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TC Packet 09-28-2021_______________________________________________________________________________ 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, September 28, 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 EXECUTIVE SESSION BEGINS AT 4:00 PM Executive Session for the Purpose of Receiving Legal Advice and Determining Positions Relative to Matters that may be Subject to Negotiations, Developing Strategy for Negotiations, and Instructing Negotiators Pursuant to § 24-6-402(4)(b) and (e) related to Town-owned property (Town Attorney Paul Wisor) (20 Minutes) Executive Session for the Purpose of Receiving Legal Advice and Determining Positions Relative to Matters that may be Subject to Negotiations, Developing Strategy for Negotiations, and Instructing Negotiators Pursuant to § 24-6-402(4)(b) and (e) Related to Proposed Establishment of a Regional Water Authority (Town Attorney Paul Wisor) (20 Minutes) 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. Presentation: Unification of the Upper Eagle Regional Water Authority and the Eagle River Water & Sanitation District (Linn Brooks, General Manager at the ERWSD and Jason Cowles, Director of Engineering and Water Resources at the ERWSD) (30 Minutes) 5:05 5.2. Public Hearing: Second Reading of Ordinance No. 21-11 Adopting Short-Term Rental Tax Regulations (Assistant Town Manager and Finance Director Scott Wright) (10 Minutes) 5:35 5.3. Frontgate Avon Condominiums. Two action items related to new development located at 38460 Highway 6 (Planning Director Matt Pielsticker) (30 Minutes) 5:45 5.3.1 Employee Housing Mitigation Plan 5.3.2 Amended Development Agreement 5.4. Work Session: Community Housing Plan Updates (Planning Director Matt Pielsticker) (30 Minutes) 6:15 5.5. Work Session: Mikaela Way On-Street Parking (Town Engineer Justin Hildreth) (15 minutes) 6:45 5.6. Resolution 21-22: Appointing an interim Town Attorney (Town Manager Eric Heil) (30 minutes) 7:00 6. MINUTES 6.1. Approval of September 14, 2021 Regular Council Meeting Minutes (Town Clerk Brenda Torres) (5 Minutes) 7:30 7. WRITTEN REPORTS _______________________________________________________________________________ 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. 7.1. Monthly Financials (Senior Accountant Joel McCracken) 7.2. Legal Expenses Recall Election (Town Manager Eric Heil) 7.3. Draft September 14th Health & Recreation Committee Meeting Minutes (General Government Intern Emily Myler) ** Indicates topic will be discussed at future agenda’s 8. MAYOR AND COUNCIL COMMENTS & MEETING UPDATES (15 MINUTES) 7:35 9. ADJOURN 7:50 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 OCTOBER 12 o Regular Council meeting including joint work session with CASE MEMORANDUM TO: Avon Town Council FROM: Linn Brooks, General Manager and Jason Cowles, Engineering and Water Resources Director, Eagle River Water & Sanitation District DATE: Sept. 22, 2021 RE: Unification of Upper Eagle Regional Water Authority, Eagle River Water & Sanitation District Benefits of Unification • The entire community benefits if adequate water is uniformly available to growth and all areas are protected from the risk of shortages. • Unification will allow the Authority service area to access the District’s water surplus for strategic reserve and growth, without which it risks water shortages and the inability to approve new commitments for water service prior to Bolts Lake development (expected in 10 years). • A cost savings to customers will be realized through the streamlining of processes and avoidance of duplicate efforts, estimated to be at least $200,000 per year. Authority/District Proposal • The District and Authority propose that the Authority unify into the District for water service through the inclusion of the existing Members’ jurisdictional boundaries into the District, and dissolution of the Authority. This structure preserves important powers available to Special Districts that are not available to Authorities, namely the powers of condemnation and taxation. • The terms of the process and new structure would be codified in an Inclusion Agreement between the District and Authority. The agreement is proposed to include the following provisions: o Member water rights would continue to be owned by each Member and would be leased to the District to serve the Member service area under the terms of the related water rights decrees. o Each current Member may appoint a representative, who in every way except voting would function the same as a District board member and may attend executive sessions, provide input, and report the content of the meetings and related documents to their Member boards in their executive sessions. o The existing debt of the Vail Water Enterprise will be paid for by the customers of the former Vail service area, and the existing debt of the Authority will be paid by Unification of Upper Eagle Regional Water Authority, Eagle River Water & Sanitation District Page 2 of 2 the customers of the former Authority service area. Going forward, any water debt incurred will be paid for by the customers of the combined water service area. The wastewater function of the District will continue to operate as it does now, being funded separately from the water function. Steps to Unification • Consent from the Avon Town Council to proceed with the drafting of an Inclusion Agreement (this is what we are asking of you today). • All parties (District, Authority, Member Boards) execute the Inclusion Agreement, and pass Consent Resolutions. • The District conducts a public hearing and subsequently passes a resolution directing a petition to the District Court requesting an Inclusion Election be called, subject to the conditions of the Inclusion Agreement and Consent Resolutions. • The District Court holds a hearing and subsequently orders the conduct of the Inclusion Election. The ballot question will include a summary of the conditions of the Inclusion Agreement. The election may be held on any Tuesday ordered by the District Court. In the Inclusion Election, the eligible electors (those who are registered to vote in Colorado and who are also either (i) a resident of the area to be included, or (ii) the owner or spouse/civil union partner of an owner of property in the area to be included) will vote on the question of including into the District. • The election results will be reported to the District Court, which, if in the affirmative, will issue a final Order of Inclusion, which will be recorded. At this point, the District will provide both water and sewer services to the whole area currently served jointly by the District and Authority, and the Authority would be dissolved. Timeline Date Action September 2021 Obtain consent from Member boards to proceed with drafting of Inclusion Agreement and Consent Resolutions November 2021 Execution of Inclusion Agreement and Consent Resolutions December 2021 District public hearing and execution of resolution directing a petition to the District Court requesting an Inclusion Election March 2022 District Court holds a hearing and subsequently orders the conduct of the Inclusion Election May 2022 Election May 2022 Report of election results to District Court Summer 2022 Receipt of final Order of Inclusion Our request today • Direction by the Avon Town Council to proceed with the drafting of an Inclusion Agreement and Consent Resolutions for consideration by the parties. Unification of ERWSD, UERWA Timeline 2 Benefits of Unification •Availability of water for new uses •Mitigation of the risk of water shortages •Gives access to the Authority service area of District surpluses •Cost savings to customers $200,000 annually 3 District and Authority Unification Proposal •Authority includes into the District •Member water rights continue to be owned by existing Authority members •Each Member may appoint a representative who in every way serves as a District board member except voting •Existing debt and future debt •Wastewater function 4 Steps to Unification •Consent from Member boards to proceed with drafting Inclusion Agreement, approval of the agreement by all parties •Consent Resolutions •District public hearing •Petition to the District Court to hold election •Election and report results to District Court •Court issues final Order of Inclusion 5 Timeline Date Action September 2021 Obtain consent from Member boards to proceed with drafting of Inclusion Agreement and Consent Resolutions November 2021 Execution of Inclusion Agreement and Consent Resolutions December 2021 District public hearing and execution of resolution directing a petition to the District Court requesting an Inclusion Election March 2022 District Court holds a hearing and subsequently orders the conduct of the Inclusion Election May 2022 Election May 2022 Report of election results to District Court Summer 2022 Receipt of final Order of Inclusion 6 Request/Questions 7 ERWSD Director Districts 8 Master Plan Outcome 9 (970) 390-6054 swright@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Scott Wright, Assistant Town Manager and Finance Director Paul Wisor, Town Attorney RE: Ordinance 21-11: Community Housing Short-term Rental Tax DATE: September 23, 2021 SUMMARY: Ordinance 21-11 - Community Housing Short-term Rental Tax was passed at first reading by Town Council on September 14. On September 28 the ordinance will be presented for second reading and will be a public hearing. Since first reading there have been revisions to the new Chapter 3.29 as originally presented. For comparison purposes a red-line version of the new Chapter 3.29 has been included in this report as Attachment B. Staff believes these revisions are non-substantive and administrative in nature. The ordinance codifies a 2% Short-term Rental Tax as a dedicated funding source for Community Housing. The Tax would be applicable to short-term rentals of less than 30 days for any property that is not assessed as commercial property. The ordinance would be effective January 1, 2022 provided that the ballot question referred to the Eagle County Clerk and Recorder by the Avon Town Council on August 24 is approved by Avon voters at the general election on November 2, 2021. BACKGROUND: The 2018 Town of Avon Community Housing Plan states a goal to secure additional local funds for housing and to seek opportunities for new funding sources. The Town of Avon does not currently have a dedicated funding source for Community Housing. The Avon Town Council took action in 2020 to allow transfers of up to 10% of the Real Estate Transfer Tax each year towards Community Housing. The Town of Avon is experiencing a shortage of community housing units. A consequence of the COVID-19 pandemic is a significant influx of urban remote workers who are able to afford higher real estate prices than local residents and Eagle County employees, which has increased real estate prices dramatically over the last 18 months. ANALYSIS: The detailed provisions included in the ordinance provide the administrative processes necessary as to the collection of the Community Housing Short-term Rental Tax. As stated above, the Tax would not apply to hotel units, accommodations or short-term rental units classified as commercial property by the Eagle County Assessor. The Tax is in addition to other taxes that pertain to the rental of short-term accommodations of less than 30 days. FINANCIAL CONSIDERATIONS: A two percent Short-Term Rental Excise Tax is estimated to generate approximately $1.5 million annually and would be used exclusively for housing initiatives including housing developments and housing programs and related activities. PROPOSED MOTION: "Move to approve Ordinance 21-11, an ordinance amending Chapter 3 of the Avon Municipal Code by the addition of a new Chapter 3.29 implementing voter approval by the Town of Avon electorate of the Community Housing Short-term Rental Tax." Thank you, Scott Page 2 of 2 ATTACHMENTS: Attachment A: Ordinance 21-11 - Community Housing Short-term Rental Excise Tax Attachment B: Red-line Version of Ordinance 21-11 Presented at First Reading ORD 21-11 Community Housing Short Term Rental Tax Page 1 of 10 ORDINANCE NO. 21-11 AMENDING CHAPTER 3 OF THE AVON MUNICIPAL CODE BY THE ADDITION OF A NEW CHAPTER 3.29 IMPLEMENTING VOTER APPROVAL BY THE TOWN OF AVON ELECTORATE OF THE COMMUNITY HOUSING SHORT-TERM RENTAL TAX. WHEREAS, on November 2, 2021, the electorate of the Town of Avon, Colorado approved and adopted the imposition of a two percent (2.0%) excise tax on the amount charged to any person leasing a short-term rental unit, defined as leasing any property in the Town of Avon assessed as residential by the Eagle County Assessor for a period of less than thirty days (the "Community Housing Short-Term Rental Tax"); and WHEREAS, detailed provisions to be codified in the Avon Municipal Code are now needed to provide the administrative process as to the collection of the Community Housing Short-Term Rental Tax; and WHEREAS, it is the desire of the Town Council of Avon to provide and adopt a new Chapter 29 entitled "Community Housing Short-Term Rental Tax" within Title 3 of the Avon Municipal Code. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Addition of Chapter 3.29 Short Term Rental Tax of the Avon Municipal Code. Chapter 3.29, “Community Housing Short-Term Rental Tax” is added to Title 3, “Revenue and Finance,” of the Avon Municipal Code to read as set forth in Exhibit A to this Ordinance, which exhibit is attached hereto and incorporated in full as an exhibit to this Ordinance. Section 3. 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 ATTACHMENT A ORD 21-11 Community Housing Short Term Rental Tax Page 2 of 10 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 4. Effective Date. This Ordinance shall take effect January 1, 2022, subject to voter approval of Town of Avon Ballot Issue 2C, which ballot issue will be considered at the November 2, 2021 coordinated election. Section 5. 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 6. 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 7. 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 8. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. [SIGNATURE PAGE FOLLOWS] ATTACHMENT A ORD 21-11 Community Housing Short Term Rental Tax Page 3 of 10 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on September 14, 2021 and setting such public hearing for September 28, 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 __________. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk APPROVED AS TO FORM: ____________________________ Paul Wisor, Town Attorney ATTACHMENT A ORD 21-11 Community Housing Short Term Rental Tax Page 4 of 10 CHAPTER 3 Community Housing Short-Term Rental Tax 3.29.010 - Purpose. With an effective date of January 1, 2022, this Chapter has been enacted to implement the vote of the Town Electorate made on November 2, 2021, to adopt and impose a two percent (2.0%) excise tax on the amount charged to any person leasing a Short-Term Rental unit in the Town of Avon, but not including hotel units, accommodations, or short-term rental units classified as commercial property by the Eagle County Assessor. The purpose of the Community Housing Short-Term Rental Tax is to fund Community Housing and Community Housing programs, and the revenue shall be collected and deposited in the Town's separate fund known as the Community Housing Fund, which shall be used exclusively to fund and finance the development and preservation of Community Housing, including the acquisition of land therefor. All provisions contained within this Chapter shall be liberally interpreted and construed in furtherance of said purpose. 3.29.020 - Definitions. The following words and phrases as used in this Chapter shall have the following meaning: Community Housing Short-Term Rental Tax means the Town of Avon excise tax approved by the Town Electorate on November 2, 2021, imposing a two percent (2.0%) excise tax on the amount charged to any person leasing a Short-Term Rental unit in the Town of Avon, but not including hotel units, accommodations, or short-term rental units classified as commercial property by the Eagle County Assessor. Consumer means any person who pays to use a Short-Term Rental unit within the Town. Director means the Director of Finance for the Town. Price paid is the total amount promised or paid in cash or other consideration in exchange for use of a Short-Term Rental Unit, including but not limited to vendor mark-up, cleaning fees, service fees, or any other charge, excluding taxes, which must be paid by the Consumer for use of the rental unit. Short-Term Rental Unit, for the purposes of this Chapter only, means any room or rooms, apartment, condominium, boardinghouse, hotel room, guesthouse, lodge, campground site, recreational vehicle space, bed and breakfast, residence or similar accommodation generally used for sleeping and made available for a fee or other consideration to guests on an overnight basis for a period fewer than thirty (30) days, excluding any unit classified as commercial property by the Eagle County Assessor. ATTACHMENT A ORD 21-11 Community Housing Short Term Rental Tax Page 5 of 10 Vendor means a person providing a Short-Term Rental unit to a Consumer for a price paid, including marketplace facilitators as defined in Section 3.08.010. Sec. 3.29.030 - Excise tax imposed. (a) There is hereby imposed and levied in the Town, and shall be collected and paid, a two percent (2.0%) excise tax, called the Community Housing Short-Term Rental Tax, on the price paid for use of any Short-Term Rental u nit. This tax shall be levied irrespective of the location from which the reservation for the rental use is made. (b) The vendor shall separately state the Community Housing Short-Term Rental Tax amount on an invoice, sales receipt, or any similar document provided to the consumer reflecting the price paid for use of the Short-Term Rental unit. (c) It is unlawful for any consumer not to pay, and for any vendor not to collect, the Community Housing Short-Term Rental Tax. A marketplace seller as defined in Section 3.08.010 is not liable for this collection of tax; rather, any marketplace facilitator facilitating the provision of short-term rental under this Chapter is so liable. (d) This tax shall be imposed on any rental use taxable under this Chapter for which both a bona fide reservation and any part payment, including a deposit, is made after 12:00 midnight, Mountain Standard Time, December 31, 2021, pursuant to the effective date of the enabling ordinance. Sec. 3.29.040 – License. (a) Every person who has the duty to collect the tax imposed in this Chapter must first obtain, without charge, a license to collect the tax. (b) The Town Council, upon reasonable prior and written notice to the licensee and after a hearing, may revoke or suspend the license of any person found by the Town Council to have violated any provision of this Chapter. Sec. 3.29.045 - Tax credit. Notwithstanding any other provisions of this Chapter, there shall be granted to each person owing the tax imposed in this Chapter for use of property located within The Village (at Avon) a temporary tax credit against collection of the tax equal to the amount of any public accommodations 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 be granted subsequent to termination of the collection of the public accommodations fee 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. ATTACHMENT A ORD 21-11 Community Housing Short Term Rental Tax Page 6 of 10 Sec. 3.29.050 - Collection and remittance of tax; interest and penalty. (a) All vendors subject to this Chapter shall timely collect and be liable for an amount equal to two percent (2.0%) of the price paid for the Short-Term Rental unit and shall, before the twentieth day of each month, make a return to the Town for the preceding calendar month and remit said collected tax amounts to the Town. (b) All returns and remittances shall be made in such a manner and upon such forms as the Director may prescribe. The Director may extend the time for making a return and paying the taxes under such reasonable rules, regulations, or conditions as he or she may determine necessary from time to time. (c) Interest shall accrue, and be owed to the Town, on all delinquent or deficient payments of the Community Housing Short-Term Rental Tax from the date the tax is first due to the date it is fully paid at the simple rate of one and one-half percent (1.5%) per month. Interest shall be calculated for each month, or portion of a month, that a tax delinquency or deficiency remains unpaid. (d) A penalty of ten percent (10%) of a delinquent or deficient tax amount shall also be assessed from the date the tax is first due unless the delinquency or deficiency is due to fraud or an intent to evade the tax, in which case the penalty shall be fifty percent (50%) of the tax owed. Interest shall accrue on unpaid penalty amounts. No interest shall be allowed or paid on any overpayment of tax. Sec. 3.29.060 - Exemption from Community Housing Short-Term Rental Tax. (a) The following shall be exempt from the tax imposed under this Chapter: (1) Rentals made to the United States government and all departments and institutions thereof, the State of Colorado and the departments, institutions, and political subdivision thereof, and the Town of Avon; but only in the exercise of their governmental functions and only when rentals and purchases are supported by official government purchase orders or other official documentation and paid for by draft or warrant drawn on the government's account directly to the vendor. (2) Rentals made to charitable organizations duly established and recognized under state or federal law, but only to the extent any such rental or sale is transacted in the conduct of the organization's regular charitable functions and activities and is paid for directly by the organization without reimbursement therefor. (3) Rentals which the Town is prohibited from taxing under the Constitution or laws of the United States or the State of Colorado. (b) The burden of proving that any rental is exempt from the tax imposed under this Chapter shall be on the person asserting such exemption under such reasonable ATTACHMENT A ORD 21-11 Community Housing Short Term Rental Tax Page 7 of 10 requirements of proof as the Director may prescribe. Sec. 3.29.070 - Review of return; notices. (a) The Director shall examine a return as soon as practicable after it is filed, and if it appears that the correct amount of tax to be remitted is other than that shown in the return, the Director shall recompute the amount of tax owed. (b) If the amount paid exceeds that which is owed, the Director shall send a notice of overpayment to the taxpayer, who may submit a refund claim or file an amended return within thirty (30) days of the notice. No refund shall be paid if a claim or amended return is not made within 30 days. (c) If the amount paid is less than the amount due, the Director shall send a notice of deficiency and demand for payment, including interest and penalty, to the taxpayer. The additional payment shall be due within fifteen (15) days of the notice. The taxpayer may appeal a notice of deficiency and demand for payment to the Town Manager as set out at Section 3.29.120. (d) All notices required under this Chapter shall be in writing and, if sent by conventional or electronic mail to the last known address of the intended recipient, shall be sufficient upon that mailing. A designated notice period begins with the date listed on the notice. Sec. 3.29.080. Refunds; taxes paid under protest or by mistake. (a) A taxpayer claiming an exemption disputed by a vendor may pay the tax under protest. Applications for a refund of such a protested tax must be made within sixty (60) days after the sale or event for which an exemption is claimed. (b) A taxpayer claiming refund for tax paid by mistake must make that claim within three (3) years from the date of sale. (c) All claims for refund shall be upon forms prescribed by the Director. The Director shall promptly review refund claims and issue a denial in writing or provide the funds requested. The taxpayer may appeal a Director’s final decision to the Town Manager as set out at Section 3.29.120. (d) A vendor may claim a refund on behalf of a consumer if: (i) The consumer could file a claim for a refund on his or her own behalf; and (ii) The vendor establishes to the Director’s satisfaction that the vendor has paid or will pay the amount claimed to the consumer. (e) No vendor shall be compelled to file a refund claim pursuant to this Chapter. ATTACHMENT A ORD 21-11 Community Housing Short Term Rental Tax Page 8 of 10 Sec. 3.29.090 - Records and audits; investigations. (a) It shall be the obligation and duty of every taxpayer required to collect and remit the Community Housing Short-Term Rental Tax imposed under this Chapter to keep accurate and suitable records of all transactions subject to the tax, along with such other books, accounts and records as may be necessary to determine the amount of any tax liability. All records and books, inclusive of invoices or other rental or purchase receipts, shall be preserved for a period of three (3) years, and all such records, books and accounts shall be open for examination at any time by the Director. (b) For the purpose of ascertaining the correctness of a return, or for the purpose of determining the amount of tax due from any taxpayer, the Director may hold investigations and hearings concerning any matters covered by this Section, and may examine any relevant books, papers, records, or memoranda of any such person, requiring the attendance of such taxpayer, or any officer or employee of such taxpayer, or of any person having knowledge of such sales, and taking such testimony and proof as may be necessary to properly ascertain any tax liability. The Director shall have power to administer oaths to any person in the course of such investigations or hearings. Production of documents and attendance of witnesses shall be requested by the Director on his or her own motion or on motion of any party; any request for production or attendance shall inform persons that compliance is voluntary but that, if the request is not complied with, the Director may apply to the Municipal Judge for issuance of a subpoena. Sec. 3.29.110 - Tax lien. (a) The taxes imposed by Section 3.29.030 shall be a first and prior lien upon the property of any person required to collect and remit taxes under this Chapter, which lien shall take precedence over all other liens, encumbrances, or claims of whatever nature and shall immediately attach to such property without the necessity of filing any notice of lien thereof. (b) If any taxes, penalty, or interest imposed by this Chapter are not timely paid after notice of deficiency is made, the Director may take action to collect such taxes, penalty, or interest, including the filing of liens. Sec. 3.29.120 - Appeals to Town Manager. (a) Any taxpayer aggrieved by a tax decision made by the Director may appeal that decision to the Town Manager. All appeals shall be made in writing, shall set forth in plain language the basis for the appeal and the relief sought, and must be delivered to the Town Manager within twenty (20) days from the date of the decision appealed from, with a copy to the Director. The Town Manager shall notify the taxpayer in writing of the time and place fixed for a hearing on the appeal at least ten (10) days in advance thereof. (b) The hearing before the Town Manager shall be informal and no transcript, rules of evidence, or filing of briefs shall be required; but the taxpayer may elect to submit a brief, in which case the Director may submit a brief. The Town Manager shall hold such hearing ATTACHMENT A ORD 21-11 Community Housing Short Term Rental Tax Page 9 of 10 and issue a decision within ninety (90) days after receipt of the taxpayer's written notice of appeal; however, the Town Manager may extend such period if the delay in holding the hearing or issuing the decision was occasioned by the taxpayer. In such event, the Town Manager shall hold the hearing and issue the decision within one hundred eighty (180) days of the taxpayer's written notice of appeal. (c) The Town Manager may, for good and just cause, abate penalty or interest on an assessment if the taxpayer submits a written request for abatement not less than two (2) business days before payment of the penalty or interest is due. All abatement decisions must be in writing and placed in the taxpayer’s records on file with the Town. (d) A taxpayer dissatisfied with the Town Manager’s decision may seek appeal in the District Court in and for the County of Eagle as may be permitted by law. Sec. 3.29.130 - Administration of tax collections; authority of Director of Finance. Administration of provisions of this Chapter is vested in the Director of Finance, who may, with the approval of the Town Manager, prescribe forms and reasonable rules and regulations in conformity with this Chapter for the making of returns, for the ascertainment, assessment and collection of the taxes imposed hereunder, and for the proper administration and enforcement hereof, a copy of which forms, rules, and regulations shall be made available to the public. Sec. 3.29.140 - Tax information confidential. (a) Except in accordance with judicial order, or as otherwise herein provided, the Town shall not divulge any information gained from any return filed or as a result of any investigation or hearing held pursuant to the provisions of this Section. (b) Nothing contained in this subsection shall be construed to prohibit: (1) The delivery to a person, or to his or her duly authorized representative, of a copy of any return filed in connection with his or her tax; (2) The publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof; (3) The inspection by the Town Attorney, or any other legal representative of the Town, of the return or other information relating to any taxpayer who may become involved in litigation with the Town in which the said information may become material; (4) Disclosure of information to an auditor or any other outside agent hired by the Town for the purpose of auditing or establishing tax liabilities. (c) Reports and returns shall be preserved for three years, and thereafter until the Director, with the approval of the Town Manager, shall order them destroyed. Sec. 3.29.150 – Limitation of actions. ATTACHMENT A ORD 21-11 Community Housing Short Term Rental Tax Page 10 of 10 No taxes imposed by this Chapter, nor interest or penalties, shall be assessed, nor shall any notice of lien be filed, distraint warrant issued, or suit for collection instituted, nor any other action to collect the same be commenced more than three (3) years after the date on which the tax was or is payable; nor shall any lien continue after such period, except for taxes assessed before the expiration of such period, notice of lien with respect to which has been filed prior to the expiration of such period, in which case such lien shall continue only for one (1) year after the filing of notice thereof. Before the expiration of such period of limitation, the taxpayer and the Town may agree in writing to an extension thereof, and the period so agreed on may be extended by subsequent agreements in writing. In the case of a false or fraudulent return made with intent to evade a tax, or where no return was filed for the same purpose, the tax, together with interest and penalties thereon, may be assessed, and proceedings for the collection of such taxes may be begun, at any time. Sec. 3.29.160 - Revenue dedication; Community Housing Fund. Money deposited into the Community Housing Fund as a result of this Community Housing Short-Term Rental Tax, shall, subject to duly adopted appropriation made by the Town Council from year-to-year, be expended exclusively to fund community housing, including without limitation the acquisition of land for housing, construction of housing, extension of public infrastructure to serve community housing development, purchase of deed restrictions, down payment assistance programs, partnerships with public and private entities to develop community housing and related costs for administration, design, legal, and consulting. Sec. 3.29.170 - Violation—penalty. Any person violating any of the provisions of this Chapter shall be subject to the penalties contained in Chapter 1.08 of this Code. ATTACHMENT A ORD 21-11 Community Housing Short Term Rental Tax Page 1 of 10 ORDINANCE NO. 21-11 AMENDING CHAPTER 3 OF THE AVON MUNICIPAL CODE BY THE ADDITION OF A NEW CHAPTER 3.29 IMPLEMENTING VOTER APPROVAL BY THE TOWN OF AVON ELECTORATE OF THE COMMUNITY HOUSING SHORT-TERM RENTAL TAX. WHEREAS, on November 2, 2021, the electorate of the Town of Avon, Colorado approved and adopted the imposition of a two percent (2.0%) excise tax on the amount charged to any person leasing a short-term rental unit, defined as leasing any property in the Town of Avon assessed as residential by the Eagle County Assessor for a period of less than thirty days (the "Community Housing Short-Term Rental Tax"); and WHEREAS, detailed provisions to be codified in the Avon Municipal Code are now needed to provide the administrative process as to the collection of the Community Housing Short-Term Rental Tax; and WHEREAS, it is the desire of the Town Council of Avon to provide and adopt a new Chapter 29 entitled "Community Housing Short-Term Rental Tax" within Title 3 of the Avon Municipal Code. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Addition of Chapter 3.29 Short Term Rental Tax of the Avon Municipal Code. Chapter 3.29, “Community Housing Short-Term Rental Tax” is added to Title 3, “Revenue and Finance,” of the Avon Municipal Code to read as set forth in Exhibit A to this Ordinance, which exhibit is attached hereto and incorporated in full as an exhibit to this Ordinance. Section 3. 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 ATTACHMENT B ORD 21-11 Community Housing Short Term Rental Tax Page 2 of 10 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 4. Effective Date. This Ordinance shall take effect January 1, 2022, subject to voter approval of Town of Avon Ballot Issue 2C, which ballot issue will be considered at the November 2, 2021 coordinated election. Section 5. 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 6. 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 7. 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 8. Publication. The Town Clerk is ordered to publish this Ordinance in accordance with Chapter 1.16 of the Avon Municipal Code. [SIGNATURE PAGE FOLLOWS] ATTACHMENT B ORD 21-11 Community Housing Short Term Rental Tax Page 3 of 10 INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on September 14, 2021 and setting such public hearing for September 28, 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 __________. BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk APPROVED AS TO FORM: ____________________________ Paul Wisor, Town Attorney ATTACHMENT B ORD 21-11 Community Housing Short Term Rental Tax Page 4 of 10 CHAPTER 3 Community Housing Short-Term Rental Tax 3.29.010 - Purpose. With an effective date of January 1, 2022, this Chapter has been enacted to implement the vote of the Town Electorate made on November 2, 2021, __________, 2021, to adopt and impose a two percent (2.0%) excise tax on the amount charged to any person leasing a Sshort- Tterm Rrental unit in the Town of Avon, but not including hotel units, accommodations, or short-term rental units classified as commercial property by the Eagle County Assessor. The purpose of the Community Housing Short-Term Rental Tax is to fund Community Housing and Community Housing programs, and the revenue shall be collected and deposited in the Town's separate fund known as the Community Housing Fund, which shall be used exclusively to fund and finance the development and preservation of Community Housing, including the acquisition of land therefor. All provisions contained within this Chapter shall be liberally interpreted and construed in furtherance of said purpose. 3.29.020 - Definitions. The following words and phrases as used in this Chapter shall have the following meaning: Community Housing Short-Term Rental Tax means the Town of Avon excise tax approved by the Town Electorate on November 2_____, 2021, imposing a two percent (2.0%) excise tax on the amount charged to any person leasing a Sshort-Tterm Rrental unit in the Town of Avon, but not including hotel units, accommodations, or short-term rental units classified as commercial property by the Eagle County Assessor. Consumer means any person who pays to use a Sshort-Tterm Rrental unit within the Town. Director of Finance means the Director of Finance for the Town. Price paid is the total amount promised or paid in cash or other consideration in exchange for use of a Short-Term Rental Unit, including but not limited to vendor mark-up, cleaning fees, service fees, or any other charge, excluding taxes, which must be paid by the Cconsumer in exchange for use of the rental unit. Short-Term Rental Unit, for the purposes of this Chapter only, means any room or rooms, apartment, condominium, boardinghouse, hotel room, guesthouse, lodge, campground site, recreational vehicle space, bed and breakfast, residence or similar accommodation generally used for sleeping and made available for a fee or other consideration to guests on an overnight basis for a period fewerof time less than thirty (30) days, excluding any unit classified as commercial property by the Eagle County Assessor. ATTACHMENT B ORD 21-11 Community Housing Short Term Rental Tax Page 5 of 10 Vendor means a person providing a Sshort-Tterm Rrental unit to a Cconsumer for a price paid, including marketplace facilitators as defined in Section 3.08.010. Sec. 3.29.030 - Excise tax imposed. (a) There is hereby imposed and levied in the Town, and shall be collected and paid, a two percent (2.0%) excise tax, called the Community Housing Short-Term Rental Tax, on the price paid for use of any Short-Term Rental uUnit. This tax shall be levied irrespective of the location from which the reservation for the rental use is made. (b) The vendor shall separately state the Community Housing Short-Term Rental Tax amount on an invoice, sales receipt, or any similar document provided to the consumer reflecting the price paid for use of the Short-Term Rental uUnit. (c) It is unlawful for any consumer not to pay, and for any vendor not to collect, the Community Housing Short-Term Rental Tax. A marketplace seller as defined in Section 3.08.010 is not liable for this collection of tax; rather, any marketplace facilitator facilitating the provision of short-term rental under this Chapter is so liable. (d) This tax shall be imposed on any rental use taxable under this Chapter for which both a bona fide reservation and any part of a payment, including a deposit, is made after 12:00 midnight, Mountain Standard Time, December 31, 2021, pursuant to the effective date of the enabling ordinance. Sec. 3.29.040 – License. (a) Every person who has the duty to collect the tax imposed in this Chapter must first obtain, without charge, a license to collect the tax. (b) The Town Council, upon reasonable prior and written notice to the licensee and after a hearing, may revoke or suspend the license of any person found by the Town Council to have violated any provision of this Chapter. Sec. 3.29.045 - Tax credit. Notwithstanding any other provisions of this Chapter, there shall be granted to each person owing the tax imposed in this Chapter for use of property located within The Village (at Avon) a temporary tax credit against collection of the tax equal to the amount of any public accommodations 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 be granted subsequent to termination of the collection of the public accommodations fee 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. ATTACHMENT B ORD 21-11 Community Housing Short Term Rental Tax Page 6 of 10 Sec. 3.29.050 - Collection and remittance of tax; interest and penalty. (a) All vendors subject to this Chapter shall timely collect and be liable for an amount equal to two percent (2.0%) of the price paid for the Short-Term Rental uUnit and shall, before the twentieth day of each month, make a return to the Town for the preceding calendar month and remit said collected tax amounts to the Town. (b) All returns and remittances shall be made in such a manner and upon such forms as the Director of Finance may prescribe. The Director of Finance may extend the time for making a return and paying the taxes due under such reasonable rules, regulations, or conditions as he or she may determine necessary from time to time. (c) Interest shall accrue, and be owed to the Town, on all delinquent or deficient payments of the Community Housing Short-Term Rental Tax from the datethe the tax is first duedate of delinquency or underpayment to the date it is fully paidof full payment at the simple rate of one and one-half percent (1.5%) per month. Interest shall be calculated for each month, or portion of a month, that a tax delinquency or deficiency remains unpaid. (d) A penalty of ten percent (10%) of a delinquent or deficient tax amount shall also be assessed from the date the tax is first duedate of delinquency or underpayment, unless the delinquency or deficiency is due to fraud or an intent to evade the tax, in which case the penalty shall be fifty percent (50%) of the tax owed. Interest shall accrue on unpaid penalty amounts. No interest shall be allowed or paid on any overpayment of tax. Sec. 3.29.060 - Exemption from Community Housing Short-Term Rental Tax. (a) The following shall be exempt from the tax imposed under this Chapter: (1) Rentals made to the United States government and all departments and institutions thereof, the State of Colorado and the departments, institutions, and political subdivision thereof, and the Town of Avon; but only in the exercise of their governmental functions and only when rentals and purchases are supported by official government purchase orders or other official documentation and paid for by draft or warrant drawn on the government's account directly to the vendor. (2) Rentals made to charitable organizations duly established and recognized under state or federal law, but only to the extent any such rental or sale is transacted in the conduct of the organization's regular charitable functions and activities and is paid for directly by the organization without reimbursement therefor. (3) Rentals which the Town is prohibited from taxing under the Constitution or laws of the United States or the State of Colorado. ATTACHMENT B ORD 21-11 Community Housing Short Term Rental Tax Page 7 of 10 (b) The burden of proving that any rental is exempt from the tax imposed under this Chapter shall be on the person asserting such exemption under such reasonable requirements of proof as the Director of Finance may prescribe. Sec. 3.29.070 - Review of return; underpayment and overpayment of tax; notices. (a) The Director shall examine a return asAs soon as practicable after it is filed, and if it appears that the a return is filed, the Director of Finance shall examine it, and if it appears that the correctcorrect amount of tax to be remitted is othergreater or less than that shown in the return, the Director shall recompute the amount of tax owed. the tax shall be recomputed. (b) If the amount paid exceeds that which is due, the excess shall be refunded or credited against any subsequent remittance from the same taxpayer. If the amount paid is less than that which is due, the taxpayer shall be so notified with a demand for payment, to include appropriate interest and penalty. The taxpayer may appeal any such notice and demand for payment to the Town Manager as set out in Section 3.29.120. (b) If the amount paid exceeds that which is owed, the Director shall send a notice of overpayment to the taxpayer, who may submit a refund claim or file an amended return within thirty (30) days of the notice. No refund shall be paid if a claim or amended return is not made within 30 days. (c) If the amount paid is less than the amount due, the Director shall send a notice of deficiency and demand for payment, including interest and penalty, to the taxpayer. The additional payment shall be due within fifteen (15) days of the notice. The taxpayer may appeal a notice of deficiency and demand for payment to the Town Manager as set out at Section 3.29.120. (d) All notices required under this Chapter shall be in writing and, if sent by conventional or electronic mail to the last known address of the intended recipient, shall be sufficient upon that mailing. A designated notice period begins with the date listed on the notice. Sec. 3.29.080. Refunds; taxes paid under protest or by mistake. (a) A taxpayer claiming an exemption disputed by a vendor may pay the tax under protest. Applications for a refund of such a protested tax must be made within sixty (60) days after the sale or event for which an exemption is claimed. (b) A taxpayer claiming refund for tax paid by mistake must make that claim within three (3) years from the date of sale. (c) All claims for refund shall be upon forms prescribed by the Director. The Director shall promptly review refund claims and issue a denial in writing or provide the funds ATTACHMENT B ORD 21-11 Community Housing Short Term Rental Tax Page 8 of 10 requested. The taxpayer may appeal a Director’s final decision to the Town Manager as set out at Section 3.29.120. (d) A vendor may claim a refund on behalf of a consumer if: (i) The consumer could file a claim for a refund on his or her own behalf; and (ii) The vendor establishes to the Director’s satisfaction that the vendor has paid or will pay the amount claimed to the consumer. (e) No vendor shall be compelled to file a refund claim pursuant to this Chapter. Sec. 3.29.090 - Records and audits; investigations. (a) It shall be the obligation and duty of every taxpayer required to collect and remit the Community Housing Short-Term Rental Tax imposed under this Chapter to keep accurate and suitable records of all transactions subject to the tax, along with such other books, accounts and records as may be necessary to determine the amount of any tax liability. All records and books, inclusive of invoices or other rental or purchase receipts, shall be preserved for a period of three (3) years, and all such records, books and accounts shall be open for examination at any time by the Director of Finance. (b) For the purpose of ascertaining the correctness of a return, or for the purpose of determining the amount of tax due from any taxpayer, the Director of Finance may hold investigations and hearings concerning any matters covered by this Section, and may examine any relevant books, papers, records, or memoranda of any such person, requiring the attendance of such taxpayer, or any officer or employee of such taxpayer, or of any person having knowledge of such sales, and taking such testimony and proof as may be necessary to properly ascertain any tax liability. The Director shall have power to administer oaths to any person in the course of such investigations or hearings. Production of documents and attendance of witnesses shall be requested by the Director on his or her own motion or on motion of any party; any request for production or attendance shall inform persons that compliance is voluntary but that, if the request is not complied with, the Director may apply to the Municipal Judge for issuance of a subpoena. Sec. 3.29.110 - Tax lien. (a) The taxes imposed by Section 3.29.030 shall be a first and prior lien upon the property of any person required to collect and remit taxes under this Chapter, which lien shall take precedence over all other liens, encumbrances, or claims of whatever nature and shall immediately attach to such property without the necessity of the filing of any notice of lien thereof. (b) If any taxes, penalty, or interest imposed by this Chapter are not timely paid after notice of deficiency is made, the Director of Finance may take action to collect such taxes, penalty, or interest, including the filing of liens. ATTACHMENT B ORD 21-11 Community Housing Short Term Rental Tax Page 9 of 10 (c) All notices required under this Chapter shall be in writing and if mailed to the last known address of the intended recipient shall be sufficient upon mailing. Sec. 3.29.120 - Appeals to Town Manager. (a) Any taxpayer aggrieved by a tax decision made by the Director of Finance may appeal that decisione same to the Town Manager. All appeals shall be made in writing, shall set forth in plain language the basis for the appeal and the relief sought, and must be delivered to the Town Manager within twenty (20) days from the date of the decision appealed from, with a copy delivered also to the Director of Finance. The Town Manager shall notify the taxpayer in writing of the time and place fixed for a hearing on the appeal at least ten (10) days in advance thereof. (b) The hearing before the Town Manager shall be informal and no transcript, rules of evidence, or filing of briefs shall be required; but the taxpayer may elect to submit a brief, in which case the Director of Finance may submit a brief. The Town Manager shall hold such hearing and issue athe final decision thereon within ninety (90) days after receipt of the taxpayer's written notice of appeal; however, the Town Manager may extend such period if the delay in holding the hearing or issuing the decision thereon was occasioned by the taxpayer. In any such event, the Town Manager shall hold thesuch hearing and issue the decision thereon within one hundred eighty (180) days of the taxpayer's written notice of appealrequest in writing therefor. (c) The Town Manager may, for good and just cause, abate any penalty or interest on any assessment or deficiency for good and just cause if the taxpayer submits a written request for such abatement not less than two (2) business days before payment of the penalty or interest is due. All abatement decisions must be in writingreduced to writing and promptly placed in the taxpayer’s records for the taxpayerrecords on file with the Town. (c)(d) A taxpayer dissatisfied with the Town Manager’s decision may seek appeal in the District Court in and for the County of Eagle as may be permitted by law. Sec. 3.29.130 - Administration of tax collections; authority of Director of Finance. Administration of provisions of this Chapter is vested in the Director of Finance, who may, with the approval of the Town Manager, prescribe forms and reasonable rules and regulations in conformity with this Chapter for the making of returns, for the ascertainment, assessment and collection of the taxes imposed hereunder, and for the proper administration and enforcement hereof, a copy of which forms, rules, and regulations shall be made available to the public. Sec. 3.29.140 - Tax information confidential. ATTACHMENT B ORD 21-11 Community Housing Short Term Rental Tax Page 10 of 10 (a) Except in accordance with judicial order, or as otherwise herein provided, the Town shall not divulge any information gained from any return filed or as a result of any investigation or hearing held pursuant to the provisions of this Section. (b) Nothing contained in this subsection shall be construed to prohibit: (1) The delivery to a person, or to his or her duly authorized representative, of a copy of any return filed in connection with his or her tax; (2) The publication of statistics so classified as to prevent the identification of particular reports or returns and the items thereof; (3) The inspection by the Town Attorney, or any other legal representative of the Town, of the return or other information relating to any taxpayer who may become involved in litigation with the Town in which the said information may become material; (4) Disclosure of information to an auditor or any other outside agent hired by the Town for the purpose of auditing or establishing tax liabilities. (c) Reports and returns shall be preserved for three years, and thereafter until the Director of Finance, with the approval of the Town Manager, shall order them destroyed. Sec. 3.29.150 – Limitation of actions. No taxes imposed by this Chapter,, n or interest thereon or penalties with respect thereto,, shall be assessed, nor shall any notice of lien be filed, distraint warrant issued, or suit for collection be instituted, nor any other action to collect the same be commenced more than three (3) years after the date on which the tax was or is payable; nor shall any lien continue after such period, except for taxes assessed before the expiration of such period, notice of lien with respect to which has been filed prior to the expiration of such period, in which case such lien shall continue only for one (1) year after the filing of notice thereof. Before the expiration of such period of limitation, the taxpayer and the Town may agree in writing to an extension thereof, and the period so agreed on may be extended by subsequent agreements in writing. In the case of a false or fraudulent return made with intent to evade a tax, or where no return was filed for the same purpose, the tax, together with interest and penalties thereon, may be assessed, and proceedings for the collection of such taxes may be begun, at any time. Sec. 3.29.160 - Revenue dedication; Community Housing Fund. Money deposited into the Community Housing Fund as a result of this Community Housing Short-Term Rental Tax, shall, subject to duly adopted appropriation made by the Town Council from year- to- year, be expended exclusively to fund community housing, including without limitation the acquisition of land for housing, construction of housing, extension of public infrastructure to serve community housing development, purchase of deed restrictions, down payment assistance programs, partnerships with public and private entities to develop community housing and related costs for administration, design, legal, and consulting. ATTACHMENT B ORD 21-11 Community Housing Short Term Rental Tax Page 11 of 10 Sec. 3.29.170 - Violation—penalty. 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 1.08 of this Code. ATTACHMENT B 970.748.4413 mpielsticker@avon.org TO: Honorable Mayor Smith Hymes and Council FROM: Matt Pielsticker, Planning Director RE: Frontgate Avon Condominiums and Townhomes 38460 Highway 6 Employee Housing Mitigation Plan DATE: September 17, 2021 SUMMARY: The Town Council will review and act on an Employee Housing Mitigation Plan (the “Mitigation Plan”) for a condominium building located at 38460 Highway 6. Approval by Town of the Mitigation Plan (“Attachment A”) is required by the Avon Development Code Section 7.20.100 (“Attachment B”). This review follows a Planning and Zoning Commission (“PZC”) condition of approval for the associated Major Development Plan application made on September 7, 2021. PROCESS: The Avon Development Code requires Town Council action to approve, approve with conditions, or denial be based upon the required mitigation rates and prioritization policies in code. PZC ACTION: The Major Development Plan application was approved by PZC with the following related conditions: 1. Employee Housing Mitigation Plan and Deed Restriction (rental or for sale, or both) must be approved by Town Council prior to any construction permits; and 2. Functional, private, outdoor space for the two (2) employee housing units will be incorporated with patio and/or deck space. MITIGATION RATE: The seventy-five (75) unit condominium building is subject to the regulations, and the townhomes are exempt per code. When considering the project as a “Property Management” use type, there are 5 employees that must be mitigated. This calculation is based upon the following: .4 employees per condominium unit, 1.2 jobs per employee, and 20% mitigation rate. The project was modified based on PZC review and Eagle County referral comments. The Plan increased from 2bdrm unit to 3bdrm units, which satisfactorily mitigates 7 employees per Avon Development Code Table 7.20-15. At PZCs recommendation the plan now includes outdoor private space for each unit. Location of 2, 3brm units within Phase I Page 2 of 2 OPTIONS: • Approve Recommended Motion and Vote to Approve the Mitigation Plan ; or • Approved modified Mitigation Plan; or • Deny Mitigation Plan by Motion and Vote; or • Continue to future meeting pending new or modified Mitigation Plan. RECOMMENDATION: I am pleased to review a project that includes Community Housing units on site, within the primary structure, with construction during Phase I. This proposal exceeds code requirements, and the provision of on-site units will prove to be a benefit for workers now an in the future. I recommend approval of the Mitigation Plan with the condition that the Deed Restriction Agreement(s) come back to Town Council prior to a Certificate of Occupancy is issued for the building. RECOMMENDED MOTION: “I move to approve the Frontgate Avon Condominiums Mitigation Plan, subject to Town Council approval of a Deed Restriction Agreement prior to Certificate of Occupancy.” Thank you, Matt ATTACHMENT A: Mitigation Plan ATTACHMENT B: Avon Development Code Section 7.20.100, Employee Housing Mitigation UPDNDN1235678109ABDCEGHKLMNFJO4DS5'-5 1/2"11'-6 3/4"16'-11 1/4"28'-0 3/4"28'-0"9'-6 1/4"12'-5"10'-0 3/4"3'-8 1/4"28'-8 1/4"13'-0"4'-0"2'-0"75'-3"29'-9"31'-7 1/2"20'-9"19'-0"18'-11 3/4"28'-5 1/2"27'-7 1/2"27'-0"2'-3"2A303EXERCISEBREAK ROOMMAINTENANCE3 BR TYPE 10EMPLOYEE3 BR TYPE 10EMPLOYEEA2021STAIRSTAIRELEV7462' - 0" FFEUNISEXSTORAGE/JAN.EMPLOYEE LOCKERSSEASONAL(OVERSIZE) /GUEST STORAGECORRIDORTOWELSUNISEXUNISEXCUBBIESUNISEXPATIOPATIOGROSS SF: 1435GROSS SF: 143571.672.020%61.506668707263.064.065.562.079.076.5TW:85.05%11.5%AC ACEXERCISEMAINTENANCE3 BR TYPE 10EMPLOYEESTAIRELEV3 BR TYPE 10EMPLOYEESTAIRTEMP. STAIR -PHASE 1 ONLYVANVANSTORAGE/JAN.BREAK ROOMCORRIDORSEASONAL(OVERSIZE) /GUEST STORAGEEMPLOYEE LOCKERSTOWELSCUBBIESnorthScale: 1/8” = 1’- 0”0’ 4’ 8’ 16’3 BR TYPE 1000BBEMPLOYEEEEEEEEEEEEEEEMMMMR TYPE 10E 1113 BR TYPE 111111111BBEMPLOYEEMMMMCONDO - LEVEL 01: KEY MAPBEAVER CREEK MOUNTAINSIDE CONDOS & TOWNHOMESEMPLOYEE HOUSING UNIT LOCATIONNOT FOR REGULATORY APPROVAL, PERMITTING, OR CONSTRUCTIONPEAK 8 PROPERTIESSeptember 16, 2021 Condo: Enlarged Floor Plan - Level 01 1Attachment A Created: 2021-05-13 13:23:23 [EST] (Supp. No. 28, Update 10) Page 1 of 3 7.20.100 Employee housing mitigation. (a) Purpose. The purpose of this Section is to create housing for workers generated by new development in Avon, which is affordable to Eagle Valley workers. This is accomplished through the creation of Employee Housing Mitigation units, deed restricting existing housing units, payment of fees based on the number of workers created by development, and/or exempting Community Housing projects. (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. (c) Exemptions. (1) Development within Existing Structures and Changes in Use for Remodeling. Remodeling of an existing use or the change from one use to another is exempt from the requirements of this Section, provided such activity does not create additional employment generation as determined b y Table 7.20-14, below. Only the uses and floor areas that existed prior to the remodeling shall be exempt from the requirements of this Section. Any new floor area or any change in use which creates additional employee generation as determined by Table 7.20-14 shall be subject to the provisions of this Section. (2) Governmental projects and housing projects constructing Community Housing are exempt from this section. (3) Properties with preexisting vested rights are exempt from these requirements. (4) Projects with current Development Plan approvals that are valid on July 11, 2019, and/or extended pursuant to Section 7.16.010(g). (d) Employee Housing Mitigation Formulas. To determine the amount of Employee Housing Mitigation that must be provided, the following formulas shall be used: Table 7.20-14 Employee Housing Mitigation Formulas Factor Calculation Commercial Size of development Leasable square feet Workers Required 2.8 per 1,000 sq. ft. Rate x sq. ft./1,000 Jobs per Employee 1.2 Workers Generated/1.2 Required mitigation 20% mitigation Jobs generated x 20% Lodging and Property Management Size of development # of rooms or # of units Workers Required Lodge/hotel - 0.8/ room; # of rooms x 0.8 Prop. management - 0.4/ unit # of units x 0.4 Jobs per employee 1.2 jobs per employee Workers Generated/1.2 Required mitigation 20% mitigation Workers generated x 20% Residential Size of development # of Dwelling Units Workers Required .33 per Dwelling Unit # of units x 0.33 Jobs Per Employee 1.2 Workers Generated/1.2 Attachment B Created: 2021-05-13 13:23:23 [EST] (Supp. No. 28, Update 10) Page 2 of 3 Required mitigation 20% mitigation Workers Generated x 20% (e) Methods of Employee Housing Mitigation. (1) General Requirements. All Employee Housing Mitigation units shall be subject to a deed restriction acceptable to the Town and enforceable by the Town which limits occupancy of Employee Housing Mitigation units to persons with full-time employment in Eagle County. (2) For any of the following methods of producing Employee Housing Mitigation, all proposed units shall comply with the minimum size requirements shown in Table 7.20-15, and all applicable design requirements. Table 7.20-15 Minimum Size of Housing Units Type Minimum Size of Unit (Square Footage) Number of Employees Housed Studio 500 1.25 1 bedroom 750 1.75 2 bedrooms 900 2.25 3 or more bedrooms 1,225 3.5 (3) No Credit Given: If the residential square footage of the proposed Employee Housing Mitigation unit(s) is in excess of the minimum required residential square footage, the additional residential square footage shall not be eligible for use as any form of future credit or for the Employee Housing Mitigation. (f) Priorities for Employee Housing Mitigation. The following options for Employee Housing Mitigation are listed in order of preference regarding the types of unit(s) created: (1) Construction of Employee Housing Mitigation unit(s) on the site on which the development is proposed. (2) Construction of deed restricted Employee Housing Mitigation unit(s) within the Town, provided such land, site or structure has not been previously deed-restricted to employee or affordable housing by any party. (3) Construction of Employee Housing Mitigation unit(s) outside the Town but within the Eagle Valley, provided such land, site or structure has not been previously deed -restricted to employee or affordable housing by any party. Prior to construction of such unit(s), consent of the relevant jurisdiction or homeowner's association (if required) to placement of a deed restriction on the unit(s) must be obtained, in addition to any required land use approvals. Units outside of the Town must be within the 80% - 140% AMI range, as defined by the Avon Comprehensive Plan, within the Up or Mid Valley, as defined by the Eagle River Valley Housing Needs and Solutions plan. Units constructed shall be valued at .75 of the applicable required Employee Mitigation rate. (4) Deed restricting existing free market unit(s) within the Town or the Eagle Valley. i. As a condition of approval when the deed restriction of existing free market unit(s) is proposed, the Applicant must obtain the approval of the Town for the specific unit(s) and the deed restriction agreement language for the unit(s) to be deed restricted. The Applicant must demonstrate to the satisfaction of the Town that: Attachment B Created: 2021-05-13 13:23:23 [EST] (Supp. No. 28, Update 10) Page 3 of 3 a. The long-term affordability of the proposed Employee Housing Mitigation unit(s) is adequately protected, considering issues including but not limited to long term maintenance and homeowner's assessments; and b. The affected property does not prohibit the type of housing proposed. The Town may request additional information about the proposed unit(s) as reasonable to make such a determination. Such approval may contain provisions to ensure that any Employee Housing Mitigation unit(s) subject to a deed restriction meets long term standards for maintenance and affordability. ii. Employee Housing Mitigation units outside of the Town must be within the 80% - 140% AMI range, as defined by the Avon Comprehensive Plan, within the Up or Mid Valley, as defined by the Eagle River Valley Housing Needs and Solutions plan. iii. Deed restricted units outside of the Town shall be valued at .75 of the applicable required Employee Housing Mitigation rate. (5) Fees-in-lieu, as defined by Town Council resolution and updated every two years, may be provid ed only for any fractional remainder of the Employee Mitigation requirement generated under this Section totaling less than 1.0 employee, subject to the following requirements: i. Time of Payment and Use of Funds. Payment of the fee in -lieu shall be made to the Town prior to the issuance of any Certificate of Occupancy or Temporary Certificate of Occupancy for any free market portion of the development. ii. Interest Bearing Account. The Town shall transfer the funds to an interest-bearing account. iii. Authorized Uses of Fees. The funds, and any interest accrued, shall be used only for the purpose of planning for, subsidizing, or developing Community Housing. (g) Mitigation plan required. The Mitigation plan shall include the following: (1) Calculation and method. The calculation of, and method by which Employee Housing Mitigation units are to be provided, in compliance with Table 7.20 -14 and Section 7.20.100(d). (2) Unit Descriptions. If deed restricted Employee Housing Mitigation units are to be devel oped, a site plan and building floor plans (if applicable), illustrating the number of units proposed, their location, the number of bedrooms, gross floor area of each unit, and the rental/sale mix of the development. (3) Timing of review/amendments. The Employee Housing Mitigation plan shall be submitted to and approved by the Town Council prior to, or concurrent with, application to the Town for the free market portion of the initial development plan. Review and approval of plans by the Town Council for construction of Employee Housing Mitigation shall be prior to, or concurrent with, the free market portion of the development plan. Any amendment to an approved Employee Housing Mitigation plan shall require subsequent Town Council approval. (h) Certification of Action. The Town Council shall certify the approval, approval with conditions, or denial of the Employee Housing Mitigation plan, or of an amendment thereto. Such approval, approval with conditions, or denial shall be based on compliance with the provisions of this Chapter. (Ord. 10-14 §3) (Ord. No. 19-03 , §3) Attachment B 970.748.4413 mpielsticker@avon.org TO: Honorable Mayor Smith Hymes and Council FROM: Matt Pielsticker, Planning Director RE: Frontgate Avon Condominiums and Townhomes 38460 Highway 6 Development Agreement Amendments DATE: September 17, 2021 SUMMARY: The Town Council is asked to take action, by motion and vote, on the attached Development Agreement (“Attachment A”) amendments for a project located at 36460 Highway 6. The Development Agreement would be between prospective new owners, BGV Avon, LLC, and the Town of Avon. It updates a previous agreement for a failed project. The Planning and Zoning Commission (“PZC”) recently approved a new Major Development Plan application for an 84-unit condominium and townhome project on the property. The project could be phased, and the Development Agreement contemplates such. PROCESS The Town’s authority to enter Development Agreements is derived from its home rule charter, state statutes, and the power generally held by Colorado home rule municipalities to address maters of local concern by contract. The previously approved Development Agreement was acted upon by motion and vote of the Town Council. The same process is presented to Town Council for consideration of these minor amendments. DEVELOPMENT AGREEMENT COMPONENTS: The format and substance of the agreement is largely the same as existing. The components are summarized here, with notes on changes: Public Improvements – Utilities, drainage, and mobility related (sidewalks and turn lanes) make up the public improvements. This definition has been updated to specify that the sidewalk will extend to the east side of the property per PZC review. Water Use Provisions – The plan has been modified to reduce outdoor permanent irrigation use. Even though there are additional dwelling units added to the project, the overall water consumption has dropped. This agreement solidifies the reduced amount required with a maximum yearly Water Budget enforceable by both the Town and Upper Eagle River Water Authority. Ongoing Maintenance – All improvements must be property maintained. No changes to this section. Future Subdivision – If the zoning ever changed and timeshares became an allowed use, this section could require an amenities fee for each interval. This is consistent with other timeshare agreements. No changes to this section. Restoration and Collateral – Site Restoration funds are maintained, and this collateral will be held until time of occupancy. This section is now clarified to stipulate 50% release at temporary certificate of occupancy, and full release happens at completion of Phase I. Page 2 of 2 PZC ACTION: The Major Development Plan application was approved by PZC on September 7, 2021 with the condition that Development Agreement Amendments must be approved by Town Council prior to any construction permits. OPTIONS: • Approve Development Agreement as Drafted; or • Continue to future meeting; or • Approved with modifications. RECOMMENDED MOTION: “I move to approve the Development Agreement amendments for a project located at 38460 Highway 6, as drafted.” Thank you, Matt ATTACHMENT A: Redline Strikethrough Development Agreement DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (“Agreement”) is made and entered into as of , 20192021, by and between COLORADO WORLD RESORTS,BGV Avon LLC.,, a Colorado limited liability corporation (“Owner”), and the Town of Avon, a home rule municipal corporation of the State of Colorado (“Town”) (Owner and Town may be referred to individually as “Party” and collectively as “Parties”), and, as to Article V of this Agreement only, UPPER EAGLE REGIONAL WATER AUTHORITY, a quasi-municipal corporation and political subdivision of the State of Colorado (“Authority”). RECITALS as: A. The Owner owns approximately 21.52 acres within the Town that is legally described 38388 A PARCEL OF LAND LOCATED IN THE NORTHWEST 1/4 SOUTHEAST 1/4 SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE 6TH PRINCIPAL MERIDIAN LYING SOUTHERLY OF U.S. HIGHWAY 6, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A BRASS CAP SET FOR THE SOUTHEAST CORNER OF THE NORTHWEST 1/4 SOUTHEAST 1/4 SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE 6TH PRINCIPAL MERIDIAN; THENCE SOUTH 89 DEGREES 53 MINUTES 54 SECONDS WEST A DISTANCE OF 1302.02 FEET ALONG THE 1/16 LINE; THENCE NORTH 19 DEGREES 32 MINUTES 15 SECONDS EAST A DISTANCE OF 1097.52 FEET TO A POINT ON THE SOUTHERLY RIGHT-OF-WAY LINE OF U.S. HIGHWAY 6; THENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE ALONG A NON- TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 3770.00 FEET AND A CENTRAL ANGLE OF 04 DEGREES 27 MINUTES 57 SECONDS AN ARC DISTANCE OF 293.85 FEET AND CHORD BEARING AND DISTANCE OF SOUTH 65 DEGREES 20 MINUTES 12 SECONDS EAST 293.78 FEET; THENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE SOUTH 58 DEGREES 48 MINUTES 40 SECONDS EAST A DISTANCE OF 128.74 FEET; THENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY LINE SOUTH 63 DEGREES 10 MINUTES 00 SECONDS EAST A DISTANCE OF 622.93 FEET TO A POINT ON THE EAST 1/16 LINE OF SAID SECTION 12; THENCE ALONG SAID 1/16 LINE SOUTH 00 DEGREES 12 MINUTES 20 SECONDS EAST A DISTANCE OF 561.57 FEET TO THE POINT OF BEGINNING, COUNTY OF EAGLE, STATE OF COLORADO. Street address: 38460 Highway 6, Town of Avon, County of Eagle, State of Colorado as is also described in the Quit Claim Deed Attachment A recorded in the Eagle County Clerk and Recorder’s office at Reception Number 201803580 (“Property”). B. The Owner submitted an application to the Town for approval of a Major Design and Development application for a condominium project referred to as Colorado World Resorts Frontgate Avon Condominiums and Townhomes(“Application”). C. After holding a public hearing on September 18, 20187, 2021, the Town of Avon Planning and Zoning Commission approved the Application conditioned upon the execution of this Agreement prior to a building permit. D. The Application includes a Landscape Plan and Irrigation Plan, which includes a limited irrigated area and drought tolerant species. E. The Application includes public improvements that necessitate further review, warranty, and acceptance upon satisfactory completion. F. Development of the Property in accordance with this Agreement will provide for orderly growth in accordance with the policy and goals set forth in the Town’s Comprehensive Plan; ensure reasonable certainty, stability and fairness in the land use planning process; stimulate economic growth; secure the reasonable investment-backed expectations of the Owner; foster cooperation between the public and private sectors in the area of land use planning; and otherwise achieve the goals and purposes of the Town. AGREEMENT NOW, THEREFORE, in consideration of the recitals set forth above, the terms, conditions, covenants and mutual promises set forth in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Owner and the Town agree as follows with respect to the development of the Property: Attachment A ARTICLE I DEFINITIONS Definitions. The following terms shall have the meanings set forth below unless the context in which they are used clearly indicates otherwise: 1.1 Association. The common interest community association and/or other entity formed or to be formed for purposes of governing the rights, obligations and interests of owners of Time- Share Interestscondominiums, townhomes and other interests in the Development upon completion of construction thereof. Certain provisions relating to the rights and obligations of the Association are provided in Article X of this Agreement. 1.2 Association Governing Documents. The declaration of covenants, articles of incorporation, bylaws, rules and regulations, and any other documents creating or governing the Association and its members, as in existence from time to time. 1.3 Development. The project to be constructed on the Property as described in the Development Plan. 1.4 Development Plan. The approved Major Design and Development Plan described and depicted in the Application that was approved by the Town is made part of the land use approval for the Development Plan. 1.5 Development Plan Components. The following plan set sheets contained in the Development Plan are incorporated by reference into and made a part of this Agreement: [Sheet C1.0 – C6.0 – Phase 1 & Phase 2] Public Property Improvement Map [Sheets L1.0-L3.019 & IR1.0-IR1.3} Landscape Plan & Irrigation Plan [Sheets C1.0 – C6.0 – Phase 1 & Phase 2] Owner Maintained Public Improvements 1.6 Exhibits. The following Exhibit is to this agreement is incorporated by reference and made part of this Agreement: Exhibit A Amenity Fees 1.7 Landscape & Irrigation Plan. The approved Landscape Plan and Irrigation Plans, Sheets L1.0-L3.019 & IR1.0-IR1.3of3 of the Development Plan, is made part of the land use approval for the Development Plan. 1.8 Municipal Code. The Avon Municipal Code, including the Avon Development Code, as may be amended from time to time. 1.9 Public Improvements. Those improvements to be acquired, constructed or installed for the benefit of the public, including, but not limited to, the Public Improvements described in Article IV and in the Public Property Improvement Map. Attachment A 1.10 Public Property Improvement Map. The approved Public Property Improvement Map, Sheets C1.0 – C6.0of0 – Phase 1 & Phase 2 of the Development Plan, is made part of the land use approval for the Development Plan. 1.11 ROW. “ROW” shall mean that certain public right of way as described in the Development Plan. 1.12 Term. The term of this Agreement as provided in Article III. ARTICLE II DEVELOPMENT PLAN 2.1 Development Plan. The Development Plan sets forth the approved scope of development of the Property and has been approved by the Town through action by the Town of Avon Planning and Zoning Commission. 2.2 Compliance with General Regulations. The approval of the Development Plan and this Agreement shall not preclude the application of Town ordinances and regulations, or state or federal laws and regulations, which are general in nature and are applicable to all property subject to land use regulation by the Town, including, but not limited to, building, exterior energy offset, fire, plumbing, electrical and mechanical codes, as all such regulations exist on the date of this Agreement or may be enacted or amended after the date of this Agreement. ARTICLE III TERM 3.1 Term. The term of this Agreement shall be for so long as the building(s) which comprises the Development continues to exist and for five (5) years after such time the building(s) that comprises the Development is no longer in existence on the Property. In the event the building(s) which comprises the Development is destroyed by fire or other calamity and then reconstructed within five (5) years, such reconstructed building shall be deemed the building(s) that comprises the Development and this Agreement shall continue in full force and effect until five (5) years after the reconstructed building no longer exists. The Parties may terminate this Agreement earlier by mutual agreement. ARTICLE IV PUBLIC IMPROVEMENTS 4.1 Public Improvements. The Owner agrees to construct and install the public improvements set forth in this Agreement (the “Public Improvements”). Such obligations directly relate to the Application complying with the minimum required development standards set forth in the Code and are material to the terms, conditions, covenants and mutual promises bargained for by Town and the Owner in this Agreement. The Owner shall install or cause to be installed all Public Improvements that the Owner is required to construct in a good and workmanlike manner in accordance with the applicable regulations of the Town and applicable Utilities, as defined below, and in accordance with this Agreement. Attachment A (a) Utility Improvements. The Owner agrees to install all utility improvements as described in the Development Plan. (b) Drainage Improvements. The Owner shall install drainage improvements for stormwater control and quality as described in the Development Plan. (c) Sidewalk. The Owner shall install the sidewalk adjacent to Highway 6 running the length of the project, from the west side of the Property to the existing bus stop on the east side of the Property, as described the Development Plan. (d) Turn Lanes. The Owner shall install turn lanes off Highway 6, as described in the Development Plan. 4.2 Timing of Public Improvements. The Owner shall complete the Public Improvements and the Town shall have provided written notification of acceptance of the Public Improvements fromby the Town (the “Town’s Notification of Acceptance”) on or before the date of completion of the Development. The date of completion of the Development shall be defined as the date that the Owner receives from the Town a Temporary Certificate of Occupancy for the first building constructed as part of the Development. The Owner shall inform the Town of all construction plans within Town property and within the ROW at least ninety (90) days prior to the start of construction that is to occur within Town property or the ROW. If the Owner has not received the Town’s Notification of Acceptance from the Town of all Public Improvements, the Town may withhold the issuance of a Temporary Certificate of Occupancy. 4.3 Warranty Period. The Public Improvements constructed and installed by the Owner shall be warranted to be free from defects in material, workmanship and quality for a period of two (2) years after the date of the TownTown’s Notification of Acceptance (the “Warranty Period”). In the event of any such defect arising during the Warranty Period, the Town may require the Owner to correct the defect in material, workmanship or quality. Ten percent (10%) of the total actual cost of completion of all Public Improvements to be installed and constructed by the Owner shall be collected by the Town from the Owner as security during such two (2) year period as the improvement warranty pursuant to Code § 7.32.100, as may be amended. In the event any corrective work with respect to the material, workmanship and quality is performed during the Warranty Period then the warranty on said corrected work with respect to the material, workmanship and quality shall be extended for two (2) years from the date on which it is completed. Security equal to 125% of the cost of any corrected work with respect to the material, workmanship and quality, as estimated by the Town, shall be retained by the Town or immediately paid to the Town by the Owner, if sufficient funds are not held by the Town, in accordance with Code § 7.32.100, for a period of two (2) years from the date of completion of the corrected work. 4.4 Engineering Certification. Upon completion of portions of the Public Improvements to be installed and constructed by the Owner, the Owner will cause its engineers (who shall have been actively engaged in observing to a commercially reasonable degree the construction of the Public Improvements and who are licensed in the State of Colorado) to provide a written opinion. The written opinion shall be in form and content reasonably satisfactory to the Town’s Engineer, and based upon on-site observation, review of sufficient construction- observation reports, field test reports, and material test reports and certifications by qualified personnel, shall opine that the installation of the Public Improvements, or portions thereof as may Attachment A be completed from time to time, have been completed, and that to the best of the opining engineer’s knowledge and professional judgment, the Public Improvements are in conformance with all Standards (as defined below), plans, and specifications as submitted to and previously approved by the Town, or the pertinent utility supplier, as depicted on Sheets C1.0 – C6.0 of the Development Plan. Inspection reports, test results, as-constructed plans, including surveys, and other supporting documentation shall be submitted with the certification. The as-constructed plans shall be submitted on paper and in a digital format, either AutoCad DWG, AutoCad DXF, or ESRI GIS shapefile. 4.5 Inspection Procedures. All Public Improvement work shall be done under the published inspection procedures and standards (collectively, “Standards”) established by the Town, Holy Cross Energy, Eagle River Water and Sanitation District, Upper Eagle Regional Water Authority, Xcel Energy, CenturyLink, Comcast, or any other utility (“Utilities”), as applicable and shall be subject to the reasonable satisfaction of the Town and applicable Utilities. No work shall be deemed complete until the reasonable approval and acceptance of the Public Improvements by the Town or the Utilities. Inspections by the Town and Utilities shall not relieve the Owner or the Owner’s agents from any responsibility or obligation to ensure that all work is completed in conformance with all Standards, plans, and specifications as submitted to and previously approved by the Town and Utilities. (a) Cost of Inspections: The cost, if any, of inspections, by Town employees, or an independent third-party inspector, shall be paid by the Owner. (b) Notice of Non-Compliance: In the event that the Town, through its inspectors, reasonably determines that the Public Improvements to be installed and constructed by the Owner are not in compliance with the Development Plan, it shall give written notice of such non-compliance (“Notice of Non-Compliance”) to the Owner. The Notice of Non-Compliance shall include a narrative describing the unsatisfactory construction work with specific reference to the applicable construction plans and specifications with which the Public Improvements fail to comply. The Notice of Non- Compliance must be provided to the Owner within two (2) working days of the date of the inspection. 4.6 Indemnification and Hold Harmless. The Owner shall indemnify, defend and hold harmless the Town (and its officials, agents, representatives, employees, contractors, and successors and assigns) from all claims, demands, damages (including, without limitation, consequential damages), causes of action, fines, penalties, losses, liability, judgments, costs or expenses (including reasonable attorneys’ fees) resulting from claims for bodily injury (including death) to any person or damage to any property, arising during the construction of the Public Improvements or otherwise arising on the Property or from the Owner’s activities while performing this Agreement (including, without limitation, maintenance, repair and replacement activities), including without limitation any claim that all or any portion of the Public Improvements installed and constructed by the Owner on Town property or ROW constitute a dangerous and/or unsafe condition within a public right-of-way; provided, however, that this indemnity shall not apply to any claims, demands, damages (including, without limitation, consequential damages), causes of action, fines, penalties, losses, liability, judgments, costs or expenses (including reasonable attorneys’ fees) resulting from any act or omission of the Town or its officials, agents, representatives, employees, inspectors, including independent third-party inspectors, contractors, and successors and assigns. Attachment A of the Town or its officials, agents, representatives, employees, inspectors, including independent third-party inspectors, contractors, and successors and assigns. 4.7 Insurance. With respect to Owner’s obligation with respect to and/or any claims arising from the construction or installation of the Public Improvements, all Owner’s or Owner’s contractor’s insurance policies related in any way to the Public Improvements shall be endorsed to include the Town and the Town’s officers and employees as additional insureds/loss payees, applicable within each policy. Every policy covering the Public Improvements shall be primary insurance, and any insurance carried by the Town, its officers, or its employees, or carried by or provided through any insurance pool of the Town, shall be excess and not contributory insurance to that provided by the Owner or the Owner's contractors. No additional insured endorsement to the policy required herein shall contain any exclusion for bodily injury or property damage arising from completed operations. The Owner and its contractor shall be solely responsible for endorsement/additional insured costs, premiums and deductible losses under any policy required above. ARTICLE V WATER PROVISION, WATER USE AND ENFORCEMENT 5.1 Water Rights. The Property has not been allocated water rights by the Town and must dedicate water rights to serve 8184 SFEs and irrigate 0.9130 acres of landscaped area as required by the Authority or, in the alternative, the Owner shall pay the Authority cash-in-lieu of a water rights dedication. The Owner shall provide proof of dedication or of payment of cash-in-lieu of water rights dedication and proof of water system impact fees in the amount of $56,379.00 prior to the issuance of a building permit. 5.2 Indoor Water Usage Limit. The Owner shall adhere to an indoor usage water budget of no more than 300 gallons per day, per unit, and shall be responsible for managing use to this limit. Any use in excess of this limit may be subject to an excess use fee as determined by the Authority. Colorado World Resorts Indoor Water Usage Limit Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec Total Use per Unit 9.3 8.4 9.3 9 9.3 9 9.3 9.3 9 9.3 9 9.3 110 (kgal) Total existing (kgal) 753.3 680.4 753.3 729.0 753.3 729.0 753.3 753.3 729.0 753.3 729.0 753.3 8870 Attachment A 5.3 Outdoor Water Usage. (a) The Owner shall install a separate irrigation meter pursuant to Code § 7.28.050(6)(ii)(D). This section establishes a maximum allowable outdoor water use limit for the development to ensure this Development does not exceed its outdoor water allocation as established by the Authority’s Water Dedication Requirement and Water Service Agreement between the Owner and the Authority. During the first two growing seasons, the Owner shall not exceed 639,832281,000 gallons of outdoor water use in any calendar year. Thereafter, the Owner shall not exceed 319,916114,000 gallons of outdoor water use in any calendar year. The following monthly budget is based upon a total irrigated area of 0.9130 acres or 39,78713,000 square feet:. Colorado World Resorts Outdoor Water Usage Limit May Jun July August September Total Gallons 54,641 71,763 78,060 66,350 49,102 319,916 (b) Outdoor Water Usage on the Property may be curtailed by the Authority during periods of low stream flows, and/or during instream flow calls. Once connected, the Authority will monitor water usage of the Property. 5.4 Enforcement. (a) The Authority, upon determining that the Owner has exceeded the Water Usage Limits prescribed above in this Article, may provide written notice by mail or e- mail to the Owner or its successors and assigns of the violation of this Section and demand that the excessive water usage cease immediately. The Town, in its sole discretion, may also issue a notice under this Section when it has been notified by the Authority that there is a violation of this Article. (b) In the event that the water usage of the Property exceeds the Water Usage Limits in this Article, the Owner shall be obligated to either reduce its water usage to within the Water Usage Limits, or, at the Authority’s sole discretion, pay additional cash in lieu of a water rights dedication fees for the excess water use. If the Authority, in its sole discretion, does not accept an additional cash in lieu of water rights dedication fee, the Owner or its successors and assigns shall be obligated to reduce its water use to the Water Usage Limits in accordance with all remedies set forth in this Agreement. (c) Even if the Owner ceases excessive water usage immediately, the Authority, in its sole discretion, may impose excess water usage fees on the Property for the period of excess usage. (d) Failure to correct excessive outdoor irrigation water use may result in a seven (7) day Notice of Disconnection, at the sole discretion of the Authority or other enforcement action commenced by the Authority and/or Town. Attachment A (e) The Town has the right, but not the obligation, to enforce the provisions of this Article and may take such action as permitted or authorized by law, this Agreement or the ordinances of the Town, as the Town deems necessary to protect the public health, safety and welfare. ARTICLE VI MAINTENANCE AND ONGOING OBLIGATIONS 6.1 Operations and Maintenance. The Owner understands and acknowledgeacknowledges that those certain aspects of the maintenance, operation and use of the Development, including drainage, infrastructure, landscaping, and sidewalks (“Owner Maintained Public Improvements”), as delineated on Sheets C1.0 – C6.0 – Phase 1 & Phase 2 of the Development Plan and incorporated herein, require maintenance by Owner. (a) Except in the event such liability arises from the action or omission of Town or its officials, agents, representatives, employees, inspectors, including independent third-party inspectors, contractors, and successors and assigns, but without waiving governmental immunity, the Owner agrees that the Town is not liable, and will not assume any liability, responsibility, or costs for any damage, maintenance, or repair of any Owner Maintained Public Improvements erected or maintained by the Owner under this Agreement. (b) If the Owner fails to maintain the Owner Maintained Public Improvements, the Town may perform the necessary maintenance and/or repair, as determined by the Town in its sole discretion, after providing at least thirty (30) days written notice to the Owner detailing the necessary maintenance and/or repair. If, after the remedy period set in the notice, the Owner fails to perform the necessary maintenance and/or repair, the Town may perform such maintenance and/or repair. The actual costs of the maintenance and/or repair, together with a fifteen percent (15%) charge for administration, shall be assessed against the Property. The Town shall send a notice of assessment to the Owner and upon the expiration of the thirty (30) period provided in such notice, the costs, including the administrative charge, shall be a lien upon the Property. If the assessment is not paid within thirty (30) days of the lien, the Town may impose interest upon such costs and upon the administrative charge, at the rate of eighteen percent (18%) per year. All costs, interest and charges, including the costs of collection, may be certified to the County Treasurer and collected in the same manner as taxes. ARTICLE VII SUBDIVISION 7.1 Future Subdivision. Before acceptance of the Public Improvements, the Owner shall submit a complete application for a subdivision of land pursuant to the Code. Easements for Public Improvements shall be provided for public pedestrian usage of the sidewalk, and for the usage of the stormwater and drainage improvements for their intended purposes. 7.2 Community Housing Units. Owners agrees to construct, as part of the initial phase of the Development, two three-bedroom units, consisting of approximately 1,350 square feet. The use of such units shall be restricted to Community Housing(as that term is defined in the Municipal Code) in accordance with such reasonable deed restrictions as approved by the Town Council. 7.2 Timeshare Amenities Fee. Though not currently permitted, in the event future zoning provides for such use, if any portion of the propertyProperty is turned into timeshare intervals, Attachment A vacation membership or other similar program, the applicable amenity fee per timeshare interval as set forth in Exhibit A hereto shall be paid by the Owner for each interval period created e.g., if one week Attachment A 7.3 intervals, then for each week or, if calendar quarter intervals, then for each calendar quarter. Such fee shall be due prior to the conveyance of the first timeshare interest is sold to a third party. ARTICLE VIII RESTORATION OF SITE 8.1 Restoration Due to Inactivity. Unless a building permit extension is granted in writing by the building official upon justifiable cause demonstrated by the Owner, the building permit shall become invalid after 180 days of suspended work. If the building permit becomes invalid, the Owner shall restore the site to the condition the site was in at the time of issuance of the building permit (subject to changes reasonably necessary for public safety or preservation of land and adjoining land, or to prevent waste) within thirty (30) days from the date of notice by the Town that restoration is required. Upon restoration of the Property in accordance with this Article and to the reasonable satisfaction of the Town, this Agreement shall automatically terminate. 8.2 Restoration Funds. The Town currently holds funds deposited by the Owner in the amount of $209,475.00 as security for any possible future required restoration. If the obligation to restore arises (i.e., if the permit becomes invalid) and if the Owner thereafter fails to restore the Property in compliance with this Article and to the Town’s satisfaction, the Town may use such funds to cover the costs of any required restoration work. The Town shall maintain an accounting of such costs and once restoration work is completed, the Town shall return any remaining funds along with such accounting. If the funds are insufficient to perform the restoration work, the Owner, upon demand from the Town, shall deposit additional required funds as determined by the Town. If the Owner fails to provide such funds, the Town’s costs of restoration over the amount of funds current held, shall be a lien upon the Property to be collected in the same manner as property tax and the Town may certify such amount to the County Assessor for collection, including an additional 10% imposed by the Town for costs of collection. 8.3 Return of Funds. After the issuance of a final Certificate of Occupancy for Phase 1 of the Development, the Town shall refund 50% of the restoration funds to the Owner. After the issuance of a final Certificate of Occupancy for the last building to be constructed within the Development, the Town shall refund the remaining resorations funds to the Owner ARTICLE IX DEFAULTS, REMEDIES AND TERMINATION 9.1 Default by Town. A “breach” or “default” by the Town under this Agreement shall be defined as the Town’s failure to perform its obligations under this Agreement, after the applicable cure period described in Section 9.3, below. 9.2 Default by Owner. A “breach” or “default” by the Owner shall be defined as the Owner’s failure to fulfill or perform any obligation of the Owner contained in this Agreement following the applicable cure period described in Section 9.3, below, or the Owner’s failure to fulfill or perform any obligation of the Owner contained in any other written agreement relating to the Property between the Town and the Owner or the Town following any applicable cure period contained in such agreement. The failure by the Owner to cause the Association to collect and remit the timeshare amenities fee to the Town as provided in Section 7.2 shall constitute a default by the Owner. Attachment A 9.3 Notices of Default. In the event of a default by either Party under this Agreement, the non-defaulting Party shall deliver written notice to the defaulting Party of such default, at the address specified in Section 11.6, and the defaulting Party shall have five (5) days for monetary obligations and thirty (30) days for non-monetary obligations from and after receipt of such notice to cure such default. With respect to non-monetary obligations, if such default is not of a type that with the exercise of reasonable diligence can be cured within such thirty (30) day period and the defaulting Party gives written notice to the non-defaulting Party within such thirty (30) day period that it is actively and diligently pursuing such cure, the defaulting Party shall have a reasonable period of time up to one hundred eighty (180) days given the nature of the default to cure such default, provided that such defaulting Party is at all times within such additional time period actively and diligently pursuing such cure. 9.4 Remedies for Default by Town. If a default by Town under this Agreement is not cured as described in Section 9.3, the Owner shall have the right to enforce the Town’s obligations by an action for any equitable remedy, including, without limitation, injunction or specific performance or an action to recover damages. Each remedy in this Section 9.4 is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law or in equity. 9.5 Remedies for Default by the Owner or Association. If any default by the Owner or the Association under this Agreement is not cured as described in Section 9.3, the Town shall have the right to enforce the Owner’s or the Association’s obligations hereunder by an action for any equitable remedy, including injunction or specific performance, or an action to recover damages. Each remedy in this Section 9.5 is cumulative and is in addition to every other remedy provided for in this Agreement or otherwise existing at law or in equity. In addition, if a default of this Agreement by the Owner or the Association also constitutes a violation of the Code and non- compliance with the Development Plan for this Property then the Town shall have all enforcement rights as described in the Code and other applicable sections of the Code concerning enforcement and penalties for violations, as the Code may be amended from time to time. 9.6 Mediation. The Parties agree that prior to submitting any controversy or claim arising out of or relating to this Agreement, including, without limitation, any breach, default, or interpretation hereof, to a legal process, and as a prerequisite to initiating any legal process, the Parties shall attempt to resolve the controversy or claim in good faith in accordance with the procedures stated in this Section 9.6. The Party asserting the breach, default, controversy, or claim shall first provide written notice to the other Party, citing this Section 9.6, and requesting consideration by the other Party to resolve the controversy or claim. The Parties shall use reasonable efforts to resolve the dispute within thirty (30) days from the date of the notice commencing this process. If the dispute is not resolved within thirty (30) days of the date of the notice, or by such longer period as may be mutually agreed by the Parties, then either Party may initiate a legal action. At any time after the written notice citing Section 9.6, the Parties may mutually agree to appoint an independent neutral third party (the “Mediator”) to assist them in resolving the dispute. In such an instance, (i) each Party agrees to provide the Mediator access to all relevant and non-privileged documents and may impose reasonable confidentiality provisions; (ii) the Parties may make representations and submissions to the Mediator but there shall be no formal hearing unless the Mediator requires a formal hearing and provides a written notice to the Parties; (iii) the Mediator shall make his recommendations in writing as soon as is reasonably Attachment A possible but not later than thirty (30) days following the receipt of representations and submissions by each Party; (iv) the Mediator’s recommendation shall not be binding upon the Parties, but would become binding upon the Parties if voluntarily accepted by both Parties in writing; and (v) the fees of the Mediator shall be paid equally by the Parties. Following receipt by the Parties of the recommendations made by the Mediator, the Parties shall have ten (10) days, or such longer period as may be mutually agreed by the Parties, to accept said recommendation or a mutually acceptable alternative. Submission of the dispute to the Mediator shall be deemed by the Parties to toll the applicable statute of limitations until the mediation process is concluded. ARTICLE X ASSOCIATION MATTERS 10.1 The Owner shall form the Association upon completion of the first building to be constructed within the Development and prior to any occupancy thereof; provided, however, that in the event that the Association has not been formed as required, the Owner shall be liable for all obligations of the Association hereunder until such time as the Association is formed. 10.2 In addition to the rights and obligations of the Association, as specifically stated in this Agreement, at such a time as the Association is formed, except for any right of Owner to a refund of any deposit or other monetary security held by Town hereunder, the Association shall be deemed to be the Owner with respect to the provisions, rights, and obligations of this Agreement. The provisions of any other Section of this Agreement necessary to give effect to the Association’s rights and obligations under the foregoing Articles and Sections shall also be deemed to control. The Association shall indemnify and hold harmless the Town for Owner Maintained Public Improvements. The Association Governing Documents will contain a provision stating that the Association shall be subject to this Agreement as provided herein, and recite the Association’s obligations in this Agreement, including the obligation to indemnify the Town, as described herein. In addition, the Association Governing Documents shall state that the Town is a limited third-party beneficiary solely for the purpose of enforcing the performance of the Association’s agreements under Section 4.1 and Article VI of this Agreement. 10.3 The Association Governing Documents will contain an acknowledgement and disclosure to each owner of a time-share in the Development (“Time-share Owner”) that, in the event the Time-share Owner shall rent its time-share period, the Time-share Owner or its rental management company must obtain a Town business license and the Public Accommodations Tax shall apply to such rental as described in the Code. 10.4 Any failure of the Association Governing Documents to contain provisions required by this Agreement shall be a default by the Owner and the Association under this Agreement, and the Town shall be entitled as a remedy therefor to obtain an order for reformation of the Association Governing Documents so that they are in compliance with this Agreement. ARTICLE XI MISCELLANEOUS 11.1 Applicable Law. This Agreement shall be construed and enforced in accordance with the laws of the State of Colorado. Attachment A 11.2 No Joint Venture or Partnership. No form of joint venture or partnership exists between the Town and the Owner, and nothing contained in this Agreement shall be construed as making the Town and the Owner joint venturers or partners. 11.3 Applicability of Avon Municipal Code. All matters not covered by this Agreement are controlled by the Code to the extent applicable. This Agreement does not prevent the Town from imposing additional requirements not inconsistent with this Agreement as conditions for approval of a subdivision or the granting of a building permit. 11.4 Waiver. No waiver of one or more of the terms of this Agreement shall be effective unless in writing. No waiver of any provision of this Agreement in any instance shall constitute a waiver of such provision in other instances. 11.5 Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this Agreement shall continue in full force and effect so long at the intent of this Agreement is not frustrated. 11.6 Notices. Any notice or communication required or permitted under the terms of this Agreement shall be in writing, may be given by the Parties hereto or such Party’s respective legal counsel, and shall be deemed given and received (i) when hand delivered to the intended recipient(s), by whatever means; (ii) three (3) business days after the same is deposited in the United States Mail, with adequate postage prepaid, and sent by registered or certified mail, with return receipt requested; (iii) one (1) business day after the same is deposited with an overnight courier service of national reputation having a delivery area encompassing the address of the intended recipient, with the delivery charges prepaid; or (iv) when received via electronic mail to intended recipient’s electronic mail address, provided below. Any notice shall be delivered, mailed, or sent, as the case may be, to the appropriate address set forth below: If to Town: Town of Avon Attention: Town Manager P.O. Box 975 Avon, Colorado 81620 Telephone: 970-748-4005 Email: eheil@avon.org And: Town of Avon Attention: Paul Wisor 0070 Benchmark Road, Unit 104 PO Box 5450 Email: pwisor@garfieldhecht.com If to Owner: BGV Avon LLC Attention: Graham Frank 100 S. Main Street, P.O. Box 6879 Breckenridge, Colorado World Resorts, LLC 6460 S Quebec St, Building 5,80424 Attachment A Centennial, CO 80111 Attn: Ranko Mocevic Attachment A Email: gfrank@breckenridgegrandvacations.com And: Les Roos John Palmquist Leslie J. Roos, LLC 303-916-7145 5555 DTC Parkway Suite 340 Greenwood Village GC Legal Strategies 2520 S. St. Paul St. Denver, Colorado 8011180210 Email: les@lesroos.com Email: john@jpalmquistlaw.com Each Party may change its addresses and/or email addresses for notices pursuant to a written notice that is given in accordance with the terms hereof. As used herein, the term “business day” shall mean any day other than a Saturday, a Sunday or a legal holiday for which U.S. Mail service is not provided. Whenever any date or the expiration of any period specified under this Agreement falls on a day other than a business day, then such date or period shall be deemed extended to the next succeeding business day thereafter. 11.7 Amendment of Agreement. For the purpose of any amendment to this Agreement, “Owner” shall mean only the Owner as defined herein and those parties, if any, who have specifically been granted, in writing by the Owner, the power to enter into such amendments. No amendment to this Agreement shall be valid unless signed in writing by Owner and Town. 11.8 Assignment. This Agreement shall be binding upon and shall inure to the benefit of the successors in interest or the legal representatives of the Parties hereto. The Owner shall have the right to assign or transfer all or any portion of its interests, rights or obligations under this Agreement: (a) to the Association; and (b) to an entity or entities formed for the purpose of developing the Property which are managed by an affiliate of the Owner and comprised of affiliates of the Owner. Further, the Owner shall have the right to assign or transfer all or any portion of its interests, rights or obligations under this Agreement to third parties acquiring an interest or estate in the Property, including, but not limited to, purchasers or long-term ground lessees of individual lots, parcels, or of any improvements now or hereafter located within the Property. Notwithstanding the forgoing, any assignee shall fully assume in writing all obligations of the Owner assigned to such assignee and Owner must obtain the Town’s written consent to such assignment, which consent will not be unreasonably withheld or delayed if the Owner has reasonably demonstrated to the Town that the assignee has the financial capability to perform the obligations under this Agreement so assigned. In no event shall any time-share Owner be individually liable for any obligations of the Owner or the Association pursuant to this Agreement. Nothing in this Section shall be deemed to limit or in any way restrict the sale or other conveyance of property within the Property. 11.9 Counterparts. This Agreement shall be executed in multiple counterparts, each of which shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. Any electronically delivered counterparts shall have the same force and effect as an “ink-signed” original. 11.10 No Waiver of Governmental Immunity. Nothing in this Agreement shall be construed Attachment A to waive, limit, or otherwise modify any governmental immunity that may be available by law to Attachment A the Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the Town and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes.. [SIGNATURE PAGE FOLLOWS] Attachment A IN WITNESS WHEREOF, the Owner and the Town have executed this Agreement as of the date first written above. TOWN: ATTEST By:_ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk OWNER: By:_ Its: STATE OF COLORADO ) ) ss. COUNTY OF ) Acknowledged before me this day of , 20 , by as of COLORADO WORLD RESORTSBGV Avon, LLC., a Colorado corporationlimited liability company, on behalf of the corporationlimited liability company. My commission expires: Notary Public As to Article V of the Agreement only: AUTHORITY: ATTEST: Attachment A , Secretary Attachment A EXHIBIT A AMENITY FEESAMENITIES FEE Amenities Fee. Commencing as of a first-time sale and conveyance of a Fractional Interest to a third-party purchaser and continuing in perpetuity with respect to such Fractional Interest, the Owner or property owner's association for any Fractional Interest Ownership subdivision within the Colorado World ResortsFrontgate Avon, condominium project ("Association") is obligated to collect from each Fractional Interest Owner and remit to the Town on a semi-annual basis an Amenities Fee in the initial amount of $39.30 per year per Fractional Interest or the equivalent if conveyed in some Fractional Interest other than a one-week period. The Owner is exempt from the obligation for the Amenities Fee until the first-time sale of a Fractional Interest. The provisions for the obligation for each Fractional Interest Owner to pay shall be a covenant running with the land and reflected accordingly on the Resubdivision Plat and Association covenants. Prior to the assignment of this Agreement to an Association, the Owner shall be obligated to collect and remit any and all Amenities Fees. The amount of the semi-annual payments will be calculated according to the following formula: Number of existing or newly deeded fractional interests per semiannual period (January- June, calculated as of June 1, and July-December calculated as of December 1), multiplied by an amount equivalent to $39.30 per weekly interest (as adjusted by CPI-U, as defined below), divided by 2. The due dates for the semiannual payment are August 20 and February 20 for the previous semiannual calculation period. On January 1, 2020, and on the first day of each year thereafter, the amount of the fee shall be increased, but not decreased, by the percentage increase from the prior year average consumer price index for All Urban Consumers for the Denver-Boulder-Greeley metropolitan area as published semiannually and appearing in the January and July issues of the CPI Detailed. Report published by the Bureau of Labor Statistics (the "CPI-U"). In the event that the CPI-U remains the same as the prior year or decreases from the prior year, the amount of the fee shall not be adjusted for that year. It shall be the duty of the Association to keep and preserve such records as are necessary to determine the amount of fees due hereunder. Such records shall be preserved for a period of three years and shall be open for inspection by representatives of the Town during regular business hours. Prior to the formation of the Association, the Owner shall have the above-referenced obligation to keep and preserve such records. If a remittance to the Town is delinquent, or the remittance is less than the full amount due, the Town shall make a written demand of the amount due and deliver or mail the same to the office of the Association. The amount properly determined to be owing shall bear interest from the due date Attachment A of the remittance at the rate of one and one-half percent per month until paid. Prior to formation of the Association such written demand will be delivered to the Owner. Attachment A 970.748.4413 mpielsticker@avon.org TO: Honorable Mayor Smith Hymes and Council FROM: Matt Pielsticker, Planning Director RE: Work Session - Avon Community Housing Plan Amendments DATE: September 21, 2021 SUMMARY: The Avon Community Housing Plan (“the Plan”) was adopted by Town Council with passage of Ordinance 18-07 on August 28, 2018. Since adoption, several housing related efforts have taken place. It is now time to make amendments to the Plan based on accomplishments, new efforts, and changes in policy direction. The purpose of this work session is to discuss the amendments and gain feedback on any additional changes to be incorporated before a Public Hearing with PZC on October 5, 2021. WORK AND ACCOMPLISHMENTS: At PZC’s recommendation, progress and work accomplishments over the life of the Plan are proposed as a new appendix to the Plan. The following policies and projects have been completed or are in process: • Tax and Fee Waiver Ordinance approved by Town Council for Community Housing projects • Mi Casa Deed Restriction Purchase Program, with 12 units to date. • Wildwood Housing Plan Work Session with Public input • Wildridge Survey / Wildwood & Firehouse with Public input • Inclusionary Housing Regulations and Fee in Lieu Resolution • Completed Reserve Study for Wildwood South Deed Restricted Units. Council approved a Resolution to waive sales tax and fees related to eventual roofing and siding project. • Amendments to Light Industrial Zone District to permit and promote Community Housing AMENDMENTS: The following summary shows changes to the Plan, presented in order of appearance: • Goals and Objectives. o Establish dedicated funding source o Update AMI numbers o Focus partnerships with regional entities to make a meaningful impact • The Need. o Update paragraph that outlines median price for Avon free-market housing products o Show current gap in affordability in relationship to local income levels • Strengths & Assets. o Mi Casa showcased o Recap of policy work o Update Housing Fund numbers • Tools & Strategies o Establishment of sustainable funding source with proposal for Use Tax on Construction Materials o Acknowledge the adopted inclusionary housing policies o Acknowledge tax and fee waiver ordinance. • Housing Development and Retention o Regional collaboration is bolstered and now front and center. o Mi Casa implementation and updates as necessary Page 2 of 2 Staff Review Recommendation o Swift Gulch now the primary opportunity on public land o Mobile home ownership policy • Funding o Updated Housing Fund Numbers o Prompt for use tax policy and plan • Appendix A. Remove work plan. • Appendix B: Update as necessary • Appendix C: Update with most current numbers • New Appendix: Housing policy and completed work Tracking List PROCESS: The Avon Community Housing Plan is defined as a subpart to the Avon Comprehensive Plan. Procedures for amendments to the Comprehensive Plan are as follows: The PZC shall review applications for amendments to the Avon Comprehensive Plan and shall provide a recommendation to the Town Council after conducting a public hearing. The Town Council shall render the final decision on an application to amend the Avon Comprehensive Plan after conducting a public hearing. Amendments to the Avon Comprehensive Plan shall be approved by ordinance of the Town Council. RECOMMENDATION: The attached redline document has been vetted by staff and PZC. I welcome Town Council critique, comments, and questions during your work session Thank you, Matt ATTACHMENT A: Draft Redline Strikethrough PZC Public Hearing & Recommendation to Council Town Council First and Second Reading - Ordinance Page 1 of 12 Avon Community Housing Plan Prepared by Willa Williford for the Town of Avon “Avon’s vision is to provide a high quality of life, today and in the future, for a diverse population; and to promote their ability to live, work, visit, and recreate in the community.” - TOWN OF AVON COMPREHENSIVE PLAN, MAY 2017 Introduction The Town of Avon seeks to build upon a its long history as a high amenity year-round resort community through the adoption of the Avon Community Housing Plan and implementation of the strategies within, strengthening its vibrant and inclusive community culture. The current Comprehensive Plan sets the a vision for diverse and exciting opportunities for residents, businesses, and visitors. The current housing market, which offers very few affordable opportunities for year-round residents to put down roots in Avon, poses a challenge to this vision. The potential community benefits of increasing workforce housingCommunity Housing efforts to include: • More housing choices; • Increased economic stability and a more active year-round economy for local residents and businesses; • Greater ability to retain individuals and families throughout life and career phases, strengthening the sense of community, opportunity, and quality of life; • Increase Community Housing supply for job recruitment purposes; • Create Community Housing in closer proximity to job centers with pedestrian connections and availability of transit, in alignment withFurther the goals of the Climate Action Plan goals by reducing single occupant vehicle commuting; and • Greater opportunities for arts and culture to thrive. Goals and Objectives The Comprehensive Plan sets two housing goals (each with numerous supporting policies): • Achieve a diverse range of housing densities, styles, and types, including rental and for sale, to serve all segments of the population. • Coordinate with neighboring communities to provide an attainable housing program that incorporates both rental and ownership opportunities, affordable for local working families. Goals and Objectives of this Housing Plan are as follows: • Support the establishment of a dedicated funding source to sustain the Community Housing Fund; • Focus on increasing deed restricted homeownership opportunities for households making equivalent of 140% or less of the Area Median Income (“AMI”) -– current AMI is $430,00090,000 for a household of three people in 20182021;. • Grow the inventory of homeownership and “missing middle” inventory, in place of additional rental housing stock, to create a more balanced portfolio with a long-term goal of 50% rental, 50% ownership.; Attachment A Avon Community Housing Plan Adopted August 24, 2018 (Last Updated October 26, 2021) Page 2 of 12 • When considering new rental housing, prioritize price point, quality and amenities attractive to “step up” renters and seniors looking to downsize, focusing on the 80-120% AMI level.; • Stabilize or increase the percentage of owner-occupied year-round residents; currently 5556.5% of all dwelling units in Avon are owner-occupied by year-round residents.; • Stabilize or increase the percentage of Eagle County working residents Avon. ; • Seek to add deed restricted units to the inventory in the short termthrough the Mi Casa program and other mechanisms.; • Strengthen regional partnershipsPartner with other communities and entities (i.e. Habitat for Humanity, other municipalitiesVail, Eagle County), and private employers to make projects happen combine buying power and construct new housing units:.. • As sites redevelop, strive for “no net loss” of units in the 80-120% AMI range, and when possible, increase housing serving the local year-round population.; and • Re-evaluate goals and objectives on an annual basis, including the ongoing monitoring of new projects and housing stock in the mid-valley; appendices may be updated by Resolutionby Community Development pending updated information. The challenges with regard to housing need are significant. With this Plan, the Town of Avon is setting goals, objectives, and action steps to respond. The Town’s resources include land, funding, staff time, and policy making. Recognizing that the Town of Avon alone cannot address the housing need, these resources will be used to leverage opportunities and create partnerships. The Need Since the end of the recession2010, and during the COVID-19 pandemic, jobs and population have been growing increasing much more rapidly than housing inventory, creating many challenges: • Frustration for locals seeking housing; • Employers facing unfilled positions, turnover, higher training costs, and lost productivity; • Precipitous increases in home prices, well beyond the means of most local residents; • Extremely low vacancy rates, resulting in limited choices and rising costs for renters; and • Negative impacts on individuals and families, who are spending a disproportionate amount of their income on housing, commuting long distances, and living in locations or situations that are not sustainable for the long term; and. • FrustrationDifficulty for locals growing families seeking permanent housing or upsizing due to escalating costs.; It is important to review the availability of properties that are attainable for local workers (as opposed to “resort oriented” properties such as Riverfront, Bel Lago, and Basecamp) and evaluate the percentage of homes purchased for primary residency in these neighborhoods. The Median median price for all dwelling units sold in Avon in 2017 2020 was $438,000575,000. Condominiums accounted for 7172% of these sales, with a median price of $358,500575,000. The median price for single family dwellings, duplexes and townhomes was $850,000987,500. The price affordable to a median incomeA family of three with a median income makesis less than half than that, at about approximately $316,00090,000 per year. This income cannot support mortgage payments for a median price single family dwelling in Avon.Only four dwelling units were on the market for $316,000 or lower in early 2018. Attachment A Avon Community Housing Plan Adopted August 24, 2018 (Last Updated October 26, 2021) Page 3 of 12 The rental market is similarly challenging for local residents: . vacancy Vacancy rates have been approaching zero, and since 2007, average rental rates have risen 48% across the Eagle River Valley. Recent rental projects have experienced an accelerated cost as compared to increases in the consumer index. For example, the Piedmont Apartments, which went to market in 2020 with rental rates between $1,320 for a studio to over $3,000 per month for a 3-bedroom unit. To meet the needs of local employees in the Eagle River Valley, it is estimated thatover 4,0005,900 additional dwelling units will be required by 20202025.1 In “mid-valley”, which includes Eagle-Vail, Avon, and Edwards, 1,500 dwelling units will be needed to accommodate a growing population. Subsidies It is anticipated that subsidies or public/private partnerships are anticipated towill be required for the majority of these dwelling units to be financially feasible and affordable to local employeesto make it financially feasible to construct a majority of these dwelling units.. Avon and the rest of the “mid-valley” are highly desired locations for local householdsresidents. In a recent 2018 survey of Eagle River Valley households, 40% of renters and 39% of owners selected “mid-valley” as their first choice for where they want to live.2 The challenges with regard to housing need are significant. With this Plan, the Town of Avon is setting goals, objectives, and action steps to respond. The Town’s resources include land, funding, staff time, and policy making. Recognizing that the Town of Avon alone cannot address the housing need, these resources will be used to leverage opportunities and create partnerships. Strengths and Assets Avon can build on upon existing assets and previous housing initiatives, including: • Adoption of the Mi Casa Avon deed restriction purchase program, with 14 deed restricted units in the first year. • An inventory of 670 price-controlled housing units, 63 of which are deed restricted for sale units that were a result of successful PUD negotiations; • An Affordable Community Housing Fund balance of $675,0001,150,000. As the Community Housing Fund increases, the additional fund should be leveraged to meet the goals of the plan; • A partnership with The Valley Home Store for monitoring and resales and compliance of deed restrictions on for-sale units; • Employee Community housing Housing mitigation requirements for some new commercialnew multi-family and commercial development; • History of regional collaboration with public sector, non-profit and private sector on housing issues; • Significant opportunities for development and redevelopment, with water rights, transit access, and existing available density on vacant and underutilized public and private parcels; • Codified Community Housing tax and fee waiver incentives; • Allowing increased deed-restricted residential density on Ccommercially zoned land that may also be appropriate for residential development; and • Adopted Comprehensive Plan, which sets housing as top policy priority. 1 Eagle River Valley Housing Needs and Solutions 2018, Rees and Williford 2 Ibid. Attachment A Avon Community Housing Plan Adopted August 24, 2018 (Last Updated October 26, 2021) Page 4 of 12 Tools and Strategies In order to achieve these goals and objectives, the following tools and strategies should be pursued. Tools and strategies are organized into three categories: Housing Policy, Community Housing Development and Retention, and Funding, and Housing Policy. A timeline for implementation is included in Appendix A. Appendix C includes an inventory of all policy and related Community Housing strategies implemented since this Plan was originally adopted. Housing Policy The Town of Avon seeks to use both incentives and regulations to create a policy environment that is favorable for local housing. The Town has a strong track record in including employee housingCommunity Housing in PUD approvals. The Town will continue to encourage, and, in some instances, require local housing in new planning approvals. Initiatives to update and strengthen housing policies will include the: regular rReview of existing code provisions for opportunities to increase the year-round occupancy of the existing housing stock, including consideration of short term rental, accessory dwelling units, and lock-off incentives and regulations. . Additionally, the Mi Casa program must be reviewed routinely to determine its efficacyeffectiveness and whether changes to the parameters of the program are necessary given the rapidly changing market conditions. • Update mitigation/linkage policies to be more proactive in addressing housing needs. Current policies are limited to very narrowly defined locations and development requests, and the current mitigation rate is low compared with peer communities. • Consider implementing an inclusionary housing policy. Inclusionary housing was considered in the 2010 code update, but was not adopted at that time. Inclusionary housing is a tool to create housing affordable to locals. It is recommended to look at inclusionary housing and mitigation/linkage at the same time, to better understand how the two tools complement each other, support policy goals, and maintain a level playing field for commercial and residential development. • Conduct a comprehensive review of fees associated with new construction and formalize a fee waiver/reimbursement process for new housing that meets the goals of the plan. Community Housing Development and Retention Cultivating additional public/private partnerships for housing are additional strategies that will be ongoing. Collaborative efforts with Eagle County, other municipalities, and local employers are are imperative when fostering new opportunities for housing development and retention. Given the lack of available land and escalating construction prices, bold measures must be taken with these partners to make a measurable impact on housing stock. Collaborative partnerships must include land acquisition and producing shovel ready plans in the short term. Leveraging partnerships with state and federal housing assistance money and grants will be imperative. A top priority is pursuing housing development on Town owned land. Two parcels, identified in the Town of Avon Properties Plan, are appropriate to move forward with housing development in the next three years. These sites are Wildwood andDevelopment of housing on the Swift Gulch property is the best opportunity to build new housing product on Town owned land. The Town of Attachment A Avon Community Housing Plan Adopted August 24, 2018 (Last Updated October 26, 2021) Page 5 of 12 Avon Properties Plan identified development of Swift Gulch as a priority and it continues to be viewed as a prime property for new housing development. This Plan is recommending that public outreach and feasibility analysis for Wildwood move forward this year. Preliminary site and design analysis for Swift Gulch can begin when there is a clear path forward for finance, entitlements, and construction for Wildwood. Both sites are anticipated to be developedtakes place in 2021 and will include a detailed financial analysis and exploration of through public/private partnerships. Two strategies have been identified toTo preserve market rate attainable housing that is currently at risk of being lost to locals through rapid price increases and/or redevelopment two strategies are identified. The firstOne strategy is to “buy-down” attainable market rate units and preserve their affordability with a permanent deed restriction. Nearby precedents for this approach include Vail InDEED and Eagle Valley Ranch. This is a homeownership strategy. Mi Casa will continue to grow and evolve as the primary source of new deed restricted Community Housing stock preserved for local residents. The secondAnother strategy is to explore mechanisms such as financial assistance for residents who currently rent, and transition to ownership of mobile home preservation, acquisition, and right of first refusal units to preserve properties that currently house locals. A right of first refusal creates the opportunity for the Town to purchase and preserve these assets, if the owner decides to sell and the Town decides the property is a priority and is able to secure finance timely. This is a strategy that would enable current mobile home and multi-family housing strategyresidents the ability to purchase and gain equity in the structure they live in while maintaining residency in Avon. This program development is anticipated to begin in 20192022. Investing in maintenance of current inventory of deed restricted housing is an important component of housing development and retention. Much of the affordable rental housing inventory has recently been renovated, however, the homeownership inventory is in need ofneeds capital planning and reinvestment. The Town of Avon has recently historically contracted with The Valley Home Store to assist with compliance monitoring and re-sale of deed restricted properties. The next phase of this effort will be to conduct a capital needs assessment of the home ownership assets and make a plan for funding and implementing capital improvements. This effort is anticipated to begin in 20202022. Cultivating additional public/private partnerships for housing are additional strategies that will be ongoing. Collaborative efforts with Eagle County, other municipalities, and local employers are imperative when fostering new opportunities for housing development and retention. Funding Local funding is a key ingredient to building and maintaining housing units. Investing (or “leveraging”) local funds is essential to attracting the outside funding sources such as grants, loans, tax credits and private investments that, when combined, make housing development financially feasible. Currently, the Avon Housing Fund has a balance of about $675,000. It is anticipated that those the Avon Community Housing funds Fund will be invested in the efforts outlined in this Plan, and that additional funds will be needed moving forward. 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 Attachment A Avon Community Housing Plan Adopted August 24, 2018 (Last Updated October 26, 2021) Page 6 of 12 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 toIn order to build upon the strength of an increased Avon Community Housing Fund, the Town must then seek opportunities for new funding sources, which could include approaches such as increased linkage fees, use tax on construction materials, regional collaboration, and/or support for a local ballot initiative. Potential revenue frorm a use tax, for the sole purpose of supplying the Community Housing Fund, were modeled and presented to Planning and Zoning Commission and the Finance Committee for consideration in 2021. Public/private partnerships are also a funding strategy, generating potential access to grants, below market loans, and resources such as the Low Income Housing Tax Credit. The Town of Avon understands the regional nature of housing, transportation and employment in the Eagle River Valley. In pursuit of local year-round housing, the Town will continue to participate in regional studies, seek opportunities to participate in regionally significant housing developments beyond Town boundaries, and participate in employer forums, and be an advocate for other regional initiatives including the establishment of a regional transit authority. Investment CriteriaConsiderations As the Town of Avon seeks to deploy monies from the Avon Housing Fund, the Town will evaluate opportunities based on the following criteriafactors: • Does the pThe program, policy, or project meet the goals and objectives of the Comprehensive Plan and this Community Housing Plan?. • Does the iThe Investment fills a quantifiable gap that would otherwise keep the proposed program or project from moving forward? • Does tThe program or project encourages resource conservation, energy efficiency and sustainable development? . Does t • The location offers access to multi-model transportation options, job centers, and other services?. • Is there pParticipation from other regional partners, public and/or private? have been contemplated or included in the effort. Attachment A Avon Community Housing Plan Adopted August 24, 2018 (Last Updated October 26, 2021) Page 7 of 12 APPENDIX A – Work Plan Attachment A Avon Community Housing Plan Adopted August 24, 2018 (Last Updated October 26, 2021) Page 8 of 12 Attachment A Avon Community Housing Plan Adopted August 24, 2018 (Last Updated October 26, 2021) Page 9 of 12 APPENDIX B A – Definitions and Best Practices Topic Definition Best Practices Inclusionary Housing A percentage of residential units in new subdivisions/PUDs are workforce housing. Market homes support workforce units. Only effective if new subdivisions/PUDs are developed/ redeveloped. Carbondale, Eagle, Eagle County, San Miguel County Linkage/Mitigation Requiring new residential and/or commercial development to contribute to workforce housing relative to demand generated by the new construction. For residential, mitigation rate often increases with house size, and deed restricted units are typically exempt. Fees in lieu provides revenue stream that fluctuates with building activity. Documented relationship between fee and impact required. Telluride, Aspen, Mt. Crested Butte Fee Waivers Water/sewer tap fees, building permit or other fees waived in part or whole to reduce cost to build affordable housing. General funds or other source need to cover cost of fees waived. Breckenridge, Crested Butte Dedicated Funding Source Funding is a core component of building housing and running successful housing programs. Few programs begin with funding; rather finding funding is an incremental process that goes hand in hand with creating goals and objectives, developing policies, securing appropriate land for housing, and moving forward with public/private partnerships. Dedicated funding sources take many forms including grants, fee in lieu payments, taxes, voluntary assessments, proceeds from rents or sales. Summit County, Steamboat Springs, Crested Butte, Aspen, Telluride Public/Private Partnerships Partnering with developers to build attainable units, typically on publicly-owned sites, or using other public resources such as property tax exemption. RFQ/RFP process effective for selecting development partners. Ownership of land can be retained with long-term land leases. Eagle County, Vail, Breckenridge, Boulder Land Banking Acquiring land for eventual housing development when specific project is not known. Summit County, Vail, Boulder County, Breckenridge, Telluride Buy Down of Market Homes Usually involves buying down units with public funds. Deed restrictions imposed for permanent affordability. Inability to obtain condo mortgages can result in units being rented. Public sector purchases can drive up prices for low-end market units. Breckenridge, Telluride, Whitefish MT No Net Loss Policy Requiring replacement of housing occupied by the workforce when redevelopment occurs. Similarly-priced units should be replaced on site or another site, or a fee- in-lieu of replacement could be allowed. Boulder, Basalt Attachment A Avon Community Housing Plan Adopted August 24, 2018 (Last Updated October 26, 2021) Page 10 of 12 APPENDIX C B - Area Median Income for Eagle County 20182021 Area Median Income for Eagle County, 20182021 Household Size 1 2 3 4 5 6 AMI Classifications Extremely Low (30% AMI) $18,2702 1,000 $20,8802 4,000 $23,4902 7,000 $26,0703 0,000 $28,1703 2,400 $30,2703 4,800 Very Low (50% AMI) $30,4503 5,000 $34,8004 0,000 $39,1504 5,000 $43,4505 0,000 $46,9505 4,000 $50,4505 8,000 60% AMI (LIHTC max) $36,5404 2,000 $41,7604 8,000 $46,9805 0,000 $52,1405 4,000 $56,3406 4,800 $60,5406 9,600 Low (80% AMI) $48,7205 6,000 $55,6806 4,000 $62,6407 2,000 $69,5208 0,000 $75,1208 6,400 $80,7209 2,800 Median (100% AMI) $60,9007 0,000 $69,6008 0,000 $78,3009 0,000 $86,9001 00,000 $93,9001 08,000 $100,900 116,000 Moderate/Middle (140% AMI) $85,2609 8,000 $97,4401 12,000 $109,620 126,000 $121,660 140,000 $131,460 151,200 $141,260 162,400 Upper (200% AMI) $121,800 140,000 $139,200 160,000 $156,600 180,000 $173,800 200,000 $187,800 216,000 $201,800 232,000 Source: CHFA Affordable Home Price Calculation by AMI, 20182021 AMI % 30% 60% 100% 140% 200% Household Income – 3 persons $23,490 26,541 $46,980 53,082 $78,300 88,470 $109,620 123,858 $156,600 176,940 Affordable Purchase price Affordable monthly payment (30%) $587664 $1,1751, 327 $1,9582, 212 $2,7413,0 96 $3,9154,4 24 Principal & interest (80% of pmt) $470531 $9401,06 1 $1,5661, 769 $2,1922,4 77 $3,1323,5 39 HOA, taxes, insurance (20% of pmt) $117133 $235266 $392442 $548619 $783885 Mortgage Interest rate 5.00% 5.00% 5.00% 5.00% 5.00% Max mortgage $47,5159 9,000 $175,030 198,000 $291,717 330,000 $408,4044 61,000 $583,4346 59,000 Max Affordable Price -5% down $92,0001 02,465 $184,000 204,930 $307,000 341,550 $430,0004 77,135 $614,0006 82,065 Affordable Rent $587675 $1,1751, 350 $1,9582, 250 $2,7413,1 50 $3,9154,5 00 Attachment A Avon Community Housing Plan Adopted August 24, 2018 (Last Updated October 26, 2021) Page 11 of 12 Affordable purchase prices were calculated assuming that a household would have 5% for a down payment, and would qualify for a loan at 30% of their monthly income. HOA, property taxes and insurance of 20% were included in loan amount. The maximum mortgage assumes an interest rate of 5%, which is about half point higher than prevailing rates for 30-year fixed rate mortgages. Interest rates are rising, however, and will have a profound impact on housing affordability. A one-point increase in the rate, as occurred in 2013, would drop the affordable purchase price for a median income household by $30,000 to $35,000. Attachment A Avon Community Housing Plan Adopted August 24, 2018 (Last Updated October 26, 2021) Page 12 of 12 APPENDIX C – Implemented Community Housing Strategies Since this Plan was originally adopted on August 24, 2018, the following policies and resultant projects have been established: • Ordinance 2019-01, Community Housing Incentives for Sales Tax and Fee Waivers • Ordinance 2019-03, Employee Housing regulations to include mitigation for new multi- family and commercial developments. • Ordinance 2019-06, Industrial Commercial Zone District Amendments to permit Community Housing as a Use by Right. • 2 Deed Restricted for sale units constructed at 1 Waterfront Way. • Council Resolution 2020-25, Approving Fee Waivers and Deed Restrictions for 9 Rental Units at 77 Metcalf. • 1 Deed Restricted for sale unit at 1 Riverfront (proposed, yet to be constructed). • 12 MiCasa Units with recorded Deed Restrictions. • 2 3-bedroom Deed Restricted Units at 38460 Highway 6 (proposed, yet to be constructed). • Council Resolution 2021-08, Approving Fee Waivers for Capital Improvement Project at 1011 West Wildwood Road. • Council Resolution 2021-20, Approving Short-Term Rental Tax Ballot Question for Community Housing funding. Attachment A 970-748-4045 jhildreth@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Justin Hildreth, Town Engineer RE: Mikaela Way On-Street Parking DATE: September 22, 2021 SUMMARY: Town Council requested Staff investigate the feasibility of adding on-street parking to Mikaela Way. PARKING CONFIGURATION ANALYSIS: Mikaela Way (Figure 1) runs from Lake Street to Benchmark Road near the Recreation Center, Town Hall and Library. It is a 900-FT long, 2-way road, and is 23 to 24- FT asphalt width and 1.5-FT concrete gutter on each side. The south section, near the library, has diagonal parking on both sides of the road. The 200-FT segment north of the Town Hall and Recreation Center driveways could potentially accommodate additional on-street parking by converting this road segment to one-way traffic. The library section already has on-street parking and must have two-way traffic to accommodate the existing parking layout. The middle section has two curves, four driveways and the Main Street Pedestrian Mall cross which leaves no viable area for adding on-street parking. Staff reviewed parallel parking and diagonal parking options. Changing this road segment to a one-way street is expected to increase traffic through the Recreation Center parking area. This is significant conflict and negative impact of converting this road segment to one-way. One-way northbound would increase southbound access traffic in a more circuitous path through the Recreation Center Parking area and is considered less desirable than a one-way southbound street. Parking space dimensions are specified in Table 7.28-1 of the Avon Municipal Code. Up to 14 sub- standard diagonal parking spaces can be generated along Mikaela Way. 45-degree diagonal parking has the narrowest width which requires 17’ depth from the curb plus 12’ for a single drive lane equals 29’ which is 3’ wider than the available width for this road segment. This is the same angle of parking space used in the Recreation Center parking lot. Diagonal parking in this area would result in a sub-standard parking configuration where the stall length is short and the travel lane is less than 11’, which would expect to result in increased congestion and likely complications for any truck delivery use of this road segment. Parallel parking requires 19-FT width including the drive aisle and fits within the existing 27 to 28-FT road section if Mikaela Way is transformed to a one-way traffic. 7 parking spaces will fit in the north section of Mikaela Way. The drive lane will be 16-FT wide, not including the gutter, allowing for northbound traffic and space for parked vehicles with doors open. People tend to pull up to the curb and align their car with the curb when parallel parking. There is a 3-FT tall retaining wall below the west side of Mikaela Way and drivers will have a difficult time getting out of the vehicle due to the existing curb near the boulder retaining wall. Transforming Mikaela Way to 1-way traffic with on-street parking will create several operational challenges including: 1. North bound traffic will be directed to Lake Street, but traffic will likely cut through the Recreation Center parking lot. This lot has tight circulation pattern and additional traffic will increase congestion in the parking lot causing potential safety concerns. 2. The Sheraton Mountain Vista employee housing and loading dock access is from Mikaela Way. To accommodate deliveries, Mikaela Way will have to remain 2-way in the vicinity of the driveway. Page 2 of 3 3. Having only a short segment of Mikaela Way 1-way will be difficult to enforce, and we expect some traffic to travel the wrong direction causing safety concerns. 4. One-way traffic will impact access to Lot 3, the vacant lot east of Mikaela Way between Town Hall and the Sheraton Mountain Vista. Several recent development concepts shown to Staff depict the primary entrance on Mikaela Way because of difficulties with a driveway on West Beaver Creek Blvd. The one- way traffic will make circulation confusing to guests of the future Lot 3 development. 5. During several special events, Lake Street is closed, and vehicle and bus traffic routed to Mikaela Way. We expect more Lake Street closures in the future to accommodate the growth in special events. When Lake Street is closed, all northbound traffic will have to be detoured to Avon Road complicating traffic circulation during events. RECOMMENDATION: I recommend no changes to the current circulation pattern on Mikaela Way because traffic circulation difficulties outweigh the benefit of the 7 additional spaces. Adding diagonal parking to Mikaela Way is not recommended because the spaces will not meet the standards in the Avon Municipal Code. MANAGER’S RECOMMENDATION: I also recommend no changes to the current circulation pattern. The gain in parking will be minimal and outweighed by the negative impact to traffic circulation and congestion. Thank you, Justin ATTACHMENTS: 1 - Mikaela Way Vicinity Map 2 - Diagonal Parking 3 - Parallel Parking Page 3 of 3 MIKAELA WAY FIGURE 2 - DIAGONAL PARKING FIGURE 3 - PARALLEL PARKING 970.748.4004 eric@avon.org TO: Honorable Mayor Smith Hymes and Council FROM: Eric Heil, Town Manager RE: Resolution 21-22 - Engagement of Karp New Hanlon DATE: September 24, 2021 SUMMARY: Attached for Council’s review is Resolution No. 21-22 Appointing Karl Hanlon of the law firm of Karp New Hanlon as the interim Town Attorney and approving the retainer agreement for legal services with Karp New Hanlon. Karl Hanlon is currently the City Attorney for the City of Glenwood Springs and the Town Attorney for the Town of Silverthorne. Karp Neu Hanlon is an established law firm based in Glenwood Springs which represents many west slope municipalities. The Avon Town Council previously conducted a request for proposal process for legal services in 2019, interviewed Karp Neu Hanlon in 2019, and found Karp Neu Hanlon to be a close runner-up to Paul Wisor for the Town Attorney position. I have reviewed the retainer agreement, requested some revisions which were incorporate, and believe the retainer agreement is appropriate for approval by Council. Per the Avon Home Rule Charter, Council is required to approve any legal representation of the Town of Avon. RECOMMENDATION: I recommend appointing Karl Hanlon as the Interim Town Attorney and retaining Karp Neu Hanlon and further recommend that Town Council review legal services in the first quarter of 2022 to determine the most appropriate legal representation for the Town of Avon. PROPOSED MOTION: “I move to approve Resolution No. 21-22 Appointing Karl Hanlon as the Interim Town Attorney for the Town of Avon and approving the retainer agreement with Karp Neu Hanlon.” Thank you, Eric ATTACHMENTS: Karp Neu Hanlon Retainer Agreement Res 21-22 Appointing Karl Hanlon Interim Town Attorney September 28, 2021 Page 1 of 1 RESOLUTION 21-22 APPOINTING KARL HANLON AS THE INTERIM TOWN ATTORNEY AND APPROVING THE RETAINER AGREEMENT FOR LEGAL SERVICES WITH KARP NEU HANLON WHEREAS, the Home Rule Charter of the Town of Avon states in Chapter X, Section 10.1, that the Council shall appoint a Town Attorney to serve at the pleasure of Council, who shall be admitted to practice in Colorado and shall have been in active practice at least five years prior to appointment; and WHEREAS, the Town of Avon previously solicited proposals for legal services, received a proposal from Karp Neu Hanlon and interviewed Karp Neu Hanlon; and WHEREAS, the Town Council of the Town of Avon desires to appoint Karl Hanlon to serve as the Town Attorney and desires to retain the law firm of Karp Neu Hanlon; and WHEREAS, the Town Council desires to promote an efficient transition in the office of the Town Attorney. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON: 1. The Town Council hereby appoints Karl Hanlon to serve as the Interim Town Attorney effective September 29, 2021. 2. The Town Council hereby approves the Retainer Agreement for legal services with Karp Neu Hanlon attached hereto as Exhibit A and authorizes the Mayor and Town Clerk to execute the Agreement for Legal Services. ADOPTED on September 28, 2021. AVON TOWN COUNCIL By:_________________________________ Attest:_____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk Exhibit A: Retainer Agreement for Legal Services with Karp Neu Hanlon www.mountainlawfirm.com Karl J. Hanlon Partner/Shareholder kjh@mountainlawfirm.com Office: (970) 945-2261 Direct: (970) 928-2125 Fax: (970) 945-7336 *Direct Mail to Glenwood Springs Glenwood Springs – Main Office 201 14th Street, Suite 200 P. O. Drawer 2030 Glenwood Springs, CO 81602 Aspen 323 W. Main Street Suite 301 Aspen, CO 81611 Montrose 1544 Oxbow Drive Suite 224 Montrose, CO 81402 September 24, 2021 Sent via e-mail Town of Avon Mayor and Council c/o Eric Heil, Town Manager 100 Mikaela Way, P.O. Box 975 Avon, CO 81620 eheil@avon.org Re: Engagement Agreement Dear Mayor and Council: We are very pleased to be selected to represent the Town of Avon (the “Town”) for general legal services. In the event you request additional representation, and we agree to provide such services, the terms and conditions of this engagement agreement shall apply to those additional services at our then current hourly rates. In accordance with our regular practice and as required by the Rules of Professional Conduct, before or shortly after commencing representation of a new client, we want to make certain that you know how we determine our fees and how we intend to handle your matter in our office. Services to be Provided. Karl Hanlon shall be the attorney with primary responsibility for handling the Town’s matters. However, other attorneys, law clerks, paralegals, and secretaries may work on the matter from time to time to provide you with the services required in a cost- effective manner. All work by non-lawyer personnel will be supervised by an attorney. We will be rendering legal services only to the Town and to no other person or entity in connection with our work. As long as our advice to the Town is kept confidential, the attorney- client privilege and confidential relationship between us will not be inadvertently waived. Fees for Services Provided. The amount of our fees for our services will be based on a number of factors but primarily the amount of time spent on the matter. Billing rates are assigned to each attorney and paralegal based upon skill and experience. A copy of the firm’s current Municipal Hourly Rate and Expense Chart is enclosed (Enclosure A). For clients that require reimbursement of legal fees for land use or other matters we typically set slightly higher reimbursement rates (Enclosure B). You have asked and we have agreed to bill travel time at 50% of our hourly rate. EXHIBIT A: Retainer Agreement Engagement Letter Page 2 These rates are changed occasionally to reflect changes in experience of our personnel and inflation however rates will not be changed with less than 90 days’ notice to you. When preparing any billing statement, we consider all the factors set forth in Rule 1.5 of the Colorado Rules of Professional Conduct adopted by the Colorado Supreme Court, a copy of which is also attached (Enclosure C). While we may, from time to time, furnish you with estimates of the amount of fees which we anticipate will be charged for services to be performed under this agreement, such estimates are by their nature inexact and cannot be binding on either of us. Therefore, absent a specific written agreement, any estimates made by us are for planning purposes only and are in all respects subordinate to our regular billing procedures. Client Relationship. The firm will be representing the Town as its client. As with any entity representation, from time to time the client representative may be either the Council or a member of staff. For most matters, the primary point of contact will be the Town Manager unless directed otherwise by the Council. We also anticipate providing regular monthly updates to the Council on our activities on the Town’s behalf. Additionally, we are always available to answer questions by Council members either in person, on the telephone, or via email. Disbursements. In addition to the fees described above, we shall be reimbursed for all out-of-pocket disbursements incurred in connection with any legal services performed. Included in this category are filing and recording fees, court and deposition reporter fees, travel expenses, Westlaw fees and similar charges. These standard costs are identified on the enclosed Hourly Rate and Expense Chart. Billing and Payment. Our office bills clients on or about the last day of the month. We send monthly statements to you which will include charges for legal fees for the services performed, as well as for disbursements incurred during the statement period. Payment is due upon receipt of our invoice, but no later than thirty (30) days after a statement is sent understanding that the Council needs to approve payments at regular meetings. Payments not received within sixty (60) days will accrue interest at the rate of 1.5% per month (18% A.P.R.). Work Product. In accordance with the Colorado Rules of Professional Responsibility, Karp Neu Hanlon, P.C. will retain our work product produced on your behalf for a reasonable period of time after the completion of representation. Karp Neu Hanlon, P.C. reserves the right, in our sole discretion, to store our work product either in a paper or electronic format. In the event that our work product is stored in an electronic format, paper documents may be destroyed. Termination of Services. You have the right at any time to terminate our services upon written notice, and we shall immediately, after receiving such notice, cease to render additional services. If you elect to exercise such right, we shall cooperate with you in facilitating the orderly transfer of your files and records to you or your new attorneys, upon payment in full of any balance owning to us. Such termination will not, however, relieve you of the obligation to pay the fees due for services rendered and disbursements incurred prior to such termination and as a result of a EXHIBIT A: Retainer Agreement Engagement Letter Page 3 transition. If this engagement agreement is terminated by the client or the firm, the firm shall seek an order from the court allowing withdrawal from any pending cases. In the event the agreement is terminated by the firm for reasons other than cause the firm shall provide a minimum of 60 days notice. I believe that the foregoing covers the essential elements of our engagement. If you wish to discuss these or any other aspects of our representation, I would be pleased to do so. If you have questions about a particular fee statement or any other aspects of our services for you in the future, please bring these to my attention since it is our belief that communication can solve most problems. We look forward to a successful and satisfying relationship with you! Because this letter sets forth the basis on which we will represent you, please execute the enclosed copy of this letter and return it to me. Very truly yours, KARP NEU HANLON, P.C. Karl J. Hanlon AGREED AND ACCEPTED: TOWN OF AVON ___________________________________ _________________________________ Sarah Smith Hymes, Mayor Date KJH:app Enclosures: Municipal Hourly Rate and Expense Chart Reimbursable Hourly Rate and Expense Chart Rule 1.5, C.R.P.C EXHIBIT A: Retainer Agreement KARP NEU HANLON, P.C. 2021-2022 HOURLY RATE CHART POSITION NAME INITIALS HOURLY RATE Partner James S. Neu JSN $225.00 Partner Karl J. Hanlon KJH $225.00 Partner Michael J. Sawyer MJS $225.00 Partner James F. Fosnaught JFF $225.00 Partner Jeffrey J. Conklin JJC $225.00 Partner Aaron T. Berne ATB $205.00 Partner Shoshana Rosenthal SR $205.00 Associate Matthew L. Trinidad MLT $205.00 Associate Wilton E. Anderson WEA $205.00 Associate Richard Peterson-Cremer RJP $215.00 Associate Joely R. Denkinger JRD $205.00 Associate Danielle T. Skinner DTS $185.00 Paralegals Paralegals $140.00-$125.00 Legal Assistants Legal Assistants $125.00-$115.00 EXPENSES RATE Mileage current IRS rate as it may be amended throughout the year $0.56 per mile (current IRS rate) Photocopies $0.25 per copy Facsimile Transmissions $1.00 per page Color Photocopies $1.25 per copy Computer Research outside of the Firm’s Lexis Nexis Libraries Actual cost of access time accumulated OTHER EXPENSES ARE BILLED AT ACTUAL COSTS The above rates are subject to change annually. All Accounts Due in 30 days. Overdue Accounts will be Assessed 1.5% per month (18% A.P.R.). In the event an action is required to collect payment, client agrees to pay reasonable attorneys' fees and costs of collection. A2 ENCLOSURE A KARP NEU HANLON, P.C. 2021-2022 HOURLY RATE CHART POSITION NAME INITIALS HOURLY RATE Partner James S. Neu JSN $250.00 Partner Karl J. Hanlon KJH $250.00 Partner Michael J. Sawyer MJS $250.00 Partner James F. Fosnaught JFF $250.00 Partner Jeffrey J. Conklin JJC $250.00 Partner Aaron T. Berne ATB $235.00 Partner Shoshana Rosenthal SR $235.00 Associate Matthew L. Trinidad MLT $235.00 Associate Wilton E. Anderson WEA $235.00 Associate Richard Peterson-Cremer RJP $235.00 Associate Joely R. Denkinger JRD $210.00 Associate Danielle T. Skinner DTS $200.00 Paralegals Paralegals $140.00 - $125.00 Legal Assistants Legal Assistants $125.00-$115.00 EXPENSES RATE Mileage current IRS rate as it may be amended throughout the year $0.56 per mile (current IRS rate) Photocopies $0.25 per copy Facsimile Transmissions $1.00 per page Color Photocopies $1.25 per copy Computer Research outside of the Firm’s Lexis Nexis Libraries Actual cost of access time accumulated OTHER EXPENSES ARE BILLED AT ACTUAL COSTS The above rates are subject to change annually. All Accounts Due in 30 days. Overdue Accounts will be Assessed 1.5% per month (18% A.P.R.) In the event an action is required to collect payment, client agrees to pay reasonable attorneys' fees and costs of collection. A3 ENCLOSURE B ENCLOSURE C C.R.P.C. RULE 1.5 FEES A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; (2) The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) The fee customarily charged in the locality for similar legal services; (4) The amount involved and the results obtained; (5) The time limitations imposed by the client or by the circumstances; (6) The nature and length of the professional relationship with the client; (7) The experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) Whether the fee is fixed or contingent. When the lawyer has not regularly represented the client, the basis or rate of the fee and expenses shall be communicated to the client, in writing, before or within a reasonable time after commencing the representation. Except as provided in a written fee agreement, any material changes to the basis or rate of the fee or expenses are subject to the provisions of Rule 1.8(a). A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is otherwise prohibited. A contingent fee agreement shall meet all of the requirements of Chapter 23.3 of the Colorado Rules of Civil Procedure, “Rules Governing Contingent Fees.” Other than in connection with the sale of a law practice pursuant to Rule 1.17, a division of a fee between lawyers who are not in the same firm may be made only if: (9) The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (10) The client agrees to the arrangement, including the basis upon which the division of fees shall be made, and the client’s agreement is confirmed in writing; and (11) The total fee is reasonable. Referral fees are prohibited. Fees are not earned until the lawyer confers a benefit on the client or performs a legal service for the client. Advances of unearned fees are the property of the client and shall be deposited in the lawyer’s trust account pursuant to Rule 1.15(f)(1) until earned. If advances of unearned fees are in the form of property other than funds, then the lawyer shall hold such property separate from the lawyer’s own property pursuant to Rule 1.15(a). Nonrefundable fees and nonrefundable retainers are prohibited. Any agreement that purports to restrict a client’s right to terminate the representation, or that unreasonably restricts a client’s right to obtain a refund of unearned or unreasonable fees, is prohibited. AVON REGULAR MEETING MINUTES TUESDAY SEPTEMBER 14, 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 Council regular meeting to order at 5:00 p.m. A roll call was taken, and Council members present in person were Amy Phillips, Scott Prince, Lindsay Hardy, Tamra Underwood, and RJ Andrade. Councilor Chico Thuon was absent. Also present were Public Works Director Gary Padilla, Interim Recreation Director Michael Labagh, Communications and Marketing Manager Elizabeth Wood, Chief of Police Greg Daly, Town Attorney Paul Wisor, Town Manager Eric Heil, General Government Manager Ineke de Jong, and Town Clerk Brenda Torres. 2. APPROVAL OF AGENDA Video Start Time: 00:00:25 There were no changes made to the agenda. Mayor Pro Tem Phillips moved to approve the agenda as presented. Councilor Underwood seconded the motion and the motion passed unanimously by those present. Councilor Thuon was absent. 3. DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS Video Start Time: 00:00:45 There were no conflicts of interest disclosed. 4. PUBLIC COMMENT Video Start Time: 00:00:55 Mayor Smith Hymes explained to the public that comments in person will be taken first, then those via Zoom. Comments made in-person: Julian Quebedeaux commented. He said his address changes as he and his wife live in a converted bus around the Valley. He asked the Town to embrace the van-life lifestyle. He suggested a three-step plan: 1) curate appropriate spots; only a piece of concrete is needed 2) convert; think outlets and other needs 3) clerical; what information is needed to be collected from van-lifer’s, how to label each spot and what costs are associated with the spot. He asked Council to stir over this idea and consider putting this on a future agenda. Paul Jenick, a recall committee member, commented. He asked Council for a third time why his questions about the recall have not been answered and said right now it is a one-way communication. He mentioned the cost to the Recall Committee is now over $75K, asked Council what the Town’s cost is regarding this issue and said the answers should be public knowledge and that the Citizens of Avon deserve this information now and not post-election. He closed his comment saying: “we started a recall, you started a lawsuit that we had to defend.” Todd Roehr, a recall committee member and Avon business owner, commented. He said the bills for the recall expenses have reached $90K. His comment was about the Short-Term Rental Tax that was on the agenda but he had no time to stay. He said that the way the ballot question was published in the Vail Daily is probably not the way it is intended to be read with some commas misplaced. He gave credit to Councilor Underwood and Mayor Smith Hymes for voting against this ballot question. AVON REGULAR MEETING MINUTES TUESDAY SEPTEMBER 14, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Dave Martinez, an Avon resident, commented. He said that making a complaint against a contractor is not possible, and he has been sent from one person/department/entity to another and said it is a big loophole. He said the Town should be able to find a legal recourse for this problem. Alec, owner of the Tiny Café coffee shop, commented. He asked Council for permission to sell his organic coffee in Avon and mentioned his business is completely sustainable, running on two solar panels. He stated how he has also been working with Walking Mountains to make it even more green and sustainable with the cups and lids. He said he has brought this before Council before and one year later nothing has happened. No virtual comments were made. Town Attorney Paul Wisor clarified that he wrote a memo on the recall expenses, and it is under review by the Mayor Pro Tem and will be added to a future agenda, at her direction. 5. BUSINESS ITEMS 5.1. WORK SESSION: COMMUNITY SURVEY RESULTS (COMMUNICATIONS & MARKETING MANAGER ELIZABETH WOOD) Video Start Time: 00:19:18 Communications & Marking Manager Liz Wood presented the 2021 Community Survey results. She said the survey was brought through the Engage Avon platform, prize incentives were offered, and that there were 903 responses submitted, 72% of those being Avon residents or property owners. Councilor Thuon joined virtually at 5:26 p.m. She expressed that the biggest takeaways include the existence of strong support for Avon efforts to implement the Eagle County Climate Action Plan, support for electric vehicles and e-bikes, a desire for the Town to prioritize investments in community housing, overall satisfaction of our Police and Public Works departments, satisfaction with Nottingham Park during the summer, support for full- service restrooms, as well as a continuation of the current open container rules at Nottingham Park. Mayor Smith Hymes called for public comments and Dave Martinez commented. He said that the community survey did not address the loss of elk and other wildlife populations and wildlife harassment by dogs. No virtual comments were made. Councilor Underwood complimented Communications & Marketing Manager Liz Wood for the great survey. She said the QR Code in the post cards worked really nicely and asked her if there were new registrations to the Engage Avon’s page through the survey, which she responded that yes, even though the first three weeks an email was required to answer the survey and there were not many responses then until this was removed, 45 new registrations were received, and clarified that getting registered was not a requirement to complete the survey. Councilor Underwood said most of the Departments did something to be very proud of. AVON REGULAR MEETING MINUTES TUESDAY SEPTEMBER 14, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Mayor Pro Tem Phillips thanked everyone who participated. She expressed her concern is that there is a 50% Hispanic population in Town but only 0.7% responded in Spanish and recommended taking a different approach to reach this population in the future. She would like to see accessibility to get more input from the Hispanic community at the next survey and she suggested an event where staff bring tablets to help people to fill out and submit the survey. She asked about how often the survey will be available. Town Manager Eric Heil said the Town is contemplating a community-wide survey every 3 years and doing neighborhood surveys in between, as well as a Recreation Center survey at the end of this year. Councilor Hardy commented on the overwhelming support for housing. She said Council should read all the affordable housing comments, as this is a wonderful opportunity to talk about it and what the Town does to accommodate long-term locals. She echoed Mayor Pro Tem Phillips’ comment regarding how to help increase the participation of the Hispanic community. Councilor Prince said the results were enlightening and would like to see the results published on the website. He asked Communications & Marketing Manager Liz Wood if she felt the survey was too long. She confirmed a 20-30 min survey is a good length if the survey is done every 3 years. He suggested the survey follow a different path for residents and non-residents, adding the question “why do you come to Avon?” for non-residents. Councilor Andrade said excellent job to Communications & Marketing Manager Liz Wood. He thinks printed copies distributed to local businesses would help with participation. Mayor Smith Hymes would like to see some results split only by residents or property owners. She would like to see the results 1-5 instead of leaving out the neutral answer (3). She would like to see if the survey reflects the Town’s population. For instance, 35% were Wildridge residents, does that reflect the actual percentage in our Avon community. Mayor Pro Tem Phillips said these results should be taken as reference material to be used by Town staff when working on projects. She asked staff to make a habit of including survey results in written reports to get more familiar with survey results during the next three years and said it gives more validity to the people who participated. Communications & Marketing Manager Liz Wood asked Council to draw the survey prize. Mayor Smith Hymes withdrew the name out of the newly designed Avon reusable bag. The winner of a new e-bike for participating in the survey was Molly Braxton. 5.2. WORK SESSION: REVIEW OF SUMMER OPERATIONS OF HARRY A. NOTTINGHAM PARK AND LOCATION OF SUP CO. (INTERIM RECREATION DIRECTOR MICHAEL LABAGH) Video Start Time: 01:05:15 Interim Recreation Director Michael Labagh presented the review of summer 2021 operations and explained the 15 areas up for discussion tonight . AVON REGULAR MEETING MINUTES TUESDAY SEPTEMBER 14, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Mayor Smith Hymes called for public comments and Ruth Stanley commented in person that she likes all the ideas, but she is concerned that parking on W est Beaver Creek Boulevard is back on the table for discussion. She asked if the SUP rental business can stay active past Labor Day weekend. She said the erosion next to the dock is dangerous , and she likes the idea of making point number 13 a more refined entrance to the park. Michael Moore commented on the danger of parking on West Beaver Creek Boulevard . He expressed it is a bad event waiting to happen and said trespassing and pedestrian safety are really an issue. He said expanding the beach will mean less control. He said re locating the fitness court seems like a waste of money as no one seems to use it and the Town should study use of tennis courts vs pickleball courts and not just take the survey results as a reference . Mayor Smith Hymes asked Council if any topics were missing . Mayor Pro Tem Phillips said that she would like to add activation along the railroad tracks with art installation and circuit training installations like pullup bars and more swinging benches , which she personally loves . Councilor Underwood had no additions . Councilor Andrade added code enforcement in the park for leash laws and e -bikes speeding. Councilor Prince had no additions . Councilor Hardy suggested designating a dog friendly area . Councilor Thuon could not connect with audio due to technical issues in Council Chambers. Mayor Smith Hymes asked if the addition of a park superintendent would be needed . Point 1 - Potential b each expansion to west: Councilor Hardy said expanding the beach does not mean the footprint of the operation should also be expanded. She inquired why SUP CO closed early, and SUP CO staff explained that it depends on weather and the demand. They said they are open to work with Council to improve the look of the containers . Councilor Prince expressed he does not support beach expansion before having restrooms in place. He wants to ensure the dock is not restricted to SUP CO only but be open to the public as well. He suggested buying a new dock and put ting it on the new beach , as he does not agree with decreasing the current dock capacity . He said people need to spread out. Councilor Underwood asked if the fishing pier is being used enough to justify its presence and to see whether to expand to the east side instead of the west side. She expressed that she is also not supportive of expanding the beach without restrooms in place and figuring out the West Beaver Creek Boulevard parking issue but favors cleaning up the shoreline and making that area more efficient . Councilor Andrade mentioned that only 5% of community survey respondents said that the beach is too crowded , so he does not see the need to expand. He said only 16 weekends, mainly Saturdays, are the days that might be at full capacity, so he thinks spending all that money for 16 days is not worth it. Mayor Pro Tem Phillips would like to wait another 2 years to consider beach expansion . Mayor Smith Hymes does not support beach expansion and agreed that the dock on the south side is popular and should stay. She wants to minimize commercialization of the park. Councilor Thuon said he agrees with the many Council comments made and consider s beach expansion in the future. Council consensus was to table beach expansion until a future date. AVON REGULAR MEETING MINUTES TUESDAY SEPTEMBER 14, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Point 2 - Widening of recreation path: Councilor Hardy expressed she is supportive of expanding the path and mov ing it more north if possible . Councilor Andrade does support widening and asked to add speed limit signs . Councilor Underwood is not supportive of widening it unless speed limit signs and enforcement for speeding are in place. Mayor Pro Tem Phillips is supportive of widening and making it meandering to reduce speed s and getting it further away from the lake, but she does not support widening the existing one . Mayor Smith Hymes does not support widening it and said she hates paving the park more and said it would encourage higher speeds. Councilor Prince expressed that keeping the path straight is safer f or visibility and making it meandering makes it more dangerous. Councilor Thuon said the path should be delineated in 2 lines and a topcoat would be great . Councilor Prince does not support widening and said to keep the cost minimal. Council consensus was not widening the path. Point 3 - North Nottingham Park restrooms: Councilor Underwood preferred to push restrooms as far down to the beach as possible . Councilor Hardy disagreed and she preferred to push as far to the parking lot to the north as possible and requested consideration to add a shower in these bathrooms for people that bike to work. Mayor Pro Tem Phillips is supportive and can see benefits of either location and would support adding an exterior rinse off shower to get the sand of f of the SUPs . Councilor Andrade preferred the northern location and said it could be dual use for bikers and beach users. Councilor Prince prefers the northern location and preserving as much passive space as possibl e. Mayor Smith Hymes prefers the northern location. Council consensus was to go with the northern location. The discussion ran long so items 4 through 15 will be discussed at a future meeting . Mayor Pro Tem Phillips suggested Counci l email their comments ahead of time . Town Manager Eric Heil agreed and stated that those comments will be compiled in a public memo. 5.3. RESOLUTION NO. 21-21 NAMING OF STREET IN VILLAGE (AT AVON), PLANNING AREA J (PLANNING DIRECTOR MATT PIELSTICKER) Video Start Time: 02:33:28 Matt Pielsticker presented Resolution 21-21 and displayed a map with the road. Mayor Pro Tem Phillips asked if there is a roundabout already at that intersection and asked why not name it Swift Gulch. Town Attorney Paul Wisor said the Fire Department expressed that there would be confusion on which road is which. Mayor Smith Hymes called for public comments and no public comments were made. Councilor Prince moved to approve Resolution 21-21 Approving Wagon Trail Road as a new street name. Councilor Hardy seconded the motion and the motion passed with a vote of 7 to 0. AVON REGULAR MEETING MINUTES TUESDAY SEPTEMBER 14, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM 5.4. FIRST READING OF ORDINANCE NO. 21-11 ADOPTING SHORT-TERM RENTAL TAX REGULATIONS (FINANCE MANAGER AMY GREER ) Video Start Time: 02:41:50 Finance Manager Amy Greer presented first reading of Ordinance 21-11. Town Attorney Paul Wisor explained that Council is considering this Ordinance now, even though the voters have not voted on the Short-Term Rental Tax, because there is not enough time after the November election to have a first and second reading and make this go into effect on January 1, 2022. He clarified that this Ordinance is administrative in nature and dependent on the voters’ decision in November and Councilors who do not support putting this to the voters can still vote on this administrative matter. He confirmed that if the voters do not approve, this Ordinance does not take effect. Mayor Smith Hymes called for public comments and no public comments were made. Councilor Underwood moved to approve Ordinance 21-11, an Ordinance amending Chapter 3 of the Avon Municipal Code by the addition of a new Chapter 3.29 implementing voter approval by the Town of Avon electorate of the Community Housing Short-Term Rental Tax on the assumption that it is approved. Councilor Hardy seconded the motion and the motion passed unanimously. 6. MINUTES 6.1. APPROVAL OF AUGUST 24, 2021 REGULAR COUNCIL MEETING MINUTES (TOWN CLERK BRENDA TORRES) Video Start Time: 02:45:54 Mayor Smith Hymes suggested to Town Clerk Brenda Torres that moving forward in the minutes, even if there is Council consensus, the Councilor who brings up an item/topic should be mentioned by name and identified. Mayor Pro Tem Phillips moved to approve the minutes from the August 24th regular meeting as presented. Councilor Underwood seconded the motion and the motion passed with a vote of 7 to 0. 7. WRITTEN REPORTS 7.1. September 7th Planning and Zoning Commission Meeting Abstract (Planner David McWilliams) 7.2. Open Water Swim Meet Event Review (Interim Recreation Director Michael Labagh) 7.3. Upper Eagle Regional Water Authority Aug 26, 2021 Meeting Summary (Mayor Smith Hymes) 8. MAYOR AND COUNCIL COMMENTS & MEETING UPDATES Video Start Time: 02:47:40 Mayor Pro Tem Phillips wanted to acknowledge Councilor Prince's discussions with regards to the status of the memo regarding legal expenses for the recall election and said this will be coming out to Council fairly soon, and that it will be a public document. She said legal expenses will also be discussed at the budget retreat. AVON REGULAR MEETING MINUTES TUESDAY SEPTEMBER 14, 2021 SETUP AS A HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Councilor Hardy would like to bring up housing and expressed that it is unsustainable, and she personally might not be able to live here, even as a young professional with a college degree. She said people moving down Valley is bad for greenhouse gas emissions and climate action goals. She asked if Council could create a state of emergency and look into disincentivizing Short-Term Rentals. She said she does not have solutions she can offer but wants Council to look into it. Councilor Underwood echoed Councilor Hardy’s comments and asked Town Manager Eric Heil to put Short-Term Rentals on the agenda to consider requiring an owner-operator on-site or other requirements. He said an update to the community housing plan should be coming up to Council soon. Mayor Smith Hymes reported that she attended the CAST meeting and housing was discussed. She mentioned how the Town of Breckenridge is capping Short-Term Rental licenses to 2500 and will be taking some licenses away, and how Grand Lake is incentivizing homeowners with $5K/year to convert from Short-Term Rentals to Long-Term Rentals. Councilor Prince said that a result from the pandemic is more people in town, on trails, roundabouts, in the supermarket, at the lake, etc. He would like Council to discuss capacity in town during the weekends, summers, holidays, and winter season. He said Council should discuss redistributing events and marketing dollars to shoulder seasons to spread out capacity and he wants to see this discussion on a future agenda. 9. EXECUTIVE SESSION 9.1.EXECUTIVE SESSION FOR THE PURPOSE OF RECEIVING LEGAL ADVICE AND DETERMINING POSITIONS RELATIVE TO MATTERS THAT MAY BE SUBJECT TO NEGOTIATIONS, DEVELOPING STRATEGY FOR NEGOTIATIONS, AND INSTRUCTING NEGOTIATORS WITH RESPECT TO POTENTIAL COMMUNITY HOUSING PROJECT PURSUANT TO § 24-6-402(4)(B) AND (E). (TOWN ATTORNEY PAUL WISOR) Video Start Time: 02:59:50 Mayor Smith Hymes asked for a motion to move into Executive Session for the purpose of Receiving Legal Advice and Determining Positions Relative to Matters that may be Subject to Negotiations, Developing Strategy for Negotiations, and Instructing Negotiators with Respect to Potential Community Housing Project Pursuant to § 24-6-402(4)(b) and (e). Mayor Pro Tem Phillips moved to approve that motion. Councilor Underwood seconded the motion and the motion passed with a vote of 7 to 0. The time was 8:14 p.m. The Executive Session started at 8:21 p.m. The Executive Session ended at 9:02 p.m. 10. ADJOURN There being no further business before Council, Mayor Smith Hymes moved to adjourn the regular meeting. The time was 9:02 p.m. AVON REGULAR MEETING MINUTES TUESDAY SEPTEMBER 14, 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 July and August 2021 Revenues DATE: September 9th, 2021 SUMMARY: The content of this report will reflect the revenues for sales, accommodations, tobacco and cigarette tax for the period of July 2021. Further, revenues for real estate transfer tax and recreation admissions & program fees for the period of August 2021 will be reported upon. Lastly, a summary table of all revenues with a 2020 v 2021 YTD comparison. 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 July and August 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 – July 2021 July 2021: July sales tax revenues totaled $1,042,949. This is an increase of $342,453 or 48.89% compared to July 2020 sales tax revenue of $700,496. JULY 2020 v JULY 2021, SALES TAX COMPARISON BY INDUSTRY July 2020 July 2021 Increase/Decrease Home/Garden $82,762.06 $97,313.02 $14,550.96 Grocery/Specialty/Health $207,762.25 $216,262.47 $8,500.22 Sporting Goods Retail/Rental $64,457.41 $61,999.06 ($2,572.35) Miscellaneous Retail $19,562.37 $30,818.49 $11,256.12 Accommodations $110,170.97 $231,457.50 $121,286.53 Restaurants/Bars $163,168.20 $245,113.17 $81,944.97 Other $6,345.17 $9,001.68 $2,656.51 Service Related $19,491.03 $18,612.16 ($878.87) Liquor Stores $57,125.36 $38,174.25 ($18,951.11) E-Commerce Retail $15,770.25 $42,887.94 $27,117.69 Manufacturing/Wholesale $15,056.44 $12,370.19 ($2,686.25) Construction Related Services ($66,007.06) 22,187.20 $88,194.26 Digital Media Suppliers/Sellers $4,105.36 $6,280.87 $2,175.51 Page 2 of 8 Commercial/Industrial Equipment $612.91 $1,119.59 $5,468.16 Special Events 0 $9,351.69 $9,351.69 TOTAL $700,496.72 $1,042,949.28 $342,452.56 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. July 2021 Proposed Budget v Actual Collections: July 2021 sales tax revenues totaled $1,042,949. This is an increase of $200,957 over the proposed July 2021 estimates of $841,992. This is 23.87% over the 2021 proposed budget, which is calculated based on a 5-year average. JULY 2020 v JULY 2021 PROPOSED BUDGET v ACTUAL COLLECTIONS - SALES TAX 2021 Budget 2021 Actual Dollar Variance Percentage Variance Sales Tax $841,992.71 $1,042,949.28 $200,956.57 23.87% 682,024.81 696,374.00 751,776.85 700,496.72 1,042,949.28 2.10% 7.96% -6.82% 48.89% $0 $200,000 $400,000 $600,000 $800,000 $1,000,000 2017 2018 2019 2020 2021 2017 -2021 July Sales Tax Revenue Trend Page 3 of 8 Accommodation Tax Revenues – July 2021 July 2021: Accommodation tax revenues totaled $250,280 for the month of July. This is an increase of $138,042 or 122.99% compared to July 2020 accommodation tax revenues, which totaled $112,238. Accommodation tax collections by industry type for July 2021 compared to July 2020 reported an increase for Vacation Rentals, Time Shares and Hotels. JULY 2020 v JULY 2021 ACCOMMODATION TAX COMPARISON BY INDUSTRY July 2020 July 2021 Increase/(Decrease) Timeshares $25,492.14 $41,799.13 $16,306.99 Hotels $70,969.61 $121,657.24 $50,687.63 Vacation Rentals $15,776.55 $86,823.62 $71,047.07 TOTAL $112,238.30 $250,279.99 $138,041.69 July 2021 Proposed Budget v Actual Collections: July 2021 accommodation tax revenues totaled $250,280. This is an increase of $116,567 over the proposed July 2021 estimates of $133,713. This is 87.18% over the 2021 proposed budget. 2021 PROPOSED BUDGET v ACTUAL COLLECTIONS - ACCOMMODATIONS TAX 2021 Budget 2021 Actual Dollar Variance Percentage Variance Acc. Tax $133,712.77 $250,279.99 $116,567.22 87.18% Page 4 of 8 Tobacco & Cigarette Tax Revenues – July 2021 July 2021: Tobacco tax revenues totaled $29,008 and cigarette tax revenues totaled $25,719 for July 2021. Compared to July 2020 revenues, this is an increase of $5,474 for tobacco tax revenues, which totaled $23,534 and a decrease of $2,496 for cigarette tax revenues, which totaled $28,215. 119,301 119,458 131,646 112,238 250,280 0.13% 10.20% -14.74% 122.99% $75,000 $125,000 $175,000 $225,000 2017 2018 2019 2020 2021 2017-2021 July Accommodation Tax Revenue Trend 18,693 28,215 25,719 50.94% -8.85% - 5,000 10,000 15,000 20,000 25,000 30,000 2019 2020 2021 2019-2021 July Cigarette Excise Tax Revenue Trend Page 5 of 8 July 2021 Proposed Budget v Actual Collections: July 2021 tobacco and cigarette tax revenues totaled $29,008 and $25,719, respectively. This is an increase of $5,474 over the proposed July 2021 budget for tobacco tax, which is $22,791 and a decrease of $409 over for the proposed July 2021 budget for cigarette tax estimates, which is $26,128 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 $22,791.15 $29,008.47 $5,474.03 27.28% Cigarettes $26,128.28 $25,719.00 ($409.28) -1.57% $5,064.75 NOTE: We believe the adoption of similar tobacco and cigarette taxes in neighboring jurisdiction resulted of purchasers to Avon. Real Estate Transfer Tax Revenues – August 2021 August 2021 August 2021 Real estate transfer tax totaled $507,891. Compared to August 2020, which totaled $608,328.36, this is a decrease of $100,436. 13,319 23,534 29,008 76.70% 23.26% - 5,000 10,000 15,000 20,000 25,000 30,000 35,000 2019 2020 2021 2019-2021 July Tobacco Tax Revenue Trend Page 6 of 8 Recreation Center Revenues – August 2021 Admissions & Program Fees August 2021: Recreation admission revenues for August 2021 totaled $76,613.30, an increase of $52,734 compared to August 2020, which totaled $23,879. This is $35,120 over the original 2021 budget estimates of $41,493. Recreation program fee revenues for August 2021 totaled $63,466. This is a decrease of $616 compared to 2020, which totaled $64,082. This is $20,827 over the original 2021 budget estimates, which is $42,639 which is calculated based on a 5-year average. $592,467 $343,250 $400,028 $608,328 $507,892 -72.61% 14.19% 34.24% -19.78% $0 $100,000 $200,000 $300,000 $400,000 $500,000 $600,000 $700,000 2017 2018 2019 2020 2021 Real Estate Transfer Tax August Revenue Trends 76,558 73,573 70,491 23,879 76,613 -4.06%-4.37% -195.20% 68.83% - 10,000 20,000 30,000 40,000 50,000 60,000 70,000 80,000 90,000 2017 2018 2019 2020 2021 Recreation Admissions July Revenue Trends Page 7 of 8 Tax Revenue Comparison – YTD 2020 v 2021 Actual 2020 v 2021 All revenues are reporting an increase for 2021 compared to 2020. Below is a table which reflects the dollar change and percentage variance. Adopted Budget 2021 v Actual 2021 Revenues for Sales, Accommodation, Tobacco, Real Estate Transfers, Recreation Admissions, Recreation Programs reflect a positive variance over the Adopted 2021 budget, while Cigarette Excise Tax and reflect a negative variance. $52,318 $64,320 $49,983 $64,082 $63,466 22.94% -22.29% 28.21% -0.96% $0 $10,000 $20,000 $30,000 $40,000 $50,000 $60,000 $70,000 2017 2018 2019 2020 2021 Recreation Program Fees July Revenue Trends 2020 v 2021 Year-to-Date Revenue Comparison 2020 YTD 2021 YTD Dollar Variance Percentage Variance Sales Tax $4,810,162.33 $6,314,255.79 $1,504,096.43 31.27% Acc. Tax $719,428.78 $1,177,552.00 $458,123.22 63.68% Tobacco Tax 104,500.14 $175,307.75 $70,807.61 67.67% Cigarette Tax $144,204.42 $149,265 $5,060.58 3.51% RETT $1,986,637.42 $3,411,896.68 $1,425,259.26 71.74% Rec Admissions $245,253.29 $404,738.07 $159,484.78 65.03% Rec Program Fees $221,576.26 $259,818.92 $38,242.66 17.26% Page 8 of 8 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 2021 Revenue Comparison – Budget v Actual 2021 YTD Budget 2021 YTD Dollar Variance Percentage Variance Sales Tax $5,773,149.34 $6,314,255.79 $541,106.45 9.37% Acc. Tax $963,538.99 $1,177,522.00 $214,013.01 22.21% Tobacco Tax $113,594.62 $175,307.75 $61,713.13 54.33% Cigarette Tax $152,212.33 $149,265 ($2,947.33) -1.94% RETT $1,666,046.11 $3,411,896.68 $1,745,850.57 104.79% Rec Admissions $325,773.56 $404,738.07 $78,964.51 24.24% Rec Program Fees $228,969.68 $259,818.92 $30,849.24 13.47% 970.748.4004 eric@avon.org TO: Honorable Mayor Smith Hymes and Council Members FROM: Eric Heil, Town Manager RE: Recall Costs DATE: September 21, 2021 SUMMARY: This report provides a summary of legal costs associated with the citizens recall process to seek a recall election for Mayor Sarah Smith Hymes and Council Tamra Underwood. There are three stages to legal costs incurred by the Town, (1) general legal expenses in response to citizen questions regarding the recall process, advising Town Clerk on recall process, and in reviewing recall petitions, (2) legal expenses directly related to the Declaratory Judgment action filed to request an interpretation regarding the required number of signatures, and (3) general legal expenses related to the conduct of the recall election in accordance with the District Court order and in accordance with municipal recall election laws. TOTAL LEGAL EXPENSES TO DATE: $80,010.68 (1) General legal expenses in response to citizen questions, advising on recall process and reviewing petition $20,488.94 (2) Legal expenses of Declaratory Judgment action $59,521.74 (3) General legal expenses related to conduct of recall election TBD OTHER EXPENSES: Other expenses include staff time, which is estimated at $10,000 to $15,000 in cost (staff did not keep track of hours spent related to the recall) and the cost of the November 2, 2021 election is estimated to be $10,000.00. Past coordinated elections costs have been less than $4,000; however, the required language that must be included on the recall ballot has increased the printing costs so the estimate for the recall is $10,000. Avon Town Council referred a Short Term Rental Tax ballot question to the November 2, 2021 election, the cost of which is included in the cost of a coordinated election. At this time, additional legal expenses are not anticipated. Additional legal expenses could arise if there is a close election or election irregularities. BACKGROUND: The Town of Avon was first contacted by an Avon citizen in late April to inquire about the recall process for Avon Council members. The Avon Town Attorney advised the citizen to obtain independent legal advice, which is standard practice for any citizen initiative, referendum or recall effort. From May through early July, the Town responded to a series of questions related to the recall process from two Avon citizens. Mr. Tom Ruemmler submitted petition forms to the Avon Town Clerk on July 12, 2020. The petition forms were rejected because they did not include petition representatives. On July 22, 2020, Mr. Tom Ruemmler filed revised petition forms which included petition members Todd Roehr, Tamera LaVina Sturgill, Adrienne Perer, Maria Berry and Paul Jenick. The Town reviewed and commented on the form of the petitions and there were multiple rounds of revisions. The revised petition forms were approved by the Town on August 14, 2020. The Avon Recall Committee submitted petitions with signatures on October 12, 2020. The Town Clerk issued Certificates of Insufficiency on October 19, 2020. Revised petitions were submitted on November 2, 2020. Revised petitions were submitted on November 2, 2020 and the Town Clerk issued Certificates of Insufficiency again on November 9, 2020 based on insufficient number of signatures. The Town of Avon filed a Complaint in District Court for Eagle County on December 1, 2020, seeking a Declaratory Judgment for the court to rule on the required number of signatures for recall. The District Court Judge ruled in favor of the Avon Recall Committee on June 23, 2021. The Town Council initially provided direction to file and appeal, and then changed direction to withdraw the appeal and proceed with the recall election. The recall election was set for November 2, 2021. Thank you, Eric HEALTH AND RECREATION COMMITTEE MEETING MINUTES TUESDAY, SEPTEMBER 14, 2021 TOWN HALL COUNCIL CHAMBERS HEALTH AND RECREATION COMMITTEE MEETING MINUTES, SEPTEMBER 14, 2021 PAGE 1 | 4 1. ROLL CALL Present- Committee Members: Chairperson Tom Kiddoo, Vice Chair Pat Nolan and Members Kathy Ryan and Pam Warren. (Pam Warren was present via phone) Town Council: Councilor Scott Prince Staff: Interim Recreation Director of Recreation Michael Labagh, Town Manager Eric Heil, Project Engineer Tim Thompson, General Government Manager Ineke de Jong and General Government Intern Emily Myler. Absent- Town Council: Councilor Lindsay Hardy and Mayor Sarah Smith Hymes. Committee Chair Tom Kiddoo opened the meeting at 11:04 a.m. 2. APPROVAL OF THE AGENDA Committee Member Kathy Ryan made a motion to approve the agenda for September 14, 2021 with the addition of a business item about sand in Harry A. Nottingham Park. Committee Vice Chair Pat Nolan seconded the motion. Committee Chair Tom Kiddoo declared the agenda approved. 3. APPROVAL OF THE July 20, 2021 MEETING MINUTES Committee Member Kathy Ryan made a motion to approve the minutes from 2/16/21. Committee Vice-Chair Pat Nolan seconded the motion. Committee Chair Tom Kiddoo declared the minutes approved. 4. PUBLIC COMMENT No public comments were made. 5. BUSINESS ITEMS Recreation Center Update Interim Recreation Director Labagh updated the Committee on the Rec Center’s COVID-19 procedures. He said reservations have been phased out conservatively but that staff will continue to change policy as the State recommends. He said that attendance is bouncing back, and he’s optimistic the Rec Center will recover unless there are more restrictions in the future. He also went over monthly revenues as well as reports on separate programs. He said that fitness classes have moved outside over the summer and people are expressing hesitancy to move their recreation back indoors as the weather gets cooler. However, swim and summer camp rosters are maxing out most of the time. He also introduced new Recreation Services Superintendent Jaqueline Elder and said a new Aquatics Superintendent and a Guest Services Coordinator should be starting soon. The Committee commented/inquired: A. How does use compare to this time in 2019, pre-pandemic? B. What revenue is counted in this report? C. Does the Recreation Center know how many visitors and program attendees are locals vs. visitors? D. Is there a waitlist for the Summer Camp? E. If local families are not being able to access summer camp because it fills up quickly with visitors, Council should take a look at policy to give preference to locals. F. Will a new Rec Director be hired? HEALTH AND RECREATION COMMITTEE MEETING MINUTES TUESDAY, SEPTEMBER 14, 2021 TOWN HALL COUNCIL CHAMBERS HEALTH AND RECREATION COMMITTEE MEETING MINUTES, SEPTEMBER 14, 2021 PAGE 2 | 4 Interim Recreation Director Labagh said attendance is at about half of what it was in 2019. Many people are not yet comfortable to come use the facility. He said that the summer camp usually had one or two visitor families every week although it fluctuated. Town Manager Eric Heil said the Town plans to begin the hiring process for a new Recreation Director around this time next year. Capital Projects Update Interim Recreation Director Labagh introduced Project Engineer Tim Thompson, who is helping with improvements to the Rec Center pool and hot tub, locker rooms, bathrooms and steam room and sauna. He said the locker room remodel has been delayed but the project is the same as when it came before the Committee last time. The pool is overdue for replastering, which will make it brighter and safer. The hot tub has been leaking for several months now, causing it to be closed since June. Project Engineer Thompson said the leak has been tricky to find, requiring a full excavation to fix it. The Committee commented/inquired A. What is the start and end time for the locker room project? B. Are there any incentives for early completion or punishments for going over the estimated time? C. Are the supplies available during the shortages in construction materials? D. What areas will be closed, and will fitness classes continue? E. What will the kitchen be used for? What is in it? F. How large is the kitchen? Who cleans the fridge? Interim Recreation Director Labagh said the projects should take the whole month of October, with the affected areas closed during that time. The upstairs as well as the first-floor lobby and fitness studio will remain open. Other fitness classes will stay outside as long as possible throughout October. The kitchen will be available to the public to serve food at senior programs and room rentals and host a potential nutrition program. The kitchen will likely be cleaned by building services. Project Engineer Thompson said there are contingencies in the contract if the work goes longer than promised. The kitchen will be 7.5 feet wide and 10 feet deep. There will be a microwave and fridge, with a similar function and style as the Council kitchen in Town Hall. Reconstruction of Pickleball and Tennis Courts Interim Recreation Director Labagh said the courts will likely need to be completely reconstructed in their current state rather than resurfaced. The Town can decide on different court layouts in three options and would like the Committee’s input. He went over four options, with the first keeping the same layout as the current courts, and the next three increasing the number of pickleball courts over tennis courts. He said the Town is also looking to add shade structures, benches and water stations. The Committee commented/inquired: A. Is there enough demand for pickleball to add that many courts? B. Is there enough space to add so many courts as option 3 proposes? C. Option 4 meets the needs of Avon’s older population, many of whom are vocal pickleball enthusiasts D. Option 4 looks very crowded, but I’m not an expert in how much space pickleball needs. E. Is there a pickleball club to engage on this decision? F. Is the basketball court also part of the project? HEALTH AND RECREATION COMMITTEE MEETING MINUTES TUESDAY, SEPTEMBER 14, 2021 TOWN HALL COUNCIL CHAMBERS HEALTH AND RECREATION COMMITTEE MEETING MINUTES, SEPTEMBER 14, 2021 PAGE 3 | 4 G. Paddle tennis courts can be used year-round, can the pickleball courts be doubled as paddle tennis courts so they can be used in all seasons? H. The Town can look at nearby courts and see what kind of use they’re getting. I. The Golden Peak courts have lights and speakers and host tournaments, is that a goal for Avon? J. Why are people training on courts that are smaller than tournament size? K. Engage Avon can be used to get feedback, but it’s better to just reach out to the players directly, and Council will ultimately decide based on feedback and evidence. Interim Recreation Director Labagh said that there is an active pickleball community that would like to see more, better courts. Option three might be tight but should be doable. The Rec Center is connected with an informal leader among the pickleball players and can reach out to tennis clubs to engage. The basketball court is not being resurfaced in this project. Town Manager Heil said he doesn’t know how tennis players will react to converting their courts to pickleball. The size of the court space doesn’t allow for tournaments, and Council has decided not to build tournament-capacity courts elsewhere at this time. It would be helpful to put some signs at the courts to invite users to submit feedback. Project Engineer Thompson said a court designer is working on the project now. This means the Town needs to decide on a layout this fall. The courts won’t be much smaller than tournament size, the space that changes most is the width between the courts in options 3 and 4, not the length. Avon wants to hear from the community how much space is needed between courts. Community Survey Results Interim Recreation Director Michael Labagh put the survey results (available at Avon.org) on the screen and asked for Committee feedback. Harry A. Nottingham Park (“the Park”) is getting a lot of use and is generally approved of although many respondents felt it can get too crowded. Most dissatisfaction revolved around the Park restrooms. Respondents supported maintaining the open container rules in the Park and expressed interest in more food and beverage vendors nearby. He was surprised that 37 percent of respondents don’t use the West Avon Preserve. Town Manager Heil reminded Committee Members that the Town is planning to do a survey for only Rec Center patrons with more specific questions. The process can begin at the final Committee meeting of the year in November. He said that it seems like most people are exercising in the community, but about two thirds choose to go somewhere other than the Avon Rec Center. Most people approved of the Center’s fees, which is good news. There was interest in indoor tennis/pickleball courts, but almost 20 percent of respondents were happy with what the Rec Center currently offers. Some respondents asked for a skate park but there’s not much room left in Harry A. Nottingham Park for something like that. There may be opportunities at the Village at Avon. The Committee commented/inquired: A. Many people said walking in Harry A. Nottingham Park is too dangerous. There should be a dismount zone on the North shore of the Lake. B. EagleVail doesn’t allow Avon residents to use their facilities, so Avon shouldn’t allow EagleVail residents to use its facilities. C. Prices haven’t gone up in a while, by keeping rates the same it’s the same effect as lowering them as operating costs increase. D. If people aren’t complaining about rates, maybe they should go up. E. The number of fitness classes has gone down. The Rec Center should offer a television in one of the studios where people can play their own classes on their own time. F. The Wellbeat on-demand fitness videos are great, although it’s hard to share the space. HEALTH AND RECREATION COMMITTEE MEETING MINUTES TUESDAY, SEPTEMBER 14, 2021 TOWN HALL COUNCIL CHAMBERS HEALTH AND RECREATION COMMITTEE MEETING MINUTES, SEPTEMBER 14, 2021 PAGE 4 | 4 G. Is it difficult to find staff to lead fitness classes? H. There used to be a coffee cart and a popsicle cart in the Park that have gone away. The Town should get them back. I. The Town should focus on improving current amenities before adding a skate park. Town Manager Heil said a dismount zone is a great idea, and there is a proposal to widen the path and to potentially ban bicycles in the Park. Before the Rec Center raises rates, it’s focus will be on rebuilding patronage post-pandemic. There is a staffing shortage everywhere and it’s a challenge to hire staff across town. He’s interested in getting more food and beverages in the Park, including having Colorado SUP Co. provide beverages and bringing in food trucks or carts. Interim Recreation Director Labagh said he doesn’t know exactly how fitness classes are different today than 20 years ago, but many people on the survey asked for classes to be offered outside work hours, which is where he is planning to focus. There are currently screens with a subscription to on-demand Wellbeat fitness videos, but DVD players can be added. He is working on solutions to increase hiring. 2022 Long-Range Planning Interim Recreation Director Labagh said there are plans to add recreation at the Old Fire Station and Main Street Mall and continue to expand the Rec Center in 2022. Town Manager Heil said there are a lot of bids to use the Old Fire Station, and with high satisfaction at the Rec Center there’s no rush to make big changes. It’s a good time to focus on thoroughly considering all ideas in an open-ended way and engage the public further. Sand in Harry A. Nottingham Park Committee Member Kathy Ryan requested additional sand at the Nottingham Park Beach to widen the beach area and to cover the bottom of the lake where people walk in and swim. She said after the mudslides in July, much of the sand washed away. She’s happy to see the bottom of the lake again recently and hopes that the fish population bounces back with better care this winter. Town Manager Heil said there are plans to add sand to the beach and to better care for the fish over the winter. 6. ADJOURNMENT Committee Member Kathy Ryan motioned to adjourn the meeting. Committee Chair Tom Kiddoo seconded the motion. Committee Chair Tom Kiddoo declared the meeting adjourned at 12:36 p.m. Respectfully Submitted by Emily Myler General Government Intern