorado Association of Ski Towns meeting a number of mountain communities are currently discussing restrictions on Short-Term Rentals. Avon has restrictions in place for Wildridge for over 40 years. In addition, the Town core and valley floor area was built with many projects that are oriented towards second home owners and short-term rental and have in fact been purchased and used as second homes and short-term rentals. Any new restriction on Short-Term Rental in areas where Short- Term rentals are permitted and licensed will create property rights and non-conforming use legal issues. An additional tax on Short-Term Rentals has the advantage of financially discouraging Short-Term Rentals (i.e. increasing the financial incentive for long-term rentals) and helps to address a criticism that Short-Term Page 5 of 7 Rentals have an unfair advantage because they do not pay commercial property tax rates. The primary advantage of a Short-Term Rental Tax is that it would generate revenues that could be used to increase available Community Housing opportunities. FINANCE COMMITTEE REVIEW AND COMMENTS: The Finance Committee provided a series of comments and questions which addressed both a Short-Term Rental Tax and Use Tax. A. With most of Avon already developed, that use tax revenue would slow down in the upcoming years. This is likely true for the non-Village (at Avon) portion of Avon. If adopted this fall, a Use Tax is expected to apply to the Lot 1 development at Riverfront, the former Colorado Worlds Resort development, the Lot B hotel development adjacent to Town Hall, and the Lot 3 development between Town Hall and Sheraton Mountain Vista. A Use Tax may generate $3 to $4 million with the development of these four remaining large-scale properties. After that, large projects would only occur through redevelopment in the Avon Town Core area, which is too speculative to estimate at this time. The benefit of increased revenues in the Village (at Avon) should not be underappreciated. With a majority of the development in the Village (at Avon) yet to occur, the increased revenue from a Use Tax would accelerate the pay-off and satisfaction of the Town’s tax credit obligations under the Village (at Avon) Development Agreement. The Village (at Avon) has entitlements to construct 474,442 sq.ft. of commercial development and 1,916 more residential units. If one assumes construction cost is $400 per square foot and that average size of residential units is 1,500 sq.ft., the Use Tax could potential generate $25 million in revenues at full-build out, which would be an estimated increase of $8 million over the existing Sales Tax on construction materials. B. How are short-term rentals differentiated from hotels? Other communities that have adopted Short-Term Rental Taxes state that properties which are assessed as commercial properties are exempt. C. What is the likelihood that the accommodations tax would pass an election? Crested Butte and Telluride passed a Short-Term Rental Tax. I am not aware of any Short-Term Rental Taxes that have failed. I can offer my opinion with 29 years experience working on tax questions upon the original adoption of TABOR that a Short-Term Rental Tax is likely to pass by a very healthy margin. There is public perception that short-term rentals are a direct and substantial contributor to the current housing crisis and very, very few voters would pay this tax. D. The use tax will likely bring in less revenue than short-term rental tax and will be harder to pass an election. E. Some communities have taxes on second homes that sit empty, although there are challenges. I fully anticipate that any attempts to tax vacant homes will result in nicer housing for lawyers and no actual revenues for the Town to use for Community Housing. F. It seems that Colorado is the only state that doesn’t charge higher property taxes on second homes. My understanding is that there is technically not a higher tax rate on second homes, but that there are restrictions on raising property taxes on your primary home once Page 6 of 7 purchased. I also understand that there would need to be a Constitutional amendment in Colorado to implement this type of property tax. G. The short-term rental tax makes more sense than the use tax. H. It is hard to pass new taxes in Avon. True, past tax increase proposals have not been successful. Ultimately, the Avon voters decide. I. Should both taxes go on the ballot or one? If only one, which should go on it first? This is a political assessment by Council. I offer my opinion that both taxes are for an appropriate purpose and that the current community and political climate is supportive of action on community housing. I am not aware of any other competing tax increase question for the Avon jurisdiction this November. Both taxes together present a comprehensive approach to create a real housing program in Avon and these taxes do not tax the vast majority of voters and do not tax those who are most impacted by the current lack of affordable housing. J. It’s probably best to keep it simple on the ballot. The accommodations tax is the easiest to understand. K. Workforce housing is reaching a crisis point. People are seeing this and will vote for programs that fix the problem. L. Pair the tax ballot question with other community housing ballot questions to get people in a mindset to vote yes. M. The accommodations tax is the least controversial and voters are in a mood to support it. N. The use tax is more time sensitive. If it’s passed later the Town will lose revenue from big projects coming up soon, so it would be beneficial to put it on the ballot first. The accommodations tax has higher likelihood of passing but is less pressing right now. O. The public will want to know what specific projects the revenues will fund. Right now the language is too vague. Explaining pending Community Housing projects and programs is very important during an election process. It is not practical to identify specific projects or programs in the wording of the ballot question. P. Even though the use tax is replacing the construction material sales tax, people will view it as a new tax and disapprove. Q. If the use tax fails in 2021, can it go on the ballot again in 2022? Yes. Typically, when a tax or debt question does not pass, but is close, there is a follow-up process to determine if the tax or debt can be revised to respond to community concerns, and if so, then resubmitted to the voters again the following year. R. Is there time to identify exactly what projects the tax will fund? We can identify pending projects and potential proposed uses for the tax by November. We can also gather information on other mountain resort communities that have housing programs, how the funds are used, and what the community can expect over the next 10 to 20 years. Page 7 of 7 S. Approving a ballot initiative like this is in the public’s self interest as the housing shortage will eventually impact the economy and the face of the Town itself. RECOMMENDATION: I recommend strong consideration for a 2% Short Term Rental Tax with the revenues dedicated towards Community Housing because this would establish a dedicated funding source and would address in part some of the concerns over Short Term Rental Housing. Overall, I believe the timing is as good as possible for tax questions to support Community Housing. If both proposed ballot questions were referred to the Avon voters and both passed (i.e. a 4% Use Tax with 50% dedicated to Community Housing and a 2% Short-Term Rental Tax dedicated to Community Housing), Avon would have a dedicated revenue stream of approximately $765,000 for Community Housing each year. Thank you, Eric ATTACHMENT A: Use Tax Report, July 7, 2021 ATTACHMENT B: Use Tax Examples ATTACHMENT C: Use Tax Presentation ATTACHMENT D: Vail Use Tax TO: Honorable Mayor Smith Hymes and Council members FROM: Scott Wright, Assistant Town Manager; Paul Wisor, Town Attorney; Eric Heil, Town Manager RE: Use Tax on Construction Materials DATE: July 7, 2021 SUMMARY: This report provides an overview of a potential Use Tax, including draft Ballot Language and recommendations. Council approved the 2021 Department goals early in the year which included a Finance Department Goal to present legal and financial analysis of Use Tax. Finance Department, Goal #12 states, Present Legal and Financial Analysis of Use Tax: Staff will prepare an overview of sales and use tax as commonly used throughout Colorado, potential revenues, potential dedication of such revenues for designated purposes such as capital improvements or community housing, and present that information to the Finance Committee. The 2018 Town of Avon Community Housing Plan established a goal to secure additional local funds for housing and to seek opportunities for new funding sources. The Community Housing Plan states on P. 6 under Funding, A two-step process is envisioned to secure additional local funds for housing. The first step will be to review current revenue streams and determine if additional funds can be directed to housing efforts through the annual budgeting process. This review will begin at the end of 2018. Depending on the outcome of the first step, the second step will be to seek opportunities for new funding sources, which could include approaches such as increased linkage fees, regional collaboration, and/or support for a local ballot initiative. The purpose of this report is to introduce to Council a possible means for funding Community Housing projects through the assessment of a use tax on construction materials. This is submitted as a written report and no formal action by Council is requested at this time. If Council decides that this might be a favorable way to raise funds for this purpose it must be approved by the Town’s electorate in a TABOR election, since implementing a use tax is a change in tax policy and increases revenue. Critical dates pursuant to TABOR include the following: (1) August 10. Last regularly scheduled Town Council meeting to introduce first reading of an ordinance to refer ballot question and self-execute implementation of use tax upon approval. (2) August 24 Last regularly scheduled Town Council meeting in which to adopt a resolution certifying ballot content to the County Clerk and Recorder. (3) September 3. Last day to certify the ballot content to the County Clerk and Recorder. (4) November 2. Election day. BACKGROUND: In 2002 a 4% construction use tax was submitted to the Town of Avon electors by the Avon Town Council. The tax was to be "spent solely for transportation and recreation capital projects and ATTACHMENT A - Use Tax Report services and infrastructure related thereto." The ballot question failed to pass by a vote of 379 in favor and 573 against (See Attachment A). ANALYSIS: Use taxes are levied on the consumption of tangible personal property within a city or county for which no sales or use tax has been previously paid. A use tax differs from a sales tax in that the purchaser (as opposed to the retailer) is generally held responsible for paying the use tax. Use taxes are considered complimentary to a sales tax and are applied in the jurisdiction where the product or materials are used rather than where purchased. Use taxes are typically assessed at the same rate as the sales tax that would have been owed and generally the taxability of the goods or services is the same. The State of Colorado imposes both a sales tax and a use tax. The use tax is imposed as a complement to Colorado sales tax, and is meant to capture revenue on transactions that are not subject to a sales tax as well as transactions which are more efficient and effective to impose and collect the use tax rather than the sales tax. The use tax is imposed for the privilege of storing, using, or consuming tangible personal property in Colorado. In general, whenever a purchaser acquires tangible personal property without paying sales tax at the time of the sale, they must pay consumer use tax directly to the Department of Revenue. If an item is exempt from sales tax, it is generally exempt from use tax as well. The Colorado use tax rate is 2.9%, the same as the sales tax rate in Colorado, and use tax is calculated in the same manner as sales tax. There are generally three types of use taxes that may be imposed on purchasers: (1) A Consumer Use Tax; (2) A Motor Vehicle Use Tax; (3) A Construction Use Tax levied on building materials. Consumer Use Tax. The first type of use tax - a consumer use tax - is defined as a "companion" tax for purchases made where sales tax is not charged. In Colorado, this companion tax is called a consumer use tax. Typically, a consumer use tax is imposed on transactions that are subject to sales tax, but tax was not charged. Usually, this occurs when items are purchased out-of-state, ordered through the mail, over the Internet, or by phone from another state. It is imposed on the use, storage, or consumption of tangible personal property in the state. The use tax often applies when a company makes a purchase from an out- of-state seller that is not required to collect sales tax in the purchaser’s state. Consumer use taxes are imposed by state and local governments for two reasons — to prevent someone from evading a sales tax by buying goods or taxable services from a non-taxing state and shipping them into the state that imposes the sales tax. In addition, the use tax protects retailers located in the state or municipality because it removes the incentive for consumers to shop outside that locality in order to avoid paying the sales tax. On June 21, 2018, the United States Supreme Court ruled in a 5-4 decision in South Dakota v. Wayfair, Inc., et al, that states can generally require an out-of-state seller to collect and remit sales tax on sales to in-state consumers even if the seller has no physical presence in the consumer's state. Because of this decision, we do not consider future lost sales taxes from out-of-state retail sales to be material enough to consider a consumer use tax ballot question. We do not recommend Council consider a Consumer Use Tax. Motor Vehicle Use Tax. In general, motor vehicle sales are subject to all state and local sales taxes that apply within the jurisdiction where the sale occurred. However, in most jurisdictions, sales are exempt from ATTACHMENT A - Use Tax Report the local sales tax if the motor vehicle is registered outside of Town. If the vehicle sale is exempt as described above, the purchaser must pay applicable use tax imposed by the municipality or county in which the vehicle is registered. If there is no use tax imposed, then the only tax paid is at the State level. Any applicable use taxes must be paid to the county clerk prior to titling and registration. From a practical standpoint, jurisdictions that do not have a motor vehicle use tax are unlikely to have new and used automobile dealerships because a resident purchasing a vehicle within that jurisdiction would have to pay sales tax vs. purchasing the vehicle outside of the jurisdiction. Use taxes on motor vehicles can raise a substantial amount of tax. A Motor Vehicle Use Tax would be a new tax for Avon residents purchasing a vehicle. We do not recommend Council consider a Consumer Use Tax. Construction Materials Use Tax. The Town of Avon currently imposes a sales tax on building materials. The administrative burden of collection is high and not entirely effective because Avon must collect the sales tax from vendors of construction materials and not the contractors or property owners. Many of the construction materials are purchased outside of the Town. In the case of materials purchased outside of Town and brought into Town by the purchaser (owner, general contractor or sub-contractors), the Town has lost out on the sales tax for those items because it is paid at the location of the retailer. In the case of materials purchased outside of Town and then delivered by the retailer to the job site, sales would not be collected by the retailer and the purchaser should remit the sales tax to the Town. However, due to the “on-your-honor” methodology, the large number of contractors and companies involved, the amount of records involved, and determining who is ultimately responsible for the tax (the owner, general contractor or subs), this methodology is very inefficient. A construction use tax is a form of use tax levied on building materials. The use tax is collected at the time a building permit is issued. The use tax amount is determined by multiplying the use tax rate by the cost of the building materials using a predetermined formula. A common method is to determine that the cost of building materials to be fifty percent (50%) of the total valuation of the construction project. The builder then provides the building permit to the materials supplier to prove that use tax has already been paid, and then is exempt from paying a corresponding municipal sales tax in other locations. A large number of cities and counties in Colorado levy a use tax on building materials including Eagle, Gypsum, Vail, Steamboat Springs and Grand Junction. See the comparison tables in the presentation. The benefits of a use tax on construction materials include the following: (1) fairness in the imposition of the tax; (2) elimination of unfair competition using tax rates as a reason to shop outside of Avon; (3) easing of the administrative burden of collection; (4) nexus of construction to community housing needs; FINANCIAL CONSIDERATIONS: Based on the Town’s 10-year average of the total value of building construction of $32,772,355, a 4% use tax on construction materials would have generated an average of $655,447 per annum in revenue. It should be noted that because the Town (excluding The Village (at Avon)) has only a few remaining vacant parcels for large potential developments remaining, the level of use tax from the past ten years might not be an accurate representation of the potential use tax that might be realized in the future. Redevelopment of East Avon Town Center and other underdeveloped properties in the Town core may provide additional use tax revenues. ATTACHMENT A - Use Tax Report The timing of the remittance of a use tax versus what was actually collected in sales tax on construction materials makes it very difficult to compare fiscal years. However, an average of the past seven years indicates that the Town has actually collected an average of $399,446 per year with 2020 collections at $537,553 representing almost 6% of total sales tax collections. Village At Avon (Traer Creek Metro District). The Consolidated Amended and Restated Annexation and Development Agreement (“CARADA”) specifically contemplates that the Town may, at some point, impose a use tax. In the event a use tax is imposed, a corresponding “use tax credit” will automatically be applied to any transaction subject to the use tax. The CARADA also contemplates that Traer Creek may impose a building materials fee if the Town imposes a use tax. The CARADA is silent as to whether the building materials fee must be used for the same purposes as the use tax. The CARADA does provide the Town must coordinate with Traer Creek regarding the implementation of any use tax, so the Town will need to further explore the building materials fee with Traer Creek. SAMPLE BALLOT LANGUAGE: Sample ballot language is included with this Report which would dedicate 100% of the revenues of a Use Tax to the Community Housing Fund. The use of these funds is broadly written to encompass all potential investments and expenditures related to Community Housing. OPTIONS: As an option to the sample ballot language contained in Attachment B, Council may consider retaining a portion of the use tax in the General Fund to be used for any legal purpose as a way to offset the amount of sales tax on construction materials that will no longer be collected in that manner. As discussed above, that amount in 2020 equates to approximately 6% of gross sales tax revenues or a total of $537,553. Another option regarding the use tax on construction materials would include not specifically earmarking the funds and leave the appropriation of the funds up to the discretion of the Town Council. RECOMMENDATION: We recommend that Council provide direction regarding the possible adoption, either by resolution or by ordinance, of a construction materials use tax ballot question to be certified to the Eagle County Clerk and Recorder for inclusion in the November 2, 2021 general election. Direction should include addressing the options above. TOWN MANAGER’S RECOMMENDATION: I recommend that Council consider approving the ballot question as presented with 100% of the revenues to be dedicated to Community Housing. In my experience working with ballot questions for new taxes, voters will more likely support a new tax that is dedicated to a pressing community need. Presenting the Use Tax as a new tax to support Community Housing is simple and easy for the general public to understand and I expect would resonate with the community based on the current housing shortage. The Sales Tax on construction materials collected in 2020 amounts to 2.9% of the General Fund operating revenues. Considering the magnitude and scope of housing as well as the need to generate significant sums to leverage with regional partners and state and federal grant funds, Council should be striving for annual revenues to be dedicated or allocated towards Community Housing in the range of $1 million to $2 million. Thank you, Scott, Paul and Eric ATTACHMENTS: Attachment A - Ordinance No. 2002-18 Attachment B - Sample Use Tax Ballot Question ATTACHMENT A - Use Tax Report TOWN OF AVON ORDINANCE NO. 02-18 SERIES OF 2002 AN ORDINANCE ADDING A USE TAX ON CONSTRUCTION MATERIALS. BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Chapter 3.08 of the Avon Municipal Code is amended as follows: a) Title. The title of chapter 3.08 is amended to state "SALES AND USE TAX." b) 43.08.020. Taxable items. A new subpart D. is added to state as follows: D. Upon the purchase price paid for or the acquisition costs of construction materials brought within the boundaries of the town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property in the town." c) 43.08.030. Sales tax levy. i) The title of §3.08.030 is changed to state "Sales and use tax levy." ii) Section 3.08.030C is repealed and reenacted to state as follow: The retailer shall add the sales tax imposed hereto to the sale or charge of the item sold, showing such tax as a separate and distinct item, and, when added, such tax shall constitute a part of such price or charge, shall be a debt from the purchaser to the retailer until paid and shall be recoverable at law in the same manner as other debts." iii) A new subpart E. is added to state as follows: E. (1) A use tax of four percent is imposed upon the purchase price paid for or the acquisition costs of construction materials brought within the boundaries of the town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property in the town. 1 ATTACHMENT A - Use Tax Report 2)(a) Any person who shall build or improve any dwelling or other structure or improvement to realty within the town, including underground improvements, and who shall purchase the necessary construction materials needed therefor from any source inside or outside of the town, shall remit to the Finance Director prior to the issuance of any building permit for such improvement full payment of the use tax, to be calculated as provided herein. The full amount of the use tax shall be due and payable at the time that the applicable building permit is issued. The estimate of the cost of the construction materials shall be determined by the Town Building Official in the manner set forth below, and the amount of the tax shall be subject to adjustment if the actual cost of the construction materials needed for the improvement is either less than or greater than the estimate. Upon payment of the use tax, the Finance Director shall issue the taxpayer a receipt identifying the property that is the subject of the tax and the building permit number. b) For the purpose of calculating the amount of the use tax as provided for herein, the value of the construction materials in the improvement shall be estimated to be equal to fifty percent of the total value of the improvement as determined by the Building Official for building permit purposes. The use tax obligation shall be an amount equal to four percent of such estimated value of the construction materials. c) If it is determined by the Finance Director through audit or other means that the actual cost of the construction materials for the improvement is greater than the estimate on which the tax was based, and that additional tax is owing, then the Finance Director shall make a demand to the taxpayer for the additional use tax owed together with interest calculated pursuant to § 3.08.353; provided, in no case may the Finance Director make a claim for amounts due more than three years after a certificate of occupancy or final inspection approval has been issued by the town for the improvement. A taxpayer's failure to honor the Finance Director's claim for additional tax due, as set forth in this paragraph, shall constitute a violation of this chapter. 3) All use tax funds collected by the Town in accordance with the provisions of this chapter shall be appropriated and spent solely for transportation and recreation capital projects and services and infrastructure related thereto." d) & 3.08.320. Sales tax - Credit for sales or use taxes previously paid to another municipality. i) The title of § 3.08.320 is changed to state "Sales and use tax - Credit for sales or use taxes previously paid to another municipality." ii) Section 3.08.320 is repealed and reenacted to state as follow: 2 ATTACHMENT A - Use Tax Report For transactions consummated on or after January 1, 1986, the town's sales tax shall not apply to the sale of tangible property at retail or the furnishing of services if the transaction was previously subjected to a sales or use tax lawfully imposed on the purchaser or user by another statutory or home rule municipality equal to or in excess of that provided for in Section 3.08.030. A credit shall be granted against the town's lawfully imposed local sales or use tax previously paid by the purchaser or user to the previous statutory or home rule municipality. The amount of the credit shall not exceed the town's sales or use tax imposed pursuant to Section 3.08.030." Section 2. Section 3.08.035 of the Avon Municipal Code is amended as follows: 3.08.035 Tax Credit. Notwithstanding any other provisions of this chapter, there shall be granted to each person owing 1) the sales tax on sales consummated within The Village (at Avon) or 2) the use tax on the purchase price paid or the acquisition costs of construction materials brought within the boundaries of the Town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property within The Village (at Avon) a temporary tax credit against collection of the tax equal to the amount of any retail sales or use fee paid by or on behalf of such person. The amount of the credit shall not exceed the amount of the tax. No such credit shall shall be granted subsequent to termination of the collection of the retail sales fees and use fees terminate pursuant to the Annexation and Development Agreement for The Village (at Avon). Neither the ability of the Town to grant the temporary tax credit nor the termination of the credit shall constitute a tax increase, the imposition of a new tax or a tax policy change." Section 3. Election and Effective Date. Under Article X, Section 20 of the Colorado Constitution, the Council refers the tax increase provided in this ordinance to the qualified electors of the Town for approval at the regular Town election scheduled for November 5, 2002. If approved by a majority of the electors voting thereon, this ordinance shall become effective when the Town Clerk or other designated election official duly files the required certificate of election, or on January 1, 2003, whichever occurs last. Section 4. Ballot Title and Question. The ballot title and question submitted to the electors shall be as follows: ATTACHMENT A - Use Tax Report SHALL TOWN OF AVON TAXES BE INCREASED $1.6 MILLION ($1,600,000) ANNUALLY IN 2003, AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER, BY THE IMPOSITION OF A FOUR PERCENT (4%) USE TAX ON THE PRIVILEGE OF USING OR CONSUMING IN THE TOWN ANY CONSTRUCTION MATERIALS, SUCH USE TAX REVENUES TO BE APPROPRIATED AND SPENT SOLELY FOR TRANSPORTATION AND RECREATION CAPITAL PROJECTS AND SERVICES AND INFRASTRUCTURE RELATED THEREO, ALL IN ACCORDANCE WITH ORDINANCE NO. 02-18 ADOPTED BY THE TOWN COUNCIL; AND SHALL THE REVENUES COLLECTED FROM SUCH TAX AND ANY EARNINGS FROM THE INVESTMENT OF SUCH REVENUES BE COLLECTED AND SPENT AS A VOTER APPROVED REVENUE CHANGE AND AN EXCEPTION TO THE LIMITS WHICH WOULD OTHERWISE APPLY UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW? INTRODUCED, APPROVED ON FIRST READING, AND ORDERED PUBLISHED IN FULL AND POSTED, this 9th day of July, 2002, and a public hearing on this ordinance shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado on the 27th day of August, 2002, at 5:30 p.m. in the Municipal Building of the Town of Avon, Colorado. TOWN OF AVON, COLORADO: ATT To Cl rk yor 4 ATTACHMENT A - Use Tax Report INTRODUCED, APPROVED ON SECOND READING, AND ORDERED PUBLISHED AND POSTED this 27th day of August, 2002. TOWN OF AVON, COLORADO: Jyor ATT oc- To Cl rk EARS APPROVED AS TO FORM: Town ttorney ATTACHMENT A - Use Tax Report STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 27TH DAY OF AUGUST 2002, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 02-18, SERIES OF 2002: AN ORDINANCE ADDING A USE TAX ON CONSTRUCTION MATERIALS. A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado Dated this 23rd day of August 2002. TOWN OF AVON, COLORADO BY: P ! "lc/ Patty Yel envy Town Cie& POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON AUGUST 23, 2002: AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY ATTACHMENT A - Use Tax Report STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 13TH DAY OF AUGUST 2002, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 02-18, SERIES OF 2002: AN ORDINANCE ADDING A USE TAX ON CONSTRUCTION MATERIALS. A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado Dated this 6`" day of August, 2002. TOWN OF AVON, COLORADO BY: 201 /~c Pa " cKenn Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON AUGUST 6, 2002: AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY ATTACHMENT A - Use Tax Report STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 23RD DAY OF JULY 2002, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 02-18, SERIES OF 2002: Ordinance 02-18, Series of 2002 - An Ordinance Adding a Use Tax on Construction Materials A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado Dated this 19th day of July, 2002. TOWN OF AVON, COLORADO BY: c Pay c envy Town erk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON JULY 19,2002: AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY ATTACHMENT A - Use Tax Report ORDINANCE NO. 02-18 gad SERIES OF 2002 NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON,COLORADO: Section 1. Chapter 3.08 of the Avon Municipal Code is amended as follows: a) Title. The title of chapter 3.08 is amended to state "SALES AND USE TAX." b) 43.08.020. Taxable items. A new subpart D. is added to state as follows: D. Upon the purchase price paid for or the acquisition costs of construction materials brought within the boundaries of the town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property in the town." c) 43.08.030. Sales tax levy. i) The title of §3.08.030 is changed to state "Sales and use tax levy." ii) Section 3.08.030C is repealed and reenacted to state as follow: The retailer shall add the sales tax imposed hereto to the sale or charge of the item sold, showing such tax as a separate and distinct item, and, when added, such tax shall constitute a part of such price or charge, shall be a debt from the purchaser to the retailer until paid, and shall be recoverable at law in the same manner as other debts." iii) A new subpart E. is added to state as follows: E. (1) A tax of four percent is imposed upon the purchase price paid for or the acquisition costs of construction materials brought within the boundaries of the town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property in the town. AN ORDINANCE ADDING A USE TAX ON CONSTRUCTION MATERIALS. 2) Any person who shall build or improve any dwelling or other structure or improvement to realty within the town, including underground ATTACHMENT A - Use Tax Report improvements, and who shall purchase the necessary construction materials needed therefore from any source inside or outside of the town, shall keep all invoices and statements regarding such materials from both the general and subcontractors, along with a summary sheet showing such purchases, and shall, on or before the tenth day of each succeeding month following the start. of construction, file a return with the Finance Director, to which he shall attach such invoices, statements and. summary for the construction materials purchased the previous month, and . shall thereupon pay to the Finance Director the full amount of the use tax due thereon for the preceding month or months. Any failure to preserve such statements and invoices, and to make such return and payment of such use tax, shall be deemed a violation of this chapter. The full amount of any use tax due and not paid for construction materials shall be a lien upon the real property benefited by such improvements, and the Finance Director is authorized to file a notice of such lien with the County Clerk and Recorder. 3)(a) Any person who shall build or improve any dwelling or other structure or improvement to realty within the town, including underground improvements, and who shall purchase the necessary construction materials needed therefore from any source inside or outside of the town, may, at such person's option, remit a deposit to the Finance Director prior to the issuance of any building permit for such improvement, such deposit to insure and indemnify the town for the amount of use tax due. The amount of the deposit shall be based upon an estimate of the use tax to be payable on the construction materials used for the improvement. Such estimate shall be made, and such deposit shall be paid, at the time that the applicable building permit is issued. The estimate of the cost of the construction materials shall be determined by the Town Building Official, and the estimate shall be subject to adjustment if the actual cost of the construction materials needed for the improvement is either. less than or greater than such estimate. If the taxpayer elects the deposit procedure set forth in this subsection (3), then the provisions of subsection (2) hereof shall be waived. Upon payment of the deposit as set forth herein, the Finance Director shall issue the taxpayer a receipt identifying the property that is the subject of the deposit and the building permit number. b) For the purpose of calculating the amount of the deposit as provided for herein, the value of the construction materials in the improvement shall be estimated to be equal to fifty percent of the total value of the improvement as determined by the Building Official for building permit purposes. The deposit shall be in the amount of four percent of such estimated value of the construction materials. c) If it is determined by the Finance Director that the actual cost of the construction materials for the improvement is.greater than the estimate therefore, and that the amount of the use tax deposit is not sufficient to 2 ATTACHMENT A - Use Tax Report provide for full payment of the use tax, then the Finance Director shall make a demand to the. taxpayer for the additional use tax owed; provided, in no case may the Finance Director make a claim for amounts due over and above the amount of the deposit more than three years after a certificate of occupancy or final inspection approval has been issued by the town for the improvement. A taxpayer's failure to honor the Finance Director's claim for additional tax due, as set forth in this paragraph, shall constitute a violation of this chapter. d) If it is determined by the Finance Director that the deposit is sufficient to provide for full payment of the use tax, then the deposit shall be used to pay the amount of the use tax due. If the Finance Director determines that the amount of the deposit is in excess of the use tax owned, then he shall return any excess amount of the deposit to the person who made the deposit within thirty days of such determination. 4) If a taxpayer purchases construction materials subject to the use tax imposed herein from a vendor possessing a valid Town of Avon retail sales tax license, and if he pays the town's sales tax at the time of purchase of such construction materials, then he shall be entitled to a credit, to the extent of such sales tax paid, to be applied to the amount of use tax owed. 5) Construction materials subjected at the time of purchase to a sales or use tax lawfully imposed on the purchaser by another statutory or home rule municipality in the State of Colorado, if taxed at a rate equal to or greater than the four percent rate provided for herein, are exempted from the Town of Avon's use tax. If the rate of the sales or use tax imposed by such other Colorado statutory or home rule municipality is less than four percent, the difference between the tax due under this chapter and the tan paid by the purchaser shall be due to the Town of Avon, and shall be remitted to the Finance Director. 6) All use tax funds collected by the Town in accordance with the provisions of this chapter shall be appropriated and spent solely for transportation and recreation capital projects and services." d) 4 3.08.320. Sales tax - Credit for sales or use taxes previously paid to another municipality. i) The title of § 3.08.320 is changed to state "Sales and use tax - Credit for sales or use taxes previously paid to another municipality." ii) Section 3.08.320 is repealed and reenacted to state as follow: For transactions consummated on or after January 1, 1986, the town's sales tax shall not apply to the sale of tangible property at retail or the furnishing of services if the transaction was previously subjected to a sales or use tax lawfully imposed on the 3 ATTACHMENT A - Use Tax Report purchaser or user by another statutory or home rule municipality equal to or in excess of that provided for in Section 3.08.030. A credit shall be granted against the town's lawfully imposed local sales or use tax previously paid by the purchaser or user to the previous statutory or home rule municipality. The amount of the credit shall not exceed the town's sales or use tax imposed pursuant to Section 3.08.030." Section 2. Election and Effective Date. Under Article X, Section 20 of the Colorado Constitution, the Council refers the tax increase provided in this ordinance to the qualified electors of the Town for approval at the regular Town election scheduled for November 5, 2002. If approved by a majority of the electors voting thereon, this ordinance shall become effective when the Town Clerk or other designated election official duly files the required certificate of election, or on January 1, 2003, whichever occurs last. Section 3. Ballot Title and Question. The ballot title and question submitted to the electors shall be as follows: SHALL TOWN OF AVON TAXES BE INCREASED $1.6 MILLION ($1,600,000) ANNUALLY IN 2003, AND. BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER, BY THE IMPOSITION OF A FOUR PERCENT (4%) USE TAX ON THE PRIVILEGE OF USING OR CONSUMING IN THE TOWN ANY CONSTRUCTION MATERIALS, SUCH USE TAX REVENUES TO BE APPROPRIATED AND SPENT SOLELY FOR TRANSPORTATION AND RECREATION CAPITAL PROJECTS AND SERVICES, ALL IN ACCORDANCE WITH ORDINANCE NO. 01-08 ADOPTED BY THE TOWN COUNCIL; AND SHALL THE REVENUES COLLECTED FROM SUCH TAX AND ANY EARNINGS FROM THE INVESTMENT OF SUCH REVENUES BE COLLECTED AND SPENT AS A VOTER APPROVED REVENUE CHANGE AND AN EXCEPTION TO THE LIMITS WHICH WOULD OTHERWISE APPLY UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW? YES 4 ATTACHMENT A - Use Tax Report NO Section 4. Repealer. If the electors approve this ordinance, then on the effective date specified above, all ordinances or parts of ordinances in conflict herewith are hereby repealed, but only to the extent of such inconsistency. Section 5. Severability. The provisions of this ordinance. are severable, and invalidity of any part shall not affect the validity or effectiveness of the rest of this ordinance. INTRODUCED, APPROVED ON FIRST READING, AND ORDERED PUBLISHED IN FULL AND POSTED, this day of July, 2002, and a public hearing on this ordinance shallCaie held at t e regular meeting of the Town Council of the Town of Avon, Colorado on the a3 day of , 2002, at 5:30 p.m. in the Municipal Building of the Town of Avon, Colorado,,,- ATT 7,Cp`p Town lerk TOWN OF AVON, COLORADO: Wor 5 ATTACHMENT A - Use Tax Report INTRODUCED, APPROVED ON S COND READING, AND ORDERED PUBLISHED AND POSTED this-'1 %ay of )t,,L-t , 2002. Q-T~WN OF AVON, COLORADO: Wor ATT T: o C~ To Cle APPROVED AS TO FORM: Town Attorney 6 ATTACHMENT A - Use Tax Report STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 23R) DAY OF JULY 2002, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 02-18, SERIES OF 2002: Ordinance 02-18, Series of 2002 - An Ordinance Adding a Use Tax on Construction Materials A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado Dated this 19th day o 0 F TOWN OF AVON, COLORADO SEA L LBY: Pa Mc envy LOOA®® To k POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON JULY 19, 2002: AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY ATTACHMENT A - Use Tax Report Memo To: Honorable Mayor and Town Council Thru: Bill Efting, Town Manager From: Scott Wright, Finance Director Date: August 9, 2002 Re: Use Tax Ordinance Summary: On July 9, Council passed on 1st reading a use tax ordinance that levied a 4% use tax on the use, storage, or consumption of building materials within the Town of Avon. Subsequent to the 1st reading, there have been several reviews of the various administrative and collection provisions of the ordinance that were prompted by the Town's Annexation and Development Agreement with the Village at (Avon) entities. As a result of these reviews, there are changes to the ordinance for 2nd reading as summarized below: Section 3.08.030 E. (2) of the original ordinance regarding collection of the use tax has been changed to reflect that only projects required to have a building permit would be required to pay a use tax. This change eliminates the reporting and tax burden on individuals with small home improvement projects that don't require permits and eliminates any consumer use tax issues from the ordinance. Sections 3.08.030 E. (2)(a), (b), and (c) of the original ordinance regarding payment of the tax at the time a building permit is issued have been changed to reflect that the full payment of the tax is made, rather than a deposit. This change was necessary to remain consistent with the concept that the use tax is levied at the time a building permit is issued. Sections 3.08.030 E. (4) and (5) have been eliminated as duplicative with existing sections of the existing sales tax code and unnecessary due to the changes above. Section 3.08.030 E. (3) has been changed to add language allowing the use tax funds to be used for infrastructure related to transportation and recreation. Section 3.08.035 has been added to grant a credit against the use tax fee collected by the Village at (Avon) for permitted projects occurring within the Village. Page 1 ATTACHMENT A - Use Tax Report Town Manager Comments: Attachments: Ordinance No. 02-18 - Black Line Version 0 Page 2 ATTACHMENT A - Use Tax Report ORDINANCE NO. 02-18 SERIES OF 2002 AN ORDINANCE ADDING A USE TAX ON CONSTRUCTION MATERIALS. NOW, THH FORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON,COLORADO: Section 1. Chapter 3.08 of the Avon Municipal Code is amended as follows: a) Title. The title of chapter 3.08 is amended to state "SALES AND USE TAX." b) 43.08.020. Taxable items. A new subpart D. is added to state as follows: D. Upon the purchase price paid for or the acquisition costs of construction materials brought within the boundaries of the town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property in the town." c) 43.08.030. Sales tax lees. i) The title of §3.08.030 is changed to state "Sales and use tax levy." ii) Section 3.08.030C is repealed and reenacted to state as follow: The retailer shall add the sales tax imposed hereto to the sale or charge of the item sold, showing such tax as a separate and distinct item, and, when added, such tax shall constitute a part of such price or charge, shall be a debt from the purchaser to the retailer until paid and shall be recoverable at law in the same manner as other debts." iii) A new subpart E. is added to state as follows: E. (1) A use tax of four percent is imposed upon the purchase price paid for or the acquisition costs of construction materials brought within the boundaries of the town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property in the town. ATTACHMENT A - Use Tax Report h l l k R inveiees and sta4ements e a di s h at i l ft b th a7s th eep-a l drgrnguemerasemeegeneraan d shall 7 anf trofcr t.itu°t;°-- f with t 1;~h t 11hvrvracrcrGTrOrrrnceTiirmiErrcGviceE6r~e F~C i e nurr umhased 7 the m4h an d shall the e e a th Fi eprupnpyaenanse th A f il t e h A M 1a r t d k i d t kmens.ny a ure e pr eserve Su nen s h ll b an we d d ses, an i l ti e ma e f thi h t Th f ll m t ef a us afs tax due an e eeme a d net aid v e a f en e s t fieapen i l e u a eun h AIR b A li ny n u n e the real r p o ert be er ee n fit d ns me en b hmmer-a s s e -e d the Finnt" pe ance Dife p eter_ is aut-he p y r-ize to file e e ti° y sue. f lien with t 7 he Geunty Cler-k and Reeer-der-. ee 2)(a) Any person who shall build or improve any dwelling or other structure or improvement to realty within the town, including underground improvements, and who shall purchase the necessary construction materials needed therefore from any source inside or outside of the town, may, a4 sueh p , shall remit a depesit to the Finance Director prior to the issuance of any building permit for such improvement full payment of the use tax, to be calculated as provided herein , the tew f - the ° nt of use tax a--° The full amount of the depesit use tax shall be due and navable base' ueea an estimate of the use tam to be ~ paid, be made, and sueh depesit shall be at the time that the applicable building permit is issued. The estimate of the cost of the construction materials shall be determined by the Town Building Official in the manner set forth below, and the °e amount of the tax shall be subject to adjustment if the actual cost of the construction materials needed for the improvement is either less than or greater than seeh the estimate. if the taxpa~,er- eleets depesit pr-eeedufe set feAh in this s-74-4b- Se e t i An (3), then the pmvisiefls 0 subseetien (2) her-eef shall be waived-. Upon payment of the use tax depesit-as t f fth h, the Finance Director shall issue the taxpayer a receipt identifying the property that is the subject of the depesit tax and the building permit number. b) For the purpose of calculating the amount of the depesit use tax as provided for herein, the value of the construction materials in the improvement shall be estimated to be equal to fifty percent of the total value of the improvement as determined by the Building Official for building permit purposes. The depesit use tax obligation shall berme an amount of equal to four percent of such estimated value of the construction materials. 2 ATTACHMENT A - Use Tax Report t c) If it is determined by the Finance Director through audit or other means that the actual cost of the construction materials for the improvement is greater than the estimate on which the tax was based tie, and that additional tax is owing then nt of the use tax depe,it ; net suf- ei°nt t„ P=ovide f r- full payment of the • ° to*, then the Finance Director shall make a demand to the taxpayer for the additional use tax owed together with interest calculated pursuant to & 3.08.353; provided, in no case may the Finance Director make a claim for amounts due over and above the amount of the deposit more than three years after a certificate of occupancy or final inspection approval has been issued by the town for the improvement. A taxpayer's failure to honor the Finance Director's claim for additional tax due, as set forth in this paragraph, shall constitute a violation of this chapter. d) if it is determined b the Fi Di t A .th t th dyeereeer ns.Ffinient to i tde file ot~'full ao th a epoe 1.1°nit ..1. 11thri:r-ciiczacy use en used -te the-amount ef the-use-ta if th Fide e Di t d tpyexunanee that the n nt ofthe .7e se tnvesit is in xeess ofth r-es er e er es d th 1.h llpaeueeesa itl,ir,_t iAy days ofn..nh deten: inn ien nTftn.,4 1,asu~e titcS t t ttbilthr..i d herein ff-eIsn ri n ve d e e max~cruccrvrrzircc er- n °l s u j ,Tccc-er a c cv m--cccxeuse fAn lidTtilvr eta d-if hhe n th va t t ee o esveresaa ti f h chtthfxense~r pays oi~ne s aax e-me-pttm ase o su eenstmetien materSAn[GI ls, then j.,he shall be entitled te-a er-edit, to-LYYl7 extente su.eh nnl°n tn„ p i.af t o ben pl ied to theamount o f use tnv e e straetien m5) G-bjet alateri t th ti f t tax-lawfWl im osed as .a en-the umhse e p uff asmee1~11V 11./Ml Vll{4V b et °t te eV 7,V VI-JGoasales 1hyp litmuniei in the St ap ifate ,.f'!''eie -ad r y--an s a u 4ttd l eme t t thpy er-eeet ratethefetff- d ro idedfe h r-a e equaaxea i t d f o e g an fthTp ven's use tax if t p v r-ere he ate tl l n, are exemp e r vtn om e own e 7 b h t hYY Geier-ado statutor e r e-sae rhe l es er ase c~a l th y efeaeeT f iy differ-enee betw t me-Pa tere na°,.h t d ess an thi h t d th euf eext-,-t e id b heen urehasealll be " e ai ue e-te the Te s e ap er- an e f A d h ll tar, pa y t e tt d t thp 1;in ° Di, °t,. o an s a ra e o e 3) All use tax funds collected by the Town in accordance with the provisions of this chapter shall be appropriated and spent solely for transportation and recreation capital projects and services and infrastructure related thereto." d) § 3.08.320. Sales tax - Credit for sales or use taxes previously paid to another municipality. i) The title of § 3.08.320 is changed to state "Sales and use tax - Credit for sales or use taxes previously paid to another municipality." 3 ATTACHMENT A - Use Tax Report ii) Section 3.08.320 is repealed and reenacted to state as follow: For transactions consummated on or after January 1, 1986, the town's sales tax shall not apply to the sale of tangible property at retail or the furnishing of services if the transaction was previously subjected to a sales or use tax lawfully imposed on the purchaser or user by another statutory or home rule municipality equal to or in excess of that provided for in Section 3.08.030. A credit shall be granted against the town's lawfully imposed local sales or use tax previously paid by the purchaser or user to the previous statutory or home rule municipality. The amount of the credit shall not exceed the town's sales or use tax imposed pursuant to Section 3.08.030." Section 2. Section 3.08.035 of the Avon Municipal Code is amended as follows: 3.08.035 Tax Credit. Notwithstanding any other provisions of this chapter, there shall be granted to each person owing 1) the sales tax on sales consummated within The Village (at Avon) or 2) the use tax on the purchase price paid or the acquisition costs of construction materials brought within the boundaries of the Town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property within The Village (at Avon) a temporary tax credit against collection of the tax equal to the amount of any retail sales or use fee paid by or on behalf of such person. The amount of the credit shall not exceed the amount of the tax. No such credit shall shall be granted subsequent to termination of the collection of the retail sales fees and use fees terminate pursuant to the Annexation and Development Agreement for. The Village (at Avon). Neither the ability of the Town to grant the temporary tax credit nor the termination of the credit shall constitute a tax increase, the imposition of a new tax or a tax policy change_" . 4 ATTACHMENT A - Use Tax Report Section 2 3. Election and Effective Date. Under Article X, Section 20 of the Colorado Constitution, the Council refers the tax increase provided in this ordinance to the qualified electors of the Town for approval at the regular Town election scheduled for November 5, 2002. If approved by a majority of the electors voting thereon, this ordinance shall become effective when the Town Clerk or other designated election official duly files the required certificate of election, or on January 1, 2003, whichever occurs last. Section -3 4. Ballot Title and Question. The ballot title and question submitted to the electors shall be as follows: SHALL TOWN OF AVON TAXES BE INCREASED $1.6 MILLION ($1,600,000) ANNUALLY IN 2003, AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER, BY THE IMPOSITION OF A FOUR PERCENT (4%) USE. TAX ON THE PRIVILEGE OF USING OR CONSUMING IN THE TOWN ANY CONSTRUCTION MATERIALS, SUCH USE TAX REVENUES TO BE APPROPRIATED AND SPENT SOLELY FOR TRANSPORTATION AND RECREATION CAPITAL PROJECTS AND SERVICES AND INFRASTRUCTURE RELATED THEREO, ALL IN ACCORDANCE WITH ORDINANCE NO. 01 08 02-18 ADOPTED BY THE TOWN COUNCIL; AND SHALL THE REVENUES COLLECTED FROM SUCH TAX AND ANY EARNINGS FROM THE INVESTMENT OF SUCH REVENUES BE COLLECTED AND SPENT AS A VOTER APPROVED REVENUE CHANGE AND AN EXCEPTION TO THE LIMITS WHICH WOULD OTHERWISE .APPLY UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW? 5 ATTACHMENT A - Use Tax Report if the-eleeter-s fie-this -ewee, then en the-effies4ive date spesified abeve, all er,dinamees or- aAs of ` r-di anew in ` enfl et herewith are hereby eale a but enAy to the °40..4 The provisions of tMs " -difial}se-ar~aei bleu and invalidity of an pap shall not a ff `.t thee INTRODUCED, APPROVED ON FIRST READING, AND ORDERED PUBLISHED IN FULL AND POSTED, this 9th day of July, 2002, and a public hearing on this ordinance shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado on the 23rd day of July, 2002, at 5:30 p.m. in the Municipal Building of the Town of Avon, Colorado. TOWN OF AVON, COLORADO: Mayor ATTEST: Town Clerk 6 ATTACHMENT A - Use Tax Report INTRODUCED, APPROVED ON SECOND READING, AND ORDERED PUBLISHED AND POSTED this _ day of , 2002. TOWN OF AVON, COLORADO: Mayor ATTEST: Town Clerk APPROVED AS TO FORM: Town Attorney 7 ATTACHMENT A - Use Tax Report SAMPLE USE TAX BALLOT QUESTION SHALL TOWN OF AVON TAXES BE INCREASED $____ MILLION ($____________) ANNUALLY IN 2022, AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER, BY THE IMPOSITION OF A FOUR PERCENT (4%) USE TAX ON THE PRIVILEGE OF USING OR CONSUMING IN THE TOWN ANY CONSTRUCTION MATERIALS, SUCH USE TAX REVENUES TO BE APPROPRIATED AND SPENT SOLELY FOR THE PURPOSE OF FUNDING COMMUNITY HOUSING, INCLUDING THE ACQUISITION OF LAND FOR HOUSING, CONSTRUCTION OF HOUSING, EXTENSION OF PUBLIC INFRASTRUCTURE TO SERVE HOUSING DEVELOPMENT, PURCHASE OF DEED RESTRICTIONS, DOWNPAYMENT ASSISTANCE PROGRAMS, AND PARTNERSHIP WITH PUBLIC AND PRIVATE ENTITIES TO DEVELOP COMMUNITY HOUSING, IN ACCORDANCE WITH SUCH TERMS, CONDITIONS AND POLICIES AS MAY BE ADOPTED BY THE AVON TOWN COUNCIL, ALL IN ACCORDANCE WITH ORDINANCE NO. 21-____ ADOPTED BY THE TOWN COUNCIL; AND SHALL THE REVENUES COLLECTED FROM SUCH TAX AND ANY EARNINGS FROM THE INVESTMENT OF SUCH REVENUES BE COLLECTED AND SPENT AS A VOTER APPROVED REVENUE CHANGE AND AN EXCEPTION TO THE LIMITS WHICH WOULD OTHERWISE APPLY UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW. ATTACHMENT A - Use Tax Report CONSTRUCTION USE TAX Contractors, sub-contractors, builders, owners and others working in the Town of Avon are subject to use tax on materials and equipment used on their construction projects. For most construction projects, a contractor is required to apply for a building permit. Use tax is collected at the time the permit is issued. The use tax collected is based on the project's estimated value as follows: BUILDING MATERIALS USE TAX CALCULATION EXAMPLE Step 1: Determine value of taxable materials Contract Price $500,000 x 50% Taxable Building Materials Cost $250,000 Step 2: Calculate Use Tax due Taxable Building Materials $250,000 Tax Rate x 4.00% Estimated Use Tax Due $10,000 PURCHASING BUILDING MATERIALS Contractors should provide their suppliers with a copy of the building permit as proof that the appropriate Avon taxes have been paid. No municipal sales tax shall be due on purchases of building materials when the use tax has been paid on a building permit.3 Purchases made without a building permit are subject to all legally imposed sales taxes. EXAMPLES OF TRANSACTIONS Purchase of building materials with a building permit Purchase occurring within Avon. Under this example a contractor purchasing building materials for use on a construction project within Avon for which a building permit has been issued by the Avon Building Official is exempt from paying Avon sales tax on those materials. Purchase occurring outside Avon. Under this example a contractor purchasing building materials for use on a construction project within Avon for which a building permit has been issued by the Avon Building Official is exempt from paying Avon sales tax on those materials, whether or not the materials are taken / picked up by the contractor or delivered to the job site by ATTACHMENT B-Use Tax Examples the supplier. The reason for this is that most cities and towns in Colorado have the same exemption language as it pertains to building materials, i.e. AMC Section 3.08.040 (7) “For transactions consummated on or after January 1, 1986, the following is exempt from the Town's sales tax: the sale of construction and building materials, as the term is used in Section 29-2- 109, C.R.S., if such materials are picked up by the purchaser and if the purchaser of such materials presents to the retailer a building permit or other documentation acceptable to the Town evidencing that a local use tax has been paid or is required to be paid.” Purchase of building materials without a building permit Purchase within Avon where the merchandise is taken / picked-up by the purchaser. All purchases made without a building permit are subject to all legally imposed sales taxes. In this case, sales tax would be paid at the sales register. Purchase within Avon where the merchandise is delivered to a location within Avon. In this case, sales tax would be paid at the sales register. Purchase within Avon where the merchandise is delivered to a location outside of Avon. In this case, the sale would be exempt from Avon sales tax pursuant to AMC Section 3.08.040 (2) Sales of tangible personal property where both the following conditions exist: (a) The sales are to parties who are residents of, or doing business in, the State but outside the Town, and (b) The articles purchased are to be delivered to the purchaser outside the Town by common carrier or by the conveyance of the seller or by mail. Purchase outside of Avon where the merchandise is taken / picked-up by the purchaser. In this case because the transaction occurs outside of the Town’s municipal boundaries, the sale is not subject to Avon sales tax but may be subject to other local taxes depending on the location where the sale took place. Purchase outside of Avon where the merchandise is delivered by the supplier to a location inside of Avon. In this case, because most suppliers within a reasonable distance of Avon have nexus with the Town, they are required to collect Avon sales tax on the materials sold and delivered into Town. ATTACHMENT B-Use Tax Examples Use Tax Presentation July 13, 2021 ATTACHMENT C - Use Tax Presentation Purpose of Report Community Housing Plan Goals Seek Opportunities for New Funding Sources Support for Local Ballot Initiatives 2021 Department Goal Present Legal and Financial Analysis of Use Tax Use Tax Presentation | July 13, 2021 ATTACHMENT C - Use Tax Presentation Background PREVIOUS INITIATIVES ●In 2002 a 4% Construction Use Tax Submitted to TOA Voters ●Ballot Language Earmarked the Tax to be “spent solely for transportation and recreation capital projects and services and infrastructure related thereto” ●Question Failed To Pass with 379 In Favor and 573 Against. Use Tax Presentation | July 13, 2021 ATTACHMENT C - Use Tax Presentation Analysis Three Types of Use Tax Consumer Use Tax Motor Vehicle Use Tax Construction Materials Use Tax Consumer Use Tax Companion Tax State of Colorado Best Example South Dakota v. Wayfair Supreme Court Decision Makes this Tax Less Effective Locally Not Recommended by Staff for Consideration Use Tax Presentation | July 13, 2021 ATTACHMENT C - Use Tax Presentation Analysis Con’t MOTOR VEHICLE USE TAX •Use Tax Would Apply to Vehicles Purchased Out-of-Town But Registered in Avon •No Tax If Vehicle Registered Outside of Town •Tax Must Be Paid Prior to Titling and Registration •Jurisdictions Without a Use Tax Unlikely to Have Automotive Dealerships •Can Raise a Substantial Amount of Revenue •Would Be a New Tax for Avon Residents Purchasing a Vehicle •Not Recommended by Staff for Consideration Use Tax Presentation | July 13, 2021 ATTACHMENT C - Use Tax Presentation Motor Vehicle Use Taxes The following table is based on a CML list serv survey that was taken. Motor Motor Vehicles Vehicle Municipal Use Tax Use Tax Imputed Sales Jurisdiction Population Revenue Rate Taxable Sales Per Person Town of Cedaredge 2,300 $ 95,292 2.00%$ 4,764,600 $ 2,071.57 City of Castle Pines 11,000 899,638 2.75%32,714,109 2,974.01 City of Commerce City 61,000 7,087,921 4.50%157,509,356 2,582.12 Town of Estes Park 6,300 317,941 2.00%15,897,050 2,523.34 City of Cherry Hills Village 6,641 1,061,673 3.00%35,389,100 5,328.88 City of Golden 22,015 1,116,029 3.00%37,200,967 1,689.80 City of Aurora 386,502 21,481,130 3.75%572,830,133 1,482.09 City of Manitou Springs 5,346 329,619 3.80%8,674,184 1,622.56 Town of Carbondale 6,900 534,613 3.50%15,274,657 2,213.72 City of Littleton 48,140 2,491,696 3.00%83,056,533 1,725.31 City of Centennial 110,000 5,309,401 2.50%212,376,040 1,930.69 City of Lafayette 29,587 2,171,793 3.50%62,051,229 2,097.25 Average of Respondees 3.11%$ 2,353.44 Use Tax Presentation | July 13, 2021 ATTACHMENT C - Use Tax Presentation Motor Vehicle Use Taxes •Projected Revenues Based on the previous table and Avon’s approximate permanent population of 6,500, each 1% motor vehicle use tax could generate approximately $152,945. Use Tax Presentation | July 13, 2021 ATTACHMENT C - Use Tax Presentation Construction Use Tax •Use Tax Would Be Collected at Time of Building Permit •Tax Based on Predetermined Formula. Common Method to Use 50% of Construction Value •Builder Exempt from Paying Further Sales Taxes on Materials Related to the Permit •Avon is the Only Jurisdiction in Eagle County Without a Construction Use Tax Use Tax Presentation | July 13, 2021 ATTACHMENT C - Use Tax Presentation Sales Tax | Use Tax percentages in Eagle County Use Tax Presentation | July 13, 2021 4% | 0% This map shows “% Sales Tax | % Use Tax” for each Town. Town of Avon is the odd town in Eagle County with no use tax. Eagle 4% | 4% Minturn 4% | 4% Vail 4% | 4% Red Cliff 3% | 3% Gypsum 4% | 3% ATTACHMENT C - Use Tax Presentation Sales Tax | Use Tax percentages Use Tax Presentation | July 13, 2021 Town Sales Tax (city) Use Tax Crested Butte 4.00% 4.50%1/4.00%2 Steamboat Springs 4.50% 4.50%12 Rifle 4.25% 4.25%12 Eagle 4.00% 4.00%1 Fraser 4.00% 4.00%12 Grand Lake 4.00% 4.00%12 Grandby 4.00% 4.00%12 Minturn 4.00% 4.00%1 Vail 4.00% 4.00%1 Parachute 3.75% 3.75%1 Glenwood Springs 3.70% 3.70%12 Carbondale 3.50% 3.50%12 Grand Junction 2.75% 3.25%12 Fruita 3.00% 3.00%12 Gypsum 4.00% 3.00%1 Mount Crested Butte 5.00% 3.00%1 Red Cliff 3.00% 3.00%1 Silt 3.00% 3.00%12 Alma 3.00% 2.00%2 De Beque 2.00% 2.00%1 Hayden 4.00% 2.00%1 New Castle 3.50% 2.00%1 Yampa 2.00% 2.00%12 Aspen 2.40% 0.00% Avon 4.00% 0.00% Blue River 2.50% 0.00% 1 Construction Materials 2 Motor Vehicles / Trailers Breckenridge 2.50% 0.00% Buena Vista 2.50% 0.00% Collbran 2.00% 0.00% Como 1.00% 0.00% Dillon 2.50% 0.00% Fairplay 4.00% 0.00% Frisco 2.00% 0.00% Gunnison 1.00% 0.00% Hartsel 1.00% 0.00% Hot Sulphur Springs 4.00% 0.00% Keystone 0.75% 0.00% Kremmling 4.00% 0.00% Marble 2.00% 0.00% Montezuma 2.00% 0.00% Oak Creek 3.00% 0.00% Palisade 2.00% 0.00% Pitkin 3.00% 0.00% Poncha Springs 2.00% 0.00% Salida 3.00% 0.00% Silverthorne 2.00% 0.00% Snowmass Village 3.50% 0.00% Winter Park 5.00% 0.00% ATTACHMENT C - Use Tax Presentation Construction Use Tax •Advantages of a Construction Use Tax •Helps Achieve Consistency in Imposition of Tax •Eliminates Unfair Competition Using Tax Rates •Eases Administrative Burden of Collection •Nexus of Construction to Community Housing Needs Use Tax Presentation | July 13, 2021 ATTACHMENT C - Use Tax Presentation Construction Use Tax •Use Tax Statistics $32,772,355 –Ten-year Average of Total Building Construction Value Based on Above, 4% Use Tax Would Generate $610,603 Per Annum •Sales Tax Statistics $399,446 -Seven-year Average of Actual Sales Taxes Collected $537,553 Actual 2020 Sales Tax Collections, or 5.8% of Total Use Tax Presentation | July 13, 2021 ATTACHMENT C - Use Tax Presentation Traer Creek •Imposition of Use Tax on building materials shall be automatically applied to any sale within The Village (at Avon) through increase in the Credit PIF. •The Credit PIF increase shall be proportionate to the Use Tax. •Purchases made within The Village (at Avon) shall receive a tax credit against the Town’s Use Tax in the amount equal to an any increase in the Credit PIF resulting from an imposition of the Use Tax. •The Town may amend its Municipal Code to reflect the automatic tax credit for use tax, but such an amendment shall not be required to implement the Tax Credit. •Prior to adopting any such use tax, the Town shall coordinate with Traer Creek regarding the implementation the Use Tax/Credit PIF/Tax Credit. •Increase in the Credit PIF shall not be taxable by the Town. Use Tax Presentation | July 13, 2021 Traer Creek –Section 6.4(v) pf CARDA ATTACHMENT C - Use Tax Presentation Sample Ballot Question SAMPLE BALLOT QUESTION SHALL TOWN OF AVON TAXES BE INCREASED $____MILLION ($____________)ANNUALLY IN 2022,AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER,BY THE IMPOSITION OF A FOUR PERCENT (4%)USE TAX ON THE PRIVILEGE OF USING OR CONSUMING IN THE TOWN ANY CONSTRUCTION MATERIALS,SUCH USE TAX REVENUES TO BE APPROPRIATED AND SPENT SOLELY FOR THE PURPOSE OF FUNDING COMMUNITY HOUSING, INCLUDING THE ACQUISITION OF LAND FOR HOUSING, CONSTRUCTION OF HOUSING,EXTENSION OF PUBLIC INFRASTRUCTURE TO SERVE HOUSING DEVELOPMENT,PURCHASE OF DEED RESTRICTIONS,DOWNPAYMENT ASSISTANCE PROGRAMS,AND PARTNERSHIP WITH PUBLIC AND PRIVATE ENTITIES TO DEVELOP COMMUNITY HOUSING,IN ACCORDANCE WITH SUCH TERMS,CONDITIONS AND POLICIES AS MAY BE ADOPTED BY THE AVON TOWN COUNCIL,ALL IN ACCORDANCE WITH ORDINANCE NO. 21-____ADOPTED BY THE TOWN COUNCIL;AND SHALL THE REVENUES COLLECTED FROM SUCH TAX AND ANY EARNINGS FROM THE INVESTMENT OF SUCH REVENUES BE COLLECTED AND SPENT AS A VOTER APPROVED REVENUE CHANGE AND AN EXCEPTION TO THE LIMITS WHICH WOULD OTHERWISE APPLY UNDER ARTICLE X,SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW. Use Tax Presentation | July 13, 2021 ATTACHMENT C - Use Tax Presentation Ballot Question Timeline •Requires voter authorization under TABOR. •Fair Campaign Practices Act limits Town’s ability promote ballot question after ballot title is fixed Use Tax Presentation | July 13, 2021 Aug 10 Aug 24 Nov 2Sept 3 Election DayLast day for Town to certify the ballot content Last regularly scheduled Council Meeting to adopt Resolution Last day to introduce Ordinance to refer ballot question and self-execute implementation ATTACHMENT C - Use Tax Presentation Thank You Use Tax Presentation | July 13, 2021 Scott Wright Asst Town Manager and Finance Director swright@avon.org ATTACHMENT C - Use Tax Presentation CHAPTER 8 USE TAX ON CONSTRUCTION AND BUILDING MATERIALS SECTION: 2-8-1: Title, Purpose And Applicability 2-8-2: Definitions 2-8-3: Imposition And Rate Of Tax 2-8-4: Collection 2-8-5: Exemptions 2-8-6: Duties And Powers Of Finance Director 2-8-7: Books, Records, Reports And Returns 2-8-8: Audit 2-8-9: Limitation Of Actions 2-8-10: Lien 2-8-11: Penalties And Interest 2-8-12: Remedies Not Exclusive 2-8-13: Refunds 2-8-14: Hearing Before Finance Director 2-8-15: Disposition Of Funds 2-8-16: Violation And Penalty 2-8-1: TITLE, PURPOSE AND APPLICABILITY: A. This chapter shall be known as and referred to as USE TAX ON CONSTRUCTION AND BUILDING MATERIALS. B. The purpose of this chapter is to raise revenue for capital acquisitions and capital projects in the town and provide a complementary tax to the town's sales tax. The town council finds that every person who uses or consumes in the town any construction and building materials is exercising a taxable privilege. C. Subject to the specific exemptions listed in section 2-8-5 of this chapter, the use tax imposed by this chapter shall apply to any use or consumption in the town of construction and building materials purchased at retail inside or outside the town on or after January 1, 2008. (Ord. 37(2007) § 1) 2-8-2: DEFINITIONS: When not otherwise clearly indicated by the context, the following terms, words, and phrases, as used in this chapter, shall have the following meanings: APPLICATION FOR DEVELOPMENT REVIEW: An application submitted to the town of Vail community development department for administrative review, or for review by the town of Vail design review board, planning and environmental commission and/or town council, as prescribed by title 12, "Zoning Regulations", of this code. BUILDING PERMIT: The permit, issued by the town by authority of the adopted building codes of the town, allowing the permit holder to construct, enlarge, repair, move, demolish or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, ATTACHMENT D - Vail Use Tax remove, convert, or replace any electrical, gas, mechanical or plumbing system, which is regulated by the adopted building codes of the town. A building permit shall not include any permit for demolition or dewatering. CONSTRUCTION AND BUILDING MATERIALS: Tangible personal property which, when combined with other tangible personal property, loses its identity to become an integral and inseparable part of a completed structure or project. Construction materials include, but are not limited to, such things as: asphalt, bricks, builders' hardware, caulking material, cement, concrete, conduit, electric wiring and connections, fireplace inserts, electrical heating and cooling equipment, flooring, glass, gravel, insulation, lath, lead, lime, lumber, macadam, millwork, mortar, oil, paint, piping, pipe valves and pipe fittings, plaster, plumbing fixtures, putty, reinforcing mesh, road base, roofing, sand, sanitary sewer pipe, sheet metal, site lighting, steel, stone, stucco, tile, trees, shrubs and other landscaping materials, wallboard, wall coping, wallpaper, weather stripping, wire netting and screen, water mains and meters, and wood preserver. The above materials, when used for forms, or other items which do not remain as an integral or inseparable part of a complete structure or project, are not construction and building materials. CONSTRUCTION VALUATION: The total value of the work, including labor and construction and building materials for which the permit is being issued, including electrical, gas, mechanical, plumbing equipment and permanent systems, as determined by the building department. CONSUMPTION: The act or process of consuming; it includes waste, destruction, or use. Consumption is the normal use of property for the purpose for which it was intended. FINANCE DIRECTOR: The administrative services director of the town or such other person designated by the town. Finance director shall also include such person's designee. PURCHASE OR SALE: The acquisition for a price by any person of tangible personal property, including installment and credit sales, the exchange of property, as well as the sale thereof for money, and every such transaction, conditional or otherwise, for a consideration constituting a sale. PURCHASE PRICE: The aggregate value in money of anything or things paid or delivered or promised to be paid or delivered by a purchaser to a retailer or any person in the consummation of a retail sale as defined herein, without any deduction therefrom for the cost of the property sold, cost of materials used, labor or service cost, or any other expense whatsoever, and provided that when articles of tangible personal property are sold after manufacture or after having been made to order, the gross value of all materials, labor, service, and profit thereon, shall be included in the said purchase price; provided that the purchase price shall not include any direct tax imposed by the federal government, the state or this chapter. RETAIL SALE OR PURCHASED AT RETAIL: Any sale or purchase of tangible personal property, except a wholesale sale or purchase for taxable resale. TAXPAYER: Any person from whom a tax is due, or against whom a deficiency is being asserted. USE: The exercise, for any length of time, by any person within the town of any right, power, or dominion over tangible personal property when purchased at retail from sources either within or without the town from any person. ATTACHMENT D - Vail Use Tax WHOLESALE SALE: A sale to a licensed retailer, jobber, dealer or other wholesaler for resale. Sales by wholesalers to consumers, including persons who use or consume "construction and building materials", as defined by this section, are not wholesale sales. Sales by wholesalers to nonlicensed retailers are not wholesale sales. WHOLESALER: Any person selling to retailers, jobbers, dealers or other wholesalers, for resale, and not for storage, use, consumption or distribution. (Ord. 37(2007) § 1) 2-8-3: IMPOSITION AND RATE OF TAX: A. There is hereby imposed a use tax on the privilege of using or consuming within the town construction and building materials purchased at retail inside or outside the town on or after January 1, 2008; provided that any construction and building materials used or consumed on a project which has received final approval on all required applications for development review prior to January 1, 2008, shall not be subject to the use tax imposed by this chapter. If any approval expires by its terms after January 1, 2008, such application for development review shall then be subject to the use tax imposed by this chapter. B. The use tax imposed by this chapter shall be at the rate of four percent (4%) of the cost of construction and building materials used or consumed in the town. For purposes of this chapter, the cost of construction and building materials is deemed to be fifty percent (50%) of the construction valuation. (Ord. 37(2007) § 1) 2-8-4: COLLECTION: The use tax imposed by this chapter shall be collected prior to the issuance of a building permit. (Ord. 37(2007) § 1) 2-8-5: EXEMPTIONS: The following are exempt from the use tax imposed by this chapter, provided that the list of exemptions cannot be increased by implication or similarity, and the burden of proof is upon the taxpayer to establish an exemption: A. The use or consumption of any construction and building materials the sale of which is subject to a retail sales tax imposed by the town; B. The use or consumption of construction and building materials purchased for resale in the town, either in their original form or as an ingredient of a manufactured or compounded product, in the regular course of a business; C. The use or consumption of construction and building materials by the federal government, the state or its institutions or political subdivisions in their governmental capacities, or by religious or charitable corporations in the conduct of their regular religious or charitable functions; D. The use or consumption of construction and building materials by a person engaged in the business of manufacturing or compounding for sale, profit, or use of any article, substance, or commodity, which construction and building materials enters into the processing of or becomes an ingredient or component part of the product or service which is manufactured, compounded, or furnished, and the container, label, or the furnished shipping case thereof; ATTACHMENT D - Vail Use Tax E. The use or consumption of any construction and building materials the sale or use of which has already been subjected to a legally imposed sales or use tax of another statutory or home rule town, city, or city and county equal to or in excess of the use tax imposed herein, in which case a credit shall be granted in an amount equal to the tax paid by reason of the imposition of such sales or use tax, provided that the amount of credit shall not exceed the amount of the use tax imposed by this chapter; F. The use or consumption of construction and building materials if a written contract for the purchase thereof was entered into prior to January 1, 2008; G. The use or consumption of construction and building materials required or made necessary in the performance of any construction contract bid, let, or entered into at any time prior to January 1, 2008; H. The storage of construction and building materials; I. The first ten thousand dollars ($10,000.00) of the construction valuation for a building permit; J. The use or consumption of construction and building materials in the town on which the use tax imposed by this chapter has already been paid; and K. Any transaction which the town is prohibited from taxing under applicable law. (Ord. 37(2007) § 1) 2-8-6: DUTIES AND POWERS OF FINANCE DIRECTOR: The administration of this chapter is hereby vested in the finance director, who shall prescribe forms and promulgate rules and regulations for the proper administration and enforcement of this chapter, and may delegate to any person the power and authority necessary for the proper administration and enforcement of this chapter. (Ord. 37(2007) § 1) 2-8-7: BOOKS, RECORDS, REPORTS AND RETURNS: A. Every person liable to the town for any use tax imposed by this chapter shall keep and preserve, for a period of three (3) years from the date of issuance of a certificate of occupancy for the improvement on which the use tax was paid, all books, records, reports and returns necessary to determine the amount of tax liability. B. All such books, records, reports and returns shall be open for examination at any time by the finance director. C. Except by court order or as otherwise provided by law, the finance director shall not divulge any information disclosed in any document, report, or return filed pursuant to this chapter. D. Nothing in this section shall be construed to prohibit the publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof, or the inspection of returns by the town attorney or other legal representative of the town. E. Notwithstanding this section, the finance director may furnish to the taxing officials of any other state or its political subdivisions, to the state of Colorado or its political subdivisions, or to the United States any information contained in tax returns and related schedules and documents filed pursuant to this code, or in the report of an audit or ATTACHMENT D - Vail Use Tax investigation made with respect thereto, provided that said jurisdiction agrees to grant similar privileges to the town, and that such information will only be used for tax purposes. (Ord. 37(2007) § 1) 2-8-8: AUDIT: A. Within three (3) years from the issuance of any certificate of occupancy for the improvement on which the use tax was paid, the town may audit the taxpayer or the taxpayer may request an audit. B. If the recomputed use tax is less than the amount of use tax paid by the taxpayer, the difference shall be refunded to the taxpayer within thirty (30) days of the final determination of the town. If the recomputed use tax is more than the amount of use tax paid by the taxpayer, the difference, along with any interest and penalty imposed by this chapter, shall be due and payable by the taxpayer to the town immediately upon the final determination of the town. C. Any audit requested by the taxpayer, regardless of the result, and any audit performed by the town finding any failure, neglect or refusal to pay any use tax due to the town, shall be at the taxpayer's sole cost. (Ord. 37(2007) § 1) 2-8-9: LIMITATION OF ACTIONS: A. Use tax, interest, and penalties shall be assessed, and any action to collect the same shall be commenced, within three (3) years of the issuance of certificate of occupancy for the improvement on which the use tax was paid. B. Before the expiration of such period of limitation, the taxpayer and the finance director may agree in writing to an extension. (Ord. 37(2007) § 1) 2-8-10: LIEN: The tax imposed by this chapter, together with accrued interest and penalties, shall be a first and prior lien on any real property into which the construction and building materials were incorporated. (Ord. 37(2007) § 1) 2-8-11: PENALTIES AND INTEREST: A. If any person fails, neglects, or refuses to pay the use tax as required by this chapter, or if any taxpayer fails to remit the proper amount of tax or underpays the tax, penalties, and interest shall be added and imposed in accordance with this section. B. If a person neglects or refuses to pay any use tax as required by this chapter within ten (10) days after the same is due, the finance director shall make an estimate, based upon such information as may be available, of the amount of use tax due for the period for which the taxpayer is delinquent and shall add thereto a penalty equal to fifteen dollars ($15.00) or ten percent (10%) of the amount due, whichever is greater, and interest on such delinquent taxes at the rate of one percent (1%) per month from the time that payment was due. If any part of the deficiency is due to fraud with the intent to evade the tax, there shall be added a penalty of one hundred percent (100%) of the total amount of the deficiency, and in such case the whole amount of the tax unpaid, including the additions, shall become due and payable ten (10) days after written notice and demand by the finance ATTACHMENT D - Vail Use Tax director, and an additional three percent (3%) per month on said amount shall be added from the date payment was due, until paid. C. The finance director may waive, for good cause shown, any penalty or interest. (Ord. 37(2007) § 1) 2-8-12: REMEDIES NOT EXCLUSIVE: In addition to the remedies expressly provided by this chapter, the town may pursue any other remedies available at law or in equity. (Ord. 37(2007) § 1) 2-8-13: REFUNDS: A. A refund shall be made, or a credit allowed, for use tax paid under dispute by any person who is entitled to claim an exemption under section 2-8-5 of this chapter, if a request for refund is made within sixty (60) days after issuance of the building permit for which the use tax was paid under dispute. B. A refund shall be made, or a credit allowed, for any use tax paid under this chapter for construction and building materials used or consumed in the construction of any deed restricted employee housing units, as defined by title 12 of this code, which deed restriction additionally includes a perpetual appreciation cap on either maximum rental rate or sales price, as approved by the town. No request for refund or credit shall be processed by the town until the applicable deed restriction has been recorded. A request for a refund or credit for deed restricted employee housing units shall be submitted within sixty (60) days of issuance of the last certificate of occupancy for such deed restricted employee housing units. C. An application for refund of tax paid in error or by mistake shall be made within three (3) years after the date of use or consumption of the construction and building materials for which the refund is claimed. D. The right of any person to a refund under this chapter shall not be assignable and the application for refund shall be filed by the taxpayer. E. The burden of proving the right to a refund shall be on the person claiming the refund. F. Upon receipt of a timely application, the finance director shall promptly examine the application, make a decision, and notify the applicant in writing of the decision. G. If the finance director finds that the use tax, penalty, or interest paid by any taxpayer is in excess of the amount due or has been erroneously collected, the finance director shall rule in favor of the taxpayer for refund, regardless of whether or not such sum was paid under dispute. The finance director shall issue payment to the taxpayer; provided that the finance director shall retain a statement setting forth the reason for the refund. If there is an unpaid balance of use tax, penalties, or interest owed by such taxpayer for any other period, the overpayment shall be applied against the amount due and any excess shall be refunded to the taxpayer. (Ord. 37(2007) § 1) 2-8-14: HEARING BEFORE FINANCE DIRECTOR: A. A taxpayer may file a written request for a hearing on any assessment or denial of refund request within ten (10) days of the decision of the finance director. The request for hearing shall set forth the taxpayer's reasons for the request and the disputed amount. ATTACHMENT D - Vail Use Tax B. The hearing shall be held and a final decision issued within ninety (90) days of the date of the request, unless a delay is caused by the taxpayer, in which case the hearing shall be held and final decision shall be issued within one hundred eighty (180) days of the request. At least fifteen (15) days prior to the hearing, the finance director shall notify the taxpayer in writing of the time and place of the hearing. C. At the hearing, the finance director may administer oaths and take testimony, and the taxpayer may assert any facts, make any arguments, and file any briefs or affidavits he or she believes pertinent to his or her cause. D. Based on the evidence presented, the finance director may modify, refund or abate the use tax, penalty, or interest. E. Upon rejection, in whole or in part of the claim for refund, or upon a finding that an assessment in whole or in part has been made against the taxpayer validly, the finance director shall send a hearing determination notice to the taxpayer in compliance with section 29-2-106.1(2)(a), Colorado Revised Statutes. F. The decision of the finance director shall be final, subject only to the state hearing and appeal procedures outlined in section 29-2-106.1, Colorado Revised Statutes and judicial review. Unless a state hearing is requested, an appeal is filed or judicial review is sought, the use tax, together with interest thereon and penalties, if any, shall be paid within thirty (30) days after mailing of the finance director's hearing determination notice. G. If a state hearing is requested, an appeal filed or judicial review is sought, the finance director may require payment of the tax or the posting of security only as provided in section 29-2-106.1, Colorado Revised Statutes. (Ord. 37(2007) § 1) 2-8-15: DISPOSITION OF FUNDS: A. All revenues derived from the use tax imposed by this chapter, less costs of collection and administration, shall be placed in the town's capital projects fund and used for capital acquisitions and capital projects. B. There shall be budgeted from the monies received from the imposition of the use tax an amount necessary to reimburse the town for administrative and clerical expenses incurred in the collection and administration of the use tax. (Ord. 37(2007) § 1) 2-8-16: VIOLATION AND PENALTY: A. It is a violation of this chapter for any person subject to the use tax levied by this chapter to submit any false or fraudulent use tax information to the town, to make any false statement on any document used to calculate taxes due under this chapter, to fail or refuse to make payment of any taxes due, to evade the payment of any taxes due, or to aid or abet another in any attempt to evade the payment of any taxes due under this chapter. B. In addition to any other penalty provided in this chapter, any person who violates any provision of this chapter shall be punished as provided in section 1-4-1 of this code. (Ord. 37(2007) § 1) ATTACHMENT D - Vail Use Tax 970-748-4045 jhildreth@avon.org TO: Honorable Mayor Smith Hymes and Council Members FROM: Justin Hildreth, Town Engineer Gary Padilla, Public Works Director RE: July 22, 2021, Rain Event Damage and Future Mitigation Actions DATE: August 3, 2021 SUMMARY: On July 22, 2021, a large thunderstorm dropped 1 to 1.5-inches of rain within an hour on Avon. The subsequent runoff caused the largest runoff and mud flows seen in decades. The runoff clogged storm drainage infrastructure and damaged 7 residential properties. This memo summarizes the rain event, subsequent damage and future mitigation actions. STORM EVENT: At 3 pm on Thursday, July 22, 2021, a large thunderstorm tracked over Avon dumping between 1 to1.5-inches of rain. The closest rain gage is operated by the United States Geologic Survey (USGS) at the Avon Wastewater Treatment Plant measured 0.85-Inches of rainfall between 3 and 4pm. The regional National Weather Service radar indicated that the center of the storm was centered over the hill north of Nottingham and Swift Gulch Roads and dropped significantly more rain. Preliminary estimates indicate the storm was a 20-year event or has a 5 percent probability of occurring in a year. A 100-year event has a 1 percent probability of occurring in a given year. This is the largest rain event we have seen in our 14-year and 30-year careers with the Town of Avon. RAIN AND MUD IMPACTS: The hillside north of Nottingham and Swift Gulch Roads is very steep and is poorly vegetated. As a result, the rain runoff occurs quickly and contains significant debris, rocks and mud. The debris quickly clogged the drainage pipes under Nottingham and Swift Gulch Roads and flowed over I70 and then to Nottingham Park. Twelve-inch-deep water and mud flowed from Swift Gulch Road onto Avon Road and eventually to the Eagle River causing traffic disruptions. The debris runoff went through the pipes under I70 where possible but near the 600 block of Nottingham Road the I70 drainage pipe was blocked and debris ran over the interstate, causing a temporary closure. Photo: Rainfall runoff, mud and debris on Interstate 70. Page 2 of 5 Nottingham and Swift Gulch Roads historically encounter mud and debris flows during large thunderstorms and the Public Works crews clean up the debris and unclog drainage pipes after each event. Town Staff regularly inspects these culverts because of the on-going clogging issues. The runoff flooded several units at the Sonnen Halde and Beaver Bench Condominium developments. These two complexes have experienced flooding during past rainfall events, although this was the largest that the residents recall. Town staff has meet with residents at both developments to listen to their concerns. The Town has assisted private property owners by allowing them to dispose of debris to the Town owned lot at 375 Yoder Ave behind Home Depot for future removal. Sand bags and other barriers have been loaned to property owners to assist with diverting runoff following the subsequent monsoons. Buck Creek runs in an open ditch parallel to Lake Street and diverts under Lake Street into two 60-inch diameter pipes near the bus shelter. The twin 60-inch culverts flow south under Lake Street and discharge to the Eagle River. The structure that diverts water into the two pipes was blocked by patio furniture including picnic table, awning, chairs and toys. The water instead ran into the park and athletic field leaving mud and debris that had to be cleaned up immediately for the weekend’s art festival. Photo: Water flowing out of Buck Creek onto Lake Street and Harry A. Nottingham Park Along Buck Creek Road, the runoff damaged the road shoulder and a section of retaining wall located above the Buck Creek Trailhead parking lot. Traffic control barrels and concrete barriers have been placed along the impacted area and the road temporarily closed to downhill traffic to protect the public because we are concerned about damage from future storms. As of Wednesday, we reopened the road because it did not show signs of additional damage and the weather forecast is for dryer weather. This segment of Buck Creek Road is scheduled to be rebuilt this fall as part of a previously awarded contract to United Companies. United Companies will repair the road and wall damage in September as part of the project. Page 3 of 5 Historically, the basement level of the library flooded during the large thunderstorms. Two years ago, as part of the Benchmark Road On-Street Parking Project, several drainage upgrades were installed including a new inlet and pipes. These improvements successfully prevented the library basement from flooding. We recommend additional improvements to the 351 West Benchmark Road (former fire station) parking lot to provide additional protection to prevent further flooding. Photo: water draining to the storm drain near the library. After the July 22nd event, the Public Works crews immediately mobilized to clear the roads and remove debris. The Eagle River Water and Sanitation District (ERWSD) donated the use of their pump truck to assist in clearing out storm drains and storm inlet structures. In addition, Ewing Construction has been hired to assist with clean-up activities. We estimate that clean-up activities will be completed by the end of August. MITIGATION STEPS: The most effective solution to fully mitigate mud and debris flow is to construct large sediment basins but there is not enough land available north of Nottingham and Swift Gulch Roads to accommodate them. Sediment detention basins have been constructed above Buffalo Ridge Apartments and have successfully mitigated mud and debris flows. The two ponds have 40-foot tall dams and retain 102,800 and 375,616 cubic feet respectively. Page 4 of 5 Sediment Ponds above Buffalo Ridge Apartment Complex The Town has been working with Dai Thomas and Susan Cundiff of TetraTech, Inc. in Fort Collins for technical assistance with debris and mud flow mitigation measures. Two erosion control projects above 220 and 480 Nottingham Road have been constructed and these projects withstood the event with little damage. A project above 540 Nottingham Road is currently being developed and construction planned for early next year. A project was evaluated but not undertaken above 440 Nottingham Road because the existing slopes and retaining wall are not stable enough to withstand construction of a project. Photo: Mitigation project completed in 2020 after the July 22 event Page 5 of 5 Staff recommends the Town retain Tetra Tech and complete the following tasks: 1. Analyze available rainfall information to better understand the magnitude of the storm and potential frequency of it re-occurring. This analysis shall include an assessment of future changes to rainfall events as a result of climate change. 2. The high amount of mud and debris generated from the rainfall events is expected to result in clogging of drainage pipes. TetraTech will assess the existing drainage pipe infrastructure and develop surface routes when feasible rather than pipes to reduce risks from clogging. 3. Develop recommendations for site specific mitigation measures for the Beaver Bench and Sonnen Halde Home Owner Associations to implement. 4. Develop regional mitigation measures along Nottingham Road, Swift Gulch Road and West Beaver Creek Blvd to reduce future damage to private developments and public infrastructure including Avon Road. These projects will take at least a year to design and implement. Additional drainage easements on private property will likely be required depending on final project designs. Locations of future flood and debris mitigation projects Thank you, Justin and Gary 970-748-4061 emyler@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Emily Myler, General Government Intern RE: Updates to Colorado Communities for Climate Action Policy Statement DATE: July 2, 2021 SUMMARY: The Colorado Communities for Climate Action (“CC4CA”) is asking member governments to ratify its 2021 updated Policy Statement. These materials are presented to Avon Town Council to aid in its decision to ratify or not ratify the new Policy Statement. BACKGROUND: In December 2017, the Avon Town Council adopted the Eagle County Climate Action Plan (“CAP”) and formally committed to its action items and long-term goals. Following this directive, Avon joined the CC4CA coalition in November 2018 and ratified each updated policy statement since. The last policy update was approved unanimously by Council in August 2020. 2021 UPDATES: CC4CA provided the Town with their updated Policy Statement [Attachment B] as well as a memo [Attachment A] which clarified the following changes from the 2020 Policy Statement: •“Add a new item on solid waste, wastewater, and agricultural waste (which will now be Policy Position #24): 24.Reduce greenhouse gas emissions from water treatment, wastewater treatment, solid waste, and agricultural activities. •Add a new item on water conservation (which will now be Policy Position #28): 28. Reduce greenhouse gas emissions and increase resilience associated with water management through water conservation, efficiency, reuse, adaptation and low impact development strategies.” The memo also lists minor changes including: •Highlighting equity as a main concern in climate action •Replacing references to “carbon” with “greenhouse gas” to fully encompass all polluting gasses targeted in the Policy Statement •Other clarifications and copy edits for grammatical consistency. The CC4CA Board of Directors adopted these updates on June 4, 2021, and they became effective July 1, 2021. Member governments are asked to confirm by email that they support the updates. The memo urges Council to consider whether they can live with each update, rather than unconditionally agreeing with them. If Council is unable to ratify a proposed update, CC4CA askes that it works to ratify as many as they can and clearly identify any concerns in communication to them, so the two organizations can collaborate to solve any problems. Page 2 of 2 PROPOSED MOTION: “I move to approve and support the updated CC4CA Policy Statement and direct staff to email CC4CA to indicate Avon’s support of the new Policy Statement”. OPTIONS: 1.Approve the sample motion as drafted. 2.Approve the sample motion, with modifications. 3.Reject the motion if council is not interested in considering support. Thank you, Emily ATTACHMENTS: Attachment A: Memo – Ratifying the Policy Statement Updates Attachment B: Clean Version of the Updated Policy Statement Attachment C: Tracked-Changes Version of the Updated Policy Statement Adams County · Aspen · Avon · Basalt · Boulder · Boulder County · Breckenridge · Broomfield Carbondale · Clear Creek County · Crested Butte · Dillon · Eagle County · Edgewater · Erie · Fort Collins Frisco · Gilpin County · Glenwood Springs · Golden · Lafayette · Longmont · Louisville · Lyons · Mountain Village Nederland · Northglenn · Ouray County · Pitkin County · Ridgway · Salida · San Miguel County Snowmass Village · Summit County · Superior · Telluride · Vail · Westminster To: CC4CA Board of Directors From: Jacob Smith, Executive Director Date: June 16, 2021 Re: Ratification of Updates to the CC4CA Policy Statement Ratification of the Policy Statement updates by each CC4CA member government: •Target: July 31 •Deadline: August 30 The Policy Statement is primarily a collection of our coalition's formal policy positions, support for which is required of every member government in order to join the coalition, and the annual updates reflected in the most recent version have required the affirmative assent of every CC4CA member government. While it is possible to revise the Policy Statement during the year, process-wise it is quite difficult to do, so as a practical matter the annual update process is the vehicle through which revisions occur. After an extensive four-month process of exploring, discussion, and vetting, the CC4CA Board at its June 4 retreat adopted a set of updates to CC4CA's Policy Statement. The Policy Committee formally kicked off the process in February, leading to adoption by the Board on June 4. A complete list of the steps and timeline is attached to this memo. The majority of the updates are minor changes in wording or grammar. Some are substantive but are minor in nature. And two of the updates are new additions, although both were at least implied in the previous version of the Policy Statement. A complete list of these updates is attached to this memo. Each member government is asked to confirm by email that they support the updates adopted by the Board. CC4CA refers to this as "ratifying" the adopted updates. Each member government can ratify the updates using whatever method they wish. For instance, some jurisdictions handle this at the staff level or simply by delegating this to their CC4CA Board representative, while others do this through a formal motion or resolution. Ratification is complete for each member government when a representative of the government sends an email to CC4CA confirming that they have ratified the proposed changes. Please bear in mind that the question posed here is: "Can you live with these updates?" (as opposed to something like "Do you love them?" or "Would you prefer them to be different in some way?). Attachment A 2 Because of the extent of the member outreach and thoroughness of the vetting during this process, the hope is that every member government can easily ratify the updates. However, if any member government is unable to ratify all of the proposed updates, we ask that you still ratify all of the other updates to the Policy Statement and identify the specific updates about which you have concerns or objections. By doing this, we can ensure that all of the unflagged updates still take effect even if there is a problem with a particular update. If you encounter this situation, please reach out to me and we can craft appropriate language specifically for your elected body. I am including a few resources with this memo that you are welcome to share with your elected officials and staff: - A clean version of the updated Policy Statement. - A tracked-changes version, showing all of the new updates. - Two sample resolutions you are welcome to use or adapt in if your jurisdiction prefers your elected body to formally accept the updates each year. Finally, if it is helpful, you are welcome to use this memo verbatim or to adapt it for use as a staff or Council memo in your ratification process. Please reach out to me if you have any questions or problems, or if I can be helpful in any way at all. --- Policy Statement Update Timeline 2021 1.February 11 (Policy Committee meeting): The Policy Committee established and launched the process. 2.March 4: Staff provided the Policy Committee with a first draft of proposed updates. 3.March 11 (Policy Committee meeting): The Policy Committee reviewed the first draft, identified proposed updates and other potential updates worth exploring, and assigned small working groups to tackle each section that needed more work. 4.April 8 (Policy Committee meeting): The Policy Committee adopted draft proposed updates and circulated them to the full Board of Directors to identify and work through any tricky issues or language. 5.May 13 (Policy Committee meeting): The Policy Committee adopted final proposed updates and formally delivered them to the Board of Directors. 6.June 4 (Board of Directors retreat): The Board discussed the proposed updates, made minor adjustments, and adopted them. 7.July 31: Target date for each member government ratifying the Policy Statement updates. 8.August 30: Deadline for each member government ratifying the Policy Statement updates. --- 3 Itemized List of the Proposed Policy Statement Updates Substantive Proposed Updates a) Add a new item on solid waste, wastewater, and agricultural waste (which will now be Policy Position #24): 24. Reduce greenhouse gas emissions from water treatment, wastewater treatment, solid waste, and agricultural activities. b)Add a new item on water conservation (which will now be Policy Position #28): 28. Reduce greenhouse gas emissions and increase resilience associated with water management through water conservation, efficiency, reuse, adaptation and low impact development strategies. NOTE: This language was crafted by an ad-hoc working group in April and May to find language that clearly identifies water-related GHG emissions as important to CC4CA but avoids the issues on which CC4CA's members may not share a unified view (specifically on water storage, diversions, and the varying perspectives across the West Slope and Front Range). Minor/Clarifying Proposed Updates c)Change the language on the fifth General Policy Principle from: Prioritizing policies that put people at the center of decision-making, minimizing disparities in growing the clean economy, especially for historically marginalized communities, and enhancing equitable outcomes for all. …to the language recommended by CC4CA's Equity Working Group: Prioritizing policies that put equity at the center of decision-making by addressing systemic environmental and governance inequities based on race and socioeconomic status and by justly transitioning and growing the clean economy. NOTE: This language was crafted by CC4CA's ad-hoc Equity Working Group between March and May in a careful, collaborative process. d)Add "actionable, useful" and "alignment between state and local inventory data" to Policy Position #2, change "frequent" to "regular," and delete "designed to be useful to stakeholders," so that it reads: 2. Secure accurate, actionable, useful, and regular state greenhouse gas inventories and forecasts for Colorado which are made accessible to local governments and incorporate alignment between state and local inventory data to the extent possible. e)Consolidate what was Policy Position #8 into the subsequent position statement (currently identified as #8). f)Change "protect" to "support" and add "communities," so that the sentence in #9 reads: "… through means that support utilities, consumers, and the communities where these facilities have been located." g)Add "municipal electric utilities" to Policy Position #10 so that it reads: 10. Expand the ability of electric cooperatives and municipal electric utilities to independently purchase local renewable electricity and take other steps to reduce greenhouse gas pollution. 4 h)Expand "coal" to "fossil fuel" in positions #13 and #14 pertaining to supporting transition communities. i)Add "legislative" to the list of venues in Policy Position #16 and replace "vehicles" with "mobile sources" to capture the full range of vehicle types as well as other mobile sources like lawn mowers, and so that it reads: 16. Ensure effective implementation of Colorado’s vehicle emissions standards and other legislative, regulatory, and programmatic activities designed to reduce greenhouse gas emissions from mobile sources. j)Change the heading of the section on solid waste (immediately before Policy Position #21) from "Solid Waste Reduction" to "Waste," since the language in this section now covers reducing solid waste, liquid waste, and the carbon intensity of waste. k)Add "or eliminate" to Policy Position #22 so that it reads: 22. Reduce or eliminate use of disposable/single-use products and promote reuse of materials, including construction and demolition waste. l)Reword Policy Position #23 to make it clearer and to add carbon intensiveness and circular economy, so that it reads: 23.Foster circular economy policies like reuse, recycling, composting, and reducing the carbon intensiveness of materials and products. m)Clarify that Policy Position #27 is aimed at both natural carbon sequestration (known as "Natural Climate Solutions") and carbon capture technologies, and shorten the item, so that it reads: 27.Support exploration and deployment, when appropriate, of natural climate solutions (NCS) and of carbon capture and utilization/sequestration (CCUS). n)Incorporate what was Policy Position #28 into the fifth General Policy Principle (see letter (c) above). o)Add "and ensure that these laws are fully implemented" to Policy Position #31 so that it reads: 31. Maintain protections and authorities currently provided under environmental laws like the National Environmental Policy Act, Clean Air Act, and Clean Water Act, and ensure that these laws are fully implemented. Minor Wording and Copy Editing Updates p)Minor copy edits (e.g., updating dates and tense alignment). q)Eliminate the article "the" in some sentences, when unnecessary, for grammatical consistency. r)Replace "carbon pollution" with "greenhouse gas pollution." s)Replace "carbon emissions" with "greenhouse gas emissions." 5 Please note that the Board authorized staff to correct typos and non-material errors without further approval by the Board. Adams County · Aspen · Avon · Basalt · Boulder · Boulder County · Breckenridge · Broomfield Carbondale · Clear Creek County · Crested Butte · Dillon · Eagle County · Edgewater · Erie · Fort Collins Frisco · Gilpin County · Glenwood Springs · Golden · Lafayette · Longmont · Louisville · Lyons · Mountain Village Nederland · Northglenn · Ouray County · Pitkin County · Ridgway · Salida · San Miguel County Snowmass Village · Summit County · Superior · Telluride · Vail · Westminster CC4CA Policy Statement Effective July 1, 2021 Adopted by the Board of Directors June 4, 2021 Colorado Communities for Climate Action is a coalition of local governments advocating for stronger state and federal climate policy. CC4CA’s policy positions reflect unanimous agreement among the coalition members on steps that should be taken at the state and federal level, often in partnership with local governments, to enable Colorado and its communities to lead in protecting the climate. CC4CA generally focuses on legislative, regulatory, and administrative action, supporting efforts that advance the general policy principles and the detailed policy positions described below, and opposing efforts that would weaken or undermine these principles and positions. General Policy Principles The following general principles guide Colorado Communities for Climate Action's specific policy positions. CC4CA supports: •Collaboration between state and federal government agencies and Colorado’s localgovernments to advance local climate protection and resilience. •State and federal programs to reduce greenhouse gas pollution, including adequate andongoing funding of those programs. •Analyses, financial incentives, infrastructure, and enabling policies for thedevelopment and deployment of clean energy technologies. •Locally driven and designed programs to support communities impacted by the cleanenergy transformation. •Prioritizing policies that put equity at the center of decision-making by addressingsystemic environmental and governance inequities based on race and socioeconomicstatus and by justly transitioning and growing the clean economy. Attachment B 2 Policy Positions Colorado Communities for Climate Action supports the following policy positions: Statewide Climate Strategies 1. Reduce statewide greenhouse gas emissions consistent with or greater than the State of Colorado’s 2019 codified goals. 2. Secure accurate, actionable useful, and regular state greenhouse gas inventories and forecasts for Colorado which are made accessible to local governments and incorporate alignment between state and local inventory data to the extent possible. 3.Adopt a comprehensive market-based approach to reduce Colorado’s greenhouse gas emissions that ensures the benefits accrue justly and equitably to impacted communities. 4. Expand consideration of the environmental and health costs associated with the use of fossil fuels in making and implementing climate-related policy. Local Climate Strategies 5. Remove barriers and promote opportunities that allow counties and municipalities to maximize deployment of local clean energy and climate-related strategies, including resilience-oriented strategies, while promoting affordable, accessible, and equitable delivery of reliable clean energy. 6. Enable local governments to obtain the energy use and other data from utilities and state agencies that they need to effectively administer climate and clean energy programs. 7.Support a comprehensive public process for evaluating retail and wholesale energy choice options for communities, informed by a broad variety of stakeholders. 8. Provide for cost-effective and equitable policies, strategies, and practices that enable and accelerate energy efficiency in buildings, beneficial electrification, reducing GHG emissions, improving quality of life, and making the electric grid more robust and resilient. Energy Generation 9. Accelerate retirement of existing fossil fuel generation facilities and their replacement with cost-effective and reliable clean energy supplies, through means that support utilities, consumers, and the communities where these facilities have been located. 3 10.Expand the ability of electric cooperatives and municipal electric utilities to independently purchase local renewable electricity and take other steps to reduce greenhouse gas pollution. 11.Modernize energy infrastructure to enhance community-based resilience and integrate distributed energy resources. Energy Efficiency 12.Expand demand side savings from efficiency and conservation for all energy types. 13.Support ongoing and sustainable funding for weatherization and renewable energy assistance to low-income households, including those in fossil fuel-dominated economies, so that all Coloradans have access to comfortable and affordable homes. 14.Support ongoing and sustainable funding for programs that assist communities in the transition from fossil fuel-dominated economies. 15.Provide counties and statutory cities and towns with the same authority held by home rule cities to implement local energy conservation policies and programs. Transportation 16. Ensure effective implementation of Colorado’s vehicle emissions standards and other regulatory and programmatic activities designed to reduce greenhouse gas emissions from mobile sources. 17.Implement the 2020 Colorado Electric Vehicle Plan and other efforts to increase electrification of all motor vehicles. 18.Increase funding and policy incentives for multimodal transportation and multimodal-friendly development statewide. 19. Incentivize and select mobility alternatives, including movement of both people and goods, based on energy efficiency, and environmental costs and benefits. Fossil Fuel Extraction Activities 20.Expand monitoring and reduction of the full life cycle emissions from fossil fuel extractive industry activities. Waste 21.Grant CDPHE authority to implement a plan for meeting Colorado’s statewide and regional solid waste diversion goals. 4 22.Reduce or eliminate use of disposable/single-use products and promote reuse of materials, including construction and demolition waste. 23.Foster circular economy policies like reuse, recycling, composting, and reducing the carbon intensiveness of materials and products. 24.Reduce greenhouse gas emissions from solid waste, water treatment, wastewater processing, and agricultural activities. General 25.Encourage adoption of climate-positive innovations like telecommuting, drawing from the lessons learned during the coronavirus pandemic, to substantially reduce air and greenhouse gas pollution. 26.Promote proactive programs and efforts that improve the resilience and adaptability of Colorado communities in the face of natural disasters and other major challenges associated with climate change, including ensuring that disaster stabilization and recovery efforts result in reduced greenhouse gas pollution and improved resilience to future disasters. 27.Support exploration and deployment, when appropriate, of natural climate solutions (NCS) and of carbon capture and utilization/sequestration (CCUS). 28.Reduce greenhouse gas emissions and increase resilience associated with water management through water conservation, efficiency, reuse, adaptation and low impact development strategies. 29.Encourage investments that achieve climate-positive solutions, including policies that encourage entities investing public dollars to consider partial or full divestment as part of their investment strategies. 30.Maintain protections and authorities currently provided under environmental laws like the National Environmental Policy Act, Clean Air Act, and Clean Water Act, and ensure that these laws are fully implemented. Adams County · Aspen · Avon · Basalt · Boulder · Boulder County · Breckenridge · Broomfield Carbondale · Clear Creek County · Crested Butte · Dillon · Eagle County · Edgewater · Erie · Fort Collins Frisco · Gilpin County · Glenwood Springs · Golden · Lafayette · Longmont · Louisville · Lyons · Mountain Village Nederland · Northglenn · Ouray County · Pitkin County · Ridgway · Salida · San Miguel County Snowmass Village · Summit County · Superior · Telluride · Vail · Westminster CC4CA Policy Statement Effective July 1, 2021 Adopted by the Board of Directors June 4, 2021 Colorado Communities for Climate Action is a coalition of local governments advocating for stronger state and federal climate policy. CC4CA’s policy positions for 2020-2021 reflect unanimous agreement among the coalition members on steps that should be taken at the state and federal level, often in partnership with local governments, to enable Colorado and its communities to lead in protecting the climate. CC4CA generally focuses on legislative, regulatory, and administrative action, supporting efforts that advance the general policy principles and the detailed policy positions described below, and opposing efforts that would weaken or undermine these principles and positions. General Policy Principles The following general principles guide Colorado Communities for Climate Action's specific policy positions. CC4CA supports: •Collaboration between state and federal government agencies and Colorado’s local governments to advance local climate protection and resilience. •State and federal programs to reduce carbon greenhouse gas pollution, including adequate and ongoing funding of those programs. •Analyses, financial incentives, infrastructure, and enabling policies for thedevelopment and deployment of clean energy technologies. •Locally driven and designed programs to support communities impacted by the cleanenergy transformation. •Prioritizing policies that put equity at the center of decision-making by addressing systemic environmental and governance inequities based on race and socioeconomic status and by justly transitioning and growing the clean economy.Prioritizing policies that put people at the center of decision-making, minimizing disparities in growing theclean economy, especially for historically marginalized communities, and enhancing equitable outcomes for all. Attachment C 2 Policy Positions Colorado Communities for Climate Action supports the following policy positions: Statewide Climate Strategies 1. Reduce statewide carbon greenhouse gas emissions consistent with or greater than the State of Colorado’s 2019 codified goals. 2. Secure accurate, actionable, useful, and regularfrequent state greenhouse gas inventories and forecasts for Colorado which are made accessible to local governments and incorporate alignment between state and local inventory data to the extent possible and designed to be useful for stakeholders. 3. Adopt a comprehensive market-based approach to reduce Colorado’s greenhouse gas emissions that ensures the benefits accrue justly and equitably to impacted communities. 4. Expand consideration of the environmental and health costs associated with the use of fossil fuels in making and implementing climate-related policy. Local Climate Strategies 5. Remove barriers and promote opportunities that allow counties and municipalities to maximize the deployment of local clean energy and climate-related strategies, including resilience-oriented strategies, while promoting affordable, accessible, and equitable delivery of reliable clean energy. 6. Enable local governments to obtain the energy use and other data from utilities and state agencies that they need to effectively administer climate and clean energy programs. 7. Support a comprehensive public process for evaluating retail and wholesale energy choice options for communities, informed by a broad variety of stakeholders. 8. Support policies that promote the efficient use of energy in buildings. 89. Provide for cost-effective and equitable policies, strategies, and practices that enable and accelerate energy efficiency in buildings, beneficial electrification, reducinge GHG emissions, improvinge quality of life, and makinge the electric grid more robust and resilient. 3 Energy Generation 910. Accelerate retirement of existing fossil fuel generation facilities and their replacement with cost-effective and reliable clean energy supplies, through means that protect support both utilities, and consumers, and the communities where these facilities have been located. 101. Expand the ability of electric cooperatives and municipal electric utilities to independently purchase local renewable electricity and take other steps to reduce greenhouse gas carbon pollution. 112. Modernize energy infrastructure to enhance community-based resilience and integrate distributed energy resources. Energy Efficiency 123. Expand demand side savings from efficiency and conservation for all energy types. 134. Support ongoing and sustainable funding for weatherization and renewable energy assistance to low-income households, including those from in coalfossil fuel- dominated economies, so that all Coloradans have access to comfortable and affordable homes. 145. Support ongoing and sustainable funding for programs that assist communities in the transition from coalfossil fuel-dominated economies. 156. Provide counties and statutory cities and towns with the same authority held by home rule cities to implement local energy conservation policies and programs. Transportation 167. Ensure effective implementation of Colorado’s vehicle emissions standards and other legislative, regulatory, and programmatic activities designed to reduce carbon greenhouse gas emissions from mobile sourcesvehicles. 178. Implement the 2020 Colorado Electric Vehicle Plan and other efforts to increase electrification of all motor vehicles. 189. Increase funding and policy incentives for multimodal transportation and multimodal-friendly development statewide. 1920. Incentivize and select mobility alternatives, including movement of both people and goods, based on energy efficiency, and and environmental costs and benefits. 4 Fossil Fuel Extraction Activities 201. Expand monitoring and reduction of the full life cycle emissions from fossil fuel extractive industry activities. Solid Waste Reduction 212. Grant CDPHE the authority to implement a plan for meeting Colorado’s statewide and regional solid waste diversion goals. 223. Reduce or eliminate the use of disposable/single-use products and promote the reuse of materials, including construction and demolition waste. 234. Foster circular economy policies like infrastructure, policies, incentives, and programs for reuse, recycling, and composting, and reducing the carbon intensiveness of materials and products. 24. Reduce greenhouse gas emissions from water treatment, wastewater treatment, solid waste, and agricultural activities. General 25. Encourage the adoption of climate-positive innovations like telecommuting, drawing from the lessons learned during the coronavirus pandemic, to substantially reduce air and carbon greenhouse gas pollution. 26. Promote proactive programs and efforts that improve the resilience and adaptability of Colorado communities in the face of natural disasters and other major challenges associated with climate change, including ensuring that disaster stabilization and recovery efforts result in reduced carbon greenhouse gas pollution and improved resilience to future disasters. 27. Support exploration and deployment, when appropriate, of natural climate solutions (NCS) and of carbon capture and utilization/sequestration (CCUS). 28. Reduce greenhouse gas emissions and increase resilience associated with water management through water conservation, efficiency, reuse, adaptation and low impact development strategies. 28. Incorporate equity, accessibility, and just transition considerations into climate policies and actions. Formatted: Font: Not Italic Formatted: Font: Not Italic 5 29. Encourage investments that achieve climate-positive solutions, including policies that encourage entities investing public dollars to consider partial or full divestment as part of their investment strategies. 30. Maintain protections and authorities currently provided under environmental laws like the National Environmental Policy Act, the Clean Air Act, and the Clean Water Act, and ensure that these laws are fully implemented. Formatted: Keep with next Formatted: Font: Not Italic Formatted: Font: Not Italic, No underline 970-748-4045 jhildreth@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Justin Hildreth, Town Engineer Michael Labagh, Interim Recreation Director RE: Notice of Award – Recreation Center Pool Replastering Project DATE: August 5, 2021 SUMMARY: Staff requests Council authorization to issue Notice of Award for the Recreation Center Pool Replastering Project. This report presents the bids for the Recreation Center Pool Replastering Project for Council consideration and approval in addition to other construction details. DISCUSSION: The Recreation Center Pool Replastering Project is necessary because plaster should be replaced every 10-years and it has been 12 years since it was last done. The plaster is starting to Spall and flake off of the surface and will continue to deteriorate if not re-applied. Repair generally consists of draining the pools, blasting off the old plaster, applying a new coat and letting it cure as the pool is refilled. This project will be funded with $141,000 from the Equipment Replacement Fund and the remainder from the Capital Projects Fund. In 2020 the project was envisioned to include 2 pools and be funded from Equipment Replacement Fund. The contractors recommended a full closure of the pool area and therefore Staff is recommending all 4 pools be replastered with additional funding provided by the Capital Projects Fund. The project is scheduled for October and has a budget of $198,273. Replastering with cement-based surfaces can either use limestone or silica quartz as the base material in its mix. Diamond Brite silica quartz was selected instead of traditionally used limestone because it is more rounded and less rough. The plastering surface will have a 5-year warranty. The locker room remodel and pool replastering are proposed to be completed in October because they both require closure of the pool area. Ancillary maintenance projects are also planned to maximize the effectiveness of the pool closure and include Jacuzzi leak repair and pool deck renovations by contractors that specialize in those areas. The cracks in the concrete pool deck shown below will be filled with epoxy grout, the surfaces and edges leveled, and the drain grates made flush to minimize safety hazards. The budget for the leak repair and pool deck renovation projects is $60,000 and will be included in the Capital Projects Fund budget amendment scheduled for August 24, 2021. BID PROCESS: Staff solicited bids from 4 qualified contractors that work in Colorado mountain region, summarized in the following table: Page 2 of 2 Table 1: Contractors’ Proposals for Recreation Center Pool Replastering Project Colorado Pool+Spa Scapes $277,800 Mid-American Pool Renovation $217,440 Moore Pools $207,620 Maximum Comfort Pool & Spa $180,248 We are recommending the project be awarded to Maximum Comfort Pool and Spa because they submitted the low bid and have experience in completing projects of this scale. CONSTRUCTION CONTRACT: The Town’s standard construction contract, which has been reviewed by the Town Attorney, will be used for the project. CONSTRUCTION SCHEDULE: The proposed work is tentatively scheduled to begin October 1 and completed by October 31. This one-month shutdown of the pool allows the replastering, jacuzzi leak repair and concrete deck renovation work to all be completed in this timeframe. The liquidated damages penalty for the replastering contractor for exceeding the completion date is $900 per day. FINANCIAL CONSIDERATIONS: The construction contract for the replastering project will be funded from the Recreation Center Pool Replastering Project which will be included in the next Capital Projects Fund Amendment scheduled for adoption on August 24, 2021. The Project cost estimate is shown in Table 1 below and includes 10 % contingency. Table 2: Recreation Center Pool Replastering Project Cost Estimate Available Funds Budget $198,273 Construction Cost $180,248 Contingency (10 %) $ 18,025 Total $198,273 RECOMMENDATION: Staff recommends Council approve the Notice of Award to Maximum Comfort Pool and Spa for the Recreation Center Pool Replastering Project contract as they are the low bidder, in the amount of $180,248. PROPOSED MOTION: “I move to authorize issuance of Notice of Award for the Recreation Center Pool Replastering Project contract to Maximum Comfort Pool and Spa in the amount of $180,248, and include the project in the next Capital Projects Fund budget amendment .” Thank you, Justin 970-748-4045 jhildreth@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Justin Hildreth, Town Engineer Tim Thompson, Project Engineer RE: Notice of Award – Metcalf Road Culvert Repair Project DATE: August 5, 2021 SUMMARY: Staff requests Council authorization to issue Notice of Award for the Metcalf Road Culvert Repair Project initially presented to the Council in May (to clean out the culvert) and again on July 13, 2021 (to describe repairs for it). We have researched numerous repair options and are recommending a proprietary in-place repair system developed by American West Construction that has been used by CDOT numerous times. Excavating the pipe and replacing it would be prohibitively expensive because it is 25 -FT deep, and the presence of utilities that would be impacted including water, gas, fiber optics and electric . The construction details, financial consideration and staff recommendation are discussed below. DISCUSSION: The Metcalf Road Culvert Repair Project consists of repairing a section of 7-FT diameter corrugated metal pipe underneath Metcalf Road located near the Metcalf Lofts that has collapsed (see photos). It is a 130-FT long culvert, 25-FT below Metcalf Road that transports Metcalf Gulch underneath the road. The sediment and rock in the culvert from the rupture was cleaned out earlier this summer. The method of repair selected is in-place that does not require excavating Metcalf Road and will minimize cost as well as disruption to utilities, traffic, and Wildridge / Wildwood residents. This repair system has been used by CDOT on similar repair projects and is expected to last over 20-years. A new 60-FT long, 60-IN diameter section of HDPE (high density polyethylene) culvert will be inserted (sliplined) into the existing larger culvert. The new pipe will be heavily grouted within the space between pipes to further strengthen and securely hold it in place. The smooth walls of the HDPE will provide the same hydraulic capacity (flow) as the larger pipe. Ancillary activities include a temporary road, rip rap, spoils disposal, revegetation seeding and traffic control. This project will be funded from the Capital Projects Fund and is scheduled to be included in the August 24, 2021 budget amendment. The project is planned for completion by November 24 and has a bid of $215,860 including the bond. Page 2 of 2 Site location Map CONSTRUCTION CONTRACT: The Town’s standard construction contract, as reviewed by the Town Attorney, will be used for the project. CONSTRUCTION SCHEDULE: The proposed work is scheduled to be completed by November 24, 2021. The liquidated damages penalty for exceeding the completion date is $500 per day for completion of all aspects of this project. FINANCIAL CONSIDERATIONS: The construction contract for this sliplining project will be funded from the 2021 CIP Metcalf Road Culvert Repair Project and will be included in the next Capital Projects Fund budget amendment scheduled for August 24, 2021. The Project cost estimate is shown in Table 1 below and includes 10 % contingency. Table 1: Metcalf Road Culvert Repair Project Cost Estimate Available Funds Budget $237,466 Construction Cost $215,860 Contingency (10 %) $ 21,586 Total $237,466 RECOMMENDATION: Staff recommends Council approve the Notice of Award to American West Construction for the Metcalf Road Culvert Repair Project contract as they are a qualified contractor in the amount of $215,860. PROPOSED MOTION: “I move to authorize issuance of Notice of Award for the Metcalf Road Culvert Repair Project contract to American West Construction in the amount of $215,860.” Thank you, Justin 970.748.4004 eric@avon.org TO: Honorable Mayor Smith Hymes and Council FROM: Eric Heil, Town Manager RE: Remodeling Old Avon Fire Station DATE: August 6, 2021 SUMMARY: This report provides an overview of a proposal to remodel the former Avon Fire Station at 351 Benchmark Road. The purpose of the remodel would be to create 14 rooms for employee housing dedicated to transit drivers for Avon, ECO Transit, Beaver Creek and Vail. The impetus for this effort is to support a proposed pilot transit program to run free and frequent transit between Beaver Creek, Avon and Vail throughout the Beaver Creek ski season. This proposed pilot transit program would require the addition of 5 to 6 new transit drivers. A significant challenge with this proposed pilot transit program is recruiting these transit drivers with the lack of available and affordable housing. Avon’s Mobility Department, ECO Transit, Beaver Creek and Vail have all identified a strong demand for transit drivers. Breckenridge is currently building a new housing project with small studios to provide more housing opportunities for its transit drivers. The concept is that Avon would only rent to Avon transit drivers or would rent blocks of rooms directly to ECO Transit, Beaver Creek and Vail. Staff has itemized costs for minimal improvements to meet building code (sprinklers on ground floor and installing a second floor emergency egress) and minimal improvements to make the rooms and common space rentable (remodel one bathroom with mold issues, replace missing doors and door knobs, paint, replace the kitchen stove, install minimal furnishings including a bed, dresser ad lap for each room, etc.) We have also discussed operational costs, rents, and property management responsibilities. The total budget for capital costs is $175,000. Expected monthly operation costs are $1,200 for cable, water, sewer, electric and heat. Proposed rents are $700 per month. Staff contemplates offering one room at a discount or for no rent to support an on-site “property manager” or “resident assistant”. Very roughly, the projected net rent revenue after expenses is $90,000 per year, such that the Town should be able to recoup its direct costs in two years. These costs do not take into account Staff time. There would be more Staff time for set-up and then some on-going Staff time for maintenance as required. The concept is to commit to using the old Avon Fire Station for three years and have the overall expenses not exceed the net rent revenues (i.e. the goal is to at least break-even over three years). The intention is to investment the minimum required to meet building code and provide a clean and habitable employee housing option to meet identified transit driver housing needs of Avon and the other three transit operations in Eagle County. While it would be preferable and convenient to not take on this project and associated property management, this is an opportunity to do something immediately for housing which is important to supporting proposed improvements to regional transit. Thank you, Eric AVON REGULAR MEETING MINUTES TUESDAY JULY 13, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM 1. CALL TO ORDER AND ROLL CALL Video Start Time: 00:00:01 The meeting was hosted in a Hybrid format, in person at Avon Town Hall and using Zoom.us. Mayor Smith Hymes called the Liquor Authority meeting to order at 5:00 p.m. and the Council regular meeting to order at 5:13 p.m. A roll call was taken, and Council members present in person were Lindsay Hardy, Scott Prince, Amy Phillips, Tamra Underwood, and RJ Andrade. Councilor Chico Thuon joined virtually via Zoom. Also present were HR Director Lance Richards, Deputy Chief of Police Coby Cosper, Town Attorney Paul Wisor, General Government Manager Ineke de Jong, and Town Clerk Brenda Torres. 2. APPROVAL OF AGENDA Video Start Time: 00:14:45 Part One Mayor Smith Hymes commented that an updated agenda was posted at least 24 hours before the meeting, to include the Town Manager’s report. Councilor Prince moved to approve the agenda as presented. Mayor Pro Tem Phillips seconded the motion and the motion passed unanimously. 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS Video Start Time: 00:15:31 Part One Mayor Smith Hymes made a comment about the recall and the much bigger issue this presents in terms of voter suppression. She expressed she should be able to participate in this discussion. Councilor Underwood also commented about the recall and the votes and expressed she does not have a conflict of interest and should be 1 of the 7 votes of this very important agenda item. Mayor Smith Hymes then read a letter into the record from their legal counsel. Town Attorney Paul Wisor commented on the "appearance of impropriety" under section 2.30.060(8). He said there is no action item on this agenda, and this is just a discussion so it is up to Council to decide if Mayor Smith Hymes and Councilor Underwood should be allowed to participate in that discussion. Councilor Prince moved to recuse Mayor Smith Hymes because of a conflict of interest on the recall discussion. Councilor Thuon seconded the motion and the motion passed with a vote of 3 to 2. Councilors Hardy and Mayor Pro Tem Phillips voted no. Mayor Smith Hymes was recused and Councilor Underwood, per the Avon Ethics Code, was not entitled to vote in this matter. Councilor Prince then moved to recuse Councilor Underwood on a conflict of interest on the recall discussion. Councilor Thuon seconded the motion and the motion passed with a vote of 3 to 2. Councilors Hardy and Mayor Pro Tem Phillips voted no. Councilor Underwood was recused and Mayor Smith Hymes, per the Avon Ethics Code, was not entitled to vote in this matter. Councilor Hardy asked to disclose she would like to be involved for agenda item 5.3, but she does work for Zehren and Associates. She clarified she has no financial interest, and she will disclose her employment every time this matter is discussed. Mayor Pro Tem Phillips moved to allow Councilor Hardy to fully participate in this discussion. Councilor Andrade seconded the motion and the motion passed with a vote of 6 to 0. Councilor Hardy abstained. AVON REGULAR MEETING MINUTES TUESDAY JULY 13, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM 4. PUBLIC COMMENT Video Start Time: 00:53:07 Part One Mayor Smith Hymes explained to the public that comments in person will be taken first, then those via Zoom. No in-person comments were made. Tom Ruemmler joined virtually and commented. He expressed it was interesting to hear the conflict of interest discussion and he believes people should have a say and be allowed more than 3 minutes to discuss an issue. Ruth Stanley joined virtually and commented on the behavior of Councilor Thuon on camera. Jake Wolf joined virtually and commented that on September 9 there will be community concert at the Ford Amphitheater, and he is looking for a guitarist and wondered if Council can volunteer Town Manager Eric Heil for this. He wanted to apologize to Councilors Hardy, Andrade and Thuon about the animosity level amongst Council and expressed there were opportunities in the past to mitigate this. He suggested Council to revisit the idea of group therapy. 5. BUSINESS ITEMS 5.1. DISCUSSION OF EAGLE DISTRICT COURT RULING ON RECALL PETITIONS (TOWN ATTORNEY PAUL WISOR) Video Start Time: 01:03:26 Part One Mayor Smith Hymes and Councilor Underwood left the room at 6:04 p.m. Mayor Pro Tem Phillips took over this agenda item and read the Town Manager Report which included a recommendation about the recall election. Town Attorney Paul Wisor then presented the arguments for the appeal. Councilor Hardy asked if Council could discuss a legislative fix, Town Attorney Paul Wisor explained this is not a possibility by the Municipality. Councilor Thuon made a motion to reconsider the direction for the Town Attorney to file the appeal but rather withdraw the appeal as filed. Mayor Pro Tem Phillips noted the motion and expressed Council should take public comments first. Rosan Casey, Eagle resident, summarized the letter she sent to the Town and said the recall is a waste of taxpayer dollars and staff time and that the Judge's ruling violates the Constitution. Rich Carroll, former Council member and Wildridge resident, expressed this recall is a huge issue for not just Avon but the region and the State and it is critical that we get answers to the questions that the Town raised in court. He expressed that this has far reaching consequences and the Judge's ruling should be appealed. He then said there is no more important business for Council to focus on right now and he does not understand Councilor Thuon changing his vote. He expressed that if Mayor Smith Hymes and Councilor Underwood get recalled, there will be another recall coming soon thereafter and this will not stop. AVON REGULAR MEETING MINUTES TUESDAY JULY 13, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Christie Ferraro, former Council member and Avon resident, expressed the City of Westminster is going through a similar recall situation right now and she rejects this recall as it is the waste of taxpayer money. She urged the Council to unanimously support their fellow Councilors. She said this recall makes a thankless job even harder and the negative impact of failure to act now will be the longest lasting impression that Councilor will leave during their time in office. Jennie Fancher, former Avon Mayor and Avon resident, said that a vote that was taken previously has to stand. She highlighted the accomplishments of Council over the last several years and said Council has to be bold and instill integrity in our community and she asked Council to please give careful consideration about revoking the appeal. Tom Ruemmler, Avon resident, commented virtually. He expressed that the Town Attorney is wrong and urged Council to please go check with another attorney and fire current Town Attorney Paul Wisor. He said that the recall committee got 48% of the total votes that that elected council member received and that suppression of a recall and a petition is a misdemeanor. Bette Todd joined virtually but had audio problems and Council could not hear her clearly. Council went back to the discussion. There was a motion on the table made by Councilor Thuon and Councilor Prince seconded that motion. Councilor Andrade feels Council should honor the vote of the people and listen to the 450 people that signed the petition. Councilor Hardy would like to see the drama go away and believes the Charter is written in a way that is not clear and would like to see a definite decision on the Town's arguments. She said Council took a vote and should not flipflop that vote as it does not give the public faith in Council. Councilor Prince said he does not personally support the recall and will vote to reelect Mayor Smith Hymes and Councilor Underwood, but this is a moral case compared to a legal case. He said it is a settled law since 1913 and it is not Council’s job to go tweak the law. He said it pains him to vote not to appeal but that is not what Council was elected to do and he said it is fine for Council to disagree. He spoke about Council focus on housing, economic development, and other very important items. Councilor Thuon agreed with Councilor Prince and suggested Council should spend money on training to get the Council together. He said thereneeds to be censorship and everyone needs to adhere to that. He got yelled at last week and that affirmed he is making the right decision by letting this go to recall. Mayor Pro Tem Phillips feels Council has been courteous and said the most efficient way to get to a resolution is to see the appeal through. She called this checkers versus chess. She said the Town has been forced to spend time and money on this, whether that is the right thing to do or not. She said this is not about fiscal responsibility but about an interpretation of the law and not standing by the former decision will make the Council look foolish. Councilor Hardy expressed that the public should not be cut off and be given 3 minutes to express their first amendment rights. Mayor Pro Tem Phillips requested a roll call for the motion made by Councilor Thuon, to reconsider the direction for the Town Attorney to file the appeal but rather withdraw the appeal as filed. Councilor Prince seconded the motion and the motion passed with a vote of 3 to 2. Councilor Hardy and Mayor Pro Tem Phillips voted no. AVON REGULAR MEETING MINUTES TUESDAY JULY 13, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Town Attorney Paul Wisor explained the next steps, which will include the Town Clerk issuing a certificate of sufficiency to the Recall Committee and going to a recall within 180 days at the regular election on November 2, 2021. Mayor Smith Hymes and Councilor Underwood returned to the room at 7:00 p.m., Council then took a 10-minute recess. 5.2. PRESENTATION: CIP PROJECT UPDATE (TOWN ENGINEER JUSTIN HILDRETH) Video Start Time: 00:00:01 Part Two Town Engineer Justin Hildreth presented the CIP update including the Recreation Center repairs, pickleball court improvements, restrooms, Metcalf R oad Culvert repairs, Avon Road I - 70 Underpass safety improvements, digital displays, Buck Creek Road repair, Mikaela Way paving project and others. Councilor Thuon asked staff to consider making some streets one - way and offering angled parking on those stree ts to relieve some parking concerns. Town Engineer Justin Hildreth said he could bring that back to Council in August with the 5 -year CIP plan. 5.3. WORK SESSION: EAST HARRY A. NOTTINGHAM PARK IMPROVEMENTS (PLANNING DIRECTOR MATT PIELSTICKER & P EDRO CAMP OS, ZEHREN & ASSOCIATES) Video Start Time: 00:21:55 Part Two Planning Director Matt Pielsticker presented. He explained this went through PZC and the CASE committee. He highlighted the Town Manager ’s recommendation to move forward with schematics for restrooms, a retaining wall and a picnic shelter. CASE Manager Danita Dempsey presented a high -level overview of where special events could go in 10 years. She said t his will require support in infrastruc ture, staffing, etc., and this vision is not adopted by Council or the CASE committee but a draft vision of what it could be. She expressed she is presenting this info rmation now to keep in mind as Council starts to make decisions on the direction for the restrooms and the old Town Hall site. Pedro Campos presented the design schematics. Council was polled on their comments on the 10 -year plan and design concepts for the space. 5.4. PUBLIC HEARING: SECOND READING ORDINANCE 21-05 CONCERNING THE MANAGEMENT OF PLASTIC P RODUCTS (TOWN ATTORNEY PAUL WISOR) Video Start Time: 01:50:10 Part Two Councilor Underwood moved to continue this item to the August 10th agenda. Mayor Pro Tem Phillips seconded the motion and the motion passed with a vote of 6 to 1. Councilor Thuon voted no. 5.5. PUBLIC HEARING: SECOND READING OF ORDINANCE 21-09 APPROVING CODE TEXT AMENDMENTS TO CHAPTER 7 OF THE AVON MUNICIPAL CODE (PLANNING DIRECTOR MATT PIELSTICKER) Video Start Time: 01:50:51 Part Two Councilor Underwood moved to continue this item to the August 10 th agenda. Mayor Pro Tem Phillips seconded t he motion and the motion passed with a vote of 6 to 1. Councilor Thuon voted no . AVON REGULAR MEETING MINUTES TUESDAY JULY 13, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM 5.6. RESOLUTION 21-16 SUPPORTING THE AMERICA THE BEAUTIFUL INITIATIVE (GENERAL GOVERNMENT MANAGER INEKE DE JONG) Video Start Time: 01:51:21 Part Two Councilor Underwood moved to continue this item to the August 10 th agenda. Mayor Pro Tem Phillips seconded th at motion. The motion failed with a vote of 6 to 1. Councilor Thuon voted yes. Council decided to discuss 5.7 and 5.8 first and then come back to this item. Video Start Time: 02:48:31 Part Two Ineke de Jong introduced the topic and explained the Mountain Pact is encouraging city/town Councils and County commissions to join other communities in the Mountain Pact Network . There were no Council questions . Mayor Smith Hymes called for public comments and no public comments were made. Councilor Hardy moved to approve Resolution 21-16 thereby declaring the Town of Avon’s support of the America the Beautiful Initiative . Mayor Pro Tem Phillips seconded the motion and the motion passed unanimously. 5.7. RECEIPT OF 2020 ANNUAL FINANCIAL REPORT (FINANCE DIRECTOR SCOTT WRIGHT & MCMAHAN & ASSOCIATES AUDITOR PAUL BACKUS) Video Start Time: 01:52:33 Part Two Paul Backus, CPA with McMahan & Associates joined the meeting. His firm conducted the 2020 audit, and his report is included in the packet. Finance Director Scott Wright took Council through the main findings of the audit. Councilor Hardy asked about the strategy for debts versus reserves. Mayor Smith Hymes said Council can discuss further during the 2022 budget process. Councilor Prince moved to accept the 2020 Annual Financial Report. Mayor Pro Tem Phillips seconded the motion and the motion passed unanimously. 5.8. PRESENTATION: USE TAX (TOWN MANAGER ERIC HEIL AND ASSISTANT TOWN MANAGER AND FINANCE DIRECTOR SCOTT WRIGHT) Video Start Time: 02:14:20 Part Two Finance Director Scott Wright took Council through the Use Tax PPT included in the packet and explained the PPT is a high-level summary, and the details are laid out in the memo. Councilor Prince would like to get a more thorough understanding of the issue and asked him to bring back different scenarios to use as examples of what would happen if a Use Tax passes. Councilor Underwood asked for a postmortem report on why it failed before. She wondered if this is really needed this fall or if it can wait until the 2022 ballot. Council discussed that a dedicated revenue source for housing is important and asked how long use taxes in other communities have been in place. Finance Director Scott Wright explained he will bring back the analysis from the Finance Committee and these questions for the August 10th meeting. AVON REGULAR MEETING MINUTES TUESDAY JULY 13, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM 6. MINUTES 6.1. APPROVAL OF JUNE 22, 2021 REGULAR COUNCIL MEETING MINUTES (TOWN CLERK BRENDA TORRES) Video Start Time: 02:50:42 Part Two Councilor Underwood moved to approve the minutes from June 22nd regular meeting as presented. Mayor Pro Tem Phillips seconded the motion and the motion passed unanimously. 6.2. APPROVAL OF JUNE 24, 2021 SPECIAL COUNCIL MEETING MINUTES (GENERAL GOVERNMENT MANAGER INEKE DE JONG) Video Start Time: 02:51:19 Part Two Mayor Pro Tem Phillips moved to approve the minutes from June 24th special meeting as presented. Councilor Prince seconded the motion and the motion passed with a vote of 5 to 0. Councilor Underwood and Mayor Smith Hymes abstained as they did not attend this special meeting. 7. WRITTEN REPORTS 7.1. Quarterly Update on 2021 department goals (Town Manager Eric Heil) 7.2. Musical Instruments Update (Public Works Director Gary Padilla) 7.3. Rec Center Parking Status Update (Interim Recreation Director Michael Labagh, Chief of Police Greg Daly and Mobility Director Eva Wilson) 7.4. June 29, 2021 Planning and Zoning Commission Meeting Abstract (Planner David McWilliams) 7.5. Upper Eagle Regional Water Authority June 24, 2021 Meeting Summary (Mayor Smith Hymes) 7.6. Town Manager Report (Town Manager Eric Heil) 8. MAYOR AND COUNCIL COMMENTS & MEETING UPDATES Video Start Time: 02:51:58 Part Two Councilor Hardy commented she is glad that community housing is on Council's radar. She had a thought to allocate some of the Real Estate Transfer Tax funds to housing. She encouraged Council to think about parking in Town and Council may need to further discuss the issue. She thanked Town Manager Eric Heil, CASE Manager Danita Dempsey, Town Attorney Paul Wisor, the Police and Public Works departments, and everyone on Avon staff for the Salute event. Mayor Pro Tem Phillips commented that there is a great property for sale in Wildridge which is eligible for the Mi Casa Avon program. She likes Council to keep focused on this and other community housing programs. 9. ADJOURN There being no further business before Council, Mayor Smith Hymes moved to adjourn the regular meeting. The time was 10:31 p.m. AVON REGULAR MEETING MINUTES TUESDAY JULY 13, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM These minutes are only a summary of the proceedings of the meeting. They are not intended to be comprehensive or to include each statement, person speaking or to portray with complete accuracy. The most accurate records of the meeting are the audio of the meeting, which is housed in the Town Clerk' s office, and the video of the meeting, which is available at www.highfivemedia.org. RESPECTFULLY SUBMITTED: Brenda Torres, Town Clerk APPROVED: Sarah Smith Hymes ___________________________________ Amy Phillips Chico Thuon Scott Prince Tamra Underwood Lindsay Hardy RJ Andrade 970-748-4019 jmccracken@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Joel McCracken, Senior Accountant RE: Financial Report May and June 2021 Revenues DATE: July 19th, 2021 SUMMARY: The content of this report will reflect the revenues for sales, accommodations, tobacco and cigarette tax for the period of May 2021. Further, revenues for real estate transfer tax and recreation admissions & program fees for the period of June 2021 will be reported upon. This is submitted as a written report and no action by Council is being requested. BACKGROUND: The Town’s 2021 budget was adopted in December 2020. The percentage variance, or comparative change is reflected in the analysis portion of this report in respect to each individual section for the periods of May and June revenues in 2021. Tax revenues are not budgeted on a monthly basis. However, for purposes of analysis, monthly budget variances are based on a 5-year average of actual revenues. ANALYSIS: Sales Tax Revenues – May 2021 May 2021: ,May sales tax revenues totaled $567,769. This is an increase of $143,687.05 or 33.88% compared to May 2020 sales tax revenue of $424,081. MAY 2020 v MAY 2021 SALES TAX COMPARISON BY INDUSTRY May 2020 May 2021 Increase/Decrease Home/Garden $63,527.79 $85,875.21 $22,347.42 Grocery/Specialty/Health $145,705.03 $139,633.98 ($6,071.05) Sporting Goods Retail/Rental $26,626.81 $28,095.42 $1,468.61 Miscellaneous Retail $14,318.49 $19,436.84 $5,118.35 Accommodations $13,565.03 $86,339.51 $72,774.48 Restaurants/Bars $73,393.30 $97,358.22 $23,964.92 Other $1,527.52 $6,553.88 $5,026.36 Service Related $10,961.35 $12,728.97 $1,767.62 Liquor Stores 21,955.88 $19,246.53 ($2,709.35) E-Commerce Retail $11,059.76 $32,117.82 $21,058.06 Manufacturing/Wholesale $7,253.81 $7,503.30 $249.49 Construction Related Services $29,572.81 $26,254.29 ($3,318.52) Digital Media Suppliers/Sellers $4,275.71 $5,301.60 $1,025.89 Page 2 of 7 Commercial/Industrial Equipment $446.16 $1,323.02 $876.86 Special Events 0 0 0 TOTAL $424,081.54 $567,768.59 $143,687.05 Note: Since the SUTS system was first implemented in the Town of Avon in late 2020, more than 100 businesses have registered to remit sales tax which has resulted in e-commerce retail sales tax revenues to dramatically increase. May 2021 Proposed Budget v Actual Collections: May 2021 sales tax revenues totaled $567,769. This is an increase of $128,067 over the proposed May 2021 estimates of $439,702. This is 29.13% over the 2021 proposed budget, which is calculated based on a 5-year average. MAY 2020 v MAY 2021 PROPOSED BUDGET v ACTUAL COLLECTIONS - SALES TAX 2021 Budget 2021 Actual Dollar Variance Percentage Variance Sales Tax $439,701.49 $567,768.59 $128,067.10 29.13% 394,689.30 418,628.58 422,685.32 424,081.54 567,768.59 6.07%0.97%0.33% 33.88% $0 $100,000 $200,000 $300,000 $400,000 $500,000 $600,000 2017 2018 2019 2020 2021 2017 -2021 May Sales Tax Revenue Trend Page 3 of 7 Accommodation Tax Revenues – May 2021 May 2021: Accommodation tax revenues totaled $83,829 for the month of May. This is an increase of $70,539 or 530.79% compared to May 2020 accommodation tax revenues, which totaled $13,290. Accommodation tax collections by industry type for May 2021 compared to May 2020 reported an increase for Vacation Rentals, Time Shares and Hotels. MAY 2020 v MAY 2021 ACCOMMODATION TAX COMPARISON BY INDUSTRY May 2020 May 2021 Increase/(Decrease) Timeshares $1,935.79 $16,309 $14,373.21 Hotels $8,799.44 $29,921.03 $21,121.59 Vacation Rentals $2,554.36 $37,599.00 $35,044.64 TOTAL $13,289.59 $83,829.03 $70,539.44 May 2021 Proposed Budget v Actual Collections: May 2021 accommodation tax revenues totaled $83,829. This is an increase of $50,836 over the proposed May 2021 estimates of $32,993. This is 154.08% over the 2021 proposed budget. 2021 PROPOSED BUDGET v ACTUAL COLLECTIONS - ACCOMMODATIONS TAX 2021 Budget 2021 Actual Dollar Variance Percentage Variance Acc. Tax $32,992.90 $83,829.03 $50,836.13 154.08% Page 4 of 7 Tobacco & Cigarette Tax Revenues – May 2021 May 2021: Tobacco tax revenues totaled $18,775 and cigarette tax revenues totaled $19,734 for May 2021. Compared to May 2020 revenues, this is an increase of $3,823 for tobacco tax revenues, which totaled $14,952 and a decrease of $4,047 for cigarette tax revenues, which totaled $23,781. 39,962 42,618 47,259 13,290 83,829 6.65%10.89% -71.88% 530.79% $0 $10,000 $20,000 $30,000 $40,000 $50,000 $60,000 $70,000 $80,000 $90,000 2017 2018 2019 2020 2021 2017-2021 May Accommodation Tax Revenue Trend 28,463 23,781 19,734 -16.45% -17.02% - 5,000 10,000 15,000 20,000 25,000 30,000 2019 2020 2021 2019-2021 May Cigarette Excise Tax Revenue Trend Page 5 of 7 May 2021 Proposed Budget v Actual Collections: May 2021 tobacco and cigarette tax revenues totaled $18,775 and $19,734, respectively. This is an increase of $6,540 over the proposed May 2021 budget for tobacco tax, which is $12,235 and a decrease of $9,366 over for the proposed May 2021 budget for cigarette tax estimates, which is $29,100 which is based on a 5-year average. 2021 PROPOSED BUDGET v ACTUAL COLLECTIONS - TOBACCO AND CIGARETTE TAX REVENUES 2021 Budget 2021 Actual Dollar Variance Percentage Variance Tobacco $12,235.39 $18,774.97 $6,539.58 53.45% Cigarettes $29,100.24 $19,734 ($9,366.24) -32.19% ($2,826.66) NOTE: We believe the adoption of similar tobacco and cigarette taxes in neighboring jurisdiction resulted in purchasers to Avon. Real Estate Transfer Tax Revenues – June 2021 June 2021 June 2021 Real estate transfer tax totaled $560,858. Compared to June 2020, which totaled $222,169, this is an increase of $338,689. 4,833 14,952 18,775 209.41% 25.57% - 2,000 4,000 6,000 8,000 10,000 12,000 14,000 16,000 18,000 20,000 2019 2020 2021 2019-2021 May Tobacco Tax Revenue Trend Page 6 of 7 Recreation Center Revenues – June 2021 Admissions & Program Fees June 2021: Recreation admission revenues for June 2021 totaled $71,287, an increase of $58,915 compared to May 2020, which totaled $12,372. This is $36,642 over the original 2021 budget estimates of $34,645. Recreation program fee revenues for June 2021 totaled $31,057. This is a decrease of $5,687 compared to 2020, which totaled $36,744. This is $768 over the original 2021 budget estimates, which is $30,288 which is calculated based on a 5-year average. $703,420 $343,141 $237,144 $222,169 $560,858 -104.99% -44.70%-6.74% 60.39% $0 $100,000 $200,000 $300,000 $400,000 $500,000 $600,000 $700,000 $800,000 2017 2018 2019 2020 2021 Real Estate Transfer Tax June Revenue Trends 58,044 62,135 68,601 12,372 71,287 6.58% 9.43% -454.48% 82.64% - 10,000 20,000 30,000 40,000 50,000 60,000 70,000 80,000 2017 2018 2019 2020 2021 Recreation Admissions June Revenue Trends Page 7 of 7 FINANCIAL CONSIDERATIONS: This is submitted as a written report and there are no financial considerations for Council. RECOMMENDATION: This is submitted as a written report; therefore, I have no recommendations for Council. Thank you, Joel McCracken $45,885 $37,231 $34,569 $36,744 $31,057 -18.86%-7.15%6.29%-15.48% $0 $5,000 $10,000 $15,000 $20,000 $25,000 $30,000 $35,000 $40,000 $45,000 $50,000 2017 2018 2019 2020 2021 Recreation Program Fees June Revenue Trends 970-748-4069 kmartinez@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Kristin Martinez, Accountant RE: 2nd Quarter RETT Sales and Exemption Report DATE: July 13, 2021 SUMMARY: The 2nd quarter of 2021 has generated significant RETT revenues compared to prior years. While there has been a significant amount of revenues generated through RETT, thirteen primary exemptions were applied for in the 2nd quarter of 2021. There were no Mi Casa applications approved in the 2nd quarter of 2021. BACKGROUND: Prior to 2020, section 17 and 18 were the only primary residence exemptions available to buyers in Avon. On November 12th, 2019, Council adopted Ordinance 19-05 which provides a 3rd primary residence RETT exemption. Under this new exemption, purchasers may apply for an exemption up to $240,000 of consideration paid, or up to $4,800 in RETT Relief. There are new conditions which must be met in order to qualify for section 19, which are highlighted Attachment A, SUMMARY OF PRIMARY RESIDENCE RETT EXEMPTIONS. In 2020, Mi Casa was approved to provide $650,000 in funds to qualifying participants. Of the $650,000 approved, $464,760 was contributed by the Town for 8 properties. In 2021, Council approved $900,000 in funds for Mi Casa with the goal to provide financial assistance for 12-16 homebuyers in 2021, this is an increase of $250,000, compared to 2020. ANALYSIS: RETT Exemptions Granted 2019 – 2021 In 2021, thirteen primary residence exemptions were granted in the 2nd quarter. This is equivalent to the amount of exemptions granted in the 2nd quarter of 2019 and an increase of 9 exemptions granted in the 2nd quarter of 2020. In the 2nd quarter of 2021, $41,450 was granted in RETT Relief, which is an additional $28,570 than in 2020, which granted $12,880 and equal to 2019, which granted $41,450. RETT Exemptions Granted 2nd Quarter Trend Exemption Type 2019 2020 2021 Section (17) 13 3 13 Section (18) 0 0 0 Section (19) 0 1 0 Total 13 4 13 Staff Note: Many of these transactions were over the cut-off for the section 19 exemption or buyers who qualified indicated that they did not want a lien on their property for 3 years. Page 2 of 4 2nd Quarter Primary Residence Exemptions Granted Month Avon Neighborhood Purchase Price of Property Exemption Section Amount Exempt April West Avon $434,495 17 $3,200 April West Avon $305,000 17 $3,050 April West Avon $385,000 17 $3,200 April Nottingham Rd/Northside $776,500 17 $3,200 April Town Core $520,000 17 $3,200 May Wildridge $924,370 17 $3,200 May East Avon $475,000 17 $3,200 May Wildridge $468,000 17 $3,200 May East Avon $530,000 17 $3,200 June Wildridge $1,765,000 17 $3,200 June Town Core $430,000 17 $3,200 June Town Core $1,430,000 17 $3,200 June Nottingham Rd/Northside $995,0000 17 $3,200 Total 13 $41,450 41,450 12,880 41,450 -221.82% 68.93% (2,500) 2,500 7,500 12,500 17,500 22,500 27,500 32,500 37,500 42,500 47,500 2019 2020 2021 2nd Quarter RETT Relief Granted Page 3 of 4 2nd Quarter Activity Actual RETT revenue for the 2nd quarter of 2021 totaled $1,361,414, This correlates to a total of $70 million in property sales. Total RETT Activity – 2nd Quarter 2021 April May June Total RETT Revenue $477,177.47 $323,407.76 $560,858.37 Total Exemptions $15,850.00 $12,800.00 $12,800.00 Total RETT $493,027.47 $336,207.76 $573,658.37 Total Sales $24,651,373.50 $16,810,388.00 $28,682,918.50 3-Year Average RETT Activity Based on a 3-year average, April, May, and June 2021 RETT revenues reflect a positive variance of 53.89%, 38.23%, 64.93%, respectively. 3-Year Average RETT Revenue Trend 2019-2021 April May June Total RETT Revenue $310,061 $233,969 $340,057 Total Exemptions $5,284 $14,427 $12,217 Total RETT $315,345 $248,396 $352,274 Total Sales $15,767,250 $12,419,800 $17,613,700 % Variance 53.89% 38.23% 64.93% RECOMMENDATION: This is submitted as a written report; therefore, I have no recommendations for Council. Thank you, Kristin Page 4 of 4 ATTACHMENT A: SUMMARY OF PRIMARY RESIDENCE RETT EXEMPTIONS Exemptions Section (17) Section (18) Section (19) Amount $160,000 $160,000 $240,000 Home Value Cap None None $700,000 Eagle County Employee N/A Yes Yes Affidavit of Primary Residence Yes Yes Yes Promissory Note 1 year 1 year 3 years Lien Yes Yes Yes 970.748.4013 idejong@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Ineke de Jong, General Government Manager RE: İMi Casa Avon! Program Q2 Update DATE: July 30, 2021 SUMMARY: This report provides an update on the ¡Mi Casa Avon! program. BACKGROUND: Putting home ownership within reach of more Avon residents has been a priority for the Avon Town Council and the deed restricted housing program, ¡Mi Casa Avon!, was approved by the Avon Town Council in the spring of 2020 and launched in June. REVIEW OF PROGAM: In 2020, the Town approved eight applications. Since January 2021, the Town has approved eight applications, six are closed, two are pending. Assuming the two pending transactions go through, the numbers are below: # Year Type Sq Ft Bedr ooms Neighborhood Sales Price Mi Casa $ % Price per Sq Ft 1 08/20 Condo 935 2 Wildridge $399,000 $47,880 12.0% $427 Sq Ft 2 09/20 Multi-family 1,987 4 Wildridge $645,000 $75,000 11.6% $325 Sq Ft 3 10/20 Townhome 2,027 3 Wildridge $630,000 $75,000 11.9% $311 Sq Ft 4 10/20 Townhome 1,337 3 Avon Center $480,000 $57,600 12.0% $359 Sq Ft 5 10/20 Condo 552 1 Avon Center $288,000 $34,560 12.0% $522 Sq Ft 6 10/20 Condo 840 2 Avon Center $431,000 $51,720 12.0% $513 Sq Ft 7 10/20 Townhome 2,063 3 Wildridge $675,000 $75,000 11.1% $327 Sq Ft 8 11/20 Condo 768 2 Avon West $400,000 $48,000 12.0% $521 Sq Ft 9 03/21 Condo 768 2 Avon West $430,000 $51,600 12.0% $560 Sq Ft 10 03/21 Condo 768 2 Avon West $370,000 $44,400 12.0% $482 Sq Ft 11 05/21 Townhome 1770 3 Wildridge $695,000 $83,400 12.0% $393 Sq Ft 12 06/21 Condo 1019 2 Avon Center $449,000 $53,880 12.0% $441 Sq Ft 13 07/21 Condo 935 2 Wildridge $498,000 $59,760 12.0% $533 Sq Ft 14 07/21 Condo 1647 2 Avon Center $645,000 $77,400 12.0% $392 Sq Ft 15 08/21 Townhome 1228 2 Avon Center $750,000 $90,000 12.0% $611 Sq Ft 16 09/21 Townhome 806 1 Wildridge $515,000 $61,800 12.0% $639 Sq Ft Average 1,216 2 $518,750 $61,688 11.9% $460 Sq Ft Page 2 of 2 FINANCIAL CONSIDERATIONS: The initial appropriation from the Avon Community Housing Fund approved by Council for 2020 was $650,000. Council approved funding in the amount of $900,000 for the program in 2021. Closed Transactions total $757,800, funds awarded and pending transaction total to $151,800. The remaining fund balance is $640,400. TOWN ATTORNEY UDPATE: The Mi Casa Review Committee has clarified conditions of the approval process. Currently, the applicant must contribute at least three percent (3%) of the applicant’s funds towards the purchase price of the property which does not include any third party down payment assistance funding. In order to make sure the applicant is not entering a situation where the home in nearly underwater at upon gaining ownership, the Mi Casa Review Committee is requiring evidence that the mortgage does not exceed 85% of the purchase price. The helps ensure the Town’s contributions and the 3% of the buyer puts down each goes towards the down payment and are not absorbed into fees and other closing costs. We’ve also added a recommendation to work with a local title closing company or a company that has demonstrated experience with closing in the Eagle County area. Thank you, Ineke Total Funds Closed transactions Pending transactions Funds remaining $1,550,000 $757,800 $151,800 $640,400 1 AVON PLANNING AND ZONING COMMISSION MEETING ABSTRACT TUESDAY, JULY 20, 2021 1. CALL TO ORDER AND ROLL CALL Chairperson Jared Barnes called the meeting to order at 5:09 p.m. A roll call was taken, and Planning Commission members present were Steve Nusbaum, Donna Lang, Trevor MacAllister, Marty Golembiewski, and Sara Lanious. Also present were Planning Director Matt Pielsticker, and Town Engineer Justin Hildreth. 2. APPROVAL OF AGENDA Action: Commissioner Golembiewski motioned to approve; Commissioner Lang seconded. The Consent Agenda was approved unanimously. 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS There were no conflicts of interest. 4. BUSINESS ITEMS 4.1. THROUGHOUT TOWN – DESIGN REFERRAL – PRIORITIZATION PLAN FOR DIGITAL DISPLAY SIGNS IN VARIOUS LOCATIONS 4.2. THROUGHOUT TOWN – WORK SESSION – DISCUSSION OF A POTENTIAL USE TAX FOR BUILDING PERMITS Action: No action. 5. CONSENT AGENDA 5.1. MEETING MINUTES FROM JUNE 29, 2021 PZC MEETING Action: Commissioner Nusbaum motioned to approve; Commissioner Lanious seconded. The Consent Agenda was approved unanimously. 6. STAFF UPDATES 6.1. EAST HARRY A. NOTTINGHAM PARK P ROJECT STATUS 6.2. DEVELOPMENT ACTIVITY 7. ADJOURN The meeting was adjourned at 6:49pm. These meeting notes are only a summary of the proceedings of the meeting. They are not intended to be comprehensive or to include each statement, person speaking or to portray with complete accuracy. The most accurate records of the meeting are the audio of the meeting, which is housed in the Town Clerk' s office. RESPECTFULLY SUBMITTED: Matt Pielsticker, Planning Director FINANCE COMMITTEE MEETING TUESDAY, JULY 20, 2021 HYBRID IN-PERSON/VIRTUAL MEETING Finance Committee Meeting, July 20, 2021 1 | 5 1. ROLL CALL PRESENT- Finance Committee: Markian Feduschak and Dee Wisor in-person. Committee Members Craig Ferraro and Linn Brooks joined virtually. Town Council: Councilmember Scott Prince and Mayor Sarah Smith Hymes Town Staff: Finance Manager Amy Greer, Finance Director Scott Wright, Town Manager Eric Heil, General Government Manager Ineke de Jong and General Government Intern Emily Myler ABSENT- Committee Member Steve Coyer LATE ARRIVAL- Committee Member Linn Brooks The meeting opened at 5:15 p.m. 2. APPROVAL OF JANUARY 2021 MINUTES Committee Member Dee Wisor moved to approve the minutes from the January 28, 2021 meeting and Committee Member Markian Feduschak seconded the motion. The motion passed unanimously. 3. PUBLIC COMMENT There was no public comment. 4. STAFF UPDATES ON FINANCIAL RESULTS THROUGH JUNE 2021 Finance Director Scott Wright presented the year-to-date revenue through the end of May 2021. Sales Tax has increased from the last three years. He expressed that the increase is good, but not as large as it seems since 2020 had low revenues. Sales Tax in all industries were higher than last year besides construction materials. He said that new Town ordinances have increased tax revenue from online shopping and short-term rentals like Air BnB and VRBO. Something for the Committee to discuss is how to project these new revenues with an unpredictable post-pandemic economy and keep budgetary growth smooth over time. Town Council and staff have been traditionally very conservative in preparing budgets but it may be time to budget with a reasonable amount of revenue growth in mind, based on trends. Committee Member Linn Brooks joined via Zoom at 5:30 p.m. Town Manager Eric Heil added that there needs to be better understanding of actual expenditures. It is hard to predict every anomaly, but with the Town expecting reliable surpluses in the coming years, it is easier to handle. It’s healthy to be conservative, but budgets can now assume there will be more revenue than projected for most years. The Committee commented/inquired: A. Is it possible to change the fiscal year to better take advantage of peak revenue months in the winter? B. There isn’t a perfect way of doing it. Keeping a reserve fund is the most important thing. C. Maintenance costs are higher than anyone expects and are vital or infrastructure becomes unsafe. D. It’s good to be optimistic, but the effects of COVID-19 have not fully played out. There still could be shutdowns coming up. E. The labor shortage could have major effects on Town revenues. F. One scenario to consider is that 2021 is an anomaly in a pattern of economic strife caused by any FINANCE COMMITTEE MEETING TUESDAY, JULY 20, 2021 HYBRID IN-PERSON/VIRTUAL MEETING Finance Committee Meeting, July 20, 2021 2 | 5 disaster from wildfires to floods to pandemics. It’s important to use the surplus to protect the Town from these eventualities. G. How do the 2020 economic impacts compare to other recessions the Town has faced? H. How much of the accommodations tax increase is attributed to the new short-term rental taxes vs. only increased tourism? I. Maybe the Town should look at restricting short-term rentals in favor to long-term rentals to house the workforce. J. Could Avon reduce its marketing aimed at drawing in tourism to combat unaffordability for locals? Financial Director Wright said he has been with an organization that changed the fiscal year and it made sense in theory but was problematic in practice. The Town could potentially track a “ski year” vs. the rest of the year but it is also seeing tourism growth in the summer. He said compared to other economic downturns the post-pandemic recovery has been much faster. It’s hard to say exactly how much the new short-term accommodations tax impacted lodging revenue, but it is likely significant. Town Manager Heil said building the reserveS is more important than paying off debt right now and Financial Director Wright agreed. Over the past year, the Town planned for the worst during the pandemic and instead ended up with a surplus. It is a good time to calculate how much it will cost to better maintain current assets rather than find new assets to build, although there are some important projects coming up now to keep up with growth. The Town is expecting an increase in property taxes as prices skyrocket as well, although new changes to assessment rules may reduce that. The Town has not seen evidence that a large number of long-term rentals are being converted to short-term, but there have been conversations about whether to take steps to restrict short-term renting in favor of long-term rentals to support the workforce. Avon already has very little tourism marketing, however he agreed that marketing shouldn’t focus on drawing anyone to Town but can focus on promoting visitors who share the Town’s values such as care for the environment. 5. STAFF PRESENTATION: USE TAX Finance Director Wright presented a proposed use tax. He said previous use tax proposals have failed in Council or election so the Town has focused on using the sales tax to collect on items a use tax usually covers, which works but is difficult administratively. The proposed sales tax is simply a change in the collection and administration of the same money that keeps funds local. There are three use tax options to consider: • A Consumer Sales Tax is paid on items bought outside Avon and brought in, such as online purchases. However, there is already a precedent for non-local businesses to begin remitting local sales tax once it has done $100,000 of business in the state, so a Consumer Use Tax is not very effective and not recommended. • A Motor Vehicle Use Tax is paid on vehicles bought outside of Town but registered here. It can raise a substantial amount of revenue but is not recommended because it is a brand new tax that is shouldered by the average Avon voter. • A Construction Use Tax is paid on construction materials used in local Avon development. The tax is paid based at the permitting phase of a project based on 4 percent of 50 percent of anticipated construction value. Developers then are exempt from paying sales taxes on the materials they buy for the project, even if the purchase is outside of town. All other municipalities FINANCE COMMITTEE MEETING TUESDAY, JULY 20, 2021 HYBRID IN-PERSON/VIRTUAL MEETING Finance Committee Meeting, July 20, 2021 3 | 5 in Eagle County have this tax and it is recommended by staff because it replaces the current sales tax on construction material, keeping taxation fairly stable while relieving administrative burdens on the Town and preventing leakage. The construction use tax would go before council in August, 2021 and, if approved, go on the ballot for the November 2021 election. The Committee commented/inquired: A. Does the Town think it’s leaving money on the table with the current sales tax? B. The use tax would be paid on only 50 percent of the total construction cost because it is assumed that is the cost of materials vs. labor for most projects. What happens if some projects pay more or less than 50 percent of the total costs on supplies? C. Besides easier administration, what are the other benefits of this tax? D. Who is ultimately responsible for paying the tax? E. Can the Town do more audits on the current construction material sales tax? F. Would the Town refund money if costs are lower than predicted? G. Are community housing projects exempt from this tax? H. Tax exemptions up front are easier than refunds after the fact I. How much of the estimated construction value in Town last year came from big developers vs. private projects? J. Can the tax pay for staff working on community housing projects? K. Would part the revenue from the tax go towards community housing or all of it? Town Manager Eric Heil said it seems like over $200,000 of sales tax every year is not being collected because of difficulties tracking who needs to pay what. In that regard, the use tax would likely collect more than the sales tax. The sales tax means tracking down vendors from all over the country to collect sales tax from them. The elevator speech for the tax is that the funds will be dedicated to community housing, which is a pressing and costly investment. Yes, deed restricted full-time residential housing projects already have tax exemptions in the Town Code. He suggested the tax language allows revenues to be reallocated by Council in an emergency but otherwise go towards community housing initiatives. It can pay for soft costs like consultants, but likely not for Town staff to work on community housing. The whole tax revenue should go towards housing, even if it takes away money from the general fund. $600,000 a year is only a start for housing. Finance Director Wright said at the end of the project, there may be a settle up based on differences between projected and actual material costs. The builder is responsible for paying the tax in most cases. Audits have been successful but its inefficient compared to the use tax. For any small projects that does not require a permit (e.g. DIY re-tiling a bathroom) there will be no use tax but sales tax for the locality where supplies are bought will apply. He wasn’t sure how much of local construction value is part of big development projects vs private homeowners. Short-Term Rental Accommodations Tax Town Manager Heil also said the Town is considering an additional accommodations tax just for short- term rentals to encourage more long-term rentals to house the workforce and add to the Town’s community housing fund. He thought the voters might be more willing to pass this tax as there is FINANCE COMMITTEE MEETING TUESDAY, JULY 20, 2021 HYBRID IN-PERSON/VIRTUAL MEETING Finance Committee Meeting, July 20, 2021 4 | 5 widespread public concern over the housing shortage and prevalence of vacation rentals. The Committee commented/inquired: A. With most of Avon already developed, that use tax revenue would slow down in the upcoming years. B. How are short-term rentals differentiated from hotels? C. What is the likelihood that the accommodations tax would pass an election? D. The use tax will likely bring in less revenue than short-term rental tax and will be harder to pass an election. E. Some communities have taxes on second homes that sit empty, although there are challenges. F. It seems that Colorado is the only state that doesn’t charge higher property taxes on second homes G. The short-term rental tax makes more sense than the use tax. H. It is hard to pass new taxes in Avon. I. Should both taxes go on the ballot or one? If only one, which should go on it first? J. It’s probably best to keep it simple on the ballot. The accommodations tax is the easiest to understand. K. Workforce housing is reaching a crisis point. People are seeing this and will vote for programs that fix the problem. L. Pair the tax ballot question with other community housing ballot questions to get people in a mindset to vote yes M. The accommodations tax is the least controversial and voters are in a mood to support it. N. The use tax is more time sensitive. If it’s passed later the Town will lose revenue from big projects coming up soon, so it would be beneficial to put it on the ballot first. The accommodations tax has higher likelihood of passing but is less pressing right now. O. The public will want to know what specific projects the revenues will fund. Right now the language is too vague. P. Even though the use tax is replacing the construction material sales tax, people will view it as a new tax and disapprove. Q. If the use tax fails in 2021, can it go on the ballot again in 2022? R. Is there time to identify exactly what projects the tax will fund? S. Approving a ballot initiative like this is in the public’s self interest as the housing shortage will eventually impact the economy and the face of the Town itself. Town Manager Heil said he believes the accommodations tax would pass relatively easily. He thinks the use tax can generate a lot of revenue in the Village at Avon, and it increases efficiency for Town staff. Council can have a work session on both taxes and decide which one will go on the ballot. The use tax doesn’t increase taxes much but replaces a current tax. The accommodations tax is an all-new tax however the voters are currently against short term rentals so they might still support it. Yes, the use tax can go on the ballot multiple times until passed. If both are passed, the Town could make a real difference in the housing situation. The situation is far worse than it ever as been, so hopefully the public is incentivized to fund projects to fix it. The Town can be clear about the projects it is considering while campaigning for this tax. 6. REVIEW OF CLEARGOV Finance Director Wright said he wouldn’t go into a lot of detail about ClearGov as Committee members can explore it on Avon.org. FINANCE COMMITTEE MEETING TUESDAY, JULY 20, 2021 HYBRID IN-PERSON/VIRTUAL MEETING Finance Committee Meeting, July 20, 2021 5 | 5 7. ADJOURNMENT The meeting adjourned at 6:57 p.m. Respectfully Submitted by Emily Myler General Government Intern 970.748.4004 eric@avon.org TO: Honorable Mayor Smith Hymes and Council FROM: Eric Heil, Town Manager RE: Unification of UERWA and ERWSD DATE: August 6, 2021 SUMMARY: This report provides an update on efforts to “unify” the Upper Eagle River Water Authority and the Eagle River Water and Sanitation District. Based on discussions by both boards at the last meeting, the next step will be to pursue the details of unifying the UERWA into the ERWSD with an emphasis on protecting all existing rights of members of the UERWA (including Avon) and incorporating a right of existing UERWA members to participate in all ERWSD meetings, including executive sessions. Under a unified ERWSD organization, existing members of UERWA would not have a voting right on the ERWSD board. There are many details to sort through as the next step. Council can expect an executive session for legal advice and negotiating purposes in 3-6 months after this conceptual proposal and direction is put to paper. No action is required by Council at this time. Thank you, Eric ATTACHMENT A: Avon Comment Letter dated May 4, 2021 ATTACHMENT B: Authority Surplus Augmentation Supply, dated July 14, 2021 ATTACHMENT C: Linn Brooks Unification Memorandum, dated July 15, 2021 ATTACHMENT D: Linn Brooks Unification Memorandum, dated July 22, 2021 Post Office Box 975 100 Mikaela Way Avon, CO 81620 Upper Eagle River Water Authority Eagle River Water and Sanitation District Sent VIA E-Mail: lbrooks@erwsd.org jcollins@CCCFirm.com May 4, 2021 RE: Unification Proposal for Authority and District Dear Linn and Jim, I would like to express the Town of Avon’s thoughts on proposed unification. Please share this letter with the members of the Upper Eagle Regional Water Authority (“Authority”) and the board of directors of the Eagle River Water and Sanitation District (“District”). The Town of Avon understands the benefits of unification with regard to the regional water rights portfolio and greater flexibility in the use of existing water rights to serve all areas of the Authority and District . Avon strongly supports the concept of unification. Avon also expects that unification will result in a consolidated entity that will be permanent for all practical purposes. The current (and only) proposal for unification under consideration is to dissolve the Authority and have the District assume the Authority assets and service area. This proposal would fundamentally change Avon’s existing legal rights and protections under the 2015 Authority Agreement Amending and Restating the Agreement Establishing the Upper Eagle Regional Water Authority and the Master Service Contract (“2015 Authority Agreement”) as well as the legal rights and protections of the other Authority members. The most significant existing legal right that would change is the loss of direct representation and participation on the governing board of the Authority by the Town of Avon and other Authority members. The Avon Town Council believes that the Authority’s organizational structure has many benefits and efficiencies because it is partnership of regional governments rather than a government entity that is wholly separate and independent from the towns and the metropolitican districts that it serves. We expect the proposed consolidated water entity will be required to address many complicated and consequential water rights issues over the next fifty years and beyond, including transmountain diversions, reservoir projects, and interstate calls on the Colorado River under the Colorado River Compact. The elected of ficials of the towns of Vail and Avon and the elected officials of the various metropolitan districts served by the Authority and District should be directly involved in governing a consolidated water entity due to the critical and essential nature of water rights and water supplies. Under the District unification proposal, all existing governmental entities would not have the access to executive session materials and would not have a voice in these executive sessions where substantive discussions business items and development of long-term strategies often occur. When (not if) the time ATTACHMENT A - Avon letter dated May 4, 2021 comes for our region to exert its best political influence on water rights and in-stream flow issues, the direct involvement and understanding of Vail, Avon and the member metropolitan districts will be critical and invaluable. For these reasons, Avon believes it is appropriate and necessary for legal review of unification to fully explore other unification options that include a partnership of existing local governments who appoint representatives to a governing body of the unified entity. Several specific concept suggestions for alternative options are presented below. Additionally, Avon believes it is important to have a comprehensive review of the terms and legalities of the 2015 Authority Agreement that directly relate to the rights and required consent of the Authority members for any unification process. Unification Options: Avon suggests that the following options are worthy of full consideration: 1. Consolidate the Water Service Under the Authority: The existing statutory framework under C.R.S. § 29-1-204.2 and the terms of the 2015 Authority agreement allow for water services, water assets and water rights to be consolidated under the existing Authority. The Authority governing board could be expanded to include representation by the areas served by the District outside the current Authority service area. Sanitation could continue to be provided as is through the existing District structure. 2. Seek Legislation to Amend C.R.S. § 29-1-204.2: Legislation could be proposed in the 2022 legislative session to amend CRS § 29-1-204.2 to simply add “sanitation” to paragraph (1), which would allow unification of both water and sanitation functions into the Authority governing structure. Avon believes our local state legislators would support a bill to amend the statute and that such a bill would not be controversial or opposed. 3. Utilize Municipal Home Rule Authority: The municipal home rule authority of either Town of Vail or Town of Avon could be used to create a separate unified water and sanitation authority to serve the entire area with full legal authority in all aspects of water and sanitation services, a governing structure composed of representatives appointed from existing governmental entities, and could incorporate binding, irrevocable commitments through intergovernmental agreements to protect the rights of all areas served. Avon believes it would be appropriate to develop a complete matrix that describes the differences in legal authority, process for implementation and overall pros and cons of other options besides the proposed unification under the Title 32 Special District authority of the existing District. 2015 Authority Agreement: Avon believes it is important for all members of the Authority to understand their existing legal rights under the 2015 Authority Agreement. The 2015 Authority Agreement provides that there must be unanimous consent of the members in order for the Authority to be dissolved (Paragraph 16) as well as to approve any amendment to the Authority Agreement (Paragraph 46). Members of the Authority have the right to participate in any water rights adjudication concerning the water rights leased or conveyed to the Authority (Paragraph 12). Members also have unique rights to review and approve Base Charge increases (Paragraph 22.a.) and Plant Investment Fee increases (Paragraph 23.a.). The members rights under the 2015 Authority Agreement should be reviewed again, list ed and any change to these rights under proposed unification should be identified and fully understood. ATTACHMENT A - Avon letter dated May 4, 2021 Lastly, Avon may be in a unique position compared to other areas to be served by the Authority and District. There is a substantial amount of future development within the Town of Avon yet to be served with water. Future redevelopment in the core of Avon combined with future development of the Village (at Avon) amounts to the potential equivalent of more than 4,000 SFEs, which may take 40 to 50 years to fully develop. Avon believes the Town of Avon must have a seat on the governing body of any future water service entity to fullfill our duty to insure water service availability to the property owners, investors and greater Avon community. We understand the water rights benefit of unification is dependent upon conveying all water rights irrevocably to a unified water entity. The proposal to irrevocably convey water rights and relinquish the Town’s representation on the governing body of a unified water entity is extremely difficult for Avon to support and feels irresponsible to our community and our future. Thank you for your consideration of the thoughts and suggestions shared in this letter. The Town of Avon greatly values and appreciates the existing partnerships and relations we have for water and sanitation services and looks forward to continuing to work on unification and other important matters. Sincerely, Sarah Smith Hymes Mayor, Town of Avon Cc: Avon Town Council Eric Heil, Town Manager ATTACHMENT A - Avon letter dated May 4, 2021 Authority Surplus Augmentation SupplyUpdated: 7/14/2021 by JCHCUs,acftIn‐basin Reservoir Storage, acftIn‐basin Reservoir Storage, acftOut‐of‐basin Reservoir Storage Use, acftTotal HCU & In‐Basin ReservoirSummer onlyAffordable Housing Reserve UnrestrictedCurrent Augmentation Surplus*95.00 87.40 125.00 307.40Replacement Water for Pending ApprovalsEdwards River Park PUD6.049.2753.651.8970.85Mountain Hive1.2713.560.3915.22NorthStar PUD Amendment0.225.470.165.86Warner Building 2 Conversion0.020.470.010.50Riverwalk PUD Guide Amendment0.092.130.062.28Kudel0.271.060.031.35Club Residences at CVC0.041.040.031.12Total Pending Replacements7.949.2777.382.5997.18Remaining Augmentation Surplus87.0678.1347.62212.81Notes:1) Suplus Projections consider all projects with Ability to Serve Letters to be allocated.2) Pending Approvals have Conditional Capacity to Serve Letters but have not yet received land use approvals or paid CIL.4) Unrestricted In‐basin Reservoir Storage includes 25 acft pledged by ERWSD.5) Out‐of‐basin Reservoir Storage supplies include 711 acft Wolford Mtn. Res. Contracts and 475 acft Green Mtn. Res. Contracts.3) Affordable Housing Reserve In‐basin Reservoir Storage is Eagle Park water transferred to UERWA by Eagle County and can only be used for *95 AF HCU remaining in June 25, 2020 presentation to Boards. This is the most recent LRE/Lynker model run for Unallocated Water.ATTACHMENT B - Authority Surplus MEMORANDUM TO: Boards of Directors FROM: Linn Brooks, General Manager DATE: July 15, 2021 RE: Unification For your discussion in the Joint Session of the District and Authority Boards this month, I have attached again the Issues Matrix and the letter from Avon Mayor Sarah Smith‐Hymes outlining options for the structure of a unified entity to serve the current District and Authority service areas. Staff and general counsel have provided all requested information to the boards, and I believe all parties feel that unification is the right path but disagree on whether directors should be appointed or elected. While this is an important philosophical debate for the two boards to engage in, as General Manager of both entities charged with managing the water supply, I remain concerned that the Authority is very short on surplus water. Staff is planning to undertake aggressive measures to conserve outdoor water use to recapture water from existing uses in order to have at least a small amount of strategic reserve while also allowing new commitments to proceed. However, our current drought and high temperatures, along with uncertainty in Colorado River issues, indicate that the risks of shortage are real and looming. The benefits of conservation efforts may be at least partially offset by the diminishing of supply. This is all to say that time is of the essence, and I urge the boards to conclude their debate in short order. ATTACHMENT C - Memorandum {00826367.DOCX / 2 } UNIFICATION MATRIX Options: Summary Legal Authority Governance Structure Timeline/Estimated Costs Pros Cons Continue current ERWSD/UERWA Structure No change to current structure or operations. §29‐204.2 C.R.S. Two separate boards – District & Authority. District Directors elected by registered electors.1 Authority Directors appointed by member agencies. No specific qualifications or residency requirements for Authority Board Members. Current structure/No additional estimated costs  Representatives to Authority Board appointed by member entities.  Districts have powers that Authorities do not: ability to condemn property, levy taxes, issue GO Bonds, create Subdistricts & Assessment Districts, have elections, establish Board Members for either all at‐large seats or up to 7 Director District seats (with equal populations).  Ongoing duplicative costs of running two entities (estimated at $150,000 annually).  Water supply for UERWA is exhausted (or already committed) and has no strategic reserve.  1 Directors much be an “eligible elector”, which is a registered voter of Colorado and either a resident of the District or the owner/spouse or taxable real or personal property located in the District. ATTACHMENT C - Memorandum {00826367.DOCX / 2 } Unified Water and Sanitation District ERWSD would hold an inclusion election to include all areas currently served by UERWA. Public hearing and petition of court for court order required. Eagle River Water Subdistrict would be created to maintain separate accounting for the current Vail Water Subdistrict. All assets and liabilities of the Water Authority would be assumed by the Subdistrict. Water & sewer powers pursuant to Title 32, specifically §32‐1‐1006, C.R.S.; Inclusion via §32‐1‐401, et seq. One Board of Directors elected directly by registered electors. Director Districts allow for representation 7 areas of the District of similar electorate size. An Advisory Committee appointed by the current UERWA Members would be advised of all operations of the Subdistrict. 6‐8 months/ $40,000  Simplified governance structure with only one board.  No dissolution costs.  Water rights consolidated, so District’s excess water is available to the current UERWA service area. Authority gains ability to commit to growth and committed uses are protected by a strategic reserve. Administrative efficiencies result in estimated cost savings of $150,000/year2  Districts have powers that Authorities do not: ability to condemn  No member agencies; no direct representation of the current UERWA members.  Some costs to unwind the Authority.  2 Administrative efficiencies primarily consist of avoiding two audits; avoiding two meetings; avoiding duplicate bookkeeping and legal fees; eliminating Operational Contract renewals and justifications, etc. ATTACHMENT C - Memorandum {00826367.DOCX / 2 } property, levy taxes, issue GO Bonds, create Subdistricts & Assessment Districts, have elections, establish Board Members for either all at‐large seats or up to 7 Director District seats (with equal populations). Utilize Municipal Home Rule Authority to Create Water & Sewer Entity New authority created using home rule authority of the Town of Vail or Avon to provide water and sewer to the entire are. Representatives would be appointed from existing governmental entities. (Avon to add details) Representatives to Authority Board appointed by member entities. (Avon to add details)  Administrative efficiencies & savings.  District water available to Authority service area. Authority gains ability to commit to growth and committed uses are protected by a strategic reserve.  Authority lacks certain powers of District (condemnation except can use power retained by individual members, mill levy, GO Bonds, etc.).  Unequal population numbers represented by each Board Member.  District dissolution costs3. 3 Moving to an Authority‐only structure would require the dissolution of ERWSD. Dissolution requires an election, and court‐ordered dissolution plan. Upon dissolution, the current debt mill levy would remain with the properties to pay off any previously‐issued District debt. ATTACHMENT C - Memorandum {00826367.DOCX / 2 }  Upper Eagle Regional Water & Sewer Authority Retain existing Authority under different statutory authority4. The Metro District members would provide 45‐day notice of their intent to provide sanitation services through the Authority. Amendment of current Authority agreement required to address sewer services and reference alternate statute.5 §29‐1‐203(4) Representatives to Authority Board appointed by member entities. May be appropriate to add additional members, such as Vail. 8‐12 months / $50,000 ‐ $60,000  Administrative efficiencies result in estimated cost savings of $150,000/year  District water is available to UERWA service area.  No advisory committees needed to keep current UERWA members updated.  . Authority gains ability to commit to growth and committed uses are protected by a strategic reserve.  Authority lacks certain powers of District (limited condemnation except can use power retained by individual members, mill levy, GO Bonds, etc.).  Unequal population numbers represented by each Board Member.  Cost of District dissolution. 4 Option #2 proposed in Avon’s May 4th memo, suggested legislation to amend CRS 29‐1‐204.2, and is not included. We believe the same result can be achieved more quickly and without the need for legislative approval, by through the Upper Eagle Regional Water & Sewer Authority discussed above under 29‐1‐203(4), C.R.S. 5 Amendment of current IGA requires written approval by the governing bodies of the members. ATTACHMENT C - Memorandum Post Office Box 975 100 Mikaela Way Avon, CO 81620 Upper Eagle River Water Authority Eagle River Water and Sanitation District Sent VIA E-Mail: lbrooks@erwsd.org jcollins@CCCFirm.com May 4, 2021 RE: Unification Proposal for Authority and District Dear Linn and Jim, I would like to express the Town of Avon’s thoughts on proposed unification. Please share this letter with the members of the Upper Eagle Regional Water Authority (“Authority”) and the board of directors of the Eagle River Water and Sanitation District (“District”). The Town of Avon understands the benefits of unification with regard to the regional water rights portfolio and greater flexibility in the use of existing water rights to serve all areas of the Authority and District . Avon strongly supports the concept of unification. Avon also expects that unification will result in a consolidated entity that will be permanent for all practical purposes. The current (and only) proposal for unification under consideration is to dissolve the Authority and have the District assume the Authority assets and service area. This proposal would fundamentally change Avon’s existing legal rights and protections under the 2015 Authority Agreement Amending and Restating the Agreement Establishing the Upper Eagle Regional Water Authority and the Master Service Contract (“2015 Authority Agreement”) as well as the legal rights and protections of the other Authority members. The most significant existing legal right that would change is the loss of direct representation and participation on the governing board of the Authority by the Town of Avon and other Authority members. The Avon Town Council believes that the Authority’s organizational structure has many benefits and efficiencies because it is partnership of regional governments rather than a government entity that is wholly separate and independent from the towns and the metropolitican districts that it serves. We expect the proposed consolidated water entity will be required to address many complicated and consequential water rights issues over the next fifty years and beyond, including transmountain diversions, reservoir projects, and interstate calls on the Colorado River under the Colorado River Compact. The elected of ficials of the towns of Vail and Avon and the elected officials of the various metropolitan districts served by the Authority and District should be directly involved in governing a consolidated water entity due to the critical and essential nature of water rights and water supplies. Under the District unification proposal, all existing governmental entities would not have the access to executive session materials and would not have a voice in these executive sessions where substantive discussions business items and development of long-term strategies often occur. When (not if) the time ATTACHMENT C - Memorandum comes for our region to exert its best political influence on water rights and in-stream flow issues, the direct involvement and understanding of Vail, Avon and the member metropolitan districts will be critical and invaluable. For these reasons, Avon believes it is appropriate and necessary for legal review of unification to fully explore other unification options that include a partnership of existing local governments who appoint representatives to a governing body of the unified entity. Several specific concept suggestions for alternative options are presented below. Additionally, Avon believes it is important to have a comprehensive review of the terms and legalities of the 2015 Authority Agreement that directly relate to the rights and required consent of the Authority members for any unification process. Unification Options: Avon suggests that the following options are worthy of full consideration: 1. Consolidate the Water Service Under the Authority: The existing statutory framework under C.R.S. § 29-1-204.2 and the terms of the 2015 Authority agreement allow for water services, water assets and water rights to be consolidated under the existing Authority. The Authority governing board could be expanded to include representation by the areas served by the District outside the current Authority service area. Sanitation could continue to be provided as is through the existing District structure. 2. Seek Legislation to Amend C.R.S. § 29-1-204.2: Legislation could be proposed in the 2022 legislative session to amend CRS § 29-1-204.2 to simply add “sanitation” to paragraph (1), which would allow unification of both water and sanitation functions into the Authority governing structure. Avon believes our local state legislators would support a bill to amend the statute and that such a bill would not be controversial or opposed. 3. Utilize Municipal Home Rule Authority: The municipal home rule authority of either Town of Vail or Town of Avon could be used to create a separate unified water and sanitation authority to serve the entire area with full legal authority in all aspects of water and sanitation services, a governing structure composed of representatives appointed from existing governmental entities, and could incorporate binding, irrevocable commitments through intergovernmental agreements to protect the rights of all areas served. Avon believes it would be appropriate to develop a complete matrix that describes the differences in legal authority, process for implementation and overall pros and cons of other options besides the proposed unification under the Title 32 Special District authority of the existing District. 2015 Authority Agreement: Avon believes it is important for all members of the Authority to understand their existing legal rights under the 2015 Authority Agreement. The 2015 Authority Agreement provides that there must be unanimous consent of the members in order for the Authority to be dissolved (Paragraph 16) as well as to approve any amendment to the Authority Agreement (Paragraph 46). Members of the Authority have the right to participate in any water rights adjudication concerning the water rights leased or conveyed to the Authority (Paragraph 12). Members also have unique rights to review and approve Base Charge increases (Paragraph 22.a.) and Plant Investment Fee increases (Paragraph 23.a.). The members rights under the 2015 Authority Agreement should be reviewed again, list ed and any change to these rights under proposed unification should be identified and fully understood. ATTACHMENT C - Memorandum Lastly, Avon may be in a unique position compared to other areas to be served by the Authority and District. There is a substantial amount of future development within the Town of Avon yet to be served with water. Future redevelopment in the core of Avon combined with future development of the Village (at Avon) amounts to the potential equivalent of more than 4,000 SFEs, which may take 40 to 50 years to fully develop. Avon believes the Town of Avon must have a seat on the governing body of any future water service entity to fullfill our duty to insure water service availability to the property owners, investors and greater Avon community. We understand the water rights benefit of unification is dependent upon conveying all water rights irrevocably to a unified water entity. The proposal to irrevocably convey water rights and relinquish the Town’s representation on the governing body of a unified water entity is extremely difficult for Avon to support and feels irresponsible to our community and our future. Thank you for your consideration of the thoughts and suggestions shared in this letter. The Town of Avon greatly values and appreciates the existing partnerships and relations we have for water and sanitation services and looks forward to continuing to work on unification and other important matters. Sincerely, Sarah Smith Hymes Mayor, Town of Avon Cc: Avon Town Council Eric Heil, Town Manager ATTACHMENT C - Memorandum MEMORANDUM TO: Board of Directors FROM: Linn Brooks, General Manager DATE: July 22, 2021 RE: District chair summary of unification The following are District chair Bill Simmons’ thoughts on unification of the Authority and District:  Upsides of unification for both the District and Authority: o The entire community benefits if adequate water is available to growth and all areas are equally protected from the risk of shortages o Closer ties to land use authorities, but this needs to happen regardless of unification o Increased efficiency and cost savings  Upside of Unification for the Authority o Unification will allow the Authority service area access to the District’s water surplus for growth and strategic reserve, without which it may be unable to approve new commitments and it risks water shortages prior to Bolts Lake development.  Upside of unification for the District o None, other than the benefits that accrue to both entities, above.  Downsides for District converting to an authority are: o The District recently pledged 25 acft of water to the Authority to give it time to determine its next steps. Unification would result in further sharing its surplus water supply with the Authority service area (approx. 200 acft) o Loss of taxation power o Loss of condemnation power o Asking voters to give up their right to directly elect their representative in water and wastewater issues. Whereas the ballot question to include the Authority service area into the District would ask voters to approve expanding the District service area to include the Authority service area. This would result in improved water supply reliability, efficiency and cost savings. Authority customers would then have the direct ability to vote for their representative in water matters. o Limiting the pool of potential candidates to be appointed to board o Directors would be beholden to town and metro district boards rather than to community as a whole ATTACHMENT D - Memorandum Page 2 of 2 o A water authority is formed through intergovernmental agreement of governments with water powers, which delegate their power to a single overlaying entity. To include all current service areas in an expanded authority, the towns of Minturn and Vail would each have to participate, and each would have a seat. Alternatively, Minturn could be served through an operations agreement, but may object to the loss of ability to vote for its representative. o The above would open the door to metro districts served through current Authority members, such as Cordillera and Bachelor Gulch, and also the Wolcott Subdistrict, to argue for a seat. The addition of these towns and metropolitan districts would result in uneven representation. Minturn, with a population around 1,100 would have one seat and one vote, whereas Avon with a population of around 6,500 and Vail with 5,500, would also have one vote each. o An authority does not have the right to create Subdistricts but could create area- specific funds. This creates the potential for complexity in the case of Wolcott or possibly other areas that might require differential fees, such as Battle North.  Potential terms of consolidation to resolve Authority concerns: o Many of the terms of the Authority Agreement could be incorporated into the District, such as Authority members continued ownership of their original water rights and lease (at no cost) of these to the District. This would give the Authority members veto power over any changes to their rights, and the right to evaluate the District’s management of them. There could also be a reversion clause so that the water rights revert to the member entity in the case of secession from or dissolution of the District. o Town of Avon could keep its service commitment which ensures water service to a specific number of SFEs (this is contrary to our conservation efforts, but seems important to the town) o A representative could be appointed by each current Authority member to receive all water and sanitation District board materials and be authorized to attend all parts of all meetings (including executive sessions), to stay informed and have input on all water and wastewater issues. ATTACHMENT D - Memorandum MEMORANDUM TO: Board of Directors FROM: Beth Doliboa, District Administrator DATE: August 3, 2021 RE: Summary of Authority’s July 22, 2021, Board Meeting The following is a summary of items discussed at the July 22, 2021, Authority Board Meeting: Board members present and acting were Chair George Gregory, Vice-Chair Sarah Smith Hymes, Secretary Kim Bell Williams, Treasurer Geoff Dreyer, and Mick Woodworth. Pam Elsner was absent and excused. Town of Vail Sustainable Destination MOU The board discussed the Town of Vail’s updated Sustainable Destination MOU. Vail recertified as a Sustainable Destination in 2020 but the MOU was updated to address the need to implement a multi-year strategic Destination Management Plan. The updated MOU required updated signatures from the District. Drought Update Recent heavy rains have had a positive effect on streamflows. Diane Johnson updated on customer data and alerts available from Water Smart to help customers proactively monitor water use. David Norris updated on customer outreach efforts to high users. Repeat Tier 4 and 5 water users are being identified and targeted for future outreach efforts. Water use regulations were sent out to all customers, as they are annually. General Manager Information Items Linn Brooks notified the board that IT Manager, Jason Sica is relocating to North Carolina. He will continue to provide remote support for the next 3 – 6 months. Until the manager position is filled, Justin Way will serve as interim IT Manager. Quarterly Financial Report David Norris presented the quarterly financial report. He noted increased revenue and lower operating expenses than budgeted. Capital expenses are higher, due to timing and advanced stages of capital projects. Unallocated Water Jason Cowles discussed two pending requests for conditional ability to serve letters in the Authority’s service area. One is for a carwash in Edwards. The board directed Jason to issue the conditional letter, with the stipulation that recycling, and efficiency standards must be met. The other request was from the new developer of Colorado World Resorts in Avon. Discussion ensued, and staff believed the letter would be withdrawn and no changes made to the existing plans. Homestake Exchange Jason Cowles updated on the terms of the Homestake Exchange Agreement with Colorado Springs and Aurora. The exchange can operate when the Shoshone call is on the river, or when the Shoshone Outage Protocol is operating, as was the case this year due to mechanical failure at the Shoshone Power Plant. When the call is in place (or alternatively when the protocol is operating), and there is sufficient flow at the Gold Park Streamflow gage, the District and Authority can exchange water into the Homestake credit balance. This year, the District and Authority were able to exchange an additional approximately 750 ac-ft into the credit balance, bringing the credit balance to 3,684 ac-ft. Jason suggested that Summary of Authority’s July 22, 2021, Board Meeting Page 2 of 2 some of this water could be released to support streamflows in the Eagle River in the late summer if streamflows are low. The board approved the use of some of the credit balance for this purpose this year. Traer Creek Tank Update Mark Mantua presented a brief update on the Traer Creek Tank Replacement project, which is proceeding on time and on budget. Substantial completion is expected by the end of October.