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TC Packet 05-10-2022_______________________________________________________________________________ MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG MEETING NOTICES 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 DEPUTY TOWN CLERK BRENDA TORRES AT 970-748-4001 OR EMAIL BTORRES@AVON.ORG WITH ANY SPECIAL REQUESTS. AVON TOWN COUNCIL MEETING AGENDA TUESDAY, May 10, 2022 MEETING BEGINS AT 5:00 PM (ALL START TIMES LISTED IN RED ARE APPROXIMATE) Hybrid meeting; in-person at Avon Town Hall or virtually through Zoom AVON TOWN COUNCIL PUBLIC MEETING BEGINS AT 5:00 PM 1.CALL TO ORDER AND ROLL CALL 5:00 2.APPROVAL OF AGENDA 3.DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS 4.PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA Proclamation of Wildfire Awareness Public comments are limited to three (3) minutes. The speaker may request an additional one (1) minute, which may be approved by a majority of Council. 5.BUSINESS ITEMS 5.1. Public Hearing: Resolution 22-09 Adopting Regional Transit Authority Intergovernmental Agreement (Town Manager Eric Heil and Chief Mobility Officer Eva Wilson) (25 Minutes) 5:05 5.2. Resolutions 22-10 and 22-11: Restating Public-Police Pensions (Finance Director Scott Wright) (10 Minutes) 5:30 5.3. Tract Y Development Agreement (Town Manager Eric Heil) (50 Minutes) 5:40 5.4. Work Session: Use Tax and Marijuana Tax (Finance Director Scott Wright, Finance Manager Joel McCracken, Planning Director Matt Pielsticker) (30 Minutes) 6:30 5.5. Public Hearing: Resolution No. 22-08 1st Budget Amendment (20 Minutes) 7:00 5.6. Public Hearing: 2nd Reading of Ord 22-03 Amending Title 15 of Avon Municipal Code, Grading Revisions (Town Attorney Karl Hanlon) (20 Minutes) 7:20 5.7. Work Session: Climate Action Strategies and Partners (Sustainability Coordinator Charlotte Lin) (40 Minutes) 7:40 5.8. Notice of Award of Electric Vehicle Charging Stations (Town Engineer Justin Hildreth) (5 minutes) 8:20 6.MINUTES 6.1. Approval of April 26, 2022 Regular Council Meeting Minutes (Deputy Town Clerk Brenda Torres) (5 Minutes) 8:25 7.WRITTEN REPORTS 7.1. FSR 779 Grant Application Update (General Government Intern Emily Myler) 7.2. Update on East Beaver Creek Blvd in the Village (at Avon) (Town Engineer Justin Hildreth) ** Indicates topic will be discussed at future agenda’s 8.MAYOR AND COUNCIL COMMENTS & MEETING UPDATES (15 MINUTES) 8:30 9.ADJOURN 8:45 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 _______________________________________________________________________________ MEETING AGENDAS AND PACKETS ARE FOUND AT: WWW.AVON.ORG MEETING NOTICES 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 DEPUTY TOWN CLERK BRENDA TORRES AT 970-748-4001 OR EMAIL BTORRES@AVON.ORG WITH ANY SPECIAL REQUESTS. 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 • Art Around Avon Update (CASE Manager Danita Dempsey) 5/24 • Overview of Summer Events (CASE Manager Danita Dempsey) 5/24 • Short Term Rental Ordinances (Planning Director Matt Pielsticker) 5/24 • Work Session: Water Conservation and Water Demand Management (Town Manager Eric Heil) 5/24 • Work Session: Landscape Regulations (Planning Director Matt Pielsticker) 5/24 AVON LIQUOR LICENSING AUTHORITY MEETING AGENDA TUESDAY, MAY 10, 2022 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 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 [AN INITIAL THREE (3) MINUTE LIMIT ALLOWED TO EACH PERSON WISHING TO SPEAK . SPEAKER MAY REQUEST MORE TIME AT THE END OF THE THREE (3) MINUTES, WHICH MAY BE APPROVED BY A MAJORITY OF THE COUNCIL .] 5. PUBLIC HEARING FOR A SPECIAL EVENTS LIQUOR PERMIT 5:00 5.1. APPLICANT NAME: EDUCATION FOUNDATION OF EAGLE COUNTY EVENT: EVENING OF STARS DATE AND TIME: 6:00 PM – 9:00 PM ON JUNE 2, 2022 LOCATION: 1 LAKE STREET – HARRY A. NOTTINGHAM PARK/PAVILION TYPE: SPECIAL EVENT PERMIT MANAGER: WENDY RIMEL 6. PUBLIC HEARING FOR RENEWAL 6.1. APPLICANT: WILLS INVESTMENTS VII LLC D/B/A 7 ELEVEN #34209B LOCATION: 8 NOTTINGHAM ROAD TYPE: FERMENTED MALT BEVERAGE OFF PREMISES (CITY) MANAGER: DONALD R. WILLS 7. APPROVAL OF THE MINUTES FROM APRIL 12, 2022 LIQUOR LICENSING AUTHORITY MEETING (5 Minutes) 5:05 8. WRITTEN REPORT 8.1. REPORT ON RECENT ADMINISTRATIVE APPROVALS (LIQUOR LICENSING AUTHORITY SECRETARY BRENDA TORRES) 9. ADJOURNMENT 5:05 970-748-4001 btorres@avon.org TO: Avon Liquor Licensing Authority FROM: Brenda Torres, Liquor Licensing Authority Secretary RE: PUBLIC HEARING for Special Event Permit Application - Evening of Stars DATE: April 28, 2022 SUMMARY: Education Foundation of Eagle County, as the Applicant, is applying for malt, vinous, spirituous liquor permit to serve/sell beverages at the Evening of Stars special event on June 2, 2022. The Applicant has submitted materials required by the State of Colorado Liquor Enforcement Division and all materials are in order. Documents are on file in the Town Clerk’s office. The Harry A. Nottingham Park/Pavilion premise has been posted with notice of the public hearing for this application, and no public comments were received. The event manager will be present to answer any questions about the application and the event. The Applicant has adequate proof of commercial liability insurance that meets the Town’s requirements and has obtained any other permit needed for this event. Background checks show no previous failure by the Applicant to comply with Special Event Permit laws and fewer than 15 special event permits issued to the Applicant this calendar year. BACKGROUND: Special events permits are issued by the Local Licensing Authority to allow particular types of organizations, municipalities, and political candidates to sell, serve or distribute alcohol beverages in connection with public events. Avon has adopted the local option whereby applications are made directly to the Avon Local Licensing Authority. Special event permits may only be issued for prescribed hours on a single day. An entity may receive a maximum of 15 special event permits per calendar year. There is no required finding for the issuance of a special event permit. Section 44-5-106, C.R.S., states the grounds for denial of a special event permit application as follows: “The state or local authority may deny the issuance of a special event permit upon the grounds that the issuance would be injurious to the public welfare because of the nature of the special event, its location within the community, or the failure of the applicant in a past special event to conduct the event in compliance with applicable laws.” ACTION BEFORE THE LOCAL LIQUOR LICENSING AUTHORITY: The Town Council, acting as the Local Liquor Licensing Authority, will consider a Special Events Permit application for the upcoming Evening of Stars special event. A public hearing is required before final action is taken. Applicant Name: Education Foundation of Eagle County Event Name: Evening of Stars Event Date: June 2, 2022 6:00 p.m. – 9:00 p.m. Location: Harry A. Nottingham Park and Pavilion Event Manager: Wendy Rimel Permit Type: Special Events Permit -Malt, Vinous & Spirituous Liquor Page 2 of 2 PROPOSED MOTION: “I move to approve (or deny based upon statutory grounds for denial) the Special Events Permit application for the Evening of Stars special event on June 2, 2022 from 6:00 p.m. to 9:00 p.m.” Thank you, Brenda SPECIAL EVENTS PERMIT APPLICATION ATTACHMENTS: The Applicant for the special event permit has submitted the following materials: ✓ Attachment A: Application for a Special Event Permit (State form DR 8439) ✓ Attachment B: Alcohol Management Plan ✓ Attachment C: Diagram where liquor will be served Attachment A Attachment B Attachment C 970-748-4001 btorres@avon.org TO: Avon Liquor Licensing Authority FROM: Brenda Torres, Liquor Licensing Authority Secretary RE: PUBLIC HEARING for Liquor License Renewal Application - Wills Investments VII LLC & 7 Eleven INC d/b/a 7 Eleven #34209B DATE: April 29, 2022 SUMMARY: Wills Investments VII LLC & 7 Eleven INC d/b/a 7 Eleven #34209B, as the Applicant, is applying for a Liquor License Renewal. The Applicant has submitted the appropriate materials and fees required by the State of Colorado Liquor Enforcement Division. A background check from the Avon Police Department reveals no criminal background check for the manager, but a liquor violation made by an employee. A case report was requested and received from the Liquor Enforcement Division. These documents are on file in the Town Clerk’s office. BACKGROUND: Section 44-3-302, C.R.S., provides guidelines for liquor licensing renewals, which applications are made to the local licensing authority. The Deputy Town Clerk and Special Counsel Pierce- Durance have reviewed the application submitted and referenced above and found the materials in order. The violation is described as follows: Wills Investments VII LLC & 7 Eleven INC d/b/a 7 Eleven #34209B: 7 Eleven #34209B has been the subject of an investigation conducted by the Colorado Department of Revenue Liquor Enforcement Division. Agents of the Division allege violation of the Colorado Liquor Code, Sections 44-3-901(1)(b) and 44-3-901(11)(b). On February 27, 2022, this Licensee, through its employee/agent Luis Reyes-Sanchez, sold, served, gave, or allowed the procuring of an alcoholic beverage (Keystone Light, fermented malt beverage) to a nineteen- year-old Liquor Enforcement Division underage purchaser without verifying an identification, in violation of the above statutes. Employee was issued a criminal summons. The court date was set for April 13, 2022, at the Eagle County Court. As the date of this report, action is still pending. The manager has been invited to attend the Liquor Licensing Authority meeting. ACTION BEFORE THE LOCAL LIQUOR LICENSING AUTHORITY: The Town Council, acting as the Local Liquor Licensing Authority, will consider the following Liquor License Application for renewal. A public hearing is required before final action is taken. Applicant Name: Wills Investments VII LLC & 7 Eleven INC d/b/a 7 Eleven #34209B Location: 8 Nottingham Road Manager: Donald Wills Permit Type: Fermented Malt Beverage Off Premises (City) Page 2 of 2 PROPOSED MOTION: “I move to approve (or deny based upon statutory grounds for denial) the Liquor License Renewal Application for Wills Investments VII LLC & 7 Eleven INC d/b/a 7 Eleven #34209B.” Thank you, Brenda LIQUOR LICENSE RENEWAL APPLICATION ATTACHMENTS: Attachment A: Application for Liquor License Renewal (State form DR 8400) Attachment A AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES TUESDAY, APRIL 12, 2022 SETUP AS A HYBRID MEETING (BOTH IN PERSON & VIA ZOOM) 1.CALL TO ORDER AND ROLL CALL The meeting was hosted in person, as well as in a virtual format, via Zoom.us. Chairwoman Smith Hymes called the meeting to order at 5:00 p.m. A roll call was taken and Board members present were Amy Phillips, Lindsay Hardy, RJ Andrade, Chico Thuon, and Tamra Underwood. Board member Scott Prince was absent. Also present were Planning Director Matt Pielsticker, Mobility Manager Eva Wilson, Chief of Police Greg Daly, Interim Town Attorney Karl Hanlon, CASE Manager Danita Dempsey, Town Manager Eric Heil, and Secretary Brenda Torres. 2.APPROVAL OF AGENDA Video Start Time: 00:00:26 Board member Underwood moved to approve the Liquor Licensing Authority agenda as presented. Vice Chairwoman Philips seconded the motion and the motion passed with a vote of 6 to 0. Board member Prince was absent. 3.DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS Video Start Time: 00:00:46 No conflicts of interest were disclosed. 4.PUBLIC COMMENT – COMMENTS ARE WELCOME ON ITEMS NOT LISTED ON THE FOLLOWING AGENDA Video Start Time: 00:00:56 Chairwoman Smith Hymes asked for public comments by anyone present in person or virtually. No public comments were made. 5.PUBLIC HEARING FOR A SPECIAL EVENTS LIQUOR PERMIT Video Start Time: 00:01:15 5.1. APPLICANT NAME: CAN DO MULTIPLE SCLEROSIS EVENT: ULTIMATE APRES AVON DATE AND TIME: 8:00 AM – 11:00 PM ON APRIL 16, 2022 LOCATION: 1 LAKE STREET TYPE: SPECIAL EVENT PERMIT MANAGER: KRISTA BENEDETTI Applicant Krista Benedetti was present in person and answered questions from Board members. She said they were looking for a new location for a Spring event and the Town came forward and offered to help with this event. She said they are very excited and they hope it becomes a fun annual event. Board member Underwood asked her to describe how the perimeter will be fenced as it is quite a large and irregular shaped long perimeter. She explained this will be a free-to-walk event for the public to come in and enjoy the music, but the perimeter will be secured with a barricate at both ends, signage, and security to check identifications and backpacks, put bracelets, a stamp, and provide a testing cup per ticket. Board member Underwood moved to approve the Special Events Permit application for the Ultimate Apres Avon special event on April 16, 2022 from 8:00 a.m. to 11:00 p.m. Board member Hardy seconded the motion and the motion passed with a vote of 6 to 0. Board member Prince was absent. AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES TUESDAY, APRIL 12, 2022 SETUP AS A HYBRID MEETING (BOTH IN PERSON & VIA ZOOM) 6.APPROVAL OF THE MINUTES FROM MARCH, 2022 MEETING Video Start Time: 00:07:28 Vice Chairwoman Philips moved to approve the liquor license meeting minutes for Tuesday, March 22, 2022 as presented. Board member Hardy seconded the motion and the motion passed with a vote of 6 to 0. Board member Prince was absent. 7.WRITTEN REPORT 7.1. REPORT ON RECENT ADMINISTRATIVE APPROVALS (LIQUOR LICENSING AUTHORITY SECRETARY BRENDA TORRES) 8.ADJOURNMENT The Avon Liquor Authority meeting adjourned at 5:08 p.m. These minutes are only a summary of the proceedings of the Local Liquor Licensing Authority 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, Secretary APPROVED: Sarah Smith Hymes ___________________________________ Amy Phillips Chico Thuon Scott Prince Tamra Underwood Lindsay Hardy RJ Andrade (970) 748-4001 btorres@avon.org AVON LIQUOR LICENSING AUTHORITY WRITTEN REPORT To: Avon Liquor Licensing Authority From: Brenda Torres, Liquor Licensing Authority Secretary Date: April 28, 2022 Topic: REPORT ON RECENT LIQUOR LICENSE ADMINISTRATIVE APPROVALS SUMMARY: The Town’s local liquor licensing regulations allow for administrative review and approval of routine liquor license applications, including: (1) Renewals, (2) Modification of Ownership, (3) Modification of Managers, and (4) Special Event Permits for events already approved by the Town Council. Requirements for administrative approval include that the application is complete, there is no new criminal activity on the background and there are no liquor code violations during the last year. Renewals require notice to be posted for seven days and Special Event Permits for ten days and require the Town Clerk to accept comments and/or requests for a public hearing before the Avon Town Council. In all cases, the Town Clerk has the discretion to refer the application to the Avon Town Council. The Town Clerk is required to report administrative approvals, which is the reason for this written report. Dating back to April 12, 2022, the Town has received 1 Renewal Application that has met all the requirements for administrative review and approval and was ultimately approved by the Town Clerk. No comments, complaints, or request for hearings were received. It is as follows: Renewal: Applicant: East West Resort LLC & Avon Riverfront LLC d/b/a Westin Riverfront Resort & Spa & Maya Location: 126 Riverfront Lane Type: Resort Complex (City) Manager: Brian Harrier gdaly@avon.org ewood@avon.org (970) 748-4040 TO: Honorable Mayor Smith Hymes and Council members FROM: Greg Daly, Chief of Police, Elizabeth Wood, Communications Manager RE: Wildland Fire Proclamation and Update on Wildfire Community Preparedness DATE: May 3, 2022 SUMMARY: The Town of Avon in partnership with Eagle County Government, Eagle River Fire Protection District and many other governmental entities in Eagle County recognize May as Wildfire Community Preparedness Month per the attached proclamation. Twenty of the largest wildfires in Colorado have occurred in the last twenty years. Four of the five largest fires in state history have occurred in the last three years, including the most destructive fire in state history, the Marshall Fire, on December 30, 2021. The Duck Pond fire in Gypsum had a devasting potential to destroy but through amazing first responder, governmental and community response, no lives or residences were lost. BACKGROUND: Wildfire community preparedness is foremost on the minds of the Avon Town Council and Avon Town Staff. Collectively we recognize the increasingly adverse conditions that we have experienced over the last several years. The Wildfire Community Preparedness Month has five recommended tasks/actions for our community throughout the month of May. More information regarding these five tasks/actions can be located at www.ecemergency.org or at www.facebook.com/ECEmergency  Task 1: Subscribe to EC Alert- we encourage our residents to sign up for alerts through the app. Stay informed by signing up for the Eagle County Alert System to receive the latest information on wildfire incidents and evacuation alerts. Subscribers can choose to receive emergency messages on their phone, desktop, or another mobile device. If you already have an EC Alert account, make sure you check your notifications are up to date to include wildfire warnings. Learn more and register at ecalert.org  Task 2: Sign up for the free Community Connect service and share critical information about your home so first responders know what to do when they arrive at your home. www.communityconnect.io/info/co-eaglecounty  Task 3: Plan and complete your emergency checklist by determining your evacuation route and creating an emergency supply kit with plans for: • People and pets • Papers, phone numbers and important documents • Medicines, vitamins, and glasses • Pictures and memories gdaly@avon.org ewood@avon.org (970) 748-4040 • Personal computers (information on hard disk and removable memory) • Money (credit cards, debit cards) and cash More information at Ready, Set, Go! https://www.wildlandfirersg.org/  Task 4: Learn about wildfire safety and steps you can take to reduce wildfire risk in and around your home by signing up for a REALFire home assessment. These voluntary assessments are performed by trained professional firefighters and may qualify you for a cost-sharing assistance grant that will cover a portion of your mitigation work. To learn more and apply, visit realfire.net  Task 5: As the snow begins to melt and the weather warms up, it's time to think about spring cleaning to include disposal of branches, brush, leaves, pine needles, and grass clippings to reduce any fuel for a fire. Removal of dead leaves and pine debris from your roof and gutters and from and under your decks can prevent embers from setting your home on fire. Move construction project materials, trash, and woodpiles a minimum of 30 feet from the home and other outbuildings. Additionally, the Town of Avon is currently working on the following Wildfire Community Preparedness initiatives.  Public land defensible space- The Town of Avon Public Works department, using $40,000 from the Capital Improvements Projects Fund (“CIP FUND”) is currently contracted with a third-party vendor to conduct fire migration by creating fire breaks/ defensible space on publicly owned property in the Wildridge Subdivision.  Wildland fire evacuation countywide zone mapping- Avon PD has worked with all of the fire departments/districts and first responder agencies throughout Eagle County to have consistent zone mapping for Eagle County in the event of evacuations. All first responders have access to these maps that breakdown subdivisions into sectors for potential pre-evacuation or evacuation notice.  Emergency siren alerting system- This project is currently in progress with an aim to ultimately have five sirens for our hillside communities. We have one siren in North Wildridge that will be operational for the summer season.  Secondary evacuation route planning and implementation- In progress, working with TOA Community Development, Berry Creek Metro District, Singletree Homeowners association, Eagle County Government, Eagle River Fire Protection District and U.S. Forest Service to create a secondary evacuation route in and out of Singletree that would allow the ingress of wildfire fighting equipment and the egress of potential evacuees from Wildridge.  Annual Wildridge wildland fire emergency evacuation exercise- The multi-agency evacuation exercise is scheduled for May 27th when Avon Police Department will exercise every evacuation notification tool to include the siren, EC alert, IPAWS, radio stations, reverse 911 and to include knocking on doors. We will practice unified command using the mobile command unit. Thank you, Greg and Elizabeth ATTACHMENT A: PROCLAMATION Resolution Form – 2022 Month, Day 2022 Page 1 of 1 PROCLAMATION 22-01 PROCLAIMING MAY AS WILDFIRE PREPAREDNESS MONTH IN THE TOWN OF AVON WHEREAS, Twenty of Colorado’s largest wildfires have occurred within the last twenty years. Four out of the five largest fires in state history have occurred within the last three years, including the most destructive fire in state history just 5 months ago; and WHEREAS, warmer temperatures, drought, and continued development in the wildland-urban interface have made wildfire mitigation a top priority for the Town of Avon and Eagle County; and WHEREAS, Wildfire Preparedness Month is focused on encouraging residents to learn about wildfire safety and take steps to reduce wildfire risk in and around their homes; and WHEREAS, these actions will lead to unified and fire-adapted communities throughout the Town of Avon and Eagle County; and, WHEREAS, the Avon Town Council finds that promoting wildfire awareness and preparation will promote the health, safety and general welfare of the Avon community. NOW, THEREFORE, BE IT PROCLAIMED BY THE TOWN OF AVON that the Avon Town Council hereby declares May 2022 is Wildfire Preparedness Month in the Town of Avon. ADOPTED MAY 10, 2022 by the AVON TOWN COUNCIL By: Attest: ___________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ATTACHMENT A: WILDFIRE PROCLAMATION 970.748.4004 eric@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Eric Heil, Town Manager RE: Work session: Regional Transit Authority – Establishing an IGA DATE: April 12, 2022 SUMMARY: This report provides an update on the Regional Transit Authority (RTA) formation effort and the 1st review of the draft Intergovernmental Agreement (IGA.) The 2nd hearing and approval of the the IGA is scheduled for May 10, 2022. As part of the formal process of setting up an RTA as defined by State law, the local governments involved in establishing the RTA must work together to create an IGA. The IGA is a legal document that sets forth the governance, service goals, and other key operating provisions of the RTA. The IGA must be agreed upon by the elected Councils and Boards in each community. Ultimately, voters must agree to the formation of the RTA and any taxing or bonding requests made to provide funding for the RTA’s services and operations. The IGA approval process requires two separate public hearings to be held in each jurisdiction considering adopting the IGA. The public hearings will provide details about the proposed RTA and the draft IGA for the creation of the Eagle Valley Transportation Authority, and feedback from the Council and the public will be shared with the RTA formation committee to help address local community needs and concerns. Background on the RTA formation effort can be found in attachments C and D. REQUESTED COUNCIL DIRECTION: Provide feedback and confirmation the proposed draft IGA is consistent with Town goals and is desired. Thank you, Eric ATTACHMENT A: Draft IGA ATTACHMENT B: RTA IGA Presentation ATTACHMENT C: Aug 24, 2021, Council Work Session - RTA Formation MOU ATTACHMENT D: Feb 22, 2022, Council Update - RTA Formation Res. 22-09 Page 1 of 2 RESOLUTION 22-09 ADOPTION OF EAGLE VALLEY REGIONAL TRANSIT AUTHORITY INTERGOVERNMENTAL AGREEMENT WHEREAS, pursuant to Title 43, Article 4, Part 6 of the Colorado Revised Statutes, as amended (the “Act”), Colorado counties and municipalities are authorized to establish, by contract, regional transportation authorities (“RTAs”) to finance, construct, operate and maintain regional transportation systems; and WHEREAS, pursuant to Title 29, Article 1, Part 2 of the Colorado Revised Statutes, as amended, and Article XIV, Section 18 of the Colorado Constitution, governments may contract with one another to provide any function, service or facility lawfully authorized to each of the contracting units and any such contract may provide for the joint exercise of the function, service or facility, including the establishment of a separate legal entity to do so; and WHEREAS, enhancing regional transportation services for Town of Avon residents, businesses and visitors is a crucial step in meeting our community’s workforce, economic and climate goals; and WHEREAS, extensive input from local officials, businesses, employees, nonprofits and community members have made clear that the creation of an RTA is a desirable way to plan, finance, implement and operate a regional public transportation system that better meets the needs of Town of Avon; and WHEREAS, the Avon Town Council has reviewed the proposed Intergovernmental Agreement by and among Beaver Creek Metropolitan District, the Town of Avon, Eagle County, the Town of Eagle, the Town of Gypsum, the Town of Minturn, the Town of Red Cliff, and the Town of Vail, establishing the Eagle Valley Transportation Authority as a Colorado RTA (the “Agreement”) attached hereto as EXHIBIT A: EAGLE VALLEY REGIONAL TRANSIT AUTHORITY INTERGOVERNMENTAL AGREEMENT; and WHEREAS, the Avon Town Council supports the collaborative approach memorialized in the Agreement and concurs that the proposed Eagle Valley Transportation Authority is poised to improve transit service, increase ridership and efficiency across the valley’s existing transit agencies, provide affordable or free transit to [the entity’s/municipality’s] visitors and employee base, strengthen the connection between the valley’s different communities and advance [the entity/municipality’s specific local climate goal] by reducing car trips and increasing the use of low and no emission public transportation; and WHEREAS, section 603(4) of the Act provides that no contract establishing an RTA shall take effect unless first submitted to a vote of the registered electors residing within the boundaries of the proposed authority; and Res. 22-09 Page 2 of 2 WHEREAS, the Avon Town Council acknowledges that referral of the Agreement to the electorate will be subject to a subsequent act of the Avon Town Council in the sole discretion of the Avon Town Council; and, WHEREAS, the Avon Town Council finds that the adoption of this Resolution will promote the health, safety and general welfare of the Avon community. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN OF AVON that the Avon Town Council as follows: THAT, the Avon Town Council hereby approves the Agreement in the form presented. THAT, the Avon Town Council authorizes the Mayor to execute the Agreement in substantially the form attached hereto, with such revisions or modifications, not inconsistent with this Resolution or the Agreement, as the Mayor, with review of the Town Attorney and Town Manager, may determine to be necessary or appropriate. ADOPTED May 24, 2022 by the AVON TOWN COUNCIL By: Attest: ___________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk April 2022 Draft (Public Hearing #1) EAGLE VALLEY TRANSPORTATION AUTHORITY INTERGOVERNMENTAL AGREEMENT by and among BEAVER CREEK METROPOLITAN DISTRICT TOWN OF AVON, COLORADO EAGLE COUNTY, COLORADO TOWN OF EAGLE, COLORADO TOWN OF GYPSUM, COLORADO TOWN OF MINTURN, COLORADO TOWN OF RED CLIFF, COLORADO and TOWN OF VAIL, COLORADO Dated as of [May 31, 2022] Providing for the establishment of the “Eagle Valley Transportation Authority” as a Colorado Regional Transportation Authority pursuant to the Regional Transportation Law, Title 43, Article 4, Part 6, Colorado Revised Statutes, as amended. April 2022 Draft (Public Hearing #1) i TABLE OF CONTENTS Page DEFINITIONS ............................................................................................................2 ESTABLISHMENT OF THE AUTHORITY AND INITIAL MEMBERS ...............4 BOARD OF DIRECTORS .........................................................................................7 ADVISORY COMMITTEES ...................................................................................10 OFFICERS ................................................................................................................10 POWERS OF THE AUTHORITY ...........................................................................12 FUNDING THE AUTHORITY................................................................................15 REORGANIZATION ...............................................................................................16 MEMBERS ...............................................................................................................17 TERM AND DISTRIBUTION OF ASSETS UPON TERMINATION .................18 DEFENSE OF DIRECTORS, OFFICERS, MEMBERS OF ADVISORY COMMITTEES AND EMPLOYEES .....................................................................................19 AMENDMENTS ....................................................................................................19 MISCELLANEOUS ...............................................................................................20 April 2022 Draft (Public Hearing #1) EAGLE VALLEY TRANSPORTATION AUTHORITY INTERGOVERNMENTAL AGREEMENT THIS EAGLE VALLEY TRANSPORTATION AUTHORITY INTERGOVERNMENTAL AGREEMENT (this “Agreement”) is entered into as of [May 31, 2022] by and among the BEAVER CREEK METROPOLITAN DISTRICT, the TOWN OF AVON, COLORADO; EAGLE COUNTY, COLORADO; the TOWN OF EAGLE, COLORADO; the TOWN OF GYPSUM, COLORADO; the TOWN OF MINTURN, COLORADO; the TOWN OF RED CLIFF, COLORADO; and the TOWN OF VAIL, COLORADO (together the “Initial Signatories”). RECITALS WHEREAS, pursuant to Title 43, Article 4, Part 6 of the Colorado Revised Statutes, as amended (the “Act”), Colorado counties, municipalities, and special districts with street improvement, safety protection, or transportation powers, are authorized to establish, by contract, regional transportation authorities, which, upon the satisfaction of the conditions set forth herein, are authorized to finance, construct, operate and maintain regional transportation systems; WHEREAS, pursuant to Title 29, Article 1, Part 2 of the Colorado Revised Statutes, as amended (the “Intergovernmental Relations Statute”), and Article XIV, Section 18 of the Colorado Constitution, governments may contract with one another to provide any function, service or facility lawfully authorized to each of the contracting units and any such contract may provide for the joint exercise of the function, service or facility, including the establishment of a separate legal entity to do so; WHEREAS, the Initial Signatories are a Colorado county, a Colorado special district, and certain Colorado municipalities located within the boundaries of Eagle County that desire to form a regional transportation authority to serve the greater Eagle River Valley community pursuant to the Act and the Intergovernmental Relations Statute for the purpose of financing, constructing, operating, and maintaining regional transportation systems; WHEREAS, enhancing regional transportation services for Eagle County residents, businesses and visitors is a crucial step in meeting the communities’ workforce, economic and climate goals, and regional transportation services support Eagle County socially and economically, helping employees get to work safely and visitors to enjoy their Eagle County experience; WHEREAS, the signatories of this Agreement wish to work toward collaborative solutions that will increase transportation and transit options throughout the greater Eagle River Valley, as well as increase air connections to the Eagle River Valley; WHEREAS, extensive input from local businesses, employees, nonprofits and community members have made clear that the creation of a Regional Transportation Authority (“RTA”) is a April 2022 Draft (Public Hearing #1) 2 desirable way to plan, finance, implement and operate a more comprehensive regional transportation system that better meets the needs of communities; WHEREAS, an RTA serving the greater Eagle River Valley is poised to improve transit service, increase ridership and efficiency across the valley’s existing transit agencies, provide affordable or free transit to the valley’s visitors and employee base, strengthen the connection between the valley’s different communities, and advance local climate action goals by reducing car trips and increasing the use of low or zero emission public transportation; and WHEREAS, transit services promote independent living for the elderly and the disabled by providing essential links to medical, social and other services, and the region recognizes the need to improve mobility options for all segments of the population. AGREEMENT NOW, THEREFORE, for and in consideration of the mutual covenants set forth below, the Initial Signatories hereby agree as follows: DEFINITIONS Definitions from the Act. The following terms shall, when capitalized, have the meanings assigned to them in Section 602 of the Act: “Bond,” “Construct,” “Construction,” “County,” “Municipality,” “Person,” “Regional Transportation Activity Enterprise,” “Regional Transportation System,” and “State”. Other Definitions. The following terms shall, when capitalized, have the following meanings: “Act” is defined in the Recitals. “Advisory Committee” means two or more persons appointed by the Board pursuant to Article 4 of this Agreement for the purpose of providing advice to the Board. “Agreement” means this Eagle Valley Transportation Authority Intergovernmental Agreement, as amended from time to time in accordance with the terms contained therein. “Alternate Director” means any person appointed as an Alternate Director pursuant to Section 3.03 of this Agreement. “Authority” means the Eagle Valley Transportation Authority, a separate political subdivision of and body corporate of the State established pursuant to this Agreement as a regional transportation authority under the Act and as a separate legal entity under the Intergovernmental Relations Statute. April 2022 Draft (Public Hearing #1) 3 “Authority Sales Tax” means a sales and use tax levied by the Authority in all or any designated portion of the Members in accordance with Section 605(1)(j)(1) of the Act. “Authorized Transportation Projects” refers to the Regional Transportation Systems projects described in Appendix C of this Agreement, as such projects may be amended from time to time in accordance with Article 6 of this Agreement. “Ballot Question” refers to any of the questions listed in Section 2.04(a)(i)-(viii) of this Agreement, and shall mean a “Ballot Issue,” as defined in Title 1, Article 1, Part 104(2.3), Colorado Revised Statutes, as amended. The Ballot Question for each of the Initial Signatories are collectively referred to as the “Ballot Questions.” “Board” means the Board of Directors of the Authority. “Boundaries” means the boundaries of the Authority illustrated in Appendix A-1 and described in Appendix A-2 of this Agreement, as such Appendices may be amended from time- to-time in accordance with Article 12 of this Agreement. “Director” means any person appointed as a Director pursuant to Section 3.02 of this Agreement Whenever the person appointed as a Member’s Director is absent from a Board meeting, the term “Director” shall mean the Alternate Director, if any, appointed by such Member pursuant to Section 3.03 of this Agreement. “Division of Local Government” means the Division of Local Government in the State Department of Local Affairs. “ECRTA” means the Eagle County Regional Transit Authority (Fund 1151) which operates Eagle County’s current ECO Transit public transportation service, and which is also referred to in this Agreement as “ECO Transit.” “Governing Body” means, when used with respect to a Member, the town council, board of trustees, board of commissioners or other legislative body, as appropriate, of such Member. “Initial Boundaries” means the Boundaries of the Authority on the date the Authority is originally established pursuant to Article 10.01 of this Agreement, as such Initial Boundaries are illustrated in Appendix A-1 and described in Appendix A-2 of this Agreement. “Initial Members” means the Initial Signatories who become Members on the date on which the Authority is originally established pursuant to Section 2.05 of this Agreement. “Initial Signatories” means the county, special district, and municipalities that are signatories to this Agreement in its original form. “Intergovernmental Relations Statute” is defined in the Recitals. April 2022 Draft (Public Hearing #1) 4 “Member” means (a) the Initial Members and (b) the State or any Municipality or County or special district that becomes a member of the Authority pursuant to Section 9.03 of this Agreement. “MOU” means the Memorandum of Understanding Establishing a Regional Transit Authority Formation Committee entered into by and among the Initial Signatories for the purpose of researching and proposing the structure of an RTA to serve the greater Eagle River Va lley community. “Officer” means the Chair, Vice Chair, Secretary, Treasurer or Executive Director of the Authority, and any subordinate officer or agent appointed and designated as an officer of the Authority by the Board. “Regional Transportation Systems” shall have the meaning given to it in Section 602(16) of the Act. “Visitor Benefit Tax” means a visitor benefit tax levied by the Authority in all or any designated portion of a Member in accordance with Section 605(1)(i.5) of the Act and Section 7.01 hereof. ESTABLISHMENT OF THE AUTHORITY AND INITIAL MEMBERS Establishment. A regional transportation authority to be known as the “Eagle Valley Transportation Authority” shall be established as a separate political subdivision and body corporate of the State pursuant to the Act and as a separate legal entity created by this Agreement among the Initial Members pursuant to the Intergovernmental Relations Statute, effective upon satisfaction of the following conditions: (a) each Initial Member (i) has held at least two public hearings on the subject of this Agreement in accordance with Section 603(3) of the Act; and (ii) has executed this Agreement, which execution shall constitute a representation by such Initial Member to t he other Initial Members that the executing Initial Member has held the public hearings required by Section 603(3) of the Act and that the Governing Body of such Initial Member has duly authorized its execution, delivery and performance of this Agreement; (b) this Agreement will be submitted for approval, and has been approved by, a majority of the registered electors residing within the boundaries of the Initial Members at the time of the election, who voted in a general election or special election called for such purpose in accordance with Section 603(4) of the Act, which, for purposes of the November 8, 2022, election, shall be determined based on the votes cast on the Ballot Questions approved by the registered electors voting on the Ballot Questions that approve the participation in the Authority; and April 2022 Draft (Public Hearing #1) 5 (c) the Director of the Division of Local Government has issued a certificate pursuant to Section 603(1) of the Act stating that the Authority has been duly organized according to the laws of the State. Purpose. The purpose of the Authority is to plan, finance, implement and operate an efficient, sustainable and regional public multimodal transportation system at any location or locations within or without the Boundaries of the Authority, and exercise any or all other powers authorized by, and subject to compliance with, the Act. Boundaries. Subject to Section 2.05 and amendment to reflect to outcome of the Ballot Questions, the Initial Boundaries of the Authority shall be as illustrated in Appendix A-1 and described in Appendix A-2 of this Agreement. For any territory included or annexed in the boundaries of a Member, the Boundaries shall automatically be amended to include such territory that has been included or annexed into the boundaries of the Member (for taxation purposes, as if such territory was included in the Boundaries of the Authority because the territory is included in the boundaries of such Member). Voter Approval. (a) The Initial Signatories agree to submit Ballot Questions seeking voter approval of the establishment of the Authority; the baseline funding of the Authority in accordance with Article 7 and the exemption of certain Authority revenues from the revenue limitations of Article X, Section 20 of the Colorado Constitution (“TABOR”) at an election held on November 8, 2022, that is conducted in accordance with the Act and other applicable law. Eight separate questions, which are hereafter referred to by the names indicated below and drafts of which are attached of this Agreement as Appendixes B-1 through B-8, shall be submitted to the registered electors residing within the following described areas within the boundaries of the Initial Signatories: (i) the “Avon Question,” a draft of which is attached hereto as Appendix B-1, shall be submitted to the electors of the Town of Avon; (ii) the “Beaver Creek Question,” a draft of which is attached hereto as Appendix B-2, shall be submitted to the electors of the Beaver Creek Metropolitan District; (iii) the “Eagle Question,” a draft of which is attached hereto as Appendix B-3, shall be submitted to the electors of the Town of Eagle; (iv) the “Gypsum Question,” a draft of which is attached hereto as Appendix B- 4, shall be submitted to the electors of the Town of Gypsum; (v) the “Minturn Question,” a draft of which is attached hereto as Appendix B- 5, shall be submitted to the electors of the Town of Minturn; (vi) the “Red Cliff Question,” a draft of which is attached hereto as Appendix B-6, shall be submitted to the electors of the Town of Red Cliff; April 2022 Draft (Public Hearing #1) 6 (vii) the “Vail Question,” a draft of which is attached hereto as Appendix B-7, shall be submitted to the electors of the Town of Vail; and (viii) the “Unincorporated Eagle County Question,” a draft of which is attached hereto as Appendix B-8, shall be submitted to the electors of the unincorporated area of Eagle County within the boundaries described in Appendix A-2, exclusive of electors residing in the municipalities and special district that are Initial Signatories of this Agreement. (b) With the intent to put forth these measures as a coordinated election under the Clerk of Eagle County, the Governing Body of each of the Initial Signatories named in the title of each Ballot Question shall take all actions necessary to submit such questions to the appropriate registered electors at the Election but may modify the Ballot Questions submitted by it in any manner that is consistent with the terms of this Agreement and the Ballot Questions attached in Appendices B-1 through B-8. Any Governing Body’s modification(s) to a Ballot Question that are inconsistent with the terms of this Agreement and the attached appendices shall require the written consent of each of the other Initial Signatories prior to its submittal to that body’s registered electors. The designated election official for a coordinated election shall be the Eagle County Clerk and Recorder. (c) The costs of conducting the November 8, 2022, election shall be allocated from the funding contributions set forth in the MOU. Initial Members. (a) Subject to Section 2.05(b) of this Agreement, the Initial Signatories whose participation in the Authority is authorized by a majority of the registered electors voting on the Ballot Questions indicated below shall be the Initial Members of the Authority on the date the Authority is originally established pursuant to this Agreement: (i) the Town of Avon will be an Initial Member if the Town of Avon electors approve the Avon Question; (ii) the Beaver Creek Metropolitan District will be an Initial Member if the Beaver Creek Metropolitan District electors approve the Beaver Creek Question; (iii) the Town of Eagle will be an Initial Member if the Town of Eagle electors approve the Eagle Question; (iv) the Town of Gypsum will be an Initial Member if the Town of Gypsum electors approve the Gypsum Question; (v) the Town of Minturn will be an Initial Member if the Town of Minturn electors approve the Minturn Question; (vi) the Town of Red Cliff will be an Initial Member if the Town of Red Cliff electors approve the Red Cliff Question; April 2022 Draft (Public Hearing #1) 7 (vii) the Town of Vail will be an Initial Member if the Town of Vail electors approve the Vail Question; and (viii) Eagle County will be an Initial Member if the electors within the unincorporated area of Eagle County described in Section 2.04(a)(viii) approve the Unincorporated Eagle County Question. (b) The Initial Signatories agree that in order for the Regional Transportation Systems to be efficiently and effectively provided within the Authority’s service area, participation of each of the Town of Avon, the Beaver Creek Metropolitan District, Eagle County, and the Town of Vail, is essential. This Agreement will terminate automatically and be of no further force and effect if the registered electors voting on each of the Avon Question, the Beaver Creek Question, the Vail Question, and the Unincorporated Eagle County Question do not each approve their respective ballot questions at the November 8, 2022, election. BOARD OF DIRECTORS Establishment and Powers. The Authority shall be governed by a Board of Directors as described in this Article 3. The Board shall exercise and perform all powers, privileges and duties vested in or imposed on the Authority. Subject to the provisions of this Agreement, the Board may delegate or prescribe the performance of any of its powers to any Director, Officer, employee or agent of the Authority with sufficient direction to comply with the non-delegation doctrine. Directors. The Board shall be composed of one Director appointed by each Member. Alternate Directors. In addition to the Director appointed by it, each Member shall appoint an Alternate Director who shall be deemed to be such Member ’s Director for all purposes, including, but not limited to, voting on resolutions whenever the person appointed as such Member’s Director is absent from a Board meeting or in the event such Director has resigned or been removed and no replacement Director has been appointed. Appointment of Directors and Alternate Directors. As required by Section 603(2)(b)(1) of the Act, the Director and the Alternate Director appointed by a Member shall both be members of the Governing Body of such Member, and shall be appointed as a Director or Alternate Director by the Governing Body of such Member. Terms of Office. The term of office of each Director and Alternate Director shall commence with the first meeting of the Board following his or her appointment and shall continue until (a) the date on which a successor is duly appointed or (b) the date on which he or she ceases to be a member of the Governing Body of the appointing Member. April 2022 Draft (Public Hearing #1) 8 Resignation and Removal. Any Director or Alternate Director (a) may resign at any time, effective upon receipt by the Secretary or the Chair of written notice signed by the person who is resigning; and (b) may be removed at any time by the Governing Body of the Member that appointed him or her, effective upon receipt by the Secretary or the Chair of written notice signed by the Governing Body of the appointing Member. Vacancies. Vacancies in the office of any Director or Alternate Director shall be filled in the same manner in which the vacant office was originally filled pursuant to Sections 3.02 through 3.04 of this Agreement. Compensation. Directors and Alternate Directors shall serve without compensation, but may be reimbursed for expenses incurred in serving in such capacities upon such terms and pursuant to such procedures as may be established by the Board. Meetings, Notice. The Board shall annually establish times for regular meetings of the Board, which shall meet no less than quarterly. The Board may additionally call special meetings as it deems necessary or desirable. Meetings will be held at the location as may from time to time be designated by the Board. Public notice of meetings shall be posted in the locations established by the Board, in accordance with the Colorado Open Meetings Law, Section 24-6-401 et seq., Colorado Revised Statutes, as amended. Except in the case of special or emergency meetings where such advance notice is not practicable, the Authority shall provide at least 48 hours’ advance notice of meetings to each Director and Alternate Director and to the Governing Body of each Member. Resolutions, Quorum. All actions of the Board shall be by resolution, which may be written or oral, approved at a meeting that is open to the public according to the voting requirements set forth in Section 3.11. At least a quorum shall be necessary to take any Board action and at least two-thirds of all Directors then in office who are eligible to vote thereon will be required for action pursuant to Section 3.11(a). A quorum shall mean a number of Directors greater than half the total number of Directors then in office (which, if all Initial Signatories become Initial Members, will be five of the eight initial Directors). The Board may establish bylaws providing for electronic participation by a Director in a meeting, including requirements for a Director participating electronically to be considered “present” for purposes of establishing a quorum and voting on agenda items. Voting Requirements. (a) Except as otherwise provided in subsection (b) of this Section, resolutions of the Board shall be adopted upon the affirmative vote of at least two-thirds of the Directors then in office who are eligible to vote thereon (which, if all Initial Signatories become Initial Members and no Director is ineligible to vote, will be six of the eight initial Directors). (b) Provided a quorum is present, the following actions shall be approved upon the affirmative vote of a majority of the Directors of the Board then present who are eligible to vote thereon: April 2022 Draft (Public Hearing #1) 9 (i) administrative approvals such as setting meeting locations and times and ministerial actions required for the Authority’s compliance with applicable law; (ii) approvals authorized by bylaws or rules previously approved by the Board; (iii) approval of contracts for expenditures included in an annual budget previously approved by the Board; (iv) approval of contracts for transportation services included in an annual budget previously approved by the Board; (v) approval of contracts for the assumptions of existing facilities and transportation infrastructure, or the development of new facilities and transportation infrastructure, included in an annual budget previously approved by the Board; and (vi) other actions that are reasonably incidental to prior Board approvals made under subsection (a) of this Section. Special Rules Regarding Adoption of the Authority’s Annual Budget. Notwithstanding Section 3.10 of this Agreement, if the Board fails to approve the Authority’s annual budget by resolution adopted in accordance with Section 3.10 of this Agreement by the end of the immediately preceding fiscal year of the Authority or any earlier date required by State law, until an annual budget is so adopted, the Authority’s budget for such year shall be the prior year’s budget, with adjustments approved by a majority of the Directors then in office who ar e eligible to vote thereon. The procedures set forth in this Section may be modified by bylaws or rules adopted in accordance with Section 3.15 of this Agreement. Director Conflicts of Interest. Notwithstanding any other provision of this Agreement, a Director shall disqualify himself or herself from voting on any issue with respect to which he or she has a conflict of interest, unless he or she has disclosed such conflict of interest in compliance with Sections 18-8-308 and 24-18-101 et seq., Colorado Revised Statutes, as amended. Powers of the Board. The Board shall, subject to the limitations set forth of this Agreement, have (a) all powers that may be exercised by the board of directors or a regional transportation authority pursuant to the Act, including, but not limited to, the powers conferred by Sections 604(1) and (3) of the Act, and (b) all powers that may be exercised by the governing board of a separate legal entity that has been lawfully created by a contract among the Members pursuant to the Intergovernmental Relations Statute. Bylaws and Rules. The Board, acting by resolution adopted as provided for in Section 3.10 or Section 3.11 of this Agreement, may adopt bylaws or rules governing the activities of the Authority and the Board, including, but not limited to, bylaws or rules governing the conduct of Board meetings, voting procedures, the type of resolutions that must be in writing and procedures for the resolution of issues on which a two-thirds majority cannot be obtained in accordance with Section 3.11(a) of this Agreement. April 2022 Draft (Public Hearing #1) 10 Additional Directors. If at any time there are four or fewer Members, then, notwithstanding any other provision of this Agreement, in order to comply with the provisions of Section 603(2)(b)(1) of the Act requiring at least five Directors, the Directors representing the remaining Members shall, by unanimous consent, appoint such additional Directors and Alternate Directors as are necessary for there to be five Directors, and may likewise remove such Directors and Alternative Directors by consensus of the Directors appointed directly by the Members. If such remaining Directors are unable to reach unanimous consent, each Member shall appoint a second Director, until the total number of Members exceeds five at which time each Member shall revert to appointing a sole Director. References. All references of this Agreement to the Director and Alternate Director of a Member shall be deemed to refer to the initial and the additional Director and Alternate Director, as appropriate, appointed by such Member. ADVISORY COMMITTEES The Board may appoint, maintain, and/or disband one or more Advisory Committees at any time in order to advise the Board with respect to policy and service matters. Advisory Committees shall not be authorized to exercise any power of the Board. OFFICERS Generally. The Board shall appoint a Chair, a Vice Chair, a Secretary, a Treasurer and an Executive Director. The Board also may appoint one or more subordinate officers and agents, each of whom shall hold his or her office or agency for such term and shall have such authority, powers and duties as shall be determined from time to time by the Board. The Chair and the Vice Chair shall be Directors. Other Officers may, but need not, be Directors. Any two or more of such offices may be held by the same person, except that the offices of Chair and Secretary may not be held by the same person and the person serving as Executive Director may not hold any other of such offices. All Officers of the Authority shall be persons of the age of 18 years or older and shall meet the other qualifications, if any, stated for his or her office elsewhere in this Article 5. Alternate Directors shall not assume the officer position of any Director unless so designated by action of the Board. Chair. The Chair shall have the power to call meetings of the Board; the power to execute, deliver, acknowledge, file and record on behalf of the Authority such documents as may be required by this Agreement, the Act or other applicable law; and such other powers as may be prescribed from time to time by the Board. The Chair may execute and deliver contracts, deeds and other instruments and agreements on behalf of the Authority as are necessary or appropriate in the ordinary course of its activities or as are duly authorized or approved by the Board. The Chair shall have such additional authority, powers and duties as are appropriate and April 2022 Draft (Public Hearing #1) 11 customary for the office of the chair of the board of directors of entities such as the Authority, and as the Board may otherwise prescribe. Vice Chair. The Vice Chair shall be the Officer next in seniority after the Chair and, upon the death, absence or disability of the Chair, shall have the authority, powers and duties of the Chair. The Vice Chair shall have such additional authority, powers and duties as are prescribed by the Board. Secretary. The Secretary shall give, or cause to be given, notice of all meetings (including special meetings) of the Board, keep written minutes of such meetings, have charge of the Authority’s seal (if any), be responsible for the maintenance of all records and files and the preparation and filing of reports to governmental agencies (other than tax returns), have authority to impress or affix the Authority’s seal to any instrument requiring it (and, when so impressed or affixed, it may be attested by his or her signature), and have such other authority, powers and duties as arc appropriate and customary for the office of Secretary of entities such as the Authority, and as the Board may otherwise prescribe. If a Treasurer has not been appointed, the Secretary shall also serve as Treasurer and may use the title of Treasurer in performing the functions of Treasurer. Treasurer. The Treasurer shall, subject to rules and procedures established by the Board, be responsible for the custody of the funds and all stocks, bonds and other securities owned by the Authority and shall be responsible for ensuring the timely preparation and filing of all tax returns, if any, required to be filed by the Authority. The Treasurer shall receive all moneys paid to the Authority and, subject to any limits imposed by the Board or the Chair, shall have authority to give or authorize receipts and vouchers, to sign and endorse checks and warrants in the Authority’s name and on the Authority’s behalf, and to give full discharge for the same. The Treasurer shall also have charge of disbursement of the funds of the Authority, shall ensure that full and accurate records of the receipts and disbursements are maintained, and shall ensure that all moneys and other valuables are deposited in such depositories as shall be designated by the Board. The Treasurer shall ensure deposit and investment of all funds of the Authority in accordance with this Agreement and laws of the State applying to the deposit and investment of funds of regional transportation authorities formed under the Act. The Treasurer shall have such additional authority, powers and duties as are appropriate and customary for the office of Treasurer of entities such as the Authority, and as the Board may otherwise prescribe. If a Treasurer has not been appointed, the Secretary shall also serve as Treasurer and may use the title of Treasurer in performing the functions of Treasurer. Executive Director. The Executive Director shall be the chief executive officer of the Authority, shall supervise the activities of the Authority, shall see that all policies, directions and orders of the Board are carried out and shall, under the supervision of the Board, have such other authority, powers or duties as may be prescribed by the Board. Resignation and Removal. Any Officer may resign at any time effective upon receipt by the Secretary or the Chair of written notice signed by the person who is resigning, and may be removed at any time by the Board. April 2022 Draft (Public Hearing #1) 12 Changes to Authority, Powers and Duties. Notwithstanding any other provision of this Article 5, the Board at any time may expand, limit or modify the authority, powers and duties of any Officer or employee. Vacancies. Vacancies in the office of any Officer or employee shall be filled in the same manner in which such office was originally filled. Compensation. The Authority shall determine and may compensate Officers and employees who are not Directors or Alternate Directors for services performed, and may reimburse them for expenses incurred, in serving in such capacities upon such terms and pursuant to such procedures as may be established by the Board. POWERS OF THE AUTHORITY General Grant of Powers. The Authority shall, subject to the limitations set forth in this Agreement, have (i) all of the powers granted to regional transportation authorities by the Act and (ii) all powers that may be exercised by a separate legal entity created by a contract among the Members pursuant to the Intergovernmental Relations Statute. Specific Responsibilities. In addition to the general powers described in Section 6.01 of this Agreement, the Authority shall have the responsibilities described in this Section and shall have all powers necessary or convenient to carry out such responsibilities, subject to the availability of funds and, to the extent required by law, annual appropriation of funds by the Board. The description of specific responsibilities and powers in this Section shall not, however, limit the general powers of the Authority described in Section 6.01 of this Agreement. (a) Regional Transportation Systems. The Authority shall coordinate and may operate and fund Regional Transportation Systems and provide such related services as are necessary in order to effect the Authorized Transportation Projects described in Appendix C, as may be amended from time to time in accordance with Article 12 of this Agreement. (b) Regional Transportation Planning. The Authority shall engage in annual regional transportation planning to direct the implementation of Regional Transportation Systems, pursue local, federal or state funding, and coordinate overall transportation policy within the area in which it provides transit services. Regional transportation planning shall, as determined by the Board, include short range service and infrastructure planning as well as long range planning, corridor investment studies and related impact analyses. (c) Regional Transportation Demand Management. The Authority shall develop plans, programs, and materials to support individuals and employers in their efforts to reduce single- occupancy vehicle trips and mitigate climate impacts in Eagle County, in coordination with local jurisdictions, CDOT, NWCCOG, the I-70 Coalition and other relevant organizations. (d) Enhance Local, State, and Federal Coordination. April 2022 Draft (Public Hearing #1) 13 (i) The Authority shall represent the Eagle Valley region with regard to state and federal legislation affecting available funding to support regional transit operations and with regard to legislation affecting operations. (ii) The Authority shall coordinate with the Colorado Department of Transportation (“CDOT”) and federal governing agencies to enhance regional transit, including but not limited to, improvements to connections to the Authority area via Bustang and other statewide bus programs and increased air service to the Eagle County Regional airport. (e) First-Last Mile Solutions. The Authority may study, design, financially support and implement, with partnerships as appropriate, first and last mile improvements to enhance transit ridership, including but not limited to park and rides, pedestrian crossings, and regional innovative mobility programs such as regional e-bike sharing, on-demand microtransit, and community vanpools. (f) Contract Transit Services. (i) The Authority may enter into contracts with any Member or other person or entity for the provision of transit services in the manner and subject to the terms of such contracts. (ii) The Authority may initially enter into contracts with Eagle County for the continuation of ECO Transit service during and after the ECRTA Transition Period (as set out more specifically in Article 8 below) and shall reasonably cooperate with Eagle County to ensure the continuation of employment for personnel currently employed by Eagle County in the provision of transit services within the Boundaries of the Authority. (g) Local Service. The Authority may fund projects or services that serve the residents and businesses of a single Member (as distinguished from regional services) but, except as otherwise specifically provided in this Agreement, only pursuant to an agreement to which such Member pays the Authority for the services provided on the same fully allocated cost basis used to determine costs of Authority services throughout the Authority’s service area. (h) Transportation Related Infrastructure. The Authority may assume the maintenance of existing facilities and may develop new facilities, park-and-rides, transit stops, vehicle maintenance garages, trails, or other necessary infrastructure related to operations under the purview of the Authority. (a) Planning, Construction, and Maintenance of Regional Trails and Pedestrian Infrastructure. (i) The Authority shall provide planning and funding support for regional public trail maintenance, improvement, and construction, in cooperation with Members, advisory groups and other agencies, including but not limited to USFS, BLM and CDOT. The Authority will place emphasis on multi-modal transportation-oriented trails that April 2022 Draft (Public Hearing #1) 14 provide improved accessibility and connections between transit nodes, population centers, and communities. (ii) The Authority may plan for transitioning the operations, maintenance, capital improvements, and funding required for Eagle County’s ECO Trails partnership, including the Eagle Valley Trail, after completion of all currently planned sections and no sooner than December 31, 2024. (i) Contract Air Services. The Authority may enter into contracts with commercial air service carriers for the provision of air services in the manner and subject to the terms of such contracts. (j) Roadway Improvements. Subject to the Gypsum Question first being approved by the electors of the Town of Gypsum, the Authority shall provide financial support for the construction on an EGE Airport interchange, including commitment of matching funds to be combined with other local matching funds in support of the pursuit of state and federal grant funds. Any obligation of the Authority to provide matching funds will be conditional upon first securing funds for construction of the EGE Airport Interchange from all other available federal, state, and local funding sources and shall not exceed an amount budgeted therefor by the Board. It is anticipated that the Town of Eagle, Town of Gypsum, Eagle County, or some combination thereof will be the responsible entities for all permitting, financing and construction. and the Authority’s role would be limited to providing matching funds as described in this Section. Limitations on Powers of the Authority. Notwithstanding Sections 6.01 and 6.02 of this Agreement, the powers of the Authority shall be limited as follows: (a) no action to establish or increase a tax or to create a multiple fiscal year debt or other financial obligation that is subject to Section 20(4)(h) of Article X of the State Constitution shall take effect unless first submitted to a vote in accordance with Section 612 of the Act; (b) the Board shall deliver notice of any proposal to establish, increase or decrease any tax to any County, Municipality or special district Member where the proposed tax or fee would be imposed in accordance with Section 613 of the Act; and (c) a notice of the imposition of or any increase in any fee or tax or the issuance of Bonds shall be sent to the Division of Local Government and shall be filed with the State Auditor and the State Transportation Commission in accordance with Section 614 of the Act. Limitations. If any portion of the Regional Transportation System alters the physical structure of or negatively impacts the safe operation of any state or local transportation improvement, the Authority shall, upon the request of the Governing Body of the jurisdiction impacted by the transportation improvement, in order to ensure coordinated transportation planning, efficient allocation of resources, and the equitable sharing of costs, enter into an intergovernmental agreement between the Authority and such jurisdiction concerning the applicable portion of the Regional Transportation System before commencing physical construction of that particular improvement. April 2022 Draft (Public Hearing #1) 15 FUNDING THE AUTHORITY Baseline Funding. The baseline funding of the Authority shall be provided from the following sources: (a) Initial Authority Sales and Use Tax. Subject to Section 2.05(b) of this Agreement, upon approval by the registered electors of the Ballot Question for each Initial Member, a sales and use tax of one-half percent (0.5%) shall be imposed in all areas within the Initial Boundaries of the Authority. (b) Eagle County 0.5% Transportation Sales Tax. Eagle County shall pay to the Authority the proportion of the proceeds of the Eagle County 0.5% Transportation Sales Tax accrued on and after January 1 of the year following the Effective Date of this Agreement and that are allocated to ECRTA operations as of the Effective Date. To the extent required by law, the obligation of Eagle County to make such payments may be subject to annual appropriation by the Board of County Commissioners of Eagle County. (c) Visitor Benefit and Lodging Tax. The Visitor Benefit Tax imposed by the Authority on persons who purchase overnight rooms or accommodations shall, upon satisfaction of the conditions stated below, be imposed at a rate of 1% within the Boundaries of the Authority: Such Visitor Benefit Tax shall apply to all types of accommodations available for rent for a period of thirty days or less within the Boundaries of the Authority. The proceeds of the Visitor Benefit Tax shall be used by the Authority solely to finance, construct, operate, and maintain Regional Transportation Systems and provide incentives to overnight visitors to use public transportation. To the extent that the imposition of an additional tax by the Authority is precluded by Section 43-4-605(1)(i.5)(I), C.R.S., such Member shall seek alternative sources of funding, or pledge existing tax revenues, in an equivalent amount. Discretionary Member Contributions. A Member may, at its sole discretion, offer to make cash contributions to the Authority, provide in-kind services to the Authority or pay costs that otherwise would have been paid by the Authority (referred to as a “Discretionary Member Contribution”). If a Member offers to make a Discretionary Member Contribution, the Authority will, subject to Board approval on a case-by-case basis, make a good faith effort to provide additional transportation services within the boundaries of such Member with a value, or grant such Member a credit against other contributions or contract service payments to the Authority by or on behalf of such Member, in an amount equal to the Discretionary Member Contribution. Pursuit of Grants. The Authority shall actively pursue grants to support its activities, including grants for offsetting operating and capital costs, long range planning and environmental review, and major capital improvements. The Authority shall also cooperate and assist Members in their pursuit of grants for transportation projects. April 2022 Draft (Public Hearing #1) 16 Capital Projects and Bonds. The Authority may fund capital projects by the issuance of Authority Bonds pursuant to Section 609 of the Act if voter approval is obtained for the issuance of such Bonds as required by Section 612(2) of the Act; through lease-purchase agreements or other arrangements permitted by, and subject to compliance with the applicable provisions of, State and federal law; or through one or more agreements with one or more Members. Bond issuances by Regional Transportation Enterprises formed pursuant to Section 606 of the Act do not require voter approval. No Implied Limits on Powers. Except as otherwise specifically provided, no provision of this Article 7 shall limit the Authority’s powers under the Act. REORGANIZATION Reorganization Plan. All relevant assets and liabilities of ECRTA will be transferred to the Authority in accordance with this Article 8 within an 18 month period of time from the Effective Date of this Agreement and establishment of the Authority (the “ECRTA Transition Period.”) ECRTA Transition Period, Maintenance of Effort. During the ECRTA Transition Period, the Authority will undertake the following: (a) The Authority will assume responsibility for the services provided by ECRTA and will begin receipt transfers of the operating revenues of ECRTA (as distinguished from the contributions to the Roaring Fork Transportation Authority by its members) from Eagle County no later than January 1 of the year following formation of the Authority in accordance with Section 7.01(b) of this Agreement; provided, however, that the Authority may not allocate such revenues to any purpose other than funding of services provided by ECRTA, including payments under any contract with Eagle County referred to herein for services of employees or other assets of ECTRA, in order to ensure continuity of ECO Transit services during the ECRTA Transition Period as the provision of such services, and the transfer of assets and liabilities, transition from Eagle County to the Authority over such period. (b) For the purpose of continuity, the existing ECRTA Advisory Board shall be constituted as an Advisory Committee pursuant to Article 4 of this Agreement for the purpose of advising the Authority’s initial Board with respect to the transition of ECRTA services throughout the ECRTA Transition Period. The Authority Board may add or remove members of the ECRTA Advisory Board as provided for in this Agreement. (c) Either directly or by contract with Eagle County or others, will use reasonable efforts to: (i) maintain continuity of the existing ECO Transit regional transit services provided by ECRTA within the Authority Boundaries and to neighboring jurisdictions, April 2022 Draft (Public Hearing #1) 17 without any significant changes in routes, schedules, or equipment, during the ECRTA Transition Period; (ii) continue ongoing transportation planning efforts; (iii) enter into contracts for transit services ECRTA currently provides to other Eagle County departments or entities no later than the end of the ECRTA Transition Period; and (iv) accommodate Member requests for additional or new local services on the same fully allocated cost basis used to determine the cost of Authority services throughout the Authority service area; (d) The Authority will assist Eagle County to cause all relevant Eagle County assets, liabilities, personnel, contracts, and operations to be formally transferred and assigned to the Authority, and to enter into any required intergovernmental agreement, leases, or other contractual arrangements to enable such transfers or assignments, prior to the conclusion of the ECRTA Transition Period; and (e) The ECRTA Transition Period will be deemed concluded when all issues set forth in the Transition Plan (defined in Section 8.03) have been addressed to the satisfaction of the Board. Transition Plan. (a) The Authority and Eagle County shall use their best efforts to agree on a “Transition Plan” that implements the provisions of this Article 8. The Transition Plan will specify how merger issues, including those related to human resources, employee benefits, insurance, transfer of ECRTA assets, contractual relationships (e.g. with the Town of Vail and the Town of Avon), and matters concerning the allocation of operating and capital costs and resources will be resolved. MEMBERS Initial Members. The Initial Members shall be the Initial Signatories whose participation in the Authority is approved at the November 8, 2022, election as described in Section 2.05 of this Agreement. Withdrawal of Initial Members. (a) Following establishment of the Authority, an initial Member may withdraw from the Authority only if the Initial Member’s withdrawal is approved at an election by a majority of the electors voting thereon. (b) If an Initial Member withdraws from the Authority pursuant to subsection (a) of this Section: April 2022 Draft (Public Hearing #1) 18 (i) the territory within the boundaries of such Initial Member will be excluded from the Boundaries of the Authority. (ii) the taxes relevant to that Initial Member shall not be levied after the effective date of such withdrawal; and (iii) the obligations of such Initial Member set forth in this Agreement shall terminate. (c) Members may only withdraw from the Authority in the manner, and subject to the conditions, set forth in this Section. Additional Members. Any county, municipality, or special district with street improvement, safety protection, or transportation powers, or a portion thereof, which is not an Initial Member of the Authority, may become a Member (for purposes of this Section, a “new Member”) effective upon: (a) the adoption of a resolution of the Board in accordance with Section 3.11(a) of this Agreement, the effectiveness of which may be conditioned upon compliance by such new Member with any conditions which the Board, in its sole discretion, sees fit to impose; (b) unless the new Member is the State, approval of such new Member’s participation in the Authority by the electors residing within the territory of the new Member that is to be included in the Boundaries of the Authority; and (c) compliance with any other conditions to the admission of such new Member as a Member or its execution of the amended Agreement imposed under the Act, the Intergovernmental Relations Statue or any other applicable law. TERM AND DISTRIBUTION OF ASSETS UPON TERMINATION Effective Date. The term of this Agreement shall begin when all the conditions to the establishment of the Authority set forth in Section 2.01 of this Agreement have been satisfied. Termination. The term of this Agreement shall end when all the Members agree in writing to terminate this Agreement; provided, however, that this Agreement may not be terminated so long as the Authority has any Bonds outstanding. Distribution of Assets Upon Termination. Upon termination of this Agreement pursuant to Section 10.02 of this Agreement, after payment of all Bonds and other obligations of the Authority, the net assets of the Authority shall be distributed to the parties who are Members at such time in proportion to the sum of: April 2022 Draft (Public Hearing #1) 19 (a) the amount of cash and the value of property and services contributed by them to the Authority pursuant to Article 7 and 8 of this Agreement minus the amount of cash and the value of property previously distributed to them by the Authority; and (b) the amount of Authority taxes or other charges (other than fares) paid by their residents to the Authority pursuant to the Authority’s exercise of the powers granted to it pursuant to the Act, with taxes or other charges paid by residents of areas of counties which are also located within a municipality or special district allocated 100% to the municipality or special district for such purposes. DEFENSE OF DIRECTORS, OFFICERS, MEMBERS OF ADVISORY COMMITTEES AND EMPLOYEES Authority Obligations. The Authority shall insure and defend each Director, Officer, member of an Advisory Committee and employee of the Authority in connection with any claim or actual or threatened suit, action or proceeding (civil, criminal or other, including appeals), in which he or she may be involved in his or her official capacity by reason of his or her being or having been a Director, Officer, member of a Committee or employee of the Authority, or by reason of any action or omission by him or her in such capacity. The Authority shall insure and defend each Director, Officer, member of a Committee and employee of the Authority against all liability, costs and expenses arising from any such claim, suit or action, except any liability arising from criminal offenses or willful misconduct or gross negligence. The Authority’s obligations pursuant to this Article 11 shall be limited to funds of the Authority available for such purpose, including but not necessarily limited to insurance proceeds. The Board may establish specific rules and procedures for the implementation of this Article 11 . AMENDMENTS Amendments Generally. This Agreement, except as may be limited in this Article 12, may be amended only by resolution of the Board and upon unanimous consent of all Members minus one. Such consent shall first be manifested by a majority affirmative vote of the Governing Bodies of each Member. Amendments to Boundaries. Except as provided in Section 2.03 of this Agreement, the Initial Boundaries illustrated in Appendix A-1 and described in Appendix A-2, may be amended in accordance with Section 12.01 of this Agreement and with the required approval of the registered voters of any county, municipality or unincorporated portion of a county proposed to be added to the territory of the Authority. For purposes of this Section, the boundaries may not include territory within the boundaries of a municipality that is not a Member without the consent of the governing body of such municipality, and may not include territory within the unincorporated boundaries of a county that is not a Member without the consent of the governing body of such county. April 2022 Draft (Public Hearing #1) 20 Modification of Appendices B-1 through B-8. Notwithstanding any other provision of this Agreement, any Ballot Question attached hereto as Appendix B-1 through B-8 may be modified by the Governing Body of the Initial Signatory responsible for submitting such Ballot Question to the electors as provided in Section 2.04 of this Agreement. MISCELLANEOUS Adoption and Execution of Agreement in Accordance with Law. Each initial Signatory hereby represents to each other Initial Signatory that it has adopted and executed this Agreement in accordance with applicable law. Parties in Interest. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon any Person other than the Initial Signatories and the Members any right, remedy or claim under or by reason of this Agreement, this Agreement being intended to be for the sole and exclusive benefit of the Initial Signatories and the Members. No Personal Liability. No covenant or agreement contained in this Agreement or any resolution or bylaw issued by the Board shall be deemed to by the covenant or agreement of an elected or appointed official, officer, agent, servant or employee of any Member in his or her individual capacity. Notices. Except as otherwise provided in this Agreement, all notices, certificates, requests, requisitions or other communications by the Authority, any Member, any Director, any Alternate Director, any Officer or any member of a Committee to any other such person pursuant to this Agreement shall be in writing; shall be sufficiently given and shall be deemed given when actually received, in the case of the Authority and officers of the Authority, at the last address designated by the Authority for such purpose and, in the case of such other persons, at the last address specified by them in writing to the Secretary of the Authority; and, unless a certain number of days is specified, shall be given within a reasonable period of time. Assignment. None of the rights or benefits of any Member may be assigned, nor may any of the duties or obligations of any Member be delegated, without the express written consent of all the Members. Severability. If any clause, provision, subsection, Section, or Article of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, the invalidity, illegality or enforceability of such clause, provision, subsection, Section or Article shall not affect any of the remaining provisions of this Agreement. Interpretation. Subject only to the express limitations set forth in this Agreement, this Agreement shall be liberally construed to permit: April 2022 Draft (Public Hearing #1) 21 (a) the Authority and the Members to exercise all powers that may be exercised by a regional transportation authority pursuant to the Act and by a separate legal entity created by a contract among the Members pursuant to the Intergovernmental Relations Statute; (b) the Members to exercise all powers that may be exercised by them with respect to the subject matter of this Agreement pursuant to the Act, the Intergovernmental Relations Statute and other applicable law; and (c) the Board to exercise all powers that may be exercised by the board of directors of a regional transportation authority pursuant to the Act and by the governing body of a separate legal entity created by a contract among the Members pursuant to the Intergovernmental Relations Statute. In the event of any conflict between the Act, the Intergovernmental Relations Statute or any other law with respect to the exercise of any such power, the provision that permits the broadest exercise of the power consistent with the limitations set forth in this Agreement shall control. Governing Law. The laws of the State shall govern the construction and enforcement of this Agreement. Venue for purposes of any litigation arising under this Agreement shall only be proper in the Eagle County District Court. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when so executed and delivered, shall be an original; but such counterparts shall together constitute but one and the same Agreement. [Remainder of page left intentionally blank. Signature pages follow.] April 2022 Draft (Public Hearing #1) 22 SIGNATURE PAGE to EAGLE VALLEY TRANSPORTATION AUTHORITY INTERGOVERNMENTAL AGREEMENT Dated as of [May 31, 2022] By: [INSERT], COLORADO By Name Title ATTEST APPENDIX A-1 Authority Boundary Map 2!,!<!1!4!0!6!/!!!.!9!?!8!>!A 6! , ! 5 ! 0 ! ! ! . ! 9 ! ? ! 8 ! > ! A ;! , ! < ! 5 ! ! ! . ! 9 ! ? ! 8 ! > ! A =!?!7!7!4!>!!!.!9!?!8!>!A 2! < ! , ! 8 ! / ! ! ! . ! 9 ! ? ! 8 ! > ! A =! ? ! 7 ! 7 ! 4 ! > ! ! ! . ! 9 ! ? ! 8 ! > ! A <! 9 ! ? ! > ! > ! ! ! . ! 9 ! ? ! 8 ! > ! A &; 4 6 8 1 %* . 0 , #* 6 * 0 7 "9 3 2 )* / 0 '/ 2 7 8 5 2 (, + ! $ 0 / - - ,9 / < 5 8 3 ! 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F O T F R M J O F 7B K P R ! 3 J H I W B X ,R R P W I F B E ! 7 F T R P Q P M J T B O ! / J S T R J D T -B D I F M P R ! 2 U M D I ! 7 F T R P Q P M J T B O ! / J S T R J D T -F B V F R ! . R F F L ! 7 F T R P Q P M J T B O ! / J S T R J D T -F R R X ! . R F F L ! 7 F T R P Q P M J T B O ! / J S T R J D T 0B H M F # @ B J M ! 7 F T R P Q P M J T B O ! / J S T R J D T 0E W B R E S ! 7 F T R P Q P M J T B O ! / J S T R J D T <P B R J O H ! 1 P R L ! > R B O S Q P R T B T J P O ! , U T I P R J T X APPENDIX A-2 Authority Boundary Description I|lmfmx#E# xs#Rsxmgi#sj#Jsvqexmsr#sj#Vikmsrep#Xverwtsvxexmsr#Eyxlsvmx}# Pikep#Hiwgvmtxmsr#sj#VXE#Fsyrhevmiw# Fikmrrmrk#sr#xli#gsqqsr#xs{rwlmt#pmri#jsv#Xs{rwlmt#6#Wsyxl#erh#Xs{rwlmt#7#Wsyxl/#Verki#<3#[iwx#9xl Tvmrgmtep#Qivmhmer/#tsmrx#epws#fimrk#sr#xli#gsqqsr#fsyrhev}#pmri#sj#Iekpi#erh#Wyqqmx#Gsyrxmiw/# xlirgi#{iwx#epsrk#wemh#xs{rwlmt#pmri#xs#xli#R[#gsvriv#sj#Wigxmsr#9#Xs{rwlmt#7#Wsyxl#Verki#<3# [1##Xlirgi#rsvxl#xs#xli#RI#gsvriv#sj#Wigxmsr#4#Xs{rwlmt#7#Wsyxl#Verki#<4[1##Xlirgi#{iwx/#gsrjsvqmrk# xs#xli#rsvxl#fsyrhev}#sj#Xs{rwlmt#7/#Verkiw#<4/#<5#)#<6#[iwx#xs#xli#W[#gsvriv#sj#Wigxmsr#69#Xs{rwlmt# 6#Verki#<6#[iwx1##Xlirgi#rsvxl#xs#xli#R[#gsvriv#sj#Wigxmsr#69#Xs{rwlmt#6#Wsyxl#Verki#<6# [iwx1##Xlirgi#{iwx#xs#xli#R[#gsvriv#Wigxmsr#66#Xs{rwlmt#6#Wsyxl#Verki#<6#[iwx1##Xlirgi#wsyxl#xs#W[# gsvriv#sj#Wigxmsr#66#Xs{rwlmt#6#Verki#<6#[iwx1##Xlirgi#wsyxl#xs#xli#W[#gsvriv#sj#Wigxmsr#7#Xs{rwlmt# 7#Wsyxl#Verki#<6#[iwx1##Xlirgi#wsyxl{iwxivp}#xs#xli#W[#gsvriv#sj#Wigxmsr#<#Xs{rwlmt#7#Wsyxl#Verki# <6#[iwx1##Xlirgi#{iwx#xs#xli#R[#gsvriv#Wigxmsr#4<#Xs{rwlmt#7#Wsyxl#Verki#<6#[iwx1##Xlirgi#wsyxl#xs# xli#WI#gsvriv#sj#Wigxmsr#46#Xs{rwlmt#7#Wsyxl#Verki#<7#[iwx1##Xlirgi#{iwx#epsrk#xli#wsyxl#pmriw#sj# Wigxmsrw#46/#47/#48/#49/#4;#)#4<#Xs{rwlmt#7#Wsyxl#Verki#<7#[iwx/#xli#wsyxl#pmriw#sj#Wigxmsrw#46/#47/#48/# 49/#4;#)#4<#Xs{rwlmt#7#Wsyxl#Verki#<8#[iwx/#erh#xli#wsyxl#pmriw#sj#Wigxmsrw#46/#47/#48/#49/#4;#)#4<# Xs{rwlmt#7#Wsyxl#Verki#<9#[iwx#xs#xli#W[#gsvriv#Wigxmsr#4<#Xs{rwlmt#7#Wsyxl#Verki#<9# [iwx1##Xlirgi#wsyxl#xs#xli#RI#gsvriv#sj#Wigxmsr#57#Xs{rwlmt#7#Wsyxl#Verki#<;#[iwx1##Xlirgi#{iwxivp}# epsrk#xli#rsvxl#fsyrhev}#sj#Wigxmsrw#57#erh#56/#Xs{rwlmt#7#Wsyxl#Verki#<;#[iwx#xs#xli#gsqqsr# fsyrhev}#pmri#fix{iir#Iekpi#erh#Kevjmiph#Gsyrxmiw1##Xlirgi#wsyxlivp}#epsrk#xli#gsqqsr#fsyrhev}#pmri# fix{iir#Iekpi#erh#Kevjmiph#Gsyrxmiw#xs#xli#tsmrx#sj#mrxivwigxmsr#sj#xli#{iwxivr#fsyrhev}#sj#Iekpi# Gsyrx}#erh#xli#rsvxlivr#fsyrhev}#sj#xli#Vsevmrk#Jsvo#Xverwtsvxexmsr#Eyxlsvmx}1##Xlirgi#wsyxliewxivp}# jspps{mrk#xli#rsvxlivr#fsyrhev}#sj#xli#Vsevmrk#Jsvo#Xverwtsvxexmsr#Eyxlsvmx}#xs#xli#mrxivwigxmsr#sj#xli# Vsevmrk#Jsvo#Xverwtsvxexmsr#Eyxlsvmx}#erh#xli#wsyxlivp}#fsyrhev}#sj#Iekpi#Gsyrx}1##Xlirgi#iewxivp}# epsrk#xli#wsyxlivr#fsyrhev}#sj#Iekpi#Gsyrx}#xs#xli#tsmrx#sj#mrxivwigxmsr#sj#xli#gsqqsr#fsyrhev}#pmri# sj#Iekpi/#Peoi/#erh#Wyqqmx#Gsyrxmiw1##Xlirgi#rsvxlivp}#epsrk#xli#iewxivr#fsyrhev}#sj#Iekpi#Gsyrx}#xs# xli#tsmrx#sj#svmkmr1### APPENDIX B-1 Town of Avon Ballot Question APPENDIX B-2 Beaver Creek Metropolitan District Ballot Question APPENDIX B-3 Town of Eagle Ballot Question APPENDIX B-4 Town of Gypsum Ballot Question APPENDIX B-5 Town of Minturn Ballot Question APPENDIX B-6 Town of Red Cliff Ballot Question APPENDIX B-7 Town of Vail Ballot Question APPENDIX B-8 Unincorporated Eagle County Question Ballot Question APPENDIX C Initial Service Goals Eagle Valley Transportation Authority Regional Transportation Service Goals The newly established Eagle Valley Transportation Authority, (“Authority”), shall use its best efforts to achieve the following: 1. Assume Responsibility for Existing ECO Transit Service The Authority shall assume responsibility for existing transit service as currently provided by the Eagle County Regional Transportation Authority, (“ECO Transit”), as of January 1 of the year following RTA formation. Within 12 months of RTA formation, the Authority shall develop and implement a fare- free transit zone with expanded service, to include portions of Avon, Vail, Minturn and Beaver Creek, as a replacement for ECO’s existing Vail/Beaver Creek Express service. 2. Increase Service on Current ECO Routes The Authority shall begin planning for one or more of the following enhancements, to be introduced as soon as equipment, staffing, and facilities allow: ● Increased capacity and/or service frequency on Highway 6. ● Increased all-day service frequency on Valley Route, including additional daily connections to Dotsero. ● Increased service to/from Leadville. 3. Develop and Implement New Transit Routes The Authority shall develop and implement new transit service to meet needs identified during the RTA formation process, including but not limited to: 1) Eagle-Gypsum Circulator Regular transit service connecting the Towns of Eagle and Gypsum that promotes increased circulation in/between these communities and provides efficient connection to other regional routes. 2) Limited Stop Express Service Additional rush hour express service targeting peak workforce commute hours. In addition, the Authority may explore the feasibility of offering additional regional transit services as needs are identified in future Transit Development plans. 4. Accelerate Conversion of Fleet and Facilities to Zero-Emission Operations The Authority shall take the following steps toward zero-emission operations: 1) Conversion of ECO’s existing Highway 6 bus service to a zero-emission platform, on a timeframe that evaluates available grant funds, anticipated increases in range and performance capacity of zero-emission buses, and allocation of available Authority funds to other expenditures which may increase ridership. 2) Development of zero-emission plans, timelines, and budgets for additional routes and facilities as outlined in an initial RTA Transit Development Plan, to be created following RTA formation. 5. Invest in Transit-Related Facilities and Infrastructure The Authority shall allocate a portion of available revenues to upgrade existing facilities to support planned service expansion. In addition, funds will be set aside in a capital improvement fund to support fleet replacement and future construction of essential transit-related and transit- supportive facilities. 6. Support Local Air Service The Authority shall pledge funding in the minimum amount of $1,200,000 dollars per year to support expanded year round air service for residents and visitors of Eagle County. 7. Regional Transportation System Planning The Authority shall embark on a 5-year Transit Development Plan (TDP) as one of its first tasks upon formation. This plan should be completed within 12-18 months of the appointment of the initial Authority Executive Director. APPENDIX D [ ] Eagle Valley Transportation Authority Community update and discussion about proposed Intergovernmental Agreement April 26, 2022 | Town of Avon Eagle Valley Transportation Authority Community Update April 26, 2022 Regional Transportation Authorities (RTAs) •RTA is a public entity that allows two or more local governments—including counties, cities, town and metro districts—to work together to address regional transportation issues •RTA transportation services may include transit, air, roadway and other services •RTAs are governed by a board of appointed elected officials representing the partner governments and must follow open meeting and fiscal accountability and transparency laws •RTA creation must be approved by local voters •RTAs can also seek voter approval to collect tax revenue and issue bonds Eagle Valley Transportation Authority Community Update April 26, 2022 Background •In early 2020, Eagle County business community engaged local governments to find better ways to address transportation needs for workforce, residents and visitors •Looking at the Roaring Fork Transit Authority (RFTA) and other examples, conversation turned toward feasibility of Regional Transportation Authority (RTA) to enhance and expand transit and transportation services across this region •COVID-19 pandemic put this conversion on hold •Eagle County; the towns of Avon, Eagle, Gypsum, Minturn, Red Cliff and Vail; and Beaver Creek Metro District—along with business and nonprofit partners—have renewed collaborative work toward improving regional transportation Eagle Valley Transportation Authority Community Update April 26, 2022 RTA Formation Participants •Collaborative process between local governments •Support and input from stakeholders, including employers, nonprofits, metro districts, community members •Began formally in fall 2021 with approval of Memorandum of Understanding •Agreement that was approved by eight local governments that set tasks (IGA and service goals), membership, financial resources and oversight •Formation Committee—Elected officials representing each community; responsible for IGA, future ballot language, tax/funding amounts •Technical Committee—Government staff, transit directors, business partners, others who are working on service goals, cost estimates and other tasks •Stakeholder Committee—Community members who provide diverse backgrounds to help offer feedback and additional points of view on transit needs Eagle Valley Transportation Authority Community Update April 26, 2022 Reasons to Consider an RTA •Eagle County’s population is growing, our resorts have continued to be world class destinations and visitors continue to visit to this region •Growth provides economic opportunities for many, but also strains our region’s housing and transportation systems •As we emerge from the pandemic, it’s time to work on collaborative solutions to increase transit and transportation options •Doing this will support our workforce; help Eagle County residents get to work, home and school safely; and for visitors to enjoy their Eagle County experience •Transportation is a regional issue requiring a truly regional solution •RTA can support our shared climate goals and prepare our communities for the next 10 to 20 years Eagle Valley Transportation Authority Community Update April 26, 2022 Iterative Process Repeat process until voter support is identified RTA Formation Committee •Review Issues •Propose Transit Plans and Ideas •Refer for Input •Consider Community Input •Revise Proposals •Refer Again for Input (Repeat as Necessary) Stakeholder Committee Review Proposals, Provide Comments and Concerns Local Govt. Boards and Councils •Review Proposals •Conduct Worksessions •Conduct Public Hearings •Provide Comments and Concerns Voter Polling Determine Voter Preferences, Support and Concerns Technical Committee •Research Technical, Financial and Legal Issues •Present Information, Recommendations and Options Eagle Valley Transportation Authority Community Update April 26, 2022 RTA Timeline April/May: Public hearings by local governments on IGA April/May: Benchmark public survey May/June:First phase of public engagement May 27: RTA IGA referred to CDOT for review and comment (90 days comment period) August: Local governments to consider final version of IGA and resolution to refer to election August: Second phase of public engagement Sept. 9: Last day to refer ballot question to Nov. 2022 election Sept. to Nov.Campaign phase Nov. 8: Election day Eagle Valley Transportation Authority Community Update April 26, 2022 Establishing an RTA •Creation of an RTA is a formal process defined in state law •Local governments involved must work together to create an intergovernmental agreement (IGA)—a legal document that sets forth the governance, service goals and other key operating provisions of the RTA •“Charter” document must be agreed upon by the elected councils and boards in each community •Ultimately, voters must agree to the formation of the RTA and any taxing or bonding requests made to provide funding for the RTA’s services and operations •IGA process requires two separate public hearings to be held in each jurisdiction considering adopting the IGA •Feedback from council and public will be shared with the RTA formation committee to help address local community needs and concerns Eagle Valley Transportation Authority Community Update April 26, 2022 Intergovernmental Agreement (IGA) •IGA establishes a Board of Directors that consists of one elected official from each member entity •Action by the Board must be approved by a two-thirds majority of the Board, except for certain more procedural actions, such as setting meetings •Each member also appoints an alternative director who also is an elected official and participates when the primary member is unavailable •Contemplates funding for RTA, including: •0.5% sales and use tax within the boundaries of authority •Pledging Eagle County’s existing 0.5% transportation sales tax (to be used on ECO Transit services) •Potential 1% Visitor Benefit Tax within the boundaries of the Authority •Discretionary member contributions •Federal and State grants Eagle Valley Transportation Authority Community Update April 26, 2022 Proposed RTA Boundaries Eagle Valley Transportation Authority Community Update April 26, 2022 Intergovernmental Agreement (IGA) •Provides RTA all available statutory powers and specific responsibilities, including: •Assuming ECO Transit services (subject to a transition plan to be developed) •Annual short-and long-term transportation planning for the Eagle Valley •State and federal coordination for grant funding and regional transit •Contracting for transit services and build transportation infrastructure •Maintaining regional trails and pedestrian infrastructure •Supporting increased commercial air service •Operating and funding specific initial projects, including: •Developing a fare-free transit zone with expanded service, to include portions of Avon, Vail, Minturn and Beaver Creek •Increasing other current ECO Transit service, including on Highway 6, Dotsero, and Leadville •Implementing new transit routes , including an Eagle -Gypsum circulator and additional peak workforce commute hour express service •Accelerating zero-emission transition Eagle Valley Transportation Authority Community Update April 26, 2022 Intergovernmental Agreement (IGA) •IGA establishes key procedures for RTA moving forward: •Requires that each member hold an election to be included •As drafted, Avon, Beaver Creek, Eagle County and Vail must vote yes, or the RTA will not be formed and IGA will terminate•Provides pathway for members to leave RTA and for new members to join: •Members may withdraw by vote of the electors •Members may be added with Board approval and a vote of the electors within the boundaries of the new member•States that RTA may be terminated by unanimous agreement of the members, provided no bonds are outstanding•Allows IGA to be amended by unanimous vote of the member governments, minus one Eagle Valley Transportation Authority Community Update April 26, 2022 RTA Service Goals •Comprehensive, multi-modal transportation enhancement and optimization •Benefit residents with enhanced transit service •Benefit eagle county businesses that desire effective transit for employees •Improve the visitor experience to maintain economic competitiveness •Increase transit ridership to reduce reliance on single occupant vehicle use •Regional representation with a comprehensive, long-range planning view •Overall intent is to maintain, enhance and expand current ECO transit service Eagle Valley Transportation Authority Community Update April 26, 2022 RTA Service Goals 1. Enhance Existing Regional Transit Service •Assume responsibility for existing transit service as currently provided by ECO Transit on the following routes •Develop and implement a fare-free transit zone with expanded service, which may include all or portions of Avon, Vail, Minturn and Beaver Creek, to better meet both visitor and workforce needs, reduce congestion, and limit parking demand •Planning for more enhancements to ECO Transit routes be introduced as soon as equipment, staffing, and facilities allow Eagle Valley Transportation Authority Community Update April 26, 2022 RTA Service Goals 2. Develop and Implement New Routes •Within 12 months of Authority establishment: •Eagle-Gypsum Circulator Service •Limited Stop Express Service targeting peak workforce commute hours •Explore feasibility of offering additional regional services that may be identified by the RTA Eagle Valley Transportation Authority Community Update April 26, 2022 RTA Service Goals 3. Accelerate Conversion to Zero-Emission Operations •Conversion of ECO’s existing Highway 6 bus service to a zero-emission platform •Complete conversion to zero emission buses is anticipated to occur between 5 to 10 years (2028 to 2033) •Development of zero-emission plans, timelines and budgets for additional routes and facilities as outlined in an initial RTA Transit Development Plan, to be created following RTA formation Eagle Valley Transportation Authority Community Update April 26, 2022 RTA Service Goals 4. Invest in Transit-Related Facilities & Infrastructure •Allocate a portion of available revenues to upgrade existing facilities to support planned service expansion •Funds will be set aside in a capital improvement fund to support fleet replacement and future construction of essential transit-related and transit- supportive facilities 5. Support Local Air Service •Pledge approximately $1.2M per year to support expanded year-round air service for residents and visitors of Eagle County to replace existing Air Alliance contributions, returning funds back to local governments Eagle Valley Transportation Authority Community Update April 26, 2022 RTA Service Goals 6. EGE Airport Interchange •Provide financial support for the construction of an EGE Airport Interchange by committing matching funds to be combined with other local funds if there are sufficient state and federal grant funds awarded for the construction of the EGE Airport Interchange 7. Develop & Implement First-Last Mile Solutions •Design, financially support and implement, with partnerships as appropriate, first and last mile improvements to enhance transit ridership, including park and ride facilities, bus stops, pedestrian crossings, e-bike sharing, on-demand microtransit, and community vanpool programs Eagle Valley Transportation Authority Community Update April 26, 2022 RTA Service Goals 8. Support Regional Trail Planning •Engage in regional trail planning, construction and maintenance with an emphasis on the provision of multi-modal linkages and first/last mile improvements to enhance transit ridership. 9.Lead Regional Transportation System Planning 10.Enhance Local, State, and Federal Coordination 11.Encourage Transportation Demand Management Eagle Valley Transportation Authority Community Update April 26, 2022 Potential RTA Funding Sources •Authorized Revenue Sources for RTA •up to 1 Cent Sales Tax •up to 2 Cent “Visitor Benefit Tax” (same as lodging tax or accommodations tax) •Ridership fares •Charges for Transit Services (may charge for transit service out of Transit Area) •Allowed by law but not currently under consideration •up to 5 Mill Property Tax •up to $10 per Vehicle Registration Fee•NOTE: Taxes require voter OK per TABOR Eagle Valley Transportation Authority Community Update April 26, 2022 RTA and IGA Feedback •Input and feedback are critical to ensuring that this RTA proposal meets transportation needs and addresses concerns of our communities •Invite public, elected officials, business owners and employers, nonprofits and all community members to provide feedback at: EagleCountyRTA.org/feedback Questions? Eagle Valley Transportation Authority Community Update April 26, 2022 Community Engagement •Community engagement and feedback are important parts of the RTA process •Formation process includes a Stakeholder Committee of organizations and individuals that speak for the diverse community, business, nonprofit, educational, environmental, resident and other interests of the region •Stakeholder Committee meets regularly to provide feedback from a broader, non- transportation perspective •Conducting polling, hosting events in spring and summer, visiting with local governments, boards and commissions Page 2 of 2 RTA COMMUNITY STAKEHOLDERS COMMITTEE: This committee is envisioned to be open and inclusive to all the existing groups in the Eagle River Valley, and beyond such as Lake County and Leadville. The purpose is to facilitate community involvement. BEAVER CREEK-AVON-VAIL CONNECTOR: We explored the potential for a pilot project to run more frequent and free transit between Beaver Creek Village, Avon Station and Vail Village. The concept was to run during the entirety of the Beaver Creek ski season with a ½ hour schedule from 6:30am to 10:30am, then hourly to 2:30pm, then ½ hour to 6:00pm, then hourly to 10pm. The contemplated cost estimate was roughly $600,000 to be split between Avon/Beaver Creek/Vail and Eagle County on a 20/20/20/40 cost share basis. Although the four parties were agreeable in concept and we were able to identify the costs and logistics to run this route, Beaver Creek was not ready to make a funding commitment for this winter and there were significant challenges and apprehension about hiring another six transit drivers and securing two more low floor buses to operate this route. The exercise was worthwhile to collectively discuss and understand the cost and logistics to operate this type of route. In particular, it was instructive to understand the lead time and requirements necessary to acquire busses, properly outfit busses with communication equipment, and hire transit drivers, as well as prepare and executive a cost sharing agreement. As a consequence, I directed Staff to take no further action towards remodeling 351 Benchmark for transit driver housing. RECOMMENDATIONS: Staff for Town of Vail and Eagle County have indicated that they are proceeding to introduce the MOU to their respective governing bodies for approval in the next two weeks. I have the following recommendations concerning regional transit. 1. I recommend that Council approve the Memorandum of Understanding to Establish Regional Transit Authority Formation Committee 2. I recommend that Council support continued conversation with Beaver Creek, Vail and ECO Transit to pursue a winter connection route for the 2022/2023 Beaver Creek Ski Season with the appreciation and understanding that the conversation must continue now in order to achieve consensus and sort through all the logistics necessary for this transit connection. 3. Research, analyze and advocate for year-round free transit between Beaver Creek, Avon and Vail as one component of any Regional Transit Authority formation. PROPOSED MOTION: “I move to approve the Memorandum of Understanding to Establish Regional Transit Authority Formation Committee.” Thank you, Eric ATTACHMENT A: Memorandum of Understanding to Establish Regional Transit Authority Formation Committee ATTACHMENT B: RTA Overview Information from Colorado Legislative Service ATTACHMENT C: Regional Transit Authority planning effort presentation on July 20, 2021 RTA Formation Committee Memorandum of Understanding – DRAFT August 19, 2021 Page 1 of 13 MEMORANDUM OF UNDERSTANDING ESTABLISHING A REGIONAL TRANSIT AUTHORITY FORMATION COMMITTEE STATEMENT OF PURPOSE – This Memorandum of Understanding (“MOU”) formalizes the agreement reached by the Eagle County government and municipalities within the contemplated boundaries of a Regional Transit Authority (“RTA”) in Eagle County on the commitment of staff and financial resources to a Regional Transit Authority Formation Committee (“RTA Formation Committee”) for the purpose of researching and proposing the structure of an RTA to serve the greater Eagle River Valley community pursuant to CRS §43-4-601 Regional Transportation Authority Law. WHEREAS, in January 2020 a joint meeting of the Beaver Creek and Vail Economic Advisory Councils was convened to discuss regional transportation challenges at which members of the private business community expressed strong support to improve and enhance regional transit; and WHEREAS, an ad-hoc group of Town Managers, Transit Directors, and business community leaders was convened soon afterwards to discuss, analyze, and identify challenges and opportunities related to greater coordination and integration of the regional public transportation system; and WHEREAS, separate conversations with the EGE Air Alliance have highlighted the importance of air transportation as part of the broader regional transportation system; and WHEREAS, each of these groups have identified the creation of a Regional Transit Authority (“RTA”) as a desirable way to plan, finance, implement and operate a regional public transportation system that better meets the needs of residents, visitors, and businesses in Eagle County; and WHEREAS, the local government entities now desire to proceed with preparation of a proposed RTA and comprehensive community engagement process with the intention to refer ballot questions for the formation of a RTA and a funding question to the November 1, 2022 general election. NOW, THEREFORE, the parties to this MOU agree as follows: 1. NO LEGAL OBLIGATIONS. This MOU is only a statement of intentions to facilitate coordination among parties and shall not be construed to create, and shall not in fact create, any financial obligations or liabilities for any party to this MOU. 2. ELIGIBLE PARTIES TO THIS MOU. The local government entities which are required to take action as part of the formation of a Regional Transit Authority and/or which currently fund and provide public transit service are eligible parties to this MOU, including but not limited to Eagle County government, and municipalities in Eagle County, or Title 32 special districts with transportation powers, which are located within the boundaries of a proposed Regional Transit Authority area. 3. RTA FORMATION COMMITTEE. The RTA Formation Committee shall consist of one representative of each party to this MOU. Each party may designate a primary representative and alternates in its ATTACHMENT A: MOU RTA Formation Committee Memorandum of Understanding – DRAFT August 19, 2021 Page 2 of 13 discretion which shall be limited to elected officials and full-time staff persons. The RTA Formation Committee shall also have the following organization duties: (a) Select a chair and vice chair; (b) Establish a meeting schedule and timeline for completion of activities; (c) Provide parameters for staff support for the RTA Formation Committee provided by participating entities; (d) Establish a schedule for communications and meetings with municipal staff and elected officials to inform them on status and upcoming developments; (e) Review the Scope of Work for third party facilitators and consultants to assist with community engagement and the RTA formation process; (f) Determine the details of a proposed RTA, including but not limited to: (1) Determine the name and purpose of the RTA, including an explanation of all regional transportation systems to be provided and preliminary expectations regarding types and service levels; (2) Determine geographic boundaries, districting, and rules for modification of a regional public transportation authority; (3) Determine the form of governance and board representation on the RTA; (4) Recommend an initial organizational structure and staffing for the RTA; (5) Recommend the structure of the relationship with existing transit systems, including recommendations related to the transfer of assets, liabilities, or personnel; (6) Analyze potential dedicated funding sources and structures for public transportation and make recommendations regarding type and level; (7) Recommend the structure of the relationship with the EGE Air Alliance, including recommendations related to structure, governance, and fiscal authorities; and (8) Develop a proposed IGA, meeting the requirements of C.R.S. § 43-4-601, for signature by interested and eligible entities. (g) Determine the details and wording on any ballot measures to be referred to the voters for the formation of an RTA; and (h) Provide legal, financial, marketing and political support for a potential future ballot measure. ATTACHMENT A: MOU RTA Formation Committee Memorandum of Understanding – DRAFT August 19, 2021 Page 3 of 13 4. RTA TECHNICAL COMMITTEE. The Ad Hoc Technical Committee will continue for the purpose of sharing information, analyzing costs, and submitting feedback associated with various proposals for regional transit enhancement generated by the RTA Formation Committee. In addition, they will assist in identifying operational issues related to proposed structures that may require additional consideration by the RTA Formation Committee. The RTA Formation Committee may change, amend, supplement, fill vacancies or remove any person on the RTA Technical Committee without notice or cause. The RTA Technical Committee may invite or add other persons or representation from other entities that may provide relevant technical advice and information. The RTA Technical Committee shall consist of the following members unless and until changed by the RTA Formation Committee: (a) Tanya Allen, ECO Transit Director; (b) Jen Brown, Managing Director Beaver Creek Resort Company; (c) Paul Gorbold, Beaver Creek Transit Manager; (d) Scott Robson, Vail Town Manager; (e) Greg Hall, Vail Public Works and Transportation Director; (f) Brandy Reitter, Eagle Town Manager (g) Chris Romer, Vail Valley Partnership and Eagle Air Alliance; (h) Brian Nolan, representative of Beaver Creek and Vail Economic Advisory Councils; (i) Eva Wilson, Avon Mobility Director; (j) Eric Heil, Avon Town Manager; and, (k) David Reid, Director of Aviation, Eagle County Regional Airport. 5. RTA COMMUNITY STAKEHOLDERS COMMITTEE. The RTA Community Stakeholders Committee shall consist of all interested local governments that are not parties to this MOU, interested non-profit or community organizations, and interested private business entities that desire to participate on the RTA Community Stakeholder Committee. The purpose of the RTA Community Stakeholder Committee is to facilitate the community engagement process, including the sharing and dissemination of information related to the RTA, facilitate broader understanding of the RTA formation process and the technical and financial aspects of proposed RTA operations, and facilitate providing broad community input to the RTA Formation Committee. The scheduling, organization and conduct of RTA Community Stakeholder Committee meetings shall be facilitated by a third party consultant as contemplated in this MOU. 6. CONTEMPLATED ROLES OF AN RTA. The specific roles of an RTA would be researched and determined during the study and community engagement process. The following list describes the potential roles of an RTA that are being contemplated at the time of executing this MOU. Parties to the ATTACHMENT A: MOU RTA Formation Committee Memorandum of Understanding – DRAFT August 19, 2021 Page 4 of 13 MOU acknowledge and agree that the roles of a RTA as may be ultimately referred to election are expected to be revised and refined through the community engagement process. (a) Assume some or all operations, assets and functions of ECO Transit; (b) Assume some or all operations, assets and functions of the Eagle Air Alliance; (c) Continue planning and development for the enhancement and operation of regional transportation system in the Eagle River Valley, to include operation and/or financial support for multimodal surface and air transportation; (d) Study, design, financially support and implement, with partnerships as appropriate, first and last mile improvements to enhance transit ridership, including but not limited to the development of park and ride facilities, bus stops, and pedestrian crossings; (e) Study, design, financially support and implement, with partnerships as appropriate, improvements to the regional transit system to support, advance and achieve climate action goals, including but not limited to conversion of bus fleet to zero or reduced greenhouse gas emission rolling stock, zero or reduced greenhouse gas emission transit facilities, and increase of transit ridership that reduces passenger vehicle miles travelled; (f) Coordinate with the Colorado Department of Transportation (“CDOT”) and federal governing agencies to enhance regional transit, including but not limited to improvements to connections to the RTA area via Bustang and other statewide bus programs and increased air service to the Eagle County Regional airport; (g) Represent the Eagle County RTA area with regard to state and federal legislation affecting available funding to support regional transit operations and with regard to legislation affecting operations; and (h) Study, design, financially support and implement, other regional transportation and mobility programs and operations, such as regional e-bike sharing programs. 7. RETAINING THIRD PARTY FACILITATORS AND CONSULTANTS. A central purpose of this MOU is to reach an understanding on the retaining of third party facilitators and consultants to assist with the administrative, legal, and technical details in the formation of an RTA, assist with the community engagement process, and assist with determining consensus and community support for any ballot issues which may be referred to the voters. The Scope of Work for any third party facilitators and/or consultants shall be reviewed and approved by the RTA Formation Committee. Third party facilitators and consultants will be retained by Eagle County pursuant to such contract terms as may be approved by Eagle County in its discretion and Eagle County shall be responsible for the administration of such contracts. 8. FUNDING CONTRIBUTION. Funding contributions for third party facilitators and/or consultants should be based on the proportionate share of population within the jurisdiction of each respective local government party to this MOU (meaning the Eagle County population less the population within ATTACHMENT A: MOU RTA Formation Committee Memorandum of Understanding – DRAFT August 19, 2021 Page 5 of 13 municipal jurisdictions that are parties to this MOU). Parties to this MOU may agree to any other arrangement for funding contributions. An initial funding contribution is necessary to retain thirty party facilitators and consultants to commence Phase 1 work in 2021. An additional funding contribution is necessary for the Phase 2 work which is expected to begin in the 2022 budget year. (a) Phase 1 Funding Contribution: $30,000 is the contemplated budget to commence the work of the RTA Formation Committee in 2021, which is comprised of a budget for facilitation of committee meetings, initial community outreach, facilitating and coordinating research and consideration of transit enhancement ideas and associated funding, initial research on funding options, compiling comparison information of other regional transit authorities and preparing RTA presentation materials. Eagle County, the Town of Vail and the Town of Avon have offered to share this expense equally ($10,000 each). (b) Phase 2 Funding Contribution: $170,000 is the contemplated budget to continue the work in 2022, which is comprised of a $140,000 to continue community engagement work, assist with revision to an RTA proposal including financial modelling of different options and scenarios, revise and update RTA presentation materials, and assist with the determination of any referred ballot measures and associated factual statements and information presentations related to the formation of an RTA; and a $30,000 budget for legal advice and assistance related to RTA formation and associated funding questions. (c) Additional Funding Contributions: The parties to the MOU may consider funding additional activities such as political polling by mutual agreement at a later date. 9. ADMINISTRATIVE SUPPORT. The Eagle County Regional Transportation Authority (“ECRTA”), as a department of Eagle County Government and the current regional transportation provider, has been engaged in the planning, design, and development of a regional transit system for Eagle County. ECRTA will provide administrative, technical and planning assistance to the RTA Formation Committee until the establishment of a statutory RTA, with assistance from other entities as may be mutually agreed. ECRTA’s responsibilities will include but not be limited to the following: (a) Assist the RTA Formation Committee in engaging professional and consulting services to manage the work of the RTA Formation Committee; (b) Act as the fiscal agent of funds received from the signatory municipalities of this MOU; (c) Disperse appropriate payments of funds for services rendered specifically to the RTA Formation Committee, including those of contracted consultants; (d) Serve as the applicant for any appropriate grant funding opportunities for which the RTA Formation Committee may be eligible for its work; (e) Act as the contracting party for any agreements to be entered into on behalf of the RTA Financial Committee. ATTACHMENT A: MOU RTA Formation Committee Memorandum of Understanding – DRAFT August 19, 2021 Page 6 of 13 10. TERM. The term of this MOU shall end on November 1, 2022 unless the parties to this MOU extend the term of this MOU by written agreement. 11. TABOR. This MOU shall not create any multi-year fiscal obligation of any party to this MOU and any funding contribution or other financial commitment shall be subject to annual budget and appropriation of each party. [SIGNATURE PAGES FOLLOW] ATTACHMENT A: MOU Colorado Legislative Council Staff Room 029 State Capitol, Denver, CO 80203-1784 (303) 866-3521 •FAX: 866-3855 •TDD: 866-3472 leg.colorado.gov/lcs E-mail: lcs.ga@state.co.us M E M O R A N D U M September 14, 2017 TO:Interested Persons FROM:Ryan Long, Fiscal Analyst, 303-866-2066 SUBJECT:Regional Transportation Authorities Regional Transportation Authorities Under Colorado law, municipalities, counties, and special districts can join together in a “combination” to create a regional transportation authority (RTA) to address transportation needs within a specific geographic region. The state of Colorado, acting through the Transportation Commission and with approval from the Governor, may also join a contract creating an RTA. Establishment of an RTA.To establish an RTA, the combination of governments seeking to create it must submit a copy of their contract to the Colorado Department of Transportation (CDOT) for review and comment, as well as to any affected public highway authority, county or municipality that borders the proposed RTA. A copy of the contract must also be sent to the Regional Transportation District (RTD), which creates and maintains a transit system primarily in the Denver metropolitan area, if it borders the proposed RTA. These contracts include information on the name and purpose of the authority, the establishment and operations of the board of directors, the boundaries of the authority, and the term of the contract. No municipality, county, or special district may enter into a contract establishing an RTA without holding at least two public hearings. In order to take effect, a contract must be approved by the registered voters within the boundaries of the district. RTA authority.RTAs have the authority, through a board, to finance, construct, operate, or maintain regional transportation systems within or outside their boundaries. RTAs must be governed by a board of directors with at least five elected officials from the members of the combination of governments, and must include at least one elected official from each member. An RTA board may adopt bylaws, make and pass orders and resolutions necessary for the governance of the authority, maintain offices and hire employees, and amend the contract that created the authority. Summary This memorandum provides information concerning regional transportation authorities (RTAs). Specifically, it provides an overview of state laws pertaining to RTAs, RTAs currently established, powers of and financing mechanisms available to RTAs, and sales and use taxes levied in each of the five currently operational RTAs. ATTACHMENT B: RTA Overview - 2 - An RTA is prohibited from constructing a transportation system outside of its boundaries or within the boundaries of a municipality or county without the consent of that entity’s governing body. If the RTA’s proposed transportation system affects, alters, or negatively impacts the road systems controlled by CDOT, RTD, or any bordering entities, the impacted entity may enter into an intergovernmental agreement with the RTA to address the identified services before a proposal is submitted to registered electors. If no agreement is established, the transportation project affecting the other entity must be taken off of the list of projects specified in the contract. RTA boards may also create local improvement districts (LIDs) within their boundaries to facilitate the financing, construction, operation, or maintenance of regional transportation system improvements. The LID is a localized geographic area in which improvements are constructed, and revenue for these projects is primarily raised through a special assessment process. To establish an LID, the RTA board must receive a petition from the owners of the property that will bear the majority of the cost assessment on the proposed improvements, as well as a petition from registered electors in the proposed district. RTA financing.State law authorizes RTAs to establish, collect, and increase or decrease tolls, rates, and charges to finance a transportation system. RTAs may also levy sales taxes, impose an annual motor vehicle registration fee, levy a visitor benefit tax, impose a uniform mill levy, establish regional transportation activity enterprises, and issue bonds, as shown in Table 1. RTA taxation questions and multi-year debt questions must be submitted to the registered electors residing within the authority's boundaries for approval. Unless specified in an intergovernmental agreement, any funds made available for an RTA's transportation system may not be used to supplant existing or budgeted CDOT funding for any portion of the state highway system within the territory of any RTA or any transportation planning region. Table 1 Financing Mechanisms for Regional Transportation Authorities Financing Mechanism Provisions Statutory Citation Sales or Use Tax RTAs may levy a sales or use tax, or both, of not more than 1 percent upon every transaction with respect to which a sales or use tax is levied by the state. If a member of the RTA is located within more than one authority, the total sales and/or use tax may not exceed 1 percent. The RTA may levy a sales or use tax at differing rates in designated parts of the authority. However, if the authority includes territory within the RTD's boundaries, the rate of the tax must be levied in such a way that the rate of tax within the territory of any single member of the combination is uniform. Section 43-4-605 (1)(j)(I), C.R.S. Annual Motor Vehicle Registration Fee RTAs may impose an annual motor vehicle registration fee of not more than $10 for each motor vehicle registered within any or all portions of the RTA boundaries. If a motor vehicle is registered in a county that is a member of more than one RTA, the total motor vehicle registration fees for that vehicle may not exceed $10. Section 43-4-605 (1)(i), C.R.S. ATTACHMENT B: RTA Overview - 3 - Financing Mechanism Provisions Statutory Citation Visitor Benefit Tax RTAs may levy a visitor benefit tax on those purchasing overnight rooms or accommodations within the RTA's boundaries. The visitor benefit tax may not exceed 2 percent of the price of the overnight room or accommodation. Further, at least 75 percent of the revenue derived from the tax must be used by the RTA to finance, construct, operate, and maintain the RTA's regional transportation system and to provide incentives to overnight visitors to use public transportation. No more than one-third of the RTA’s total revenues may be derived from this tax. Section 43-4-605 (1)(i.5), C.R.S. Mill Levy*RTAs may impose a uniform mill levy of up to five mills on all taxable property within the territory of the authority. Imposing such a levy does not affect the power of an authority to establish LIDs and impose special assessments. Section 43-4-605 (1)(j.5)(I), C.R.S. Regional Transportation Activity Enterprises RTAs may establish one or more enterprises. The enterprise must be owned by the entire authority, and may not be combined with another enterprise owned by a separate RTA. Enterprises may issue or reissue revenue bonds, and contract with other governmental or private entities for loans and grants related to the enterprise's functions. Section 43-4-606, C.R.S. Bonds Pursuant to a resolution of its board, an RTA may issue bonds for any of its corporate purposes. Section 43-4-609, C.R.S. Source: Legislative Council Staff. *This provision is currently set to repeal January 1, 2029. The only RTA that has imposed a mill levy is the San Miguel Authority for Regional Transportation. Current RTAs.The following five RTAs are currently operating in Colorado: •Gunnison Valley Transportation Authority; •Pikes Peak Rural Transportation Authority; •Roaring Fork Transportation Authority; •San Miguel Authority for Regional Transportation; and •South Platte Valley Regional Transportation Authority. The Baptist Road Rural Transportation Authority, which was created to provide a funding mechanism for improvements to Baptist Road in a portion of Monument, Colorado, was dissolved in December 2016 after raising sufficient funding to pay off bonds. Table 2 summarizes the current and former RTAs in Colorado, including membership and respective sales, use, and property tax rates. The scope and types of projects in RTAs can vary widely. For example, the Roaring Fork Transportation Authority operates the largest RTA public transit system, and utilizes 106 buses with 153 bus stops and 14 park-and-ride lots. RTAs also engage in large capital projects, such as the $4 million Chestnut Street Bridge Replacement undertaken in 2016 by the Pikes Peak Rural Transportation Authority. ATTACHMENT B: RTA Overview - 4 - Table 2 Regional Transportation Authority Sales, Use and Property Tax Rates Authority Member Municipalities and Counties Sales Tax Rate Use Tax Rate Property Tax Gunnison Valley Rural Transportation Authority Gunnison County, excluding the municipalities of Marble, Ohio, Pitkin, and Somerset 1.0%None None Pikes Peak Rural Transportation Authority El Paso County, excluding the municipalities of Calhan, Fountain, Monument, and Palmer Lake 1.0%1.0%None Roaring Fork Transportation Authority Cities of Basalt and New Castle 0.8%0.8%None Cities of Carbondale and Glenwood Springs 1.0%1.0%None Cities of Aspen and Snowmass Village, and unincorporated Pitkin County 0.4%0.4%None Areas of unincorporated Eagle County in the El Jebel area and outside the city limits of Carbondale 0.6%0.6%None San Miguel Authority for Regional Transportation City of Telluride and eastern San Miguel County (excluding towns of Ophir and Sawpit) 0.25%None 0.75 mills South Platte Valley Regional Transportation Authority City of Sterling 0.1%0.1%None Former Regional Transportation Authorities Authority Member Municipalities and Counties Sales Tax Rate Use Tax Rate Property Tax Baptist Road Rural Transportation Authority* A portion of the city of Monument 1.0%1.0%None Source: Colorado Department of Revenue. *The Baptist Road Rural Transportation Authority stopped collecting sales and use tax on July 1, 2016, and was dissolved in December 2016. S:\LCS\MEMOS\2017\Regional Transportation Authorities_8302017.docx ATTACHMENT B: RTA Overview Regional Transit Optimization Project July 20, 2021 Regional Transit Optimization Project July 20, 2021 AD HOC TECHNICAL COMMITTEE: Tanya Allen –ECO Transit Director Greg Hall –Vail Public Works Scott Robson –Vail Town Manager Brandy Reitter –Eagle Town Manager Brian Nolan –Business Owner Chris Romer –Vail Valley Partnership Paul Gorbold –Vail Resorts Jen Brown –Beaver Creek Resort Company Eva Wilson –Avon Mobility Director Eric Heil –Avon Town Manager Regional Transit Optimization Project July 20, 2021 PURPOSE of this meeting •Review efforts and ideas to date of the Ad Hoc Regional Transit Optimization Committee with ECO Transit board and other stakeholders •Begin the dialogue with stakeholders and the greater community •Proceed with community process to research and define a Regional Transit enhancement program and formation of a Regional Transit Authority Regional Transit Optimization Project July 20, 2021 Review Process to Date: •January, 2020: Meeting of Vail and Beaver Creek Economic Advisory Councils to discuss improvements to transit •August 21, 2020 –Outline for Regional Transit Optimization Project effort presented to Mayors and Managers •Mayors and Managers supported formation of Ad Hoc Technical Committee to review concept and initial details •Meetings Ad Hoc Committee held a series of meetings in fall of 2020 and winter 2021 •June 11, 2021 –Mayors and Managers meeting: Consensus to focus on proposal for formation of a Regional Transit Authority Regional Transit Optimization Project July 20, 2021 Planning Goals 1.Enhance Transit Service and Increase Ridership 2.Explore Administrative and Operational Efficiencies 3.Research a Regional Transit Authority Specific Transit Enhancements to Explore 1.Improvements to frequency and pricing for ECO routes 2.Free and frequent transit between Vail and Beaver Creek ski resorts 3.Establish Eagle –Gypsum route 4.Climate Action Goals: electric busses, increased ridership Regional Transit Optimization Project July 20, 2021 Ad Hoc Technical Committee Findings 1.Strong need to hire professional to assist with community outreach and coordination 2.Limited need to hire a technical consultant to analyze transit operations and options 3.Need for an employee survey to supplement recent CAC Transit Opinion Survey 4.Define a process to research options and costs, conduct comprehensive and effective community engagement, formulate proposal, and refer to an election 5.Inclusion of Eagle Air Alliance into a comprehensive regional transit enhancement plan is desired Regional Transit Optimization Project July 20, 2021 County Wide Employee Survey: •Climate Action Collaborative conducted a transit opinion survey in 2020 •Need and benefit has been identified to conduct a similar opinion survey that targets employees through their employers [i.e. ‘Complete this survey!’] •Target date: Fall, 2021 •Use Intercept Insight as local opinion survey company that conducted CAC transit survey •Estimated Cost: $20,000 to $30,000 •$10,000 Grant Funding received from DOLA Regional Transit Optimization Project July 20, 2021 Proposed Pilot Transit Projects 1.Eagle-Gypsum Connector (fare free) 2.Vail-Beaver Creek ski season connector (fare free) Details, estimated costs and structure of partnerships are currently being determined. Regional Transit Optimization Project July 20, 2021 Eagle Air Alliance 1.Dedicated and reliable funding source to replace existing annual funding raising 2.Increase of funding to support expanded air service to Eagle County Regional Airport 3.Economic benefit with incoming visitors; community benefit for increased connections to hub airports Regional Transit Optimization Project July 20, 2021 Next Steps Memorandum of Understanding •Define goals and process •Hire community facilitator(s) and consultant(s) to assist with com munity engagement process •Address cost sharing •Conduct employee survey on transit needs and preferences •Potential November 1, 2022 Election Date for formation of Regional Transit Authority and tax funding question Regional Transit Optimization Project July 20, 2021 Next Steps Memorandum of Understanding •Parties to the MOU are expected to include the entities currently providing transit and other interested stakeholders •Community engagement process will likely be led by a committee com prised of elected officials with the Ad Hoc transit group continuing to provide technical information and recommendations •Schedule of meetings and presentations to be determined, expected to be an iterative process that incorporates community input and then solicits further community input on revised proposal Regional Transit Optimization Project July 20, 2021 Next Steps Regional Transit Authority •Determination of boundary area (expected to not include Basalt) •Definition of Services (inclusion of Eagle Air Alliance in addition to regional transit services) •Determination of process for adoption (required election by each existing municipality that would be within the proposed boundary area, timing of elections) •Determination of cost of enhancements and additional funding that is supported by the community Regional Transit Optimization Project July 20, 2021 Regional Transit Optimization Project July 20, 2021 Regional Transit Optimization Project July 20, 2021 Contacts: Tanya Allen, tanya.allen@eaglecounty.us Eric Heil, eheil@avon.org 970.748.4004 eric@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Eric Heil, Town Manager RE: Worksession: Regional Transit Authority Update DATE: February 13, 2022 SUMMARY: This report provides an update on the Regional Transit Authority (RTA) process. Eagle County and the Towns of Avon, Eagle, Gypsum, Minturn, Red Cliff and Vail signed a Memorandum of Agreement (MOU) to cooperatively study an RTA and prepare a proposal for voter consideration. The formation of an RTA is the creation a new governmental entity under the Regional Transportation Authority Law.1 An RTA has authority to propose tax increases (subject to voter approval under TABOR2) and authority to operate regional transit and take all actions related to transit operations. This update provides an overview of the process, initial ideas and goals that Avon has articulated for transit enhancements. The details of a proposed RTA is intended to be an iterative process where a draft proposal is provided for stakeholder input and community engagement and then the proposal is revised to respond to community preferences. This process also includes polling of the community on potential ballot questions during late spring and summer. ECO TRANSIT: ECO Transit is operated by Eagle County. A .5% sales tax generates $11,939,000 which is distributed to transit and trails in the RFTA area (Roaring Fork Transit Agency), trails in Eagle County, and the remaining $9,644,000 is distributed to ECO Transit. If an RTA is formed the current understanding is that the new RTA would assume all operations and assets of the ECO Transit and Eagle County would enter into an IGA to remit the current ECO Transit revenues to the RTA. ENHANCED TRANSIT SERVICE: A fundamental goal of the RTA is to enhance transit service throughout the region. There is no contemplation that existing services would be negatively impacted by the formation of an RTA. A “Service Goals” document will be presented soon which identifies various transit enhancement goals and identifies rough cost estimates associated with each goal. The Service Goals document is discussed more below. RTA FORMATION PROCESS: The process to form an RTA requires two or more local governments to approve an Intergovernmental Agreement (RTA IGA), refer that RTA IGA to a general or special election3, and obtain approval from participating local governments. The eligible voters for an election to form an RTA are residents who are registered to vote. The required local governmental jurisdictions include the county and municipalities for the areas to be included. Metropolitan districts have the option to be included; however, metropolitan districts are not legally required. A tax increase or debt authorization may be asked at the same time as the RTA formation question if the election dates meet TABOR requirementsand may be asked as one combined ballot question. 4 A schedule of required actions was prepared in order to potential refer a ballot question to the November 8th, 2022 general election date. This date is an eligible date for both a question on formation of an RTA as well as a question, or combined question, on potential tax increases to fund the RTA. 1 CRS §43-4-601 et.seq . 2 Tax Payors Bill of Rights (TABOR) is the 1992 constitutional amendment that requires voter approval for any new or increased tax. 3 CRS §43-4-603(4) “The question of establishing the authority shall be submitted to such registered electors at a general election or a special election called for such purpose.” 4 CRS § 43-4-603(4) “Such question may also be proposed to such registered electors at the same time and in the same or a separate question as an election required under section 43-4-612.” Page 2 of 2 Avon Council (and other participating members) will be asked to conduct public hearings on a draft RTA IGA in April, then take action to approve the form of the draft RTA IGA by the end of May (for the purpose of referring a draft to Colorado Department of Transportation), then take action in August to refer the final version of an RTA IGA and any associated tax question to the November 8th, 2022 election. REVENUES: An RTA has the authority to impose three taxes with voter approval in accordance with TABOR. These revenues include a sales tax up to 1%, a “visitor benefit tax” (aka accommodations tax) up to 2%, and a property tax up to 5 mills. In addition, an RTA can also impose a $10 registration fee per vehicle within the RTA area. Attached is a revenue sheet showing potential funding sources. For discussion purposes at this point, a 0.5% sales tax increase would generate a little over $11 Million in additional revenues, which could support a number of identified service goals. RTA FORMATION COMMITTEE: The MOU established an RTA Formation Committee to review policy decisions and develop consensus. The RTA Formation Committee consists of a representative from Eagle County and the towns of Vail, Red Cliff, Minturn, Gypsum, Eagle and Avon. Mayor Sarah Smith Hymes is the representative for the Town of Avon. This Committee meets twice per month. I have raised and advocated the inclusion of Beaver Creek Metropolitan District in the RTA IGA as a member of the RTA Board. I believe this is appropriate because (1) there is a high concentration of lodging in Beaver Creek (i.e. visitors and places of employment), (2) Beaver Creek is a current transit operator, and (3) Beaver Creek generates a similar amount of sales tax and lodging tax as Avon. Ultimately, the goal of this Committee is to develop consensus on an RTA IGA document that determines the participants, basic organizational structure, service goals, and funding sources. RTA TECHNICAL COMMITTEE: An RTA Technical Committee also exists as set forth in the MOU. The Technical Committee includes representatives from the four transit agencies in Eagle County, representatives of Vail Valley Partnership and Eagle Air Alliance, and additional representatives from other communities. This Committee is a continuation of the working group that researched preliminary information over the last year. RTA STAKEHOLDER COMMITTEE: A Stakeholders Committee of other interested parties is expected to start in March for the purpose of facilitating community engagement. All existing participants are helping to identify a comprehensive and inclusive list of entities and organization to be included on the Stakeholder Committee. AVON’S SERVICE GOALS: The desired transit enhancement for Avon and the surrounding area has been stated as (1) free and frequent transit between Beaver Creek, Avon and Vail and (2) support for funding for the Eagle Air Alliance. General enhancement of transit service throughout the ECO Transit service area is also expected as well as first and last mile improvements, investment in electric busses, and investment in required facilities and housing to support enhanced transit. A very rough preliminary cost estimate for a fare free transit zone for Edwards/Avon/Beaver Creek/Vail is approximately $3 Million. REQUESTED COUNCIL DIRECTION: Confirmation that Avon transit enhancement service goals are appropriate at this point in the process is desired. Thank you, Eric ATTACHMENT A: Formal Action Timeline ATTACHMENT B: Eagle County RTA/Potential Funding Sources Eagle County RTA Formation Committee January 21, 2022, Regular Meeting Organizational Steps Discussion 1 ORGANIZATIONAL TIMELINE AND CHECKLIST Note: For discussion only. This timeline represents the latest dates provided for in statute to place the formation of the RTA on the November 8, 2022 election ballot. Additional diligence and coordination needed to adjust timeframes for intermediate milestones. Outside Timeframe Target Timeframe Task Authority Responsible Party1 Prior to End-January 2022 Drafting, discussion, and negotiation of IGA. See notes at bottom re: required elements and key decisions/items for discussion. [Note: The deadline for finalization of IGA terms is basically now. The implication is – every day needed for negotiation of the IGA requires shortening timeframes for other steps in the schedule; particularly in the timeframe for comment on the IGA by CDOT and adjoining counties/municipalities. To the extent the regional transportation systems to be included can be de-conflicted in advance, we should have the ability to gain time, day-for-day, in the outside timeline.] - Formation Committee and all participating entities. 45 days prior to approval of the IGA. No later than January 27, 2022, if assumptions around March 13, 2022, below hold true. (See options to mitigate/shorten timeframe for CDOT/affected entity approvals.) 45 days prior to approval of the IGA. No later than March 17, 2022, assuming first jurisdiction approval of IGA roughly May 2, 2022 (to allow for meetings to occur prior to Memorial Day). Provide notice to DOLA and the Department of Revenue containing the proposed boundaries of the authority and the methods proposed for financing regional transportation systems in the authority. A copy of the notice(s) provided under this item are also to be filed with the Transportation Commission (CDOT) and the State Auditor. [Note: This provision referencing the “creation of the authority” could refer to either the date the IGA is approved, the election date, or the later date on which organization is certified by DOLA (which is not a certain date); the RTA Law refers to “creation of the authority” and the effective date of such creation somewhat interchangeably. We would suggest providing this notice as soon as the proposed methods for financing are agreed, 45-days prior to the earliest date on which the IGA will be approved (which is likely not earlier than the first required public hearings).] 43-4- 614(1)(a) Formation Committee 1 References to the Formation Committee may include Eagle County or other designee(s) acting on behalf of the Formation Committee. 2 Outside Timeframe Target Timeframe Task Authority Responsible Party1 [Note also: A separate notice is required specifying the amount of the fee or tax proposed to be imposed under 43-4-614(1)(b); however, this notice can be satisfied by the notice above.] No sooner than 10 days following published notice. (est. notice week of January 31, 2022, for meeting week of February 14, 2022) No sooner than 10 days following published notice. (est. notice week of April 11, 2022, for meeting week of April 25, 2022) First public hearing on the IGA.2 Note: Timing of these notices and meetings to be refined for each jurisdiction based on results of questionnaire/jurisdiction-specific meeting schedules and practices. 43-4-603(3) Each participating entity. No sooner than 10 days following published notice; prior to entering into the IGA. (est. notice week of February 21, 2022, for meeting week of March 7, 2022) No sooner than 10 days following published notice; prior to entering into the IGA. (est. notice week of May 2, 2022, for meetings week of May 16, 2022) Second public hearing on the IGA. 43-4-603(3) Each participating entity. No later than March 13, 2022, if full 90 days allotted for comment by affected entities and an additional 90 days to enter into an IGA to address concerns(re: for example May 27, 2022 (Before Memorial Day) “Combination” creates, by contract (the “IGA”), an authority that is authorized to exercise the functions conferred by 43-4-601 et seq. (the “RTA Law”). (Effective upon: a. Affirmative vote of the registered electors residing within the boundaries of the proposed authority (See 43-4-603(4)); and b. the issuance by the DOLA Director or a certificate stating the RTA has been duly authorized. The DOLA Director shall issue the certificate upon filing of the IGA by the combination joining in the creation of the authority. (See also 43-4-603(1)). 43-3-603(1) Each participating entity. 2 The 45-day advance notice required to be given by the board of the authority to any county or municipality where a tax is proposed to be imposed under 43-4-613(1) would not seem to apply prior to organization of the authority. However, we suggest following the public comment requirements of 43-4-613(2) with regard to meetings of the participating entities where a “public hearing” is required. 3 Outside Timeframe Target Timeframe Task Authority Responsible Party1 overlapping service, cost share, etc.) [Note on boundaries: To discuss intended boundaries and inclusion of subsequently annexed property. See SMART IGA, also Wal-Mart Stores v. Pikes Peak Rural Transp., 434 P.3d 725. Also to discuss entity-by-entity organizational election in SMART IGA, and reconciling this with statutory language re: “vote of the registered electors residing within the boundaries of the proposed authority.”] [Note on timing: Duration of item can be (i) mitigated as noted below through early engagement with CDOT/adjacent counties and municipalities, or (ii) reduced through expeditious removal of portions of regional transportation systems (projects) of concern (requiring approval of changes to IGA by participating entities).] Following approval by all participating entities. (same date as last approval of IGA; see prior note) Copy of IGA provided to CDOT for comment. [Note: To consider whether IGA could be provided once two entities have approved, provided that the language of the IGA is not changed thereafter by additional participating entities. Conservatively, should assume all entities approve prior to submitting to CDOT.] Copy of IGA also provided to each county and municipality that is not a member of the combination (a participating entity) that includes territory that borders the proposed territory of the authority. 43-3-603(1) Formation Committee No later than 90 days following receipt of IGA for comment. CDOT or a bordering county or municipality may inform the combination that executed the IGA that any portions of the “regional transportation systems” to be provided by the proposed authority that involve road construction or improvement (as specified in the IGA), and that are on, alter the structure of, or negatively impact safe operation of any highway, road, or street under its jurisdiction, then, at the request of the affected entity, the combination shall either: a. Enter into an IGA with the affected entity concerning the identified portions (specifying whatever terms are deemed necessary to avoid duplication of effort and ensure coordinated transportation planning, efficient allocation of resources, and 43-4-603(1.5) Formation Committee 4 Outside Timeframe Target Timeframe Task Authority Responsible Party1 equitable sharing of costs) within 180 days after IGA was provided; or b. eliminate those portions from the list of projects specified in the contract (before it submits the IGA to a vote). The affected entity is required to provide evidence of the negative impact. [Note: Early participation by CDOT and bordering counties and municipalities in development of the regional transportation systems to be included could significantly cut down on the maximum potential timeframe to complete this step.] No later than July 19, 2022 Notify the County Clerk of formal action to participate in the 2022 General Election. [To consider whether this could be done by the Formation Committee under the MOU; this timeline assumes authorization by each participating entity to notify the County Clerk of intent to participate in the election, without full approval of the IGA. To discuss and confirm with Formation Committee. Timing not possible if all approvals are needed prior to this notice being given.] 1-7-116(5), 1- 1-106(5) All participating entities. August 30, 2022 Last day to sign IGA with County Clerk for conduct of the election. 1-7-116(2) Formation Committee September 9, 2022 Last day to certify ballot order and content for the 2022 General Election [Note: This timeline assumes full approval of the IGA needed by this date at the latest. To discuss and confirm.] 1-5-203(3)(a) Formation Committee September 23, 2022, 12:00pm Last day to file written comments concerning ballot issue with the designated election official (DEO) in order to be included in the ballot issue notice. [To confirm intent re: designation of DEO for purposes of organizational election and role of Eagle County as lead agency.] 1-7-901(4), Article X Section 20(3)(b)(v) (TABOR) Formation Committee (or DEO ) September 23, 2022 Last day for petition’s representatives to submit favorable comments to the DEO for inclusion in the ballot issue notice. 1-7-903(3), 1- 1-106(5) Formation Committee (Petitioners) 5 Outside Timeframe Target Timeframe Task Authority Responsible Party1 September 26, 2022 Last day to provide full text of ballot issue notices to the County Clerk. 1-7-904 Formation Committee November 8, 2022 Election Day - November 17, 2022 Deadline for [the board] to notify the department of revenue of the effective date of the tax. [To confirm potential earliest timing of certification of election results; this might not be complete in time for a January 1 sales tax effective date, in which case the tax would be effective July 1, 2023.] 43-4- 612(1)(b) Authority Board November 18, 2022 Deadline for County to finish tabulating ballots and generate a summary report. Rule 25.2.2(e) County Clerk November 30, 2022 Last day for County to complete the canvass and submit abstracts to Secretary of State. (Results uploaded December 1.) 1-10-102(1), 1-10-103(1) County Clerk January 1, 2023 Earliest date a sales or use tax could be effective. 43-4- 612(1)(b) - ADDITIONAL KEY DECISIONS / ITEMS FOR DISCUSSION The following are mandatory terms for the contract (IGA) establishing the authority. Underlined items are those that likely require significant discussion amongst the participating entities: 1. the name and purpose of the authority; 2. the regional transportation systems to be provided3; 3. the establishment and organization of the board of directors, including: a. the number of directors, which shall be at least five 4, all of which shall be elected officials from the members of the combination (the participating entities), and which shall include at least one elected official from each member; b. the manner of the appointment, the qualifications, and the compensation, if any, of the directors and the procedure for filling vacancies; 3 Regional transportation system" is defined at 43-4-602(16). 4 We have assumed the State (CDOT) will not participate in the proposed RTA. 6 c. the officers of the authority, the manner of their appointment, and their duties; and d. the voting requirements for action by the board; except that, unless specifically provided otherwise in the [IGA], a majority of the directors of the board constitutes a quorum and a majority of the board is necessary for action by the board; 4. provisions for the distribution, disposition, or division of the assets of the authority; 5. the boundaries of the authority, which: a. may not include territory outside of the boundaries of the members of the combination; b. may not include territory within the boundaries of a municipality that is not a member of the combination as the boundaries of the municipality exist on the date the authority is created without the consent of the governing body of such municipality; and c. may not include territory within the unincorporated boundaries of a county that is not a member of the combination as the unincorporated boundaries of the county exist on the date the authority is created without the consent of the governing body of such county; 6. the term of the [IGA] which may be for a definite term or until rescinded or terminated; 7. the method, if any, by which it may be terminated or rescinded; except that the [IGA] may not be terminated or rescinded so long as the authority has bonds outstanding; 8. the provisions for amendment of the contract; 9. the limitations, if any, on the powers granted by [the RTA Law] that may be exercised by the authority; and 10. the conditions required when adding or deleting parties to the contract. • Note that this schedule does not include timeframes required either by ordinance or by custom and courtesy for approval by individual jurisdictions. We will need to gather and supplement the schedule with that information. • Note that the IGA is not required to include details regarding the methods proposed for financing and revenue generation. However, the notices required to be provided to DOLA and the Department of Revenue, as well as the timelines leading to certification of ballot language, suggest that the following items should also need to be decided between the participating entities on the same timeline as the IGA is negotiated: Transportation/Program Decisions A. Will specific regional transportation systems (capital projects, operational priorities, air service commitments, etc.) be included in the ballot language for approval, or alternatively, determined by the authority board at a later date? Financial Decisions B. Which of the following are to be included, and at what level? a. Sales tax b. Property tax c. Visitor benefit tax 7 d. Vehicle registration fees C. Debt authorization? • Also to discuss: How will these decisions be made; i.e. is there a minimum “program” (capital and operating) we intend to commit to, and revenue needs will be “backed into” from there? Or alternatively, will revenue-generating decisions be made by the participating entities by other means (negotiation, polling, etc.), in which case, decisions regarding the regional transportation systems to be included might be impacted. 2021 - 1% Sales Tax (Estimate)DISTRICT 2022 NET ASSESED VALUE, NET of TIF Estimated annual 1% "Visitor Benefit Tax" * Vail 7,420,171.50$ Eagle County 3,520,985,070.00$ Avon **$500,000.00 Minturn 246,440.74$ Eagle County Health Service District *3,248,227,590.00$ Eagle 20,000.00$ EagleVail *565,013.04$ Proposed Eagle County RTA 2,805,414,260.00$ Gypsum N/A Avon 3,812,340.38$ Vail 2,651,241.00$ Bachelor Gulch *735,750.10$ Beaver Creek 605,000.00$ Arrowhead *135,906.10$ Minturn 10,000.00$ Edwards *1,333,257.33$ Edwards N/A Eagle 1,531,699.59$ 1 mill 2,805,414.26$ $3,786,241.00 Gypsum 2,240,491.82$ 2.5 mills 7,013,535.65$ Red Cliff 22,077.06$ 5 mills **14,027,071.30$ Two Rivers *50,088.82$ Red Sky Ranch *51,029.11$ Unincorporated **3,870,165.60$ Proposed RTA 1% 22,014,431.19$ Tax Impact Estimates Proposed RTA 0.5% 11,007,215.60$ $500,000 actual residential value / $35,750 assessed value 1 mill = $35.75 / year 5 mills = $178.75 / year $1 Million actual residential value / $71,500 assessed value 1 mill = $71.50 / year 5 mills = $357.50 / year $1 Million actual commercial prop value / ~$290,000 av 1 mill = $290 / year 5 mills = $1,450 / year * Countywide 0.5% sales tax ECO Transit $9,644,090.00 ECO Trails $1,071,566.00 RFV Transit (RFTA)$611,795.00 RFV Trails (RFTA)$611,795.00 2021 estimated $11,939,246.00 ** Unincorporated Eagle County area, but excludes the districts identified with *. Also excludes El Jebel area. ECO Transit Sales Tax Data* Proposed RTA Property Tax Estimate ** Current law allows RTA to seek voter approval for a uniform mill levy of up to 5 mills Eagle County RTA / Potential Funding Sources Sales Tax Data Property Tax Data * NOTE: Beaver Creak is included in Unicorporated. Areas that are within unincorporated Eagle County are broken out from the Unincorporated tax amount because there was sufficient data at the county level to Accomodations Tax Data * According to RTA statute, "visitor benefit tax" on accomodations cannot "cause the aggregate amount of the visitor benefit tax and any lodging tax imposed on such overnight rooms or accommodations to exceed two percent of the price of such overnight rooms or accommodations." ** Avon already has accommodations tax of 4% and a recently enacted short- term rental tax of 2%. * Ambulance district excludes RFV/Basalt/El Jebel Proposed Eagle County RTA Boundaries / 2022 Assessed Value: $2,805,414,260.00 2022 NET ASSESED VALUE, NET of TIF Eagle County 1 $3,520,985,070 Town of Avon 30 $234,872,120 Town of Eagle 32 $167,541,130 Town of Gypsum 33 $184,358,910 Town of Minturn 34 $32,922,710 Town of Red Cliff 35 $6,014,760 Town of Vail 36 $1,206,181,100 Key Metro Districts: Arrowhead Metro District 52 $124,965,150 Bachelor Gulch Metro District 67 $163,255,760 Beaver Creek Metro District 54 $329,711,800 EagleVail Metro District 57 $103,918,780 Edwards Metro District 59 $201,113,620 Other Entities: Airport Commerce Center Metro District 131 $3,613,300 Arrowhead Metro District 53 $73,780 Avon Station Metro District 38 $17,539,380 Beaver Creek Metro District 99 $1,296,590 Bellyache Ridge Metro District 55 $5,348,290 Berry Creek Metro District 56 $81,688,360 Buckhorn Valley Metro District #1 102 $36,850 Buckhorn Valley Metro District #2 101 $13,851,090 Cascade Village Metro District 61 $68,770,260 Cedar Hill Cemetery District 41 $184,042,390 Chatfield Metro District 105 $8,245,390 Colorado Mountain College 12 $3,519,850,750 Colorado River Water Conservation District 76 $3,344,377,030 Confluence Metro District 37 $982,080 Cordillera Metro District 63 $84,993,090 Cordillera Metro District - Consolidated 107 $102,261,540 Cordillera Mountain Metro District 45 $19,039,100 Cordillera Valley Club Metro District 106 $25,760,530 Cotton Ranch Metro District 65 $16,468,230 Eagle Cemetery District 42 $282,312,550 Eagle County Conservation District 90 $3,017,730,540 Eagle County Health Service District 96 $3,248,227,590 Eagle Ranch Metro District 44 $75,610,850 Eagle River Fire Protection District 100 $1,152,574,750 Eagle River Station Metro District 117 $91,370 Eagle River Water & Sanitation District 69 $2,597,766,990 Eagle River Water & Sanitation District - Subdistrict 85 $1,229,467,670 Eagle Valley Library District 94 $2,043,243,060 Edwards Metro District West End Subdistrict 143 $803,710 Greater Eagle Fire Protection District 46 $270,794,620 Gypsum Fire Protection District 50 $175,863,790 Haymeadow Metro District #1 136 $246,910 Haymeadow Metro District #2 137 $21,430 Haymeadow Metro District #3 138 $56,540 Haymeadow Metro District #4 139 $22,530 Haymeadow Metro District #5 140 $52,850 Haymeadow Metro District #6 141 $2,870 Holland Creek Metro District 88 $64,430 Horse Mountain Ranch Metro District 68 $2,903,500 Lake Creek Metro District 78 $18,809,110 Mid Valley Metro District 60 $151,001,780 Minturn Cemetery District 43 $1,339,597,030 Minturn General Improvement District 128 $573,020 Mountain Rec District 62 $846,952,980 Mountain Vista Metro District 39 $3,601,500 RE50J - Eagle County School District 16 $3,245,443,040 Red Sky Ranch Metro District 87 $17,674,560 Sienna Lake Metro District 104 $865,950 Smith Creek Metro District 66 $410,150 Solaris Metro District #1 121 $11,660 Solaris Metro District #2 122 $31,542,490 Solaris Metro District #3 123 $7,104,950 Timber Springs Metro District 133 $1,770,650 Tower Center Metro District 129 $193,410 Town of Avon General Improvement District 1 127 $3,029,370 Traer Creek Metro District 93 $61,560 Two Rivers Metro District 97 $6,641,780 Vail Park & Rec District 58 $1,228,454,040 Vail Square Metro District #2 115 $15,115,540 Vail Square Metro District #3 116 $12,776,220 Valagua Metro District 112 $4,471,640 Village Metro District 95 $16,635,960 WG JT 1 - West Grand School District 25 $1,134,320 Avon Station Metro Debt Svc - NEW from Avon TIF 147 $982,040 Property Tax Entities Overlapping with Proposed RTA (970) 748-4055 swright@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Public Employees Board of Retirement Scott Wright, Finance Director, Plan Administrator RE: Amendment & Restatement of Public Employees Money Purchase Pension Plan DATE: May 10, 2022 SUMMARY: Federal Treasury Regulations require that the Town’s Public Employees Money Purchase Pension Plan (the “Plan”) be amended and restated every six years. This is the sixth year of the Town’s compliance cycle. The Public Employees Retirement Board has reviewed and approved the proposed Plan amendment and restatement and is requesting the Town Council to formally adopt it. BACKGROUND: The Internal Revenue Service requires that qualified, tax-exempt retirement savings plans – like the Public Employees Money Purchase Pension Plan – be periodically amended so as to incorporate statutory and regulatory changes, as well as revisions made necessary by applicable court decisions. The Town’s current, six-year compliance period for doing so – referred to as “Cycle 3” -- closes on July 31, 2022. ANALYSIS: In order to comply with the Cycle 3 deadline, the Public Employees Retirement Board directed the Plan’s third-party administrator, Eileen Shaw of Creative Retirement Plan Consulting LLC, to prepare an amendment and restatement of the Plan that incorporates all of the required revisions. The Board then reviewed the proposed amendment, together with Plan legal counsel, and concluded that it satisfies the applicable standards. FINANCIAL CONSIDERATIONS: The amended and restated Plan will not substantially alter the operation of the Plan and is not expected to have any effect on Plan costs. RECOMMENDATION: The Public Employees Board of Retirement recommends that the Town Council adopt the Amended and Restated Plan. OPTIONS: The Cycle 3 amendment and restatement requirement is necessary to protect the tax-exempt status of the Plan’s assets. Failure to do so on or before July 31, 2022, will subject the Plan to monetary penalties and may expose the Plan Board to fiduciary liability. As a consequence, there is no viable option to amending and restating the Plan. PROPOSED MOTION: “I move that the Town of Avon Public Employees Money Purchase Pension Plan be amended & restated not later than July 31, 2022, as set forth in Resolution No. 22-10.” ATTACHMENTS: A - Resolution No. 22-10, to which is appended “Adoption Agreement for Eileen Shaw Non-Standardized Governmental 401(a) Pre-Approved Plan.” Res 22-10 Amending & Restating Town of Avon Public Employees Money Purchase Pension Plan Page 1 of 2 RESOLUTION NO. 22-10 AMENDING & RESTATING TOWN OF AVON PUBLIC EMPLOYEES MONEY PURCHASE PENSION PLAN WHEREAS, the Town of Avon (the “Town”), as a home rule municipal corporation and body politic organized under the laws of the State of Colorado, is authorized to establish and maintain, in accordance with C.R.S. § 24-54-101, et seq., a general plan or system of retirement benefits for its employees, or any class thereof, subject to appropriation being available therefor; and WHEREAS, the Town, by and through Resolution No. 85-4, Series of 1985, established, and has thereafter maintained, through a series of required and elective amendments and restatements, a Money Purchase Pension Plan, exempt from federal taxation under 26 U.S.C. § 401(a), to benefit its employees by providing funds for retirement (the “Public Employees Money Purchase Pension Plan” or the “Plan”); and WHEREAS, Treasury Regulations adopted by the Internal Revenue Service (the “IRS”), together with other IRS publications, require that the Plan be amended and restated each six years on a schedule referred to as “Cycle C” to incorporate statutory and regulatory changes, along with revisions required by applicable judicial decisions (the “Cycle C Requirements”); and WHEREAS, in order to amend and restate the Plan so as to satisfy the Cycle C Requirements, the Plan’s Board of Retirement (the “Plan Board”) has reviewed and, by Resolution adopted May 10, 2022, approved and adopted a Non-Standardized Governmental 401(a) Pre-Approved Plan (the “2022 Amended & Restated Public Employees Plan”) prepared by the Plan’s third-party administrator, Creative Retirement Plan Consulting LLC; and WHEREAS, the Town Council finds and determines that adopting the 2022 Amended & Restated Public Employees Plan will protect the tax-exempt status of Plan assets and will, thereby, serve the best interests of the Town’s full-time employees who participate in the Plan. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. The Town Council hereby ratifies the Plan Board’s approval of the 2022 Amended & Restated Public Employees Plan and adopts that Amended & Restated Plan in substantially the form attached to this Resolution No. 22-10. Section 3. The Town Finance Director, as Chair of the Plan Board, is hereby authorized to execute all such documents as are necessary to give effect to the adoption and implementation of the 2022 Amended & Restated Public Employees Plan. ATTACHMENT A Res 22-10 Amending & Restating Town of Avon Public Employees Money Purchase Pension Plan Page 2 of 2 ADOPTED on May 10, 2022 AVON TOWN COUNCIL BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 1 ADOPTION AGREEMENT FOR EILEEN SHAW NON-STANDARDIZED GOVERNMENTAL 401(a) PRE-APPROVED PLAN CAUTION: Failure to properly fill out this Adoption Agreement may result in disqualification of the Plan. EMPLOYER INFORMATION (An amendment to the Adoption Agreement is not needed solely to reflect a change in this Employer Information Section.) 1. EMPLOYER'S NAME, ADDRESS, TELEPHONE NUMBER, TIN AND FISCAL YEAR Name: Town of Avon Address: 100 Mikaela Way Street Avon Colorado 81620 City State Zip Telephone: 970-784-4044 Taxpayer Identification Number (TIN): 84-0771088 Employer's Fiscal Year ends: December 31 2. TYPE OF GOVERNMENTAL ENTITY. This Plan may only be adopted a state or local governmental entity, or agency thereof, including an Indian tribal government and may not be adopted by any other entity, including a federal government and any agency or instrumentality thereof. a. [ ] State government or state agency b. [ ] County or county agency c. [X] Municipality or municipal agency d. [ ] Indian tribal government (see Note below) NOTE: An Indian tribal government may only adopt this Plan if such entity is defined under Code §7701(a)(40), is a subdivision of an Indian tribal government as determined in accordance with Code §7871(d), or is an agency or instrumentality of either, and all of the Participants under this Plan employed by such entity substantially perform services as an Employee in essential governmental functions and not in the performance of commercial activities (whether or not an essential government function). 3. PARTICIPATING EMPLOYERS (Plan Section 1.39). Will any other Employers adopt this Plan as Participating Employers? a. [X] No b. [ ] Yes MULTIPLE EMPLOYER PLAN (Plan Article XI). Will any Employers who are not Affiliated Employers adopt this Plan as part of a multiple employer plan (MEP) arrangement? c. [X] No d. [ ] Yes (Complete a Participation Agreement for each Participating Employer.) PLAN INFORMATION (An amendment to the Adoption Agreement is not needed solely to reflect a change in the information in Question 9.) 4. PLAN NAME: Town of Avon Public Employees Money Purchase Pension Plan 5. PLAN STATUS a. [ ] New Plan b. [X] Amendment and restatement of existing Plan CYCLE 3 RESTATEMENT (leave blank if not applicable) 1.[X] This is an amendment and restatement to bring a plan into compliance with the legislative and regulatory changes set forth in IRS Notice 2017-37 (i.e., the 6-year pre-approved plan restatement cycle). 6. EFFECTIVE DATE (Plan Section 1.16) (complete a. if new plan; complete a. AND b. if an amendment and restatement) Initial Effective Date of Plan (except for restatements, cannot be earlier than the first day of the current Plan Year) a. January 1, 1985 (enter month day, year) (hereinafter called the "Effective Date" unless 6.b. is entered below) ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 2 Restatement Effective Date. If this is an amendment and restatement, the effective date of the restatement (hereinafter called the "Effective Date") is: b. January 1, 2022 (enter month day, year; NOTE: The restatement date may not be prior to the first day of the current Plan Year. Plan contains appropriate retroactive effective dates with respect to provisions for appropriat e laws.) 7. PLAN YEAR (Plan Section 1.43) means, except as otherwise provided in d. below: a. [X] the calendar year b. [ ] the twelve-month period ending on (e.g., June 30th) SHORT PLAN YEAR (Plan Section 1.47). This is a Short Plan Year (if the effective date of participation is based on a Plan Year, then coordinate with Question 14): c. [X] N/A d. [ ] beginning on (enter month day, year; e.g., July 1, 2020) and ending on (enter month day, year). 8. VALUATION DATE (Plan Section 1.53) means: a. [X] every day that the Trustee (or Insurer), any transfer agent appointed by the Trustee (or Insurer) or the Employer, and any stock exchange used by such agent are open for business (daily valuation) b. [ ] the last day of each Plan Year c. [ ] the last day of each Plan Year quarter d. [ ] other (specify day or days): (must be at least once each Plan Year) NOTE: The Plan always permits interim valuations. 9. ADMINISTRATOR'S NAME, ADDRESS AND TELEPHONE NUMBER (If none is named, the Employer will be the Administrator (Plan Section 1.2).) a. [X] Employer (use Employer address and telephone number) b. [ ] The Committee appointed by the Employer (use Employer address and telephone number) c. [ ] Other: Name: Address: Street City State Zip Telephone: 10. TYPE OF PLAN (select one) a. [ ] Profit Sharing Plan. b [X] Money Purchase Pension Plan. 11. CONTRIBUTION TYPES The selections made below must correspond with the selections made under the Contributions and Allocations Section of this Adoption Agreement. FROZEN PLAN OR CONTRIBUTIONS HAVE BEEN SUSPENDED (Plan Section 4.1(c)) (optional) a. [ ] This is a frozen Plan (i.e., all contributions cease) (if this is a temporary suspension, select a.2): 1. [ ] All contributions ceased as of, or prior to, the effective date of this amendment and restatement and the prior Plan provisions are not reflected in this Adoption Agreement (may enter effective date at 3. below and/or select prior contributions at g. - j. (optional), skip questions 12-18 and 22-30) 2. [ ] All contributions ceased or were suspended and the prior Plan provisions are reflected in this Adoption Agreement (must enter effective date at 3. below and select contributions at b. - f.) Effective date 3. [ ] as of (effective date is optional unless a.2. has been selected above or this is the amendment or restatement to freeze the Plan). CURRENT CONTRIBUTIONS The Plan permits the following contributions (select one or more): b. [X] Employer contributions other than matching (Questions 24-25) 1. [X] This Plan qualifies as a Social Security Replacement Plan (Question 24.e. must be selected) c. [ ] Employer matching contributions (Questions 26-28) d. [X] Mandatory Employee contributions (Question 30) ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 3 e. [ ] After-tax voluntary Employee contributions f. [ ] Rollover contributions (Question 36) PRIOR CONTRIBUTIONS The Plan used to permit, but no longer does, the following contributions (choose all that apply, if any): g. [ ] Employer matching contributions h. [ ] Employer contributions other than matching contributions i. [ ] Rollover contributions j. [ ] After-tax voluntary Employee contributions ELIGIBILITY REQUIREMENTS 12. ELIGIBLE EMPLOYEES (Plan Section 1.17) means all Employees (including Leased Employees) EXCEPT those Employees who are excluded below or elsewhere in the Plan: (select a. or b.) a. [ ] No excluded Employees. There are no additional excluded Employees under the Plan (skip to Question 13). b. [X] Exclusions. The following Employees are not Eligible Employees for Plan purposes (select one or more): 1. [ ] Union Employees (as defined in Plan Section 1.17) 2. [ ] Nonresident aliens (as defined in Plan Section 1.17) 3. [X] Leased Employees (Plan Section 1.29) 4. [X] Part-time Employees. A part-time Employee is an Employee whose regularly scheduled service is less than 1,000 Hours of Service in the relevant eligibility computation period (as defined in Plan Section 1.55). 5. [X] Temporary Employees. A temporary Employee is an Employee who is categorized as a temporary Employee on the Employer’s payroll records. 6. [X] Seasonal Employees. A seasonal Employee is an Employee who is categorized as a seasonal Employee on the Employer’s payroll records. 7. [X] Other: Employees in elected positions and regular full-time sworn police officers of the Town of Avon. (must be definitely determinable under Regulation §1.401-1(b). Exclusions may be employment title specific but may not be by individual name) NOTE: If option 4. - 6. (part-time, temporary and/or seasonal exclusions) is selected, when any such excluded Employee actually completes 1 Year of Service, then such Employee will no longer be part of this excluded class. For this purpose, the Hours of Service method will be used for the 1 Year of Service override regardless of any contrary selection at Question 16. 13. CONDITIONS OF ELIGIBILITY (Plan Section 3.1) a. [X] No age and service required. No age and service required for all Contribution Types (skip to Question 14). b. [ ] Eligibility. An Eligible Employee will be eligible to participate in the Plan upon satisfaction of the following (complete c. and d., select e. and f. if applicable): Eligibility Requirements c. [ ] Age Requirement 1. [ ] No age requirement 2. [ ] Age 20 1/2 3. [ ] Age 21 4. [ ] Age (may not exceed 26) d. [ ] Service Requirement 1. [ ] No service requirement 2. [ ] (not to exceed 60) months of service (elapsed time) 3. [ ] 1 Year of Service 4. [ ] (not to exceed 5) Years of Service 5. [ ] consecutive month period from the Eligible Employee's employment commencement date and during which at least Hours of Service are completed. 6. [ ] consecutive months of employment. 7. [ ] Other: (e.g., date on which 1,000 Hours of Service is completed within the computation period) (must satisfy the Notes below) NOTE: If c.4. or d.7. is selected, the condition must be an age or service requirement that is definitely determinable and may not exceed age 26 and may not exceed 5 Years of Service. NOTE: Year of Service means Period of Service if the elapsed time method is chosen. Waiver of conditions. The service and/or age requirements specified above will be waived in accordance with the following (leave blank if there are no waivers of conditions): e. [ ] If employed on the following requirements, and the entry date requirement, will be waived. The waiver applies to any Eligible Employee unless 3. selected below. Such Employees will enter the Plan as of such date (select 1. and/or 2. AND 3. if applicable): 1. [ ] service requirement (may let part-time Eligible Employees into the Plan) ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 4 2. [ ] age requirement 3. [ ] waiver is for: Amendment or restatement to change eligibility requirements f. [ ] This amendment or restatement (or a prior amendment and restatement) modified the eligibility requirements and the prior eligibility conditions continue to apply to the Eligible Employees specified below. If this option is NOT selected, then all Eligible Employees must satisfy the eligibility conditions set forth above. 1. [ ] The eligibility conditions above only apply to Eligible Employees who were not Participants as of the effective date of the modification. 2. [ ] The eligibility conditions above only apply to individuals who were hired on or after the effective date of the modification. 14. EFFECTIVE DATE OF PARTICIPATION (ENTRY DATE) (Plan Section 3.2) An Eligible Employee who has satisfied the eligibility requirements will become a Participant in the Plan as of the: a. [X] date such requirements are met b. [ ] first day of the month coinciding with or next following the date on which such requirements are met c. [ ] first day of the Plan Year quarter coinciding with or next following the date on which such requirements are met d. [ ] earlier of the first day of the Plan Year or the first day of the seventh month of the Plan Year coinciding with or next following the date on which such requirements are met e. [ ] first day of the Plan Year coinciding with or next following the date on which such requirements are met f. [ ] first day of the Plan Year in which such requirements are met g. [ ] first day of the Plan Year in which such requirements are met, if such requirements are met in the first 6 months of the Plan Year, or as of the first day of the next succeeding Plan Year if such requirements are met in the last 6 months of the Plan Year. h. [ ] other: (must be definitely determinable) SERVICE 15. RECOGNITION OF SERVICE WITH OTHER EMPLOYERS (Plan Sections 1.40 and 1.55) a. [X] No service with other employers is recognized except as otherwise required by law (e.g., the Plan already provides for the recognition of service with Employers who have adopted this Plan as well as service with Affiliated Employers and predecessor Employers who maintained this Plan; skip to Question 16). b. [ ] Service with the designated employers is recognized as follows (select c. – e. and one or more of columns 1. - 3.; chose other options as applicable) (if more than 3 employers, attach an addendum to the Adoption Agreement or complete option h. under Section B of Appendix A): 1. 2. 3. Contribution Other Employer Eligibility Vesting Allocation c. [ ] Employer name: [ ] [ ] [ ] d. [ ] Employer name: [ ] [ ] [ ] e. [ ] Employer name: [ ] [ ] [ ] Limitations f. [ ] The following provisions or limitations apply with respect to the [ ] [ ] [ ] recognition of prior service: (e.g., credit service with X only on/following 1/1/19) g. [ ] The following provisions or limitations apply with respect to the recognition of service with other employers: (e.g., credit service with X only on/following 1/1/19 or credit all service with entities the Employer acquires after 12/31/18) NOTE: If the other Employer(s) maintained this qualified Plan, then Years (and/or Periods) of Service with such Employer(s) must be recognized pursuant to Plan Sections 1.40 and 1.55 regardless of any selections above. 16. SERVICE CREDITING METHOD (Plan Sections 1.40 and 1.55) NOTE: If any Plan provision is based on a Year of Service, then the provisions set forth in the definition of Year of Service in Plan Section 1.55 will apply, including the following defaults, except as otherwise elected below: 1. A Year of Service means completion of at least 1,000 Hours of Service during the applicable computation period. 2. Hours of Service (Plan Section 1.24) will be based on actual Hours of Service except that for Employees for whom records of actual Hours of Service are not maintained or available (e.g., salaried Employees), the monthly equivalency will be used. ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 5 3. For eligibility purposes, the computation period will be as defined in Plan Section 1.55 (i.e., shift to the Plan Year if the eligibility condition is one (1) Year of Service or less). 4. For vesting, allocation, and distribution purposes, the computation period will be the Plan Year. 5. Upon an Employee's rehire, all prior service with the Employer is taken into account for all purposes. a. [ ] Elapsed time method. (Period of Service applies instead of Year of Service) Instead of Hours of Service, elapsed time will be used for: 1. [ ] all purposes (skip to Question 17) 2. [ ] the following purposes (select one or more): a. [ ] eligibility to participate b. [ ] vesting c. [ ] allocations, distributions and contributions b. [ ] Alternative definitions for the Hours of Service method. Instead of the defaults, the following alternatives will apply for the Hours of Service method (select one or more): 1. [ ] Eligibility computation period. Instead of shifting to the Plan Year, the eligibility computation period after the initial eligibility computation period will be based on each anniversary of the date the Employee first completes an Hour of Service 2. [ ] Vesting computation period. Instead of the Plan Year, the vesting computation period will be the date an Employee first performs an Hour of Service and each anniversary thereof. 3. [ ] Equivalency method. Instead of using actual Hours of Service, an equivalency method will be used to determine Hours of Service for: a. [ ] all purposes b. [ ] the following purposes (select one or more): 1. [ ] eligibility to participate 2. [ ] vesting 3. [ ] allocations, distribution and contributions Such method will apply to: c. [ ] all Employees d. [ ] Employees for whom records of actual Hours of Service are not maintained or available (e.g., salaried Employees) e. [ ] other: (e.g., per-diem Employees only) Hours of Service will be determined on the basis of: f. [ ] days worked (10 hours per day) g. [ ] weeks worked (45 hours per week) h. [ ] semi-monthly payroll periods worked (95 hours per semi-monthly pay period) i. [ ] months worked (190 hours per month) j. [ ] bi-weekly payroll periods worked (90 hours per bi-weekly pay period) k. [ ] other: (e.g., option f. is used for per-diem Employees and option g. is used for on-call Employees). 4. [ ] Number of Hours of Service required. Instead of 1,000 Hours of Service, Year of Service means the applicable computation period during which an Employee has completed at least (not to exceed 1,000) Hours of Service for: a. [ ] all purposes b. [ ] the following purposes (select one or more): 1. [ ] eligibility to participate 2. [ ] vesting 3. [ ] allocations, distributions and contributions c. [ ] Alternative for counting all prior service. Instead of the default which recognizes all prior service for rehired Employees, the Plan will not recognize prior service and rehired Employee are treated as new hires for the following purposes: (select one) 1. [ ] all purposes 2. [ ] the following purposes (select one or more): a. [ ] eligibility to participate b. [ ] vesting c. [ ] sharing in allocations or contributions ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 6 d. [ ] Other service crediting provisions: (must be definitely determinable; e.g., for vesting a Year of Service is based on 1,000 Hours of Service but for eligibility a Year of Service is based on 900 Hours of Service.) NOTE: Must not list more than 1,000 hours in this Section. This servicing credit provision will be used for: 1. [ ] All purposes 2. [ ] The following purposes (select one or more): a. [ ] eligibility to participate b. [ ] vesting c. [ ] allocations, distributions and contributions VESTING 17. VESTING OF PARTICIPANT'S INTEREST – EMPLOYER CONTRIBUTIONS (Plan Section 6.4(b)) a. [ ] N/A (no Employer contributions; skip to Question 19) b. [X] The vesting provisions selected below apply. Section B of Appendix A can be used to specify any exceptions to the provisions below. NOTE: The Plan provides that contributions for converted sick leave and/or vacation leave are fully Vested. Vesting for Employer contributions other than matching contributions c. [ ] N/A (no Employer contributions (other than matching contributions); skip to f.) d. [ ] 100% vesting. Participants are 100% Vested in Employer contributions (other than matching contributions) upon entering Plan. e. [X] The following vesting schedule, based on a Participant's Years of Service (or Periods of Service if the elapsed time method is selected), applies to Employer contributions (other than matching contributions): 1. [ ] 6 Year Graded: 0-1 year-0%; 2 years-20%; 3 years-40%; 4 years-60%; 5 years-80%; 6 years-100% 2. [ ] 4 Year Graded: 1 year-25%; 2 years-50%; 3 years-75%; 4 years-100% 3. [ ] 5 Year Graded: 1 year-20%; 2 years-40%; 3 years-60%; 4 years-80%; 5 years-100% 4. [ ] Cliff: 100% vesting after (not to exceed 15) years 5. [X] Other graded vesting schedule (must provide for full vesting no later than 15 years of service; add additional lines as necessary) Years (or Periods) of Service Percentage 1 Year of Service 0% % 2 Years of Service 40% % 3 Years of Service 60% % 4 Years of Service 80% % 5 Years of Service 100% % Vesting for Employer matching contributions f. [X] N/A (no Employer matching contributions) g. [ ] The schedule above will also apply to Employer matching contributions. h. [ ] 100% vesting. Participants are 100% Vested in Employer matching contributions upon entering Plan. i. [ ] The following vesting schedule, based on a Participant's Years of Service (or Periods of Service if the elapsed time method is selected), applies to Employer matching contributions: 1. [ ] 6 Year Graded: 0-1 year-0%; 2 years-20%; 3 years-40%; 4 years-60%; 5 years-80%; 6 years-100% 2. [ ] 4 Year Graded: 1 year-25%; 2 years-50%; 3 years-75%; 4 years-100% 3. [ ] 5 Year Graded: 1 year-20%; 2 years-40%; 3 years-60%; 4 years-80%; 5 years-100% 4. [ ] Cliff: 100% vesting after (not to exceed 15) years 5. [ ] Other graded vesting schedule (must provide for full vesting no later than 15 years of service; add additional lines as necessary) Years (or Periods) of Service Percentage % % % % % % % % % % ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 7 NOTE: If any Part-time/Seasonal/Temporary Employees who are not covered under Social Security are participating in this Plan as a Social Security Replacement Plan, any contributions used to satisfy the minimum contribution requirements of Question 24.e. will be 100% vested. 18. VESTING OPTIONS Excluded vesting service. The following Years of Service will be disregarded for vesting purposes (select all that apply; leave blank if none apply): a. [ ] Service prior to the initial Effective Date of the Plan or a predecessor plan (as defined in Regulations §1.411(a)-5(b)(3)) b. [ ] Service prior to the computation period in which an Employee has attained age . c. [ ] Service during a period for which an Employee did not make mandatory Employee contributions. Vesting for death, Total And Permanent Disability and Early/Normal Retirement. Regardless of the vesting schedule, a Participant will become fully Vested upon (select all that apply; leave blank if none apply): d. [X] Death e. [X] Total and Permanent Disability f. [ ] Early Retirement Date g. [X] Normal Retirement Age RETIREMENT AGES 19. NORMAL RETIREMENT AGE ("NRA") (Plan Section 1.33) means: This Question 19 and Question 20 may be skipped if the Plan does not base any benefits, distributions or other features on Normal Retirement Age. a. [X] Specific age. The date a Participant attains age 65 b. [ ] Age/participation. The later of the date a Participant attains age or the anniversary of the first day of the Plan Year in which participation in the Plan commenced c. [ ] Other: (must be definitely determinable) NOTE: If this is a Money Purchase Pension Plan and in-service distributions at Normal Retirement Age are permitted, then the Normal Retirement Age cannot be less than age 62, or age 50 if substantially all Participants are qualified public safety employees (as defined in Code §72(t)(1)). The "substantially all" requirement for qualified public safety employees will no longer be a requirement as of the effective date of the final regulations once they are issued & effective. If an age less than 62 is inserted (unless the age 50 safe harbor is applicable for a qualified public safety employee), no reliance will be afforded on the Opinion Letter issued to the Plan that such age is reasonably representative of the typical retirement age for the industry in which the Participants works. Effective for Employees hired during Plan Years beginning on or after the later of (1) January 1, 2015, or (2) the close of the first legislative session of the legislative body with the authority to amend the plan that begins on or after the date that is three (3) months after the final regulations are published in the Federal Register, an NRA of less than age 62 must comply with the final regulations under §401(a). Qualified public safety employees. Normal Retirement Age for public safety employees (as defined in Code §72(t)(1)) (leave blank if not applicable) d. [ ] Age (may not be less than 50 for a Money Purchase Pension Plan or 40 for a Profit Sharing Plan) 20. NORMAL RETIREMENT DATE (Plan Section 1.34) means, with respect to any Participant, the: a. [X] date on which the Participant attains "NRA" b. [ ] first day of the month coinciding with or next following the Participant's "NRA" c. [ ] first day of the month nearest the Participant's "NRA" d. [ ] Anniversary Date coinciding with or next following the Participant's "NRA" e. [ ] Anniversary Date nearest the Participant's "NRA" f. [ ] Other: (e.g., first day of the month following the Participant's "NRA"). 21. EARLY RETIREMENT DATE (Plan Section 1.15) a. [X] N/A (no early retirement provision provided) b. [ ] Early Retirement Date means the: 1. [ ] date on which a Participant satisfies the early retirement requirements 2. [ ] first day of the month coinciding with or next following the date on which a Participant satisfies the early retirement requirements 3. [ ] Anniversary Date coinciding with or next following the date on which a Participant satisfies the early retirement requirements ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 8 Early retirement requirements 4. [ ] Participant attains age AND, completes.... (leave blank if not applicable) a. [ ] at least Years (or Periods) of Service for vesting purposes b. [ ] at least Years (or Periods) of Service for eligibility purposes c. [ ] Early Retirement Date means: (must be definitely determinable) COMPENSATION 22. COMPENSATION with respect to any Participant is defined as follows (Plan Sections 1.10 and 1.23). Base definition a. [X] Wages, tips and other compensation on Form W-2 b. [ ] Code §3401(a) wages (wages for withholding purposes) c. [ ] 415 safe harbor compensation NOTE: Plan Section 1.10(c) provides that the base definition of Compensation includes deferrals that are not included in income due to Code §§401(k), 125, 132(f)(4), 403(b), 402(h)(1)(B)(SEP), 414(h)(2), & 457. Determination period. Compensation will be based on the following "determination period" (this will also be the Limitation Year unless otherwise elected at option f. under Section B of Appendix A): d. [X] the Plan Year e. [ ] the Fiscal Year coinciding with or ending within the Plan Year f. [ ] the calendar year coinciding with or ending within the Plan Year Adjustments to Compensation (for Plan Section 1.10). Compensation will be adjusted by: g. [ ] No adjustments (skip to Question 23. below) h. [X] Adjustments. Compensation will be adjusted by (select all that apply): 1. [ ] excluding salary reductions (401(k), 125, 132(f)(4), 403(b), SEP, 414(h)(2) pickup, & 457) 2. [ ] excluding reimbursements or other expense allowances, fringe benefits (cash or non-cash), moving expenses, deferred compensation (other than deferrals specified in 1. above) and welfare benefits. 3. [ ] excluding Compensation paid during the "determination period" while not a Participant in the Plan. 4. [ ] excluding Military Differential Pay 5. [X] excluding overtime 6. [X] excluding bonuses 7. [X] other: Commissions, Volunteer pay, on-call pay, wellness benefits, life insurance benefits in excess of $50,000, occasional and sporadic pay (as defined in 29 C.F.R. Section 553.30 allowances and compensatory pay (e.g., describe Compensation from the elections available above or a combination thereof as to a Participant group (e.g., no exclusions as to Division A Employees and exclude bonuses as to Division B Employees); and/or describe another exclusion (e.g., exclude shift differential pay)). 23. POST-SEVERANCE COMPENSATION (415 REGULATIONS) 415 Compensation (post-severance compensation adjustments) (select all that apply at a.; leave blank if none apply) NOTE: Unless otherwise elected under a. below, the following defaults apply: 415 Compensation will include (to the extent provided in Plan Section 1.23), post-severance regular pay, leave cash-outs and payments from nonqualified unfunded deferred compensation plans. a. [ ] The defaults listed above apply except for the following (select one or more): 1. [ ] Leave cash-outs will be excluded 2. [ ] Nonqualified unfunded deferred compensation will be excluded 3. [ ] Disability continuation payments will be included for all Participants and the salary continuation will continue for the following fixed or determinable period: 4. [ ] Other: (must be definitely determinable) Plan Compensation (post-severance compensation adjustments) b. [X] Defaults apply. Compensation will include (to the extent provided in Plan Section 1.10 and to the extent such amounts would be included in Compensation if paid prior to severance of employment) post-severance regular pay, leave cash-outs, and payments from nonqualified unfunded deferred compensation plans. (skip to Question 24) c. [ ] Exclude all post-severance compensation. Exclude all post-severance compensation for allocation purposes. d. [ ] Post-severance adjustments. The defaults listed at b. apply except for the following (select one or more): 1. [ ] Exclude all post-severance compensation 2. [ ] Regular pay will be excluded 3. [ ] Leave cash-outs will be excluded 4. [ ] Nonqualified unfunded deferred compensation will be excluded 5. [ ] Military Differential Pay will be included 6. [ ] Disability continuation payments will be included for all Participants and the salary continuation will continue for the following fixed or determinable period: e. [ ] Other: (must be definitely determinable) ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 9 CONTRIBUTIONS AND ALLOCATIONS 24. EMPLOYER CONTRIBUTIONS (OTHER THAN MATCHING CONTRIBUTIONS) (Plan Section 4.1(b)(3)) (skip to Question 26 if Employer contributions are NOT selected at Question 11.b.) CONTRIBUTION FORMULA (select one or more of the following contribution formulas:) a. [ ] Discretionary contribution (no groups). (may not be elected if this Plan is a Money Purchase Pension Plan) The Employer may make a discretionary contribution, to be determined by the Employer. Any such contribution will be allocated to each Participant eligible to share in allocations in the same ratio as each Participant's Compensation bears to the total of such Compensation of all Participants. b. [ ] Discretionary contribution (Grouping method). (may not be elected if this Plan is a Money Purchase Pension Plan) The Employer may designate a discretionary contribution to be made on behalf of each Participant group selected below (only select 1. or 2.). The groups must be clearly defined in a manner that will not violate the definite predetermined allocation formula requirement of Regulation §1.401-1(b)(1)(ii). The Employer must notify the Trustee in writing of the amount of the Employer Contribution being given to each group. 1. [ ] Each Participant constitutes a separate classification. 2. [ ] Participants will be divided into the following classifications with the allocation methods indicated under each classification. Definition of classifications. Define each classification and specify the method of allocating the contribution among members of each classification. Classifications specified below must be clearly defined in a manner that will not violate the definitely determinable allocation requirement of Regulation §1.401-1(b)(1)(ii). Classification A will consist of The allocation method will be: [ ] pro rata based on Compensation [ ] equal dollar amounts (per capita) Classification B will consist of The allocation method will be: [ ] pro rata based on Compensation [ ] equal dollar amounts (per capita) Classification C will consist of The allocation method will be: [ ] pro rata based on Compensation [ ] equal dollar amounts (per capita) Classification D will consist of The allocation method will be: [ ] pro rata based on Compensation [ ] equal dollar amounts (per capita) Additional Classifications: (specify the classifications and which of the above allocation methods (pro rata or per capita) will be used for each classification). NOTE: If more than four (4) classifications, the additional classifications and allocation methods may be attached as an addendum to the Adoption Agreement or may be entered under Additional Classifications above. Determination of applicable group. If a Participant shifts from one classification to another during a Plan Year, then unless selected below, the Participant is in a classification based on the Participant's status as of the last day of the Plan Year, or if earlier, the date of termination of employment. If selected below, the Administrator will apportion the Participant's allocation during a Plan Year based on the following: a. [ ] Beginning of Plan Year. The classification will be based on the Participant's status as of the beginning of the Plan Year. b. [ ] Months in each classification. Pro rata based on the number of months the Participant spent in each classification. c. [ ] Days in each classification. Pro rata based on the number of days the Participant spent in each classification. d. [ ] One classification only. The Employer will direct the Administrator to place the Participant in only one classification for the entire Plan Year during which the shift occurs. c. [X] Fixed contribution equal to (only select one): 1. [X] 11 % of each Participant's Compensation for each: a. [X] Plan Year b. [ ] calendar quarter c. [ ] month d. [ ] pay period e. [ ] week 2. [ ] $ per Participant. 3. [ ] $ per Hour of Service worked while an Eligible Employee a. [ ] up to hours (leave blank if no limit) 4. [ ] other: (the formula described must satisfy the definitely determinable requirement under Regulation §1.401-1(b)) NOTE: Under Question 24.c.4., the Employer may ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 10 only describe the allocation of Nonelective Contributions from the elections available under Question 24.c of this Adoption Agreement and/or a combination thereof as to a Participant group (e.g., a monthly contribution applies to Group A). d. [ ] Sick leave/vacation leave conversion. The Employer will contribute an amount equal to an Employee's current hourly rate of pay multiplied by the Participant's number of unused accumulated sick leave and/or vacation days (as selected below). Only unpaid sick and vacation leave for which the Employee has no right to receive in cash may be included. In no event will the Employer's contribution for the Plan Year exceed the maximum contribution permitted under Code §415(c). The following may be converted under the Plan: (select one or both): 1. [ ] Sick leave 2. [ ] Vacation leave Eligible Employees. Only the following Participants shall receive the Employer contribution for sick leave and/or vacation leave (select 3. and/or 4; leave blank if no limitations provided, however, that this Plan may not be used to only provide benefits for terminated Employees) 3. [ ] Former Employees. All Employees terminating service with the Employer during the Plan Year and who have satisfied the eligibility requirements based on the terms of the Employer's accumulated benefits plans checked below (select all that apply; leave blank if no exclusions): a. [ ] The Former Employee must be at least age (e.g., 55) b. [ ] The value of the sick and/or vacation leave must be at least $ (e.g., $2,000) c. [ ] A contribution will only be made if the total hours is over (e.g., 10) hours d. [ ] A contribution will not be made for hours in excess of (e.g., 40) hours 4. [ ] Active Employees. Active Employees who have not terminated service during the Plan Year and who meet the following requirements (select all that apply; leave blank if no exclusions): a. [ ] The Employee must be at least age (e.g., 55) b. [ ] The value of the sick and/or vacation leave must be at least $ (e.g., $2,000) c. [ ] A contribution will only be made if the total hours is over (e.g., 10) hours d. [ ] A contribution will not be made for hours in excess of (e.g., 40) hours e. [X] Social Security Replacement Plan. Except as provided below, the Employer will contribute an amount equal to 7.5% of each eligible Participant's Compensation for the entire Plan Year, reduced by mandatory Employee contributions that are picked-up under Code §414(h) and Employer contributions to this Plan actually contributed to the Participant's Account during such Plan Year. (may only be selected if Question 11.b.1. has also been selected) AND, only the following Employees will NOT be eligible for the Social Security Replacement Plan contribution: (select all that apply) 1. [X] Part-time Employees who are not otherwise covered by another qualifying public retirement system as defined for purposes of Regulation §31.3121(b)(7)-2. A part-time Employee is an Employee whose regularly scheduled service is less than 1000 Hours of Service in the relevant eligibility computation period (as defined in Plan Section 1.55). 2. [X] Seasonal Employees who are not otherwise covered by another qualifying public retirement system as defined for purposes of Regulation §31.3121(b)(7)-2. A seasonal Employee is an Employee who is categorized as a seasonal Employee on the Employer’s payroll records. 3. [X] Temporary Employees who are not otherwise covered by another qualifying public retirement system as defined for purposes of Regulation §31.3121(b)(7)-2. A temporary Employee is an Employee who is categorized as a temporary Employee on the Employer’s payroll records. 4. [X] Employees in elective positions (filled by an election, which may be by legislative body, board or committee, or by a jurisdiction’s qualified electorate) 5. [X] Other: Regular full-time sworn police officers of the Town of Avon, Colorado (any other group of Employees that is definitely determinable and not eligible for the Social Security Replacement Plan contribution). The minimum contribution of 7.5% stated above will be satisfied by: a. [X] the Employee only (specify the contribution at the mandatory Employee contributions Question 30) b. [ ] the Employer only c. [ ] both the Employee and the Employer. The Employee shall contribute the amount specified in Question 30 for mandatory Employee contributions) and the Employer shall contribute % of each eligible Participant's Compensation. NOTE: If a. or c. above is selected, then the mandatory Employee contribution must be picked-up by the Employer at Question 30. Also, if b. or c. above is selected, then the allocation conditions in Question 25 below do not apply to the Employer contribution made pursuant to this provision. f. [ ] Other: (the formula described must satisfy the definitely determinable requirement under Regulation §1.401-1(b) and if this is a Money Purchase Pension, it must not be a discretionary contribution formula). NOTE: Under Question 24.f., the Employer may only describe the allocation of Nonelective Contributions from the elections available under Question 24 and/or a combination thereof as to a Participant group or contribution ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 11 type (e.g., pro rata allocation applies to Group A; contributions to other Employees will be allocated in accordance with the classifications allocation provisions of Plan Section 4.3 with each Participant constituting a separate classification). 25. ALLOCATION CONDITIONS (Plan Section 4.3). If 24.a., b., c., or f. is selected above, indicate requirements to share in allocations of Employer contributions (select a. OR b. and all that apply at c. - e.) a. [X] No conditions. All Participants share in the allocations regardless of service completed during the Plan Year or employment status on the last day of the Plan Year (skip to Question 26). b. [ ] Allocation conditions apply (select one of 1. - 5. AND one of 6. - 9. below) Conditions for Participants NOT employed on the last day of the Plan Year 1. [ ] A Participant must complete at least (not to exceed 500) Hours of Service if the actual hours/equivalency method is selected (or at least (not to exceed 3) months of service if the elapsed time method is selected). 2. [ ] A Participant must complete a Year of Service (or Period of Service if the elapsed time method is selected). 3. [ ] Participants will NOT share in the allocations, regardless of service. 4. [ ] Participants will share in the allocations, regardless of service. 5. [ ] Other: (must be definitely determinable and not subject to Employer discretion) Conditions for Participants employed on the last day of the Plan Year 6. [ ] No service requirement. 7. [ ] A Participant must complete a Year of Service (or Period of Service if the elapsed time method is selected). 8. [ ] A Participant must complete at least Hours of Service during the Plan Year. 9. [ ] Other: (must be definitely determinable and not subject to Employer discretion) Waiver of conditions for Participants NOT employed on the last day of the Plan Year. If b.1., 2., 3., or 5. above is selected, Participants who are not employed on the last day of the Plan Year in which one of the following events occur will be eligible to share in the allocations regardless of the above conditions (select all that apply; leave blank if none apply): c. [ ] Death d. [ ] Total and Permanent Disability e. [ ] Termination of employment on or after Normal Retirement Age 1. [ ] or Early Retirement Date 26. EMPLOYER MATCHING CONTRIBUTIONS (Plan Section 4.1(b)(2) and Plan Section 4.12). (skip to Question 29 if matching contributions are NOT selected at Question 11.c.) The Employer will (or may with respect to any discretionary contribution) make the following matching contributions: A. Employee contributions taken into account. For purposes of applying the matching contribution provisions below, the following amounts are being matched (hereafter referred to as "matched Employee contributions" (select one or more): a. [ ] Elective deferrals to a 457 plan. Enter Plan name(s): b. [ ] Elective deferrals to a 403(b) plan. Enter Plan name(s): c. [ ] Voluntary Employee Contributions d. [ ] Other: (specify amounts that are matched under this Plan and are provided for within this Adoption Agreement) B. Matching Formula. (select one) e. [ ] Fixed - uniform rate/amount. The Employer will make matching contributions equal to % (e.g., 50) of the Participant's "matched Employee contributions" 1. [ ] that do not exceed % of a Participant's Compensation (leave blank if no limit) Additional matching contribution (choose 2. if applicable): 2. [ ] plus an additional matching contribution of a discretionary percentage determined by the Employer, a. [ ] but not to exceed % of Compensation. Such contribution is subject to the Instructions and Notice requirement of Section 4.12. f. [ ] Fixed - tiered. The Employer will make matching contributions equal to a uniform percentage of each tier of each Participant's "matched Employee contributions", determined as follows: NOTE: Fill in only percentages or dollar amounts, but not both. If percentages are used, each tier represents the amount of the Participant's applicable contributions that equals the specified percentage of the Participant's Compensation (add additional tiers if necessary): Tiers of Contributions Matching Percentage (indicate $ or %) First % Next % Next % Next % ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 12 g. [ ] Fixed - Years of Service. The Employer will make matching contributions equal to a uniform percentage of each Participant's "matched Employee contributions" based on the Participant's Years of Service (or Periods of Service if the elapsed time method is selected), determined as follows (add additional tiers if necessary): Years (or Periods) of Service Matching Percentage % % % For purposes of the above matching contribution formula, a Year (or Period) of Service means a Year (or Period) of Service for: 1. [ ] vesting purposes 2. [ ] eligibility purposes h. [ ] Flexible Discretionary Match. (may not be elected if this Plan is a Money Purchase Pension Plan) "Flexible Discretionary Match" means a Matching Contribution which the Employer in its sole discretion elects to make to the Plan. Except as specified below, the Employer retains discretion over the formula or formulas for allocating the Flexible Discretionary Match, including the Discretionary Matching Contribution rate or amount, the limit(s) on Elective Deferrals or Employee Contributions subject to match, the per Participant match allocation limit(s), the Participants or categories of Participants who will receive the allocation, and the time period applicable to any matching formula(s) (collectively, the "Flexible Discretionary Matching Formula"), except as the Employer otherwise elects in its Adoption Agreement. Such contributions will be subject to the Instructions and Notice requirement of Section 4.12, reproduced below, unless the Employer elects to use a "Rigid Discretionary Match" in Election 26.B.h.1. below. The discretionary matching contribution under this Question 26.B.h. is a "Flexible Discretionary Match" unless the Employer elects to use a "Rigid Discretionary Match." (Choose 1. if applicable.) 1. [ ] Rigid Discretionary Match. A "Rigid Discretionary Match" means a Matching Contribution which the Employer in its sole discretion elects to make to the Plan. Such discretion will only pertain to the amount of the annual contribution. The Employer must select the allocation method for this Contribution by selecting among those Adoption Agreement options which confer no Employer Discretion regarding the allocation of such discretionary amount, for example, the limit(s) on Elective Deferrals or Employee Contributions subject to match, the per Participant match allocation limit(s), the Participants who will receive the allocation, and the time period applicable to any matching formula(s). This "Rigid Discretionary Match" is not subject to the Instructions and Notice requirement of Section 4.12. Section 4.12 provides: INSTRUCTIONS TO ADMINISTRATOR AND NOTIFICATION TO PARTICIPANTS. For Plan Years beginning after the end of the Plan Year in which this document is first adopted, if a "Flexible Discretionary Match" contribution formula applies (i.e., a formula that provides an Employer with discretion regarding how to allocate a matching contribution to Participants) and the Employer makes a "Flexible Discretionary Match" to the Plan, the Employer must provide the Plan Administrator or Trustee written instructions describing (1) how the "Flexible Discretionary Match" formula will be allocated to Participants (e.g., a uniform percentage of Elective Deferrals or a flat dollar amount), (2) the computation period(s) to which the "Flexible Discretionary Match" formula applies, and (3) if applicable, a description of each business location or business classification subject to separate "Flexible Discretionary Match" allocation formulas. Such instructions must be provided no later than the date on which the "Flexible Discretionary Match" is made to the Plan. A summary of these instructions must be communicated to Participants who receive an allocation of the "Flexible Discretionary Match" no later than 60 days following the date on which the last "Flexible Discretionary Match" contribution is made to the Plan for the Plan Year. i. [ ] Discretionary - tiered. (may not be elected if this Plan is a Money Purchase Pension Plan) The Employer may make matching contributions equal to a discretionary percentage of a Participant's "matched Employee contributions," to be determined by the Employer, of each tier, to be determined by the Employer. Such discretion will only pertain to the amount of the contribution. The tiers may be based on the rate of a Participant's "matched Employee contributions" or Years of Service. Such contribution is subject to the Instructions and Notice requirement of Section 4.12. NOTE: Fill in only percentages or dollar amounts, but not both. If percentages are used, each tier represents the amount of the Participant's applicable contributions that equals the specified percentage of the Participant's Compensation (add additional tiers if necessary): Tiers of Contributions Matching Percentage (indicate $ or %) First % Next % Next % Next % ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 13 j. [ ] Other: (the formula described must satisfy the definitely determinable requirement under Regulation §1.401-1(b) and if this is a Money Purchase Pension Plan, it must not be a discretionary contribution formula. NOTE: Under Question 26.B.j., the Employer may only describe the allocation of Matching Contributions from the elections available under Question 26 and/or a combination thereof as to a Participant group or contribution type (e.g., fixed – uniform rate applies to Group A; contributions to other Employees will be allocated as a tiered contribution.) 27. MATCHING CONTRIBUTION PROVISIONS A. Maximum matching contribution. The total matching contribution made on behalf of any Participant for any Plan Year will not exceed: a. [ ] N/A (no Plan specific limit on the amount of matching contribution) b. [ ] $ . c. [ ] % of Compensation. B. Period of determination. Any matching contribution other than a "Flexible Discretionary Match" will be applied on the following basis (and "matched Employee contributions" and any Compensation or dollar limitation used in determining the matching contribution will be based on the applicable period. Skip if the only Matching Contribution is a Flexible Discretionary Match.): d. [ ] the Plan Year (potential annual true-up required) e. [ ] each payroll period (no true-up) f. [ ] each month (potential monthly true-up required) g. [ ] each Plan Year quarter (potential quarterly true-up required) h. [ ] each payroll unit (e.g., hour) (no true-up) i. [ ] Other (specify): The time period described must be definitely determinable under Treas. Reg. §1.401-1(b). This line may be used to apply different options to different matching contributions (e.g., Discretionary matching contributions will be allocated on a Plan Year period while fixed matching contributions will be allocated on each payroll period.) Such contribution period is subject to the Instructions and Notice requirement of Section 4.12. 28. ALLOCATION CONDITIONS (Plan Section 4.3) Select a. OR b. and all that apply of c. - h. a. [ ] No conditions. All Participants share in the allocations regardless of service completed during the Plan Year or employment status on the last day of the Plan Year (skip to Question 29). b. [ ] Allocation conditions apply (select one of 1. - 5. AND one of 6. - 9. below) Conditions for Participants NOT employed on the last day of the Plan Year. 1. [ ] A Participant must complete more than Hours of Service (or months of service if the elapsed time method is selected). 2. [ ] A Participant must complete a Year of Service (or Period of Service if the elapsed time method is selected). 3. [ ] Participants will NOT share in the allocations, regardless of service. 4. [ ] Participants will share in the allocations, regardless of service. 5. [ ] Other: (must be definitely determinable) Conditions for Participants employed on the last day of the Plan Year 6. [ ] No service requirement. 7. [ ] A Participant must complete a Year of Service (or Period of Service if the elapsed time method is selected). 8. [ ] A Participant must complete at least Hours of Service during the Plan Year. 9. [ ] Other: (must be definitely determinable and not subject to Employer discretion) Waiver of conditions for Participants NOT employed on the last day of the Plan Year. If b.1., 2., 3., or 5. is selected, Participants who are not employed on the last day of the Plan Year in which one of the following events occur will be eligible to share in the allocations regardless of the above conditions (select all that apply; leave blank if none apply): c. [ ] Death d. [ ] Total and Permanent Disability e. [ ] Termination of employment on or after Normal Retirement Age 1. [ ] or Early Retirement Date Conditions based on period other than Plan Year. The allocation conditions above will be applied based on the Plan Year unless otherwise selected below. If selected, the above provisions will be applied by substituting the term Plan Year with th e specified period (e.g., if Plan Year quarter is selected below and the allocation condition is 250 Hours of Service per quarter, enter 250 hours (not 1000) at b.8. above). f. [ ] The Plan Year quarter. g. [ ] Payroll period. h. [ ] Other: (must be definitely determinable and not subject to Employer discretion and may not be longer than a twelve month period). ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 14 29. FORFEITURES (Plan Sections 1.21 and 4.3(e)) Timing of Forfeitures. Except as provided in Plan Section 1.21, a Forfeiture will occur: a. [ ] N/A (may only be selected if all contributions are fully Vested (default provisions at Plan Section 4.3(e) apply)) b. [X] As of the earlier of (1) the last day of the Plan Year in which the former Participant incurs five (5) consecutive 1-Year Breaks in Service, or (2) the distribution of the entire Vested portion of the Participant's Account. c. [ ] As of the last day of the Plan Year in which the former Participant incurs five (5) consecutive 1-Year Breaks in Service. d. [ ] As soon as reasonably practical after the date the Participant severs employment. Use of Forfeitures. (skip if this is NOT a Money Purchase Pension Plan; for Profit Sharing Plans, Forfeitures are disposed of in accordance with Employer direction that is consistent with Section 4.3(e)). Forfeitures will be (select one): e. [ ] added to the Employer contribution and allocated in the same manner f. [ ] used to reduce any Employer contribution g. [ ] allocated to all Participants eligible to share in the allocations of Employer contributions or Forfeitures in the same proportion that each Participant's Compensation for the Plan Year bears to the Compensation of all Participants for such year h. [X] other: Forfeitures will be used first to pay plan expenses and then to offset Employer Contributions. The Employer has discretion as to when the forfeitures will be applied. (describe the treatment of Forfeitures in a manner that is definitely determinable and that is not subject to Employer discretion) 30. MANDATORY EMPLOYEE CONTRIBUTIONS (Plan Section 4.8) (skip if mandatory Employee contributions NOT selected at Question 11.d.) Type of mandatory Employee Contribution. The mandatory Employee contribution is being made in accordance with the following: (select one) a. [X] The mandatory Employee contribution is a condition of employment. b. [ ] The Employee must make, on or before first being eligible to participate under any Plan of the Employer, an irrevocable election to contribute the mandatory Employee contribution to the Plan. No Eligible Employee will become a Participant unless the Employee makes such an irrevocable election. Amount of mandatory Employee Contribution (select one) c. [X] An Eligible Employee must contribute to the Plan 11 % (not to exceed 25%) of Compensation. d. [ ] An Eligible Employee must, prior to his or her first Entry Date, make a one-time irrevocable election to contribute to the Plan from % (not less than 1%) to % (not to exceed 25%) of Compensation. Conditions of Mandatory Employee Contributions e. [ ] Additional provisions and conditions: (must be definitely determinable; e.g., Only full-time Employees must make mandatory Employee contributions) Employer pick-up contribution. The mandatory Employee contribution is "picked-up" by the Employer under Code §414(h)(2) unless elected below. (select if applicable) f. [ ] The mandatory Employee contribution is not "picked-up" by the Employer. DISTRIBUTIONS 31. FORM OF DISTRIBUTIONS (Plan Sections 6.5 and 6.6) Distributions under the Plan may be made in (select all that apply; must select at least one): a. [X] lump-sums b. [X] substantially equal installments c. [ ] partial withdrawals, provided the minimum withdrawal is $ (leave blank if no minimum) d. [ ] partial withdrawals or installments are only permitted for Participants or Beneficiaries who must receive required minimum distributions under Code §401(a)(9) except for the following (leave blank if no exceptions): 1. [ ] Only Participants (and not Beneficiaries) may elect partial withdrawals or installments 2. [ ] Other: (e.g., partial is not permitted for death benefits. Must be definitely determinable and not subject to Employer discretion.) e. [ ] annuity: (describe the form of annuity or annuities) f. [ ] other: (must be definitely determinable and not subject to Employer discretion) NOTE: Regardless of the above, a Participant is not required to request a withdrawal of his or her total Account for an in-service distribution, a hardship distribution, or a distribution from the Participant's Rollover Account. Cash or property. Distributions may be made in: g. [X] cash only, except for (select all that apply; leave blank if none apply): 1. [ ] insurance Contracts 2. [ ] annuity Contracts 3. [ ] Participant loans ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 15 4. [ ] all investments in an open brokerage window or similar arrangement h. [ ] cash or property, except that the following limitation(s) apply: (leave blank if there are no limitations on property distributions): 1. [ ] (must be definitely determinable and not subject to Employer discretion) Joint and Survivor Annuity provisions. (Plan Sections 6.5(e) and 6.6(e) (select one) The Joint and Survivor Annuity provisions do not apply to the Plan unless selected below (choose if applicable) i. [ ] Joint and Survivor Annuity applicable as normal form of distribution. The Joint and Survivor annuity rules set forth in Plan Sections 6.5(e) and 6.5(f) apply to all Participants (if selected, then annuities are a form of distribution under the Plan even if e. above is not selected) j. [ ] Joint and Survivor Annuity rules apply based on Participant election. Plan Section 6.5(f) will apply and the joint and survivor rules of Code §§401(a)(11) and 417 (as set forth in Plan Sections 6.5(e) and 6.6(e) will apply only if an annuity form of distribution is selected by a Participant. AND, if i. or j. is selected above, the one-year marriage rule does not apply unless selected below (choose if applicable). 1. [ ] The one-year marriage rule applies. Spousal consent requirements. Spousal consent is not required for any Plan provisions (except as otherwise elected in i. above for the joint and survivor annuity rules) unless selected below (choose if applicable) k. [ ] Required for all distributions. A Spouse must consent to all distributions (other than required minimum distributions). l. [ ] Beneficiary designations. A married Participant's Spouse will be the Beneficiary of the entire death benefit unless the Spouse consents to an alternate Beneficiary. AND, if k. or l. is selected, the one-year marriage rule does not apply unless selected below (choose if applicable). 1. [ ] The one-year marriage rule applies. 32. CONDITIONS FOR DISTRIBUTIONS UPON SEVERANCE OF EMPLOYMENT. Distributions upon severance of employment pursuant to Plan Section 6.4(a) will not be made unless the following conditions have been satisfied: A.Accounts in excess of $5,000 a. [X] Distributions may be made as soon as administratively feasible following severance of employment. b. [ ] Distributions may be made as soon as administratively feasible after the last day of the Plan Year coincident with or next following severance of employment. c. [ ] Distributions may be made as soon as administratively feasible after the last day of the Plan Year quarter coincident with or next following severance of employment. d. [ ] Distributions may be made as soon as administratively feasible after the Valuation Date coincident with or next following severance of employment. e. [ ] Distributions may be made as soon as administratively feasible after months have elapsed following severance of employment. f. [ ] No distributions may be made until a Participant has reached Early or Normal Retirement Date. g. [ ] Other: (must be objective conditions which are ascertainable and may not exceed the limits of Code §401(a)(14) as set forth in Plan Section 6.7) B.Accounts of $5,000 or less h. [X] Same as above i. [ ] Distributions may be made as soon as administratively feasible following severance of employment. j. [ ] Distributions may be made as soon as administratively feasible after the last day of the Plan Year coincident with or next following severance of employment. k. [ ] Other: (must be objective conditions which are ascertainable and may not exceed the limits of Code §401(a)(14) as set forth in Plan Section 6.7) C.Timing after initial distributable event. If a distribution is not made in accordance with the above provisions upon the occurrence of the distributable event, then a Participant may elect a subsequent distribution at any time after the time the amount was first distributable (assuming the amount is still distributable), unless otherwise selected below (may not be selected with 32.f. and 32.h.): l. [ ] Other: (e.g., a subsequent distribution request may only be made in accordance with l. above (i.e., the last day of another Plan Year); must be objective conditions which are ascertainable and may not exceed the limits of Code §401(a)(14) as set forth in Plan Section 6.7) D.Participant consent (i.e., involuntary cash-outs). Should Vested Account balances less than a certain dollar threshold be automatically distributed without Participant consent (mandatory distributions)? NOTE: The Plan provides that distributions of amounts of $5,000 or less are only paid as lump-sums. m. [ ] No, Participant consent is required for all distributions. ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 16 n. [X] Yes, Participant consent is required only if the distribution is over: 1. [X] $5,000 2. [ ] $1,000 3. [ ] $ (less than $1,000) NOTE: If 2. or 3. is selected, rollovers will be included in determining the threshold for Participant consent. Automatic IRA rollover. With respect to mandatory distributions of amounts that are $1,000 or less, if a Participant makes no election, the amount will be distributed as a lump-sum unless selected below. 4. [ ] If a Participant makes no election, then the amount will be automatically rolled over to an IRA provided the amount is at least $ (e.g., $200). E. Rollovers in determination of $5,000 threshold. Unless otherwise elected below, amounts attributable to rollover contributions (if any) will be included in determining the $5,000 threshold for timing of distributions, form of distributions, or consent rules. o. [ ] Exclude rollovers (rollover contributions will be excluded in determining the $5,000 threshold) NOTE: Regardless of the above election, if the Participant consent threshold is $1,000 or less, then the Administrator must include amounts attributable to rollovers for such purpose. In such case, an election to exclude rollovers above will apply for purposes of the timing and form of distributions. 33. DISTRIBUTIONS UPON DEATH (Plan Section 6.8(b)(2)) Distributions upon the death of a Participant prior to the "required beginning date" will: a. [X] be made pursuant to the election of the Participant or "designated Beneficiary" b. [ ] begin within 1 year of death for a "designated Beneficiary" and be payable over the life (or over a period not exceeding the "life expectancy") of such Beneficiary, except that if the "designated Beneficiary" is the Participant's Spouse, begin prior to December 31st of the year in which the Participant would have attained age 70 1/2 c. [ ] be made within 5 (or if lesser ) years of death for all Beneficiaries d. [ ] be made within 5 (or if lesser ) years of death for all Beneficiaries, except that if the "designated Beneficiary" is the Participant's Spouse, begin prior to December 31st of the year in which the Participant would have attained age 70 1/2 and be payable over the life (or over a period not exceeding the "life expectancy") of such "surviving Spouse" NOTE: The elections above must be coordinated with the Form of distributions (e.g., if the Plan only permits lump-sum distributions, then options a., b. and d. would not be applicable). 34. OTHER PERMITTED DISTRIBUTIONS (select all that apply; leave blank if none apply) A. IN-SERVICE DISTRIBUTIONS (Plan Section 6.11) In-service distributions will NOT be allowed (except as otherwise permitted under the Plan without regard to this provision) unless selected below (if applicable, answer a. - e.; leave blank if not applicable): a. [X] In-service distributions may be made to a Participant who has not separated from service provided the following has been satisfied (select one or more) (options 2. - 5. may only be selected with Profit Sharing Plans): 1. [X] Age. The Participant has reached: (select one) a. [ ] Normal Retirement Age b. [X] age 62 c. [ ] age 59 1/2 (may not be selected if a Money Purchase Pension Plan) d. [ ] age (may not be less than age 62 for Money Purchase Pension Plans) 2. [ ] the Participant has been a Participant in the Plan for at least years (may not be less than five (5)) 3. [ ] the amounts being distributed have accumulated in the Plan for at least 2 years 4. [ ] other: (must satisfy the definitely determinable requirement under Regulations §401-1(b); may not be subject to Employer discretion; and must be limited to a combination of items a.1. – a.3. or a Participant's disability).) More than one condition. If more than one condition is selected above, then a Participant only needs to satisfy one of the conditions, unless selected below: 5. [ ] A Participant must satisfy each condition NOTE: Distributions from a Transfer Account attributable to a Money Purchase Pension Plan are not permitted prior to age 62. Account restrictions. In-service distributions are permitted from the following Participant Accounts: b. [X] all Accounts c. [ ] only from the following Accounts (select one or more): 1. [ ] Account attributable to Employer matching contributions 2. [ ] Account attributable to Employer contributions other than matching contributions 3. [ ] Rollover Account 4. [ ] Transfer Account Permitted from the following assets attributable to (select one or both): a. [ ] non-pension assets b. [ ] pension assets (e.g., from a Money Purchase Pension Plan) 5. [ ] Mandatory Employee Contribution Account ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 17 6. [ ] Other: (specify Account(s) and conditions in a manner that satisfies the definitely determinable requirement under Regulation §1.401-1(b) and is not subject to Employer discretion) Limitations. The following limitations apply to in-service distributions: d. [X] N/A (no additional limitations) e. [ ] Additional limitations (select one or more): 1. [ ] The minimum amount of a distribution is $ . 2. [ ] No more than distribution(s) may be made to a Participant during a Plan Year. 3. [ ] Distributions may only be made from Accounts which are fully Vested. 4. [ ] In-service distributions may be made subject to the following provisions: (must satisfy the definitely determinable requirement under Regulation §1.401-1(b) and not be subject to Employer discretion). B. HARDSHIP DISTRIBUTIONS (Plan Sections 6.12) (may not be selected if this is a Money Purchase Pension Plan) Hardship distributions will NOT be allowed (except as otherwise permitted under the Plan without regard to this provision) unless selected below (leave blank if not applicable): f. [ ] Hardship distributions are permitted from the following Participant Accounts: 1. [ ] all Accounts 2. [ ] only from the following Accounts (select one or more): a. [ ] Account attributable to Employer matching contributions b. [ ] Account attributable to Employer contributions other than matching contributions c. [ ] Rollover Account (if not available at any time under Question 36) d. [ ] Transfer Account (other than amounts attributable to a money purchase pension plan) e. [ ] Mandatory Employee Contribution Account f. [ ] Other: (specify Account(s) and conditions in a manner that is definitely determinable and not subject to Employer discretion) NOTE: Hardship distributions are NOT permitted from a Transfer Account attributable to pension assets (e.g., from a Money Purchase Pension Plan). Additional limitations. The following limitations apply to hardship distributions: 3. [ ] N/A (no additional limitations) 4. [ ] Additional limitations (select one or more): a. [ ] The minimum amount of a distribution is $ . b. [ ] No more than distribution(s) may be made to a Participant during a Plan Year. c. [ ] Distributions may only be made from Accounts which are fully Vested. d. [ ] A Participant does not include a Former Employee at the time of the hardship distribution. e. [ ] Hardship distributions may be made subject to the following provisions: (must satisfy the definitely determinable requirement under Regulation §1.401-1(b) and not be subject to Employer discretion). Beneficiary Hardship. Hardship distributions for Beneficiary expenses are NOT allowed unless otherwise selected below. 5. [ ] Hardship distributions for expenses of Beneficiaries are allowed Special effective date (may be left blank if effective date is same as the Plan or Restatement Effective Date; select a. and, if applicable, b.) a. [ ] effective as of b. [ ] eliminated effective as of . MISCELLANEOUS 35. LOANS TO PARTICIPANTS (Plan Section 7.4) a. [ ] New loans are NOT permitted. b. [X] New loans are permitted. NOTE: Regardless of whether new loans are permitted, if the Plan permits rollovers and/or plan-to-plan transfers, then the Administrator may, in a uniform manner, accept rollovers and/or plan-to-plan transfers of loans into this Plan. 36. ROLLOVERS (Plan Section 4.6) (skip if rollover contributions are NOT selected at 11.f.) Eligibility. Rollovers may be accepted from all Participants who are Employees as well as the following (select all that apply; leave blank if not applicable): a. [ ] Any Eligible Employee, even prior to meeting eligibility conditions to be a Participant b. [ ] Participants who are Former Employees Distributions. When may distributions be made from a Participant's Rollover Account? c. [X] At any time d. [ ] Only when the Participant is otherwise entitled to any distribution under the Plan ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 18 37.HEART ACT (Plan Section 4.11) (select one or more) a. [ ] HEART ACT Continued benefit accruals. Continued benefit accruals will apply b. [X] Distributions for deemed severance of employment. The Plan permits distributions for deemed severance of employment. ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 19 Reliance on Provider Opinion Letter. The Provider has obtained from the IRS an Opinion Letter specifying the form of this document satisfies Code §401 as of the date of the Opinion Letter. An adopting Employer may rely on the Provider’s IRS Opinion Letter only to the extent provided in Rev. Proc. 2017-41 or subsequent guidance. The Employer may not rely on the Opinion Letter in certain other circumstances or with respect to certain qualification requirements, which are specified in the Opinion Letter and in Rev. Proc. 2017-41 or subsequent guidance. In order to have reliance in such circumstances or with respect to such qualification requirements, the Employer must apply for a determination letter to Employee Plans Determinations of the IRS. An Employer who has ever maintained or who later adopts an individual medical account, as defined in Code §415(l)(2)) in addition to this Plan may not rely on the opinion letter issued by the Internal Revenue Service with respect to the requirements of Code§415. This Adoption Agreement may be used only in conjunction with the basic Plan document #03. This Adoption Agreement and the basic Plan document will together be known as FIS Business Systems LLC Non-Standardized Governmental 401(a) Pre-Approved Plan #03-001. The adoption of this Plan, its qualification by the IRS, and the related tax consequences are the responsibility of the Employer and its independent tax and legal advisors. Execution for Page Substitution Amendment Only. If this paragraph is completed, this Execution Page documents an amendment to Adoption Agreement Election(s) effective , by substitute Adoption Agreement page number(s) . The Employer should retain all Adoption Agreement Execution Pages and amended pages. (Note: The Effective Date may be retroactive or may be prospective.) The Provider, Eileen Shaw will notify the Employer of any amendment to this Pre-approved Plan or of any abandonment or discontinuance by the Provider of its maintenance of this Pre-approved Plan. In addition, this Plan is provided to the Employer either in connection with investment in a product or pursuant to a contract or other arrangement for products and/or services. Upon cessation of such investment in a product or cessation of such contract or arrangement, as applicable, the Employer is no longer considered to be an adopter of this Plan and FIS Business Systems LLC no longer has any obligations to the Employer that relate to the adoption of this Plan. For inquiries regarding the adoption of the Pre-approved Plan, the Provider's intended meaning of any Plan provisions or the effect of the Opinion Letter issued to the Provider, please contact the Provider or the Provider’s representative. Provider Name: Town of Avon Address: 1 Lake Street Avon Colorado 81620 Telephone Number: 970-748-4055 Email address (optional): The Employer, by executing below, hereby adopts this Plan (add additional signature lines as needed). NOTE: If more than one Plan type is adopted, the Plan Provider must provide multiple plan documents for Employer signature. EMPLOYER: Town of Avon By: DATE SIGNED ATTACHMENT A APPENDIX A SPECIAL EFFECTIVE DATES AND OTHER PERMITTED ELECTIONS A. Special effective dates (leave blank if not applicable): a. [ ] Special effective date(s): . For periods prior to the specified special effective date(s), the Plan terms in effect prior to its restatement under this Adoption Agreement will control for purposes of the designated provisions. A special effective date may not result in the delay of a Plan provision beyond the permissible effective date under any applicable law. (The Employer has reliance on the IRS Opinion Letter only if the features described in the preceding sentence constitute protected benefits within the meaning of Code Section 411(d)(6) and the regulations thereunder, and only if such features are permissible in a "Cycle 3" preapproved plan, i.e., the features are not specifically prohibited by Revenue Procedure 2017-41 (or any superseding guidance) B. Other permitted elections (the following elections are optional): a. [ ] No other permitted elections The following elections apply (select one or more): b. [ ] Deemed 125 compensation (Plan Section 1.23). Deemed 125 compensation will be included in Compensation and 415 Compensation. c. [X] Break-in-Service Rules. The following Break-in-Service rules apply to the Plan.(select 1. or 2.) 1. [ ] Reemployed after five (5) 1-Year Breaks in Service ("rule of parity" provisions) (Plan Section 3.5(e)). The "rule of parity" provisions in Plan Section 3.5(d) will apply for (select one or both): a. [ ] eligibility purposes b. [ ] vesting purposes 2. [X] Break-in-Service rules for rehired Employees. The following Break-in-Service rules set forth in Plan Sections 3.2 and 3.5 apply: (select one or both) a. [X] all Break-in-Service rules set forth in such Sections. b. [ ] only the following: (specify which provisions apply to the Plan) d. [ ] Beneficiary if no beneficiary elected by Participant (Plan Section 6.2(f)). In the event no valid designation of Beneficiary exists, then in lieu of the order set forth in Plan Section 6.2(f), the following order of priority will be used: (specify an order of beneficiaries; e.g., children per stirpes, parents, and then step-children). e. [ ] Joint and Survivor Annuity/Pre-Retirement Survivor Annuity. If the Plan applies the Joint and Survivor Annuity rules, then the normal form of annuity will be a joint and 50% survivor annuity (i.e., if 31.i. or 31.j. is selected) and the Pre-Retirement Survivor Annuity will be equal to 50% of a Participant's interest in the Plan unless selected below (select 1. and/or 2.) 1. [ ] Normal form of annuity. Instead of a joint and 50% survivor annuity, the normal form of the qualified Joint and Survivor Annuity will be: (select one) a. [ ] joint and 100% survivor annuity b. [ ] joint and 75% survivor annuity c. [ ] joint and 66 2/3% survivor annuity 2. [ ] Pre-Retirement Survivor Annuity. The Pre-Retirement Survivor Annuity (minimum Spouse's death benefit) will be equal to 50% of a Participant's interest in the Plan unless a different percentage is selected below: (select one) a. [ ] 100% of a Participant's interest in the Plan. b. [ ] % (may not be less than 50%) of a Participant's interest in the Plan. f. [ ] Limitation Year (Plan Section 1.30). The Limitation Year for Code §415 purposes will be (must be a consecutive twelve month period) instead of the "determination period" for Compensation. g. [ ] 415 Limits when 2 defined contribution plans are maintained (Plan Section 4.4). If any Participant is covered under another qualified defined contribution plan maintained by the Employer or an Affiliated Employer, or if the Employer or an Affiliated Employer maintains a welfare benefit fund, as defined in Code §419(e), or an individual medical account, as defined in Code §415(l)(2), under which amounts are treated as "annual additions" with respect to any Participant in this Plan, then the provisions of Plan Section 4.4(b) will apply unless otherwise specified below: 1. [ ] Specify, in a manner that precludes Employer discretion, the method under which the plans will limit total "annual additions" to the "maximum permissible amount" and will properly reduce any "excess amounts": . h. [ ] Recognition of Service with other employers (Plan Sections 1.40 and 1.55). Service with the following employers (in addition to those specified at Question 15) will be recognized as follows (select one or more): Contribution Eligibility Vesting Allocation 1. [ ] Employer name: a. [ ] b. [ ] c. [ ] 2. [ ] Employer name: a. [ ] b. [ ] c. [ ] ATTACHMENT A 3. [ ] Employer name:a.[ ]b.[ ]c.[ ] 4. [ ] Employer name:a.[ ]b.[ ]c.[ ] 5. [ ] Employer name:a.[ ]b.[ ]c.[ ] 6. [ ] Employer name:a.[ ]b.[ ]c.[ ] Limitations 7. [ ] The following provisions or limitations apply with respect to the a.[ ]b.[ ]c.[ ] recognition of prior service: (e.g., credit service with X only on/following 1/1/19) i. [ ] Other vesting provisions. The following vesting provisions apply to the Plan (select one or more): 1. [ ] Special vesting provisions. The following special provisions apply to the vesting provisions of the Plan: (must be definitely determinable and satisfy the parameters set forth at Question 17) 2. [ ] Pre-amendment vesting schedule. (Plan Section 6.4(b)). If the vesting schedule has been amended and a different vesting schedule other than the schedule at Question 17 applies to any Participants, then the following provisions apply (must select one of a. – d.): Applicable Participants. The vesting schedules in Question 17 only apply to: a. [ ] Participants who are Employees as of (enter date). b. [ ] Participants in the Plan who have an Hour of Service on or after (enter date). c. [ ] Participants (even if not an Employee) in the Plan on or after (enter date). d. [ ] Other: (e.g., Participants in division A. Must be definitely determinable.) j. [ ] Minimum distribution transitional rules (Plan Section 6.8(e)(5)) NOTE: This Section does not apply to (1) a new Plan, (2) an amendment or restatement of an existing Plan that never contained the provisions of Code §401(a)(9) as in effect prior to the amendments made by the Small Business Job Protection Act of 1996 (SBJPA), or (3) a Plan where the transition rules below do not affect any current Participants. The "required beginning date" for a Participant is: 1. [ ] April 1st of the calendar year following the year in which the Participant attains age 70 1/2. (pre-SBJPA rules continue to apply) 2. [ ] April 1st of the calendar year following the later of the year in which the Participant attains age 70 1/2 or retires (the post-SBJPA rules), with the following exceptions (select one or both; leave blank if both applied effective as of January 1, 1996): a. [ ] A Participant who was already receiving required minimum distributions under the pre-SBJPA rules as of (may not be earlier than January 1, 1996) was allowed to stop receiving distributions and have them recommence in accordance with the post-SBJPA rules. Upon the recommencement of distributions, if the Plan permits annuities as a form of distribution then the following apply: 1. [ ] N/A (annuity distributions are not permitted) 2. [ ] Upon the recommencement of distributions, the original Annuity Starting Date will be retained. 3. [ ] Upon the recommencement of distributions, a new Annuity Starting Date is created. b. [ ] A Participant who had not begun receiving required minimum distributions as of (may not be earlier than January 1, 1996) may elect to defer commencement of distributions until retirement. The option to defer the commencement of distributions (i.e., to elect to receive in-service distributions upon attainment of age 70 1/2) applies to all such Participants unless selected below: 1. [ ] The in-service distribution option was eliminated with respect to Participants who attained age 70 1/2 in or after the calendar year that began after the later of (1) December 31, 1998, or (2) the adoption date of the restatement to bring the Plan into compliance with the SBJPA. k. [ ] Other spousal provisions (select one or more) 1. [ ] Definition of Spouse. The term Spouse includes a spouse under federal law as well as the following: . 2. [ ] Automatic revocation of spousal designation (Plan Section 6.2(g)). The automatic revocation of a spousal Beneficiary designation in the case of divorce does not apply. 3. [ ] Timing of QDRO payment. A distribution to an Alternate Payee shall not be permitted prior to the time a Participant would be entitled to a distribution. l. [ ] Applicable law. Instead of using the applicable laws set forth in Plan Section 9.4(a), the Plan will be governed by the laws of: ATTACHMENT A m. [X] Total and Permanent Disability. Instead of the definition at Plan Section 1.50, Total and Permanent Disability means: Disability is defined as an illness or injury of a potentially permanent nature, certified by a physician, selected by or satisfactory to the Plan Administrator, which prevents the Employee from engaging in his or her occupation for the wage or profit for which the Employee is reasonably fitted by training, education, or experience. The Plan Administrator may require or accept, as sole proof of total and permanent disability, the determination by the Social Security Administration that the Employee is entitled to disability insurance benefit under the Federal Social Security Act. (must be definitely determinable). n. [ ] Inclusion of Reclassified Employees (Plan Section 1.17(a)). The Employer does not exclude Reclassified Employees subject to the following provisions: (leave blank if not applicable): o. [ ] Claims procedures (Plan Section 2.10). The claims procedures forth in Plan Section 2.10(a) – (b) apply unless otherwise elected below or unless the Administrator has operationally adopted alternative procedures. 1. [ ] The claims procedures set forth in Plan Section 2.10(c) – (g) apply instead of Plan Section 2.10(a). 2. [ ] The claims procedures set forth in Plan Section 2.10(c)-(g) apply as follows: (specify which provisions apply and/or modified) p. [ ] Age 62 In-Service Distributions For Transferred Money Purchase Assets (Plan Section 6.11) In-service distributions will be allowed for Participants at age 62. (applies only for Transfer Accounts from a Money Purchase Pension Plan) (skip this question if the Plan is a Money Purchase Pension Plan or if in-service distributions are already permitted for Transferred Accounts at Question 34) Limitations. The following limitations apply to these in-service distributions: 1. [ ] The Plan already provides for in-service distributions and the restrictions set forth in the Plan (e.g., minimum amount of distributions or frequency of distributions) are applicable to in-service distributions at age 62. 2. [ ] N/A (no limitations) 3. [ ] The following elections apply to in-service distributions at age 62 (select one or more): a. [ ] The minimum amount of a distribution is $ (may not exceed $1,000). b. [ ] No more than distribution(s) may be made to a Participant during a Plan Year. c. [ ] Distributions may only be made from Accounts which are fully Vested. d. [ ] In-service distributions may be made subject to the following provisions: (must be definitely determinable and not subject to discretion). q. [ ] QLACs. (Plan Section 6.8(e)(4) A Participant may elect a QLAC (as defined in Plan Section 6.8(e)(4)) or any alternative form of annuity permitted pursuant to a QLAC in which the Partic ipant’s Account has been invested. ATTACHMENT A Non-Standardized Governmental 401(a) ADMINISTRATIVE PROCEDURES The following are optional administrative provisions. The Administrator may implement procedures that override any elections in this Section without a formal Plan amendment. In addition, modifications to these procedures will not affect an Employer's reliance on the Plan. A.Loan Limitations. (complete only if loans to Participants are permitted; leave blank if none apply) a. [X] Limitations (select one or more): 1. [X] Loans will be treated as Participant directed investments. 2. [ ] Loans will only be made for hardship or financial necessity as specified below (select a. or b.) a. [ ] hardship reasons specified in Plan Section 6.12 b. [ ] financial necessity (as defined in the loan program). 3. [X] The minimum loan will be $ 1,000 . 4. [X] A Participant may only have 3 (e.g., one (1)) loan(s) outstanding at any time. 5. [X] All outstanding loan balances will become due and payable in their entirety upon the occurrence of a distributable event (other than satisfaction of the conditions for an in-service distribution (including a hardship distribution), if applicable). 6. [ ] The home loan term will be years. (if not selected, the Administrator establishes the term for repayment of a home loan) 7. [ ] Account restrictions. Loans will only be permitted from the following Participant Accounts (select all that apply or leave blank if no limitations apply): a. [ ] Account(s) attributable to Employer matching contributions b. [ ] Account attributable to Employer contributions other than matching contributions c. [ ] Rollover Account d. [ ] Transfer Account e. [ ] Other: AND, if loans are restricted to certain accounts, the limitations of Code §72(p) will be applied: f. [ ] by determining the limits by only considering the restricted accounts. g. [ ] by determining the limits taking into account a Participant's entire interest in the Plan. Additional Loan Provisions (select all that apply; leave blank if none apply) b. [X] Loan payments. Loans are repaid by (if left blank, then payroll deduction applies unless Participant is not subject to payroll (e.g., partner who only has a draw)): 1. [X] payroll deduction 2. [ ] ACH (Automated Clearing House) 3. [ ] check a. [ ] Only for prepayment c. [ ] Interest rate. Loans will be granted at the following interest rate (if left blank, then 3. below applies): 1. [ ] percentage points over the prime interest rate 2. [ ] % 3. [ ] the Administrator establishes the rate at the time the loan is made d. [ ] Refinancing. Loan refinancing is allowed. B.Life Insurance. (Plan Section 7.5) a. [X] Life insurance may not be purchased. b. [ ] Life insurance may be purchased... 1. [ ] at the option of the Administrator 2. [ ] at the option of the Participant Limitations 3. [ ] N/A (no limitations) 4. [ ] The purchase of initial or additional life insurance will be subject to the following limitations (select one or more): a. [ ] Each initial Contract will have a minimum face amount of $ . b. [ ] Each additional Contract will have a minimum face amount of $ . c. [ ] The Participant has completed Years (or Periods) of Service. d. [ ] The Participant has completed Years (or Periods) of Service while a Participant in the Plan. e. [ ] The Participant is under age on the Contract issue date. f. [ ] The maximum amount of all Contracts on behalf of a Participant may not exceed $ . g. [ ] The maximum face amount of any life insurance Contract will be $ . C.Plan Expenses. Will the Plan assess against an individual Participant's Account certain Plan expenses that are incurred by, or are attributable to, a particular Participant based on use of a particular Plan service? a. [ ] No b. [X] Yes ATTACHMENT A Non-Standardized Governmental 401(a) Use of Forfeitures Forfeitures of Employer contributions other than matching contributions will be: c. [ ] added to the Employer contribution and allocated in the same manner d. [ ] used to reduce any Employer contribution e. [ ] allocated to all Participants eligible to share in the allocations of Employer contributions or Forfeitures in the same proportion that each Participant's Compensation for the Plan Year bears to the Compensation of all Participants for such year f. [ ] other: (describe the treatment of Forfeitures in a manner that is definitely determinable and not subject to Employer discretion) Forfeitures of Employer matching contributions will be: g. [ ] N/A. Same as above or no Employer matching contributions. h. [ ] used to reduce the Employer matching contribution. i. [ ] used to reduce any Employer contribution. j. [ ] other: (describe the treatment of Forfeitures in a manner that is definitely determinable and not subject to Employer discretion) D. Directed investments a. [ ] Participant directed investments are NOT permitted. b. [X] Participant directed investments are permitted from the following Participant Accounts: 1. [X] all Accounts 2. [ ] only from the following Accounts (select one or more): a. [ ] Account attributable to Employer contributions b. [ ] Rollover Account c. [ ] Transfer Account d. [ ] Other: (specify Account(s) and conditions in a manner that is definitely determinable and not subject to Employer discretion) E. Rollover Limitations. Will the Plan accept rollover contributions and/or direct rollovers from the sources specified below? a. [ ] No, Administrator determines in operation which sources will be accepted. b. [ ] Yes Rollover sources. Indicate the sources of rollovers that will be accepted (select one or more) 1. [ ] Direct Rollovers. The Plan will accept a direct rollover of an eligible rollover distribution from (select one or more): a. [ ] a qualified plan described in Code §401(a) (including a 401(k) plan, profit sharing plan, defined benefit plan, stock bonus plan and money purchase plan), excluding after-tax employee contributions b. [ ] a qualified plan described in Code §401(a) (including a 401(k) plan, profit sharing plan, defined benefit plan, stock bonus plan and money purchase plan), including after-tax employee contributions c. [ ] a plan described in Code §403(a) (an annuity plan), excluding after-tax employee contributions d. [ ] a plan described in Code §403(a) (an annuity plan), including after-tax employee contributions e. [ ] a plan described in Code §403(b) (a tax-sheltered annuity), excluding after-tax employee contributions f. [ ] a plan described in Code §403(b) (a tax-sheltered annuity), including after-tax employee contributions g. [ ] a plan described in Code §457(b) (eligible deferred compensation plan) Direct Rollovers of Participant Loan. The Plan will NOT accept a direct rollover of a Participant loan from another plan unless selected below (leave blank if default applies) h. [ ] The Plan will accept a direct rollover of a Participant loan i. [ ] The Plan will only accept a direct rollover of a Participant loan only in the following situation(s): (e.g., only from Participants who were employees of an acquired organization). 2. [ ] Participant Rollover Contributions from Other Plans (i.e., not via a direct plan-to-plan transfer). The Plan will accept a contribution of an eligible rollover distribution (select one or more): a. [ ] a qualified plan described in Code §401(a) (including a 401(k) plan, profit sharing plan, defined benefit plan, stock bonus plan and money purchase plan) b. [ ] a plan described in Code §403(a) (an annuity plan) c. [ ] a plan described in Code §403(b) (a tax-sheltered annuity) d. [ ] a governmental plan described in Code §457(b) (eligible deferred compensation plan) 3. [ ] Participant Rollover Contributions from IRAs: The Plan will accept a rollover contribution of the portion of a distribution from a traditional IRA that is eligible to be rolled over and would otherwise be includible in gross income. Rollovers from Roth IRAs or a Coverdell Education Savings Account (formerly known as an Education IRA) are not permitted because they are not traditional IRAs. A rollover from a SIMPLE IRA is allowed if the amounts are rolled over after the individual has been in the SIMPLE IRA for at least two years. F. Trustee(s) or Insurer(s). Information regarding Trustee(s)/Insurer(s) (required for the Summary Plan Description and, if requested, the Trust Agreement) (Note: Select a. if not using provided trust. MUST select b and following questions as applicable): a. [ ] Do not produce the trust agreement b. [X] Complete the following UNLESS not selecting supporting forms: ATTACHMENT A Non-Standardized Governmental 401(a) Trustee/Insurer (select a. OR one or more of d. - e.) c. [ ] Insurer. This Plan is funded exclusively with Contracts (select one or more of 1. - 4) Name of Insurer(s) 1.[ ] 2.[ ] 3.[ ] Use Employer address/telephone number/email 4.[ ] Use following address/telephone number/email a. Street: b. City: c. State: d. Zip: e. Telephone: f. Email: d. [X] Individual Trustee(s) e. [ ] Corporate Trustee Name of Trust f. Specify name of Trust (required for FIS trust): Town of Avon Public Employees Money Purchase Pension Plan Trust Individual Trustees (if d. selected above, complete g. – j.) Directed/Discretionary Trustees. The individual Trustee(s) executing this Adoption Agreement are (select g. or h.) g. [ ] Select for each individual Trustee (skip to next question) h. [X] The following selections apply to all individual Trustee(s) (select 1. - 4. as applicable) 1.[X] A discretionary Trustee over all plan assets (may not be selected with 2. - 4.) 2.[ ] A nondiscretionary (directed) Trustee over all plan assets (may not be selected with 1., 3. or 4.) 3.[ ] The individual Trustee(s) will serve as a discretionary Trustee over the following assets: (may not be selected with 1. or 2.) 4.[ ] The individual Trustee(s) will serve as a nondiscretionary (directed) Trustee over the following assets: (may not be selected with 1. or 2.) Individual Trustee(s) (complete if d. selected above) i. [X] Individual Trustee(s) are (select one or more of a. - j.; enter address at j. below) a.Name The Board of Retirement Title/Email: 1.Title Board of Retirement 2.Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3.[ ] Discretionary Trustee over all plan assets (may not be selected with 4. – 6.) 4.[ ] A discretionary Trustee over the following plan assets: (may not be select with 3. or 5.) 5.[ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6.[ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) b.Name Title/Email: 1.Title 2.Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3.[ ] Discretionary Trustee over all plan assets (may not be selected with 4. – 6.) 4.[ ] A discretionary Trustee over the following plan assets: (may not be select with 3. or 5.) 5.[ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6.[ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) c.Name Title/Email: 1.Title 2.Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3.[ ] Discretionary Trustee over all plan assets (may not be selected with 4. – 6.) 4.[ ] A discretionary Trustee over the following plan assets: (may not be select with 3. or 5.) 5.[ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6.[ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) ATTACHMENT A Non-Standardized Governmental 401(a) d.Name Title/Email: 1.Title 2.Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3.[ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4.[ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5.[ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6.[ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) e.Name Title/Email: 1.Title 2.Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3.[ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4.[ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5.[ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6.[ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) f.Name Title/Email: 1.Title 2.Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3.[ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4.[ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5.[ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6.[ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) g.Name Title/Email: 1.Title 2.Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3.[ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4.[ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5.[ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6.[ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) h.Name Title/Email: 1.Title 2.Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3.[ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4.[ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5.[ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6.[ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) i.Name Title/Email: 1.Title 2.Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3.[ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4.[ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5.[ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6.[ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) ATTACHMENT A Non-Standardized Governmental 401(a) j. Name Title/Email: 1. Title 2. Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3. [ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4. [ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5. [ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6. [ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) j. [X] Individual Trustee Address (complete if d. selected above) 1. [X] Use Employer address/telephone number/email 2. [ ] Use following address/telephone number/email a. Street: b. City: c. State: d. Zip: e. Telephone: f. Email: Corporate Trustee Name/Type/Address (complete if e. selected above) k. [ ] Name Address/telephone number/email 1. [ ] Use Employer address/telephone number/email 2. [ ] Use following address/telephone number/email a. Street: b. City: c. State: d. Zip: e. Telephone: f. Email: Directed/Discretionary. The Corporate Trustee is (select 3. - 6. as applicable) 3. [ ] A discretionary Trustee over all plan assets (may not be selected with 4. – 6.) 4. [ ] A nondiscretionary (directed) Trustee over all plan assets (may not be selected with 3., 5. or 6.) 5. [ ] A discretionary Trustee over the following plan assets over the following assets: (may not be selected with 3. – 4.) 6. [ ] A nondiscretionary (directed) Trustee over the following plan assets (may not be selected with 3. – 4.) Signee (optional): 7. [ ] Name of person signing on behalf of the corporate Trustee 8. [ ] Email address of person signing on behalf of the corporate Trustee Special Trustee for collection of contributions. The Employer appoints the following Special Trustee with the responsibility to collect delinquent contributions (optional) l. [ ] Name Title: 1. Address/telephone number/email 2. [ ] Use Employer address/telephone number/email 3. [ ] Use following address/telephone number/email a. Street: b. City: c. State: d. Zip: e. Telephone: f. Email: Custodian(s) Name/Address . The Custodian(s) are (optional) m. [ ] Name(s) Address/telephone number/email 1. [ ] Use Employer address/telephone number/email ATTACHMENT A Non-Standardized Governmental 401(a) 2. [ ] Use following address/telephone number/email a. Street: b. City: c. State: d. Zip: e. Telephone: f. Email: Investment in common, collective or pooled trust funds. The nondiscretionary Trustee, as directed or the discretionary Trustee acting without direction (and in addition to the discretionary Trustee's authority to invest in its own funds), may invest in any of the following trust funds: (optional) n. [ ] (Specify the names of one or more trust funds in which the Plan can invest) Choice of law o. [X] This trust will be governed by the laws of the state of: 1. [X] State in which the Employer's principal office is located 2. [ ] State in which the corporate trustee or insurer is located 3. [ ] Other ATTACHMENT A Non-Standardized Governmental 401(a) FIS BUSINESS SYSTEMS LLC NON-STANDARDIZED GOVERNMENTAL 401(A) MODIFICATIONS TOWN OF AVON PUBLIC EMPLOYEES MONEY PURCHASE PENSION PLAN The enclosed Plan is being submitted for expedited review as a Non-Standardized Plan. No modifications from the approved specimen plan have been made to this Plan. ATTACHMENT A (970)748-4055 swright@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Police Officers Board of Retirement Scott Wright, Finance Director, Plan Administrator RE: Amendment & Restatement of Police Officers Money Purchase Pension Plan DATE: May 10, 2022 SUMMARY: Federal Treasury Regulations require that the Town’s Police Officers Money Purchase Pension Plan (the “Plan”) be amended and restated every six years. This is the sixth year of the Town’s compliance cycle. The Police Officers Retirement Board has reviewed and approved the proposed Plan amendment and restatement and is requesting the Town Council to formally adopt it. BACKGROUND: The Internal Revenue Service requires that qualified, tax-exempt retirement savings plans – like the Police Officers Money Purchase Pension Plan – be periodically amended so as to incorporate statutory and regulatory changes, as well as revisions made necessary by applicable court decisions. The Town’s current, six-year compliance period for doing so – referred to as “Cycle 3” -- closes on July 31, 2022. ANALYSIS: In order to comply with the Cycle 3 deadline, the Police Officers Retirement Board directed the Plan’s third-party administrator, Eileen Shaw of Creative Retirement Plan Consulting LLC, to prepare an amendment and restatement of the Plan that incorporates all of the required revisions. The Board then reviewed the proposed amendment, together with Plan legal counsel, and concluded that it satisfies the applicable standards. FINANCIAL CONSIDERATIONS: The amended and restated Plan will not substantially alter the operation of the Plan and is not expected to have any effect on Plan costs. RECOMMENDATION: The Police Officers Board of Retirement recommends that the Town Council adopt the Amended and Restated Plan. OPTIONS: The Cycle 3 amendment and restatement requirement is necessary to protect the tax-exempt status of the Plan’s assets. Failure to do so on or before July 31, 2022, will subject the Plan to monetary penalties and may expose the Plan Board to fiduciary liability. As a consequence, there is no viable option to amending and restating the Plan. PROPOSED MOTION: “I move that the Town of Avon Police Officers Money Purchase Pension Plan be amended & restated not later than July 31, 2022, as set forth in Resolution No. 22-11.” ATTACHMENTS A - Resolution No. 22-11, to which is appended “Adoption Agreement for Eileen Shaw Non-Standardized Governmental 401(a) Pre-Approved Plan.” Res 22-11 Amending & Restating Town of Avon Police Officers Money Purchase Pension Plan Page 1 of 2 RESOLUTION NO. 22-11 AMENDING & RESTATING TOWN OF AVON POLICE OFFICERS MONEY PURCHASE PENSION PLAN WHEREAS, the Town of Avon (the “Town”), as a home rule municipal corporation and body politic organized under the laws of the State of Colorado, is authorized to establish and maintain, in accordance with C.R.S. § 24-54-101, et seq., and C.R.S. § 31-31-602, a plan or system of retirement benefits for its police officers, subject to appropriation being available therefor; and WHEREAS, the Town, by and through Resolution No. 85-21, Series of 1985, established, and has thereafter maintained, through a series of required and elective amendments and restatements, a Money Purchase Pension Plan, exempt from federal taxation under 26 U.S.C. § 401(a), to benefit its police officers by providing funds for retirement (the “Police Officers Money Purchase Pension Plan” or the “Plan”); and WHEREAS, Treasury Regulations adopted by the Internal Revenue Service (the “IRS”), together with other IRS publications, require that the Plan be amended and restated each six years on a schedule referred to as “Cycle C” to incorporate statutory and regulatory changes, along with revisions required by applicable judicial decisions (the “Cycle C Requirements”); and WHEREAS, in order to amend and restate the Plan so as to satisfy the Cycle C Requirements, the Plan’s Board of Retirement (the “Plan Board”) has reviewed and, by Resolution adopted May 10, 2022, approved and adopted a Non-Standardized Governmental 401(a) Pre-Approved Plan (the “2022 Amended & Restated Police Officers Plan”) prepared by the Plan’s third-party administrator, Creative Retirement Plan Consulting LLC; and WHEREAS, the Town Council finds and determines that adopting the 2022 Amended & Restated Police Officers Plan will protect the tax-exempt status of Plan assets and will, thereby, serve the best interests of the Town’s police officers who participate in the Plan. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. The Town Council hereby ratifies the Plan Board’s approval of the 2022 Amended & Restated Police Officers Plan and adopts that Amended & Restated Plan in substantially the form attached to this Resolution No. 22-11. Section 3. The Town Finance Director, as Chair of the Plan Board, is hereby authorized to execute all such documents as are necessary to give effect to the adoption and implementation of the 2022 Amended & Restated Police Officers Plan. ATTACHMENT A Res 22-11 Amending & Restating Town of Avon Public Employees Money Purchase Pension Plan Page 2 of 2 ADOPTED on May 10, 2022 AVON TOWN COUNCIL BY: ATTEST: ____________________________ ____________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 1 ADOPTION AGREEMENT FOR EILEEN SHAW NON-STANDARDIZED GOVERNMENTAL 401(a) PRE-APPROVED PLAN CAUTION: Failure to properly fill out this Adoption Agreement may result in disqualification of the Plan. EMPLOYER INFORMATION (An amendment to the Adoption Agreement is not needed solely to reflect a change in this Employer Information Section.) 1. EMPLOYER'S NAME, ADDRESS, TELEPHONE NUMBER, TIN AND FISCAL YEAR Name: Town of Avon Address: 100 Mikaela Way Street Avon Colorado 81620 City State Zip Telephone: 970-784-4044 Taxpayer Identification Number (TIN): 84-0771088 Employer's Fiscal Year ends: December 31 2. TYPE OF GOVERNMENTAL ENTITY. This Plan may only be adopted a state or local governmental entity, or agency thereof, including an Indian tribal government and may not be adopted by any other entity, including a federal government and any agency or instrumentality thereof. a. [ ] State government or state agency b. [ ] County or county agency c. [X] Municipality or municipal agency d. [ ] Indian tribal government (see Note below) NOTE: An Indian tribal government may only adopt this Plan if such entity is defined under Code §7701(a)(40), is a subdivision of an Indian tribal government as determined in accordance with Code §7871(d), or is an agency or instrumentality of either, and all of the Participants under this Plan employed by such entity substantially perform services as an Employee in essential governmental functions and not in the performance of commercial activities (whether or not an essential government function). 3. PARTICIPATING EMPLOYERS (Plan Section 1.39). Will any other Employers adopt this Plan as Participating Employers? a. [X] No b. [ ] Yes MULTIPLE EMPLOYER PLAN (Plan Article XI). Will any Employers who are not Affiliated Employers adopt this Plan as part of a multiple employer plan (MEP) arrangement? c. [X] No d. [ ] Yes (Complete a Participation Agreement for each Participating Employer.) PLAN INFORMATION (An amendment to the Adoption Agreement is not needed solely to reflect a change in the information in Question 9.) 4. PLAN NAME: Town of Avon Police Officers Money Purchase Pension Plan 5. PLAN STATUS a. [ ] New Plan b. [X] Amendment and restatement of existing Plan CYCLE 3 RESTATEMENT (leave blank if not applicable) 1. [X] This is an amendment and restatement to bring a plan into compliance with the legislative and regulatory changes set forth in IRS Notice 2017-37 (i.e., the 6-year pre-approved plan restatement cycle). 6. EFFECTIVE DATE (Plan Section 1.16) (complete a. if new plan; complete a. AND b. if an amendment and restatement) Initial Effective Date of Plan (except for restatements, cannot be earlier than the first day of the current Plan Year) a. September 22, 1987 (enter month day, year) (hereinafter called the "Effective Date" unless 6.b. is entered below) ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 2 Restatement Effective Date. If this is an amendment and restatement, the effective date of the restatement (hereinafter called the "Effective Date") is: b. January 1, 2022 (enter month day, year; NOTE: The restatement date may not be prior to the first day of the current Plan Year. Plan contains appropriate retroactive effective dates with respect to provisions for appropriat e laws.) 7. PLAN YEAR (Plan Section 1.43) means, except as otherwise provided in d. below: a. [X] the calendar year b. [ ] the twelve-month period ending on (e.g., June 30th) SHORT PLAN YEAR (Plan Section 1.47). This is a Short Plan Year (if the effective date of participation is based on a Plan Year, then coordinate with Question 14): c. [X] N/A d. [ ] beginning on (enter month day, year; e.g., July 1, 2020) and ending on (enter month day, year). 8. VALUATION DATE (Plan Section 1.53) means: a. [X] every day that the Trustee (or Insurer), any transfer agent appointed by the Trustee (or Insurer) or the Employer, and any stock exchange used by such agent are open for business (daily valuation) b. [ ] the last day of each Plan Year c. [ ] the last day of each Plan Year quarter d. [ ] other (specify day or days): (must be at least once each Plan Year) NOTE: The Plan always permits interim valuations. 9. ADMINISTRATOR'S NAME, ADDRESS AND TELEPHONE NUMBER (If none is named, the Employer will be the Administrator (Plan Section 1.2).) a. [X] Employer (use Employer address and telephone number) b. [ ] The Committee appointed by the Employer (use Employer address and telephone number) c. [ ] Other: Name: Address: Street City State Zip Telephone: 10. TYPE OF PLAN (select one) a. [ ] Profit Sharing Plan. b [X] Money Purchase Pension Plan. 11. CONTRIBUTION TYPES The selections made below must correspond with the selections made under the Contributions and Allocations Section of this Adoption Agreement. FROZEN PLAN OR CONTRIBUTIONS HAVE BEEN SUSPENDED (Plan Section 4.1(c)) (optional) a. [ ] This is a frozen Plan (i.e., all contributions cease) (if this is a temporary suspension, select a.2): 1. [ ] All contributions ceased as of, or prior to, the effective date of this amendment and restatement and the prior Plan provisions are not reflected in this Adoption Agreement (may enter effective date at 3. below and/or select prior contributions at g. - j. (optional), skip questions 12-18 and 22-30) 2. [ ] All contributions ceased or were suspended and the prior Plan provisions are reflected in this Adoption Agreement (must enter effective date at 3. below and select contributions at b. - f.) Effective date 3. [ ] as of (effective date is optional unless a.2. has been selected above or this is the amendment or restatement to freeze the Plan). CURRENT CONTRIBUTIONS The Plan permits the following contributions (select one or more): b. [X] Employer contributions other than matching (Questions 24-25) 1. [X] This Plan qualifies as a Social Security Replacement Plan (Question 24.e. must be selected) c. [ ] Employer matching contributions (Questions 26-28) d. [X] Mandatory Employee contributions (Question 30) ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 3 e. [ ] After-tax voluntary Employee contributions f. [ ] Rollover contributions (Question 36) PRIOR CONTRIBUTIONS The Plan used to permit, but no longer does, the following contributions (choose all that apply, if any): g. [ ] Employer matching contributions h. [ ] Employer contributions other than matching contributions i. [ ] Rollover contributions j. [ ] After-tax voluntary Employee contributions ELIGIBILITY REQUIREMENTS 12. ELIGIBLE EMPLOYEES (Plan Section 1.17) means all Employees (including Leased Employees) EXCEPT those Employees who are excluded below or elsewhere in the Plan: (select a. or b.) a. [ ] No excluded Employees. There are no additional excluded Employees under the Plan (skip to Question 13). b. [X] Exclusions. The following Employees are not Eligible Employees for Plan purposes (select one or more): 1. [ ] Union Employees (as defined in Plan Section 1.17) 2. [ ] Nonresident aliens (as defined in Plan Section 1.17) 3. [X] Leased Employees (Plan Section 1.29) 4. [X] Part-time Employees. A part-time Employee is an Employee whose regularly scheduled service is less than 1,000 Hours of Service in the relevant eligibility computation period (as defined in Plan Section 1.55). 5. [X] Temporary Employees. A temporary Employee is an Employee who is categorized as a temporary Employee on the Employer’s payroll records. 6. [X] Seasonal Employees. A seasonal Employee is an Employee who is categorized as a seasonal Employee on the Employer’s payroll records. 7. [X] Other: All employees except regular, full-time, paid, sworn police officers of the Town of Avon, Colorado. (must be definitely determinable under Regulation §1.401-1(b). Exclusions may be employment title specific but may not be by individual name) NOTE: If option 4. - 6. (part-time, temporary and/or seasonal exclusions) is selected, when any such excluded Employee actually completes 1 Year of Service, then such Employee will no longer be part of this excluded class. For this purpose, the Hours of Service method will be used for the 1 Year of Service override regardless of any contrary selection at Question 16. 13. CONDITIONS OF ELIGIBILITY (Plan Section 3.1) a. [X] No age and service required. No age and service required for all Contribution Types (skip to Question 14). b. [ ] Eligibility. An Eligible Employee will be eligible to participate in the Plan upon satisfaction of the following (complete c. and d., select e. and f. if applicable): Eligibility Requirements c. [ ] Age Requirement 1. [ ] No age requirement 2. [ ] Age 20 1/2 3. [ ] Age 21 4. [ ] Age (may not exceed 26) d. [ ] Service Requirement 1. [ ] No service requirement 2. [ ] (not to exceed 60) months of service (elapsed time) 3. [ ] 1 Year of Service 4. [ ] (not to exceed 5) Years of Service 5. [ ] consecutive month period from the Eligible Employee's employment commencement date and during which at least Hours of Service are completed. 6. [ ] consecutive months of employment. 7. [ ] Other: (e.g., date on which 1,000 Hours of Service is completed within the computation period) (must satisfy the Notes below) NOTE: If c.4. or d.7. is selected, the condition must be an age or service requirement that is definitely determinable and may not exceed age 26 and may not exceed 5 Years of Service. NOTE: Year of Service means Period of Service if the elapsed time method is chosen. Waiver of conditions. The service and/or age requirements specified above will be waived in accordance with the following (leave blank if there are no waivers of conditions): e. [ ] If employed on the following requirements, and the entry date requirement, will be waived. The waiver applies to any Eligible Employee unless 3. selected below. Such Employees will enter the Plan as of such date (select 1. and/or 2. AND 3. if applicable): 1. [ ] service requirement (may let part-time Eligible Employees into the Plan) ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 4 2. [ ] age requirement 3. [ ] waiver is for: Amendment or restatement to change eligibility requirements f. [ ] This amendment or restatement (or a prior amendment and restatement) modified the eligibility requirements and the prior eligibility conditions continue to apply to the Eligible Employees specified below. If this option is NOT selected, then all Eligible Employees must satisfy the eligibility conditions set forth above. 1. [ ] The eligibility conditions above only apply to Eligible Employees who were not Participants as of the effective date of the modification. 2. [ ] The eligibility conditions above only apply to individuals who were hired on or after the effective date of the modification. 14. EFFECTIVE DATE OF PARTICIPATION (ENTRY DATE) (Plan Section 3.2) An Eligible Employee who has satisfied the eligibility requirements will become a Participant in the Plan as of the: a. [X] date such requirements are met b. [ ] first day of the month coinciding with or next following the date on which such requirements are met c. [ ] first day of the Plan Year quarter coinciding with or next following the date on which such requirements are met d. [ ] earlier of the first day of the Plan Year or the first day of the seventh month of the Plan Year coinciding with or next following the date on which such requirements are met e. [ ] first day of the Plan Year coinciding with or next following the date on which such requirements are met f. [ ] first day of the Plan Year in which such requirements are met g. [ ] first day of the Plan Year in which such requirements are met, if such requirements are met in the first 6 months of the Plan Year, or as of the first day of the next succeeding Plan Year if such requirements are met in the last 6 months of the Plan Year. h. [ ] other: (must be definitely determinable) SERVICE 15. RECOGNITION OF SERVICE WITH OTHER EMPLOYERS (Plan Sections 1.40 and 1.55) a. [X] No service with other employers is recognized except as otherwise required by law (e.g., the Plan already provides for the recognition of service with Employers who have adopted this Plan as well as service with Affiliated Employers and predecessor Employers who maintained this Plan; skip to Question 16). b. [ ] Service with the designated employers is recognized as follows (select c. – e. and one or more of columns 1. - 3.; chose other options as applicable) (if more than 3 employers, attach an addendum to the Adoption Agreement or complete option h. under Section B of Appendix A): 1. 2. 3. Contribution Other Employer Eligibility Vesting Allocation c. [ ] Employer name: [ ] [ ] [ ] d. [ ] Employer name: [ ] [ ] [ ] e. [ ] Employer name: [ ] [ ] [ ] Limitations f. [ ] The following provisions or limitations apply with respect to the [ ] [ ] [ ] recognition of prior service: (e.g., credit service with X only on/following 1/1/19) g. [ ] The following provisions or limitations apply with respect to the recognition of service with other employers: (e.g., credit service with X only on/following 1/1/19 or credit all service with entities the Employer acquires after 12/31/18) NOTE: If the other Employer(s) maintained this qualified Plan, then Years (and/or Periods) of Service with such Employer(s) must be recognized pursuant to Plan Sections 1.40 and 1.55 regardless of any selections above. 16. SERVICE CREDITING METHOD (Plan Sections 1.40 and 1.55) NOTE: If any Plan provision is based on a Year of Service, then the provisions set forth in the definition of Year of Service in Plan Section 1.55 will apply, including the following defaults, except as otherwise elected below: 1. A Year of Service means completion of at least 1,000 Hours of Service during the applicable computation period. 2. Hours of Service (Plan Section 1.24) will be based on actual Hours of Service except that for Employees for whom records of actual Hours of Service are not maintained or available (e.g., salaried Employees), the monthly equivalency will be used. ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 5 3. For eligibility purposes, the computation period will be as defined in Plan Section 1.55 (i.e., shift to the Plan Year if the eligibility condition is one (1) Year of Service or less). 4. For vesting, allocation, and distribution purposes, the computation period will be the Plan Year. 5. Upon an Employee's rehire, all prior service with the Employer is taken into account for all purposes. a. [ ] Elapsed time method. (Period of Service applies instead of Year of Service) Instead of Hours of Service, elapsed time will be used for: 1. [ ] all purposes (skip to Question 17) 2. [ ] the following purposes (select one or more): a. [ ] eligibility to participate b. [ ] vesting c. [ ] allocations, distributions and contributions b. [ ] Alternative definitions for the Hours of Service method. Instead of the defaults, the following alternatives will apply for the Hours of Service method (select one or more): 1. [ ] Eligibility computation period. Instead of shifting to the Plan Year, the eligibility computation period after the initial eligibility computation period will be based on each anniversary of the date the Employee first completes an Hour of Service 2. [ ] Vesting computation period. Instead of the Plan Year, the vesting computation period will be the date an Employee first performs an Hour of Service and each anniversary thereof. 3. [ ] Equivalency method. Instead of using actual Hours of Service, an equivalency method will be used to determine Hours of Service for: a. [ ] all purposes b. [ ] the following purposes (select one or more): 1. [ ] eligibility to participate 2. [ ] vesting 3. [ ] allocations, distribution and contributions Such method will apply to: c. [ ] all Employees d. [ ] Employees for whom records of actual Hours of Service are not maintained or available (e.g., salaried Employees) e. [ ] other: (e.g., per-diem Employees only) Hours of Service will be determined on the basis of: f. [ ] days worked (10 hours per day) g. [ ] weeks worked (45 hours per week) h. [ ] semi-monthly payroll periods worked (95 hours per semi-monthly pay period) i. [ ] months worked (190 hours per month) j. [ ] bi-weekly payroll periods worked (90 hours per bi-weekly pay period) k. [ ] other: (e.g., option f. is used for per-diem Employees and option g. is used for on-call Employees). 4. [ ] Number of Hours of Service required. Instead of 1,000 Hours of Service, Year of Service means the applicable computation period during which an Employee has completed at least (not to exceed 1,000) Hours of Service for: a. [ ] all purposes b. [ ] the following purposes (select one or more): 1. [ ] eligibility to participate 2. [ ] vesting 3. [ ] allocations, distributions and contributions c. [ ] Alternative for counting all prior service. Instead of the default which recognizes all prior service for rehired Employees, the Plan will not recognize prior service and rehired Employee are treated as new hires for the following purposes: (select one) 1. [ ] all purposes 2. [ ] the following purposes (select one or more): a. [ ] eligibility to participate b. [ ] vesting c. [ ] sharing in allocations or contributions ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 6 d. [ ] Other service crediting provisions: (must be definitely determinable; e.g., for vesting a Year of Service is based on 1,000 Hours of Service but for eligibility a Year of Service is based on 900 Hours of Service.) NOTE: Must not list more than 1,000 hours in this Section. This servicing credit provision will be used for: 1. [ ] All purposes 2. [ ] The following purposes (select one or more): a. [ ] eligibility to participate b. [ ] vesting c. [ ] allocations, distributions and contributions VESTING 17. VESTING OF PARTICIPANT'S INTEREST – EMPLOYER CONTRIBUTIONS (Plan Section 6.4(b)) a. [ ] N/A (no Employer contributions; skip to Question 19) b. [X] The vesting provisions selected below apply. Section B of Appendix A can be used to specify any exceptions to the provisions below. NOTE: The Plan provides that contributions for converted sick leave and/or vacation leave are fully Vested. Vesting for Employer contributions other than matching contributions c. [ ] N/A (no Employer contributions (other than matching contributions); skip to f.) d. [ ] 100% vesting. Participants are 100% Vested in Employer contributions (other than matching contributions) upon entering Plan. e. [X] The following vesting schedule, based on a Participant's Years of Service (or Periods of Service if the elapsed time method is selected), applies to Employer contributions (other than matching contributions): 1. [ ] 6 Year Graded: 0-1 year-0%; 2 years-20%; 3 years-40%; 4 years-60%; 5 years-80%; 6 years-100% 2. [ ] 4 Year Graded: 1 year-25%; 2 years-50%; 3 years-75%; 4 years-100% 3. [ ] 5 Year Graded: 1 year-20%; 2 years-40%; 3 years-60%; 4 years-80%; 5 years-100% 4. [ ] Cliff: 100% vesting after (not to exceed 15) years 5. [X] Other graded vesting schedule (must provide for full vesting no later than 15 years of service; add additional lines as necessary) Years (or Periods) of Service Percentage 1 Year of Service 0% % 2 Years of Service 40% % 3 Years of Service 60% % 4 Years of Service 80% % 5 Years of Service 100% % Vesting for Employer matching contributions f. [X] N/A (no Employer matching contributions) g. [ ] The schedule above will also apply to Employer matching contributions. h. [ ] 100% vesting. Participants are 100% Vested in Employer matching contributions upon entering Plan. i. [ ] The following vesting schedule, based on a Participant's Years of Service (or Periods of Service if the elapsed time method is selected), applies to Employer matching contributions: 1. [ ] 6 Year Graded: 0-1 year-0%; 2 years-20%; 3 years-40%; 4 years-60%; 5 years-80%; 6 years-100% 2. [ ] 4 Year Graded: 1 year-25%; 2 years-50%; 3 years-75%; 4 years-100% 3. [ ] 5 Year Graded: 1 year-20%; 2 years-40%; 3 years-60%; 4 years-80%; 5 years-100% 4. [ ] Cliff: 100% vesting after (not to exceed 15) years 5. [ ] Other graded vesting schedule (must provide for full vesting no later than 15 years of service; add additional lines as necessary) Years (or Periods) of Service Percentage % % % % % % % % % % ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 7 NOTE: If any Part-time/Seasonal/Temporary Employees who are not covered under Social Security are participating in this Plan as a Social Security Replacement Plan, any contributions used to satisfy the minimum contribution requirements of Question 24.e. will be 100% vested. 18. VESTING OPTIONS Excluded vesting service. The following Years of Service will be disregarded for vesting purposes (select all that apply; leave blank if none apply): a. [ ] Service prior to the initial Effective Date of the Plan or a predecessor plan (as defined in Regulations §1.411(a)-5(b)(3)) b. [ ] Service prior to the computation period in which an Employee has attained age . c. [ ] Service during a period for which an Employee did not make mandatory Employee contributions. Vesting for death, Total And Permanent Disability and Early/Normal Retirement. Regardless of the vesting schedule, a Participant will become fully Vested upon (select all that apply; leave blank if none apply): d. [X] Death e. [X] Total and Permanent Disability f. [ ] Early Retirement Date g. [X] Normal Retirement Age RETIREMENT AGES 19. NORMAL RETIREMENT AGE ("NRA") (Plan Section 1.33) means: This Question 19 and Question 20 may be skipped if the Plan does not base any benefits, distributions or other features on Normal Retirement Age. a. [X] Specific age. The date a Participant attains age 55 b. [ ] Age/participation. The later of the date a Participant attains age or the anniversary of the first day of the Plan Year in which participation in the Plan commenced c. [ ] Other: (must be definitely determinable) NOTE: If this is a Money Purchase Pension Plan and in-service distributions at Normal Retirement Age are permitted, then the Normal Retirement Age cannot be less than age 62, or age 50 if substantially all Participants are qualified public safety employees (as defined in Code §72(t)(1)). The "substantially all" requirement for qualified public safety employees will no longer be a requirement as of the effective date of the final regulations once they are issued & effective. If an age less than 62 is inserted (unless the age 50 safe harbor is applicable for a qualified public safety employee), no reliance will be afforded on the Opinion Letter issued to the Plan that such age is reasonably representative of the typical retirement age for the industry in which the Participants works. Effective for Employees hired during Plan Years beginning on or after the later of (1) January 1, 2015, or (2) the close of the first legislative session of the legislative body with the authority to amend the plan that begins on or after the date that is three (3) months after the final regulations are published in the Federal Register, an NRA of less than age 62 must comply with the final regulations under §401(a). Qualified public safety employees. Normal Retirement Age for public safety employees (as defined in Code §72(t)(1)) (leave blank if not applicable) d. [ ] Age (may not be less than 50 for a Money Purchase Pension Plan or 40 for a Profit Sharing Plan) 20. NORMAL RETIREMENT DATE (Plan Section 1.34) means, with respect to any Participant, the: a. [X] date on which the Participant attains "NRA" b. [ ] first day of the month coinciding with or next following the Participant's "NRA" c. [ ] first day of the month nearest the Participant's "NRA" d. [ ] Anniversary Date coinciding with or next following the Participant's "NRA" e. [ ] Anniversary Date nearest the Participant's "NRA" f. [ ] Other: (e.g., first day of the month following the Participant's "NRA"). 21. EARLY RETIREMENT DATE (Plan Section 1.15) a. [X] N/A (no early retirement provision provided) b. [ ] Early Retirement Date means the: 1. [ ] date on which a Participant satisfies the early retirement requirements 2. [ ] first day of the month coinciding with or next following the date on which a Participant satisfies the early retirement requirements 3. [ ] Anniversary Date coinciding with or next following the date on which a Participant satisfies the early retirement requirements ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 8 Early retirement requirements 4. [ ] Participant attains age AND, completes.... (leave blank if not applicable) a. [ ] at least Years (or Periods) of Service for vesting purposes b. [ ] at least Years (or Periods) of Service for eligibility purposes c. [ ] Early Retirement Date means: (must be definitely determinable) COMPENSATION 22. COMPENSATION with respect to any Participant is defined as follows (Plan Sections 1.10 and 1.23). Base definition a. [X] Wages, tips and other compensation on Form W-2 b. [ ] Code §3401(a) wages (wages for withholding purposes) c. [ ] 415 safe harbor compensation NOTE: Plan Section 1.10(c) provides that the base definition of Compensation includes deferrals that are not included in income due to Code §§401(k), 125, 132(f)(4), 403(b), 402(h)(1)(B)(SEP), 414(h)(2), & 457. Determination period. Compensation will be based on the following "determination period" (this will also be the Limitation Year unless otherwise elected at option f. under Section B of Appendix A): d. [X] the Plan Year e. [ ] the Fiscal Year coinciding with or ending within the Plan Year f. [ ] the calendar year coinciding with or ending within the Plan Year Adjustments to Compensation (for Plan Section 1.10). Compensation will be adjusted by: g. [ ] No adjustments (skip to Question 23. below) h. [X] Adjustments. Compensation will be adjusted by (select all that apply): 1. [ ] excluding salary reductions (401(k), 125, 132(f)(4), 403(b), SEP, 414(h)(2) pickup, & 457) 2. [ ] excluding reimbursements or other expense allowances, fringe benefits (cash or non-cash), moving expenses, deferred compensation (other than deferrals specified in 1. above) and welfare benefits. 3. [ ] excluding Compensation paid during the "determination period" while not a Participant in the Plan. 4. [X] excluding Military Differential Pay 5. [X] excluding overtime 6. [X] excluding bonuses 7. [X] other: Commissions, Deemed 125 compensation, Volunteer pay, on-call pay, wellness benefits, life insurance benefits in excess of $50,000, occasional and sporadic pay (as defined in 29 C.F.R. Section 553.30 allowances and compensatory pay and commissions. (e.g., describe Compensation from the elections available above or a combination thereof as to a Participant group (e.g., no exclusions as to Division A Employees and exclude bonuses as to Division B Employees); and/or describe another exclusion (e.g., exclude shift differential pay)). 23. POST-SEVERANCE COMPENSATION (415 REGULATIONS) 415 Compensation (post-severance compensation adjustments) (select all that apply at a.; leave blank if none apply) NOTE: Unless otherwise elected under a. below, the following defaults apply: 415 Compensation will include (to the extent provided in Plan Section 1.23), post-severance regular pay, leave cash-outs and payments from nonqualified unfunded deferred compensation plans. a. [ ] The defaults listed above apply except for the following (select one or more): 1. [ ] Leave cash-outs will be excluded 2. [ ] Nonqualified unfunded deferred compensation will be excluded 3. [ ] Disability continuation payments will be included for all Participants and the salary continuation will continue for the following fixed or determinable period: 4. [ ] Other: (must be definitely determinable) Plan Compensation (post-severance compensation adjustments) b. [X] Defaults apply. Compensation will include (to the extent provided in Plan Section 1.10 and to the extent such amounts would be included in Compensation if paid prior to severance of employment) post-severance regular pay, leave cash-outs, and payments from nonqualified unfunded deferred compensation plans. (skip to Question 24) c. [ ] Exclude all post-severance compensation. Exclude all post-severance compensation for allocation purposes. d. [ ] Post-severance adjustments. The defaults listed at b. apply except for the following (select one or more): 1. [ ] Exclude all post-severance compensation 2. [ ] Regular pay will be excluded 3. [ ] Leave cash-outs will be excluded 4. [ ] Nonqualified unfunded deferred compensation will be excluded 5. [ ] Military Differential Pay will be included 6. [ ] Disability continuation payments will be included for all Participants and the salary continuation will continue for the following fixed or determinable period: ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 9 e. [ ] Other: (must be definitely determinable) CONTRIBUTIONS AND ALLOCATIONS 24. EMPLOYER CONTRIBUTIONS (OTHER THAN MATCHING CONTRIBUTIONS) (Plan Section 4.1(b)(3)) (skip to Question 26 if Employer contributions are NOT selected at Question 11.b.) CONTRIBUTION FORMULA (select one or more of the following contribution formulas:) a. [ ] Discretionary contribution (no groups). (may not be elected if this Plan is a Money Purchase Pension Plan) The Employer may make a discretionary contribution, to be determined by the Employer. Any such contribution will be allocated to each Participant eligible to share in allocations in the same ratio as each Participant's Compensation bears to the total of such Compensation of all Participants. b. [ ] Discretionary contribution (Grouping method). (may not be elected if this Plan is a Money Purchase Pension Plan) The Employer may designate a discretionary contribution to be made on behalf of each Participant group selected below (only select 1. or 2.). The groups must be clearly defined in a manner that will not violate the definite predetermined allocation formula requirement of Regulation §1.401-1(b)(1)(ii). The Employer must notify the Trustee in writing of the amount of the Employer Contribution being given to each group. 1. [ ] Each Participant constitutes a separate classification. 2. [ ] Participants will be divided into the following classifications with the allocation methods indicated under each classification. Definition of classifications. Define each classification and specify the method of allocating the contribution among members of each classification. Classifications specified below must be clearly defined in a manner that will not violate the definitely determinable allocation requirement of Regulation §1.401-1(b)(1)(ii). Classification A will consist of The allocation method will be: [ ] pro rata based on Compensation [ ] equal dollar amounts (per capita) Classification B will consist of The allocation method will be: [ ] pro rata based on Compensation [ ] equal dollar amounts (per capita) Classification C will consist of The allocation method will be: [ ] pro rata based on Compensation [ ] equal dollar amounts (per capita) Classification D will consist of The allocation method will be: [ ] pro rata based on Compensation [ ] equal dollar amounts (per capita) Additional Classifications: (specify the classifications and which of the above allocation methods (pro rata or per capita) will be used for each classification). NOTE: If more than four (4) classifications, the additional classifications and allocation methods may be attached as an addendum to the Adoption Agreement or may be entered under Additional Classifications above. Determination of applicable group. If a Participant shifts from one classification to another during a Plan Year, then unless selected below, the Participant is in a classification based on the Participant's status as of the last day of the Plan Year, or if earlier, the date of termination of employment. If selected below, the Administrator will apportion the Participant's allocation during a Plan Year based on the following: a. [ ] Beginning of Plan Year. The classification will be based on the Participant's status as of the beginning of the Plan Year. b. [ ] Months in each classification. Pro rata based on the number of months the Participant spent in each classification. c. [ ] Days in each classification. Pro rata based on the number of days the Participant spent in each classification. d. [ ] One classification only. The Employer will direct the Administrator to place the Participant in only one classification for the entire Plan Year during which the shift occurs. c. [X] Fixed contribution equal to (only select one): 1. [X] 11 % of each Participant's Compensation for each: a. [X] Plan Year b. [ ] calendar quarter c. [ ] month d. [ ] pay period e. [ ] week 2. [ ] $ per Participant. 3. [ ] $ per Hour of Service worked while an Eligible Employee a. [ ] up to hours (leave blank if no limit) ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 10 4. [ ] other: (the formula described must satisfy the definitely determinable requirement under Regulation §1.401-1(b)) NOTE: Under Question 24.c.4., the Employer may only describe the allocation of Nonelective Contributions from the elections available under Question 24.c of this Adoption Agreement and/or a combination thereof as to a Participant group (e.g., a monthly contribution applies to Group A). d. [ ] Sick leave/vacation leave conversion. The Employer will contribute an amount equal to an Employee's current hourly rate of pay multiplied by the Participant's number of unused accumulated sick leave and/or vacation days (as selected below). Only unpaid sick and vacation leave for which the Employee has no right to receive in cash may be included. In no event will the Employer's contribution for the Plan Year exceed the maximum contribution permitted under Code §415(c). The following may be converted under the Plan: (select one or both): 1. [ ] Sick leave 2. [ ] Vacation leave Eligible Employees. Only the following Participants shall receive the Employer contribution for sick leave and/or vacation leave (select 3. and/or 4; leave blank if no limitations provided, however, that this Plan may not be used to only provide benefits for terminated Employees) 3. [ ] Former Employees. All Employees terminating service with the Employer during the Plan Year and who have satisfied the eligibility requirements based on the terms of the Employer's accumulated benefits plans checked below (select all that apply; leave blank if no exclusions): a. [ ] The Former Employee must be at least age (e.g., 55) b. [ ] The value of the sick and/or vacation leave must be at least $ (e.g., $2,000) c. [ ] A contribution will only be made if the total hours is over (e.g., 10) hours d. [ ] A contribution will not be made for hours in excess of (e.g., 40) hours 4. [ ] Active Employees. Active Employees who have not terminated service during the Plan Year and who meet the following requirements (select all that apply; leave blank if no exclusions): a. [ ] The Employee must be at least age (e.g., 55) b. [ ] The value of the sick and/or vacation leave must be at least $ (e.g., $2,000) c. [ ] A contribution will only be made if the total hours is over (e.g., 10) hours d. [ ] A contribution will not be made for hours in excess of (e.g., 40) hours e. [X] Social Security Replacement Plan. Except as provided below, the Employer will contribute an amount equal to 7.5% of each eligible Participant's Compensation for the entire Plan Year, reduced by mandatory Employee contributions that are picked-up under Code §414(h) and Employer contributions to this Plan actually contributed to the Participant's Account during such Plan Year. (may only be selected if Question 11.b.1. has also been selected) AND, only the following Employees will NOT be eligible for the Social Security Replacement Plan contribution: (select all that apply) 1. [X] Part-time Employees who are not otherwise covered by another qualifying public retirement system as defined for purposes of Regulation §31.3121(b)(7)-2. A part-time Employee is an Employee whose regularly scheduled service is less than 1000 Hours of Service in the relevant eligibility computation period (as defined in Plan Section 1.55). 2. [ ] Seasonal Employees who are not otherwise covered by another qualifying public retirement system as defined for purposes of Regulation §31.3121(b)(7)-2. A seasonal Employee is an Employee who is categorized as a seasonal Employee on the Employer’s payroll records. 3. [ ] Temporary Employees who are not otherwise covered by another qualifying public retirement system as defined for purposes of Regulation §31.3121(b)(7)-2. A temporary Employee is an Employee who is categorized as a temporary Employee on the Employer’s payroll records. 4. [ ] Employees in elective positions (filled by an election, which may be by legislative body, board or committee, or by a jurisdiction’s qualified electorate) 5. [X] Other: All employees except regular, full-time, sworn police officers of the Town of Avon, Colorado (any other group of Employees that is definitely determinable and not eligible for the Social Security Replacement Plan contribution). The minimum contribution of 7.5% stated above will be satisfied by: a. [X] the Employee only (specify the contribution at the mandatory Employee contributions Question 30) b. [ ] the Employer only c. [ ] both the Employee and the Employer. The Employee shall contribute the amount specified in Question 30 for mandatory Employee contributions) and the Employer shall contribute % of each eligible Participant's Compensation. NOTE: If a. or c. above is selected, then the mandatory Employee contribution must be picked-up by the Employer at Question 30. Also, if b. or c. above is selected, then the allocation conditions in Question 25 below do not apply to the Employer contribution made pursuant to this provision. f. [ ] Other: (the formula described must satisfy the definitely determinable requirement under Regulation §1.401-1(b) and if this is a Money Purchase Pension, it must not be a discretionary contribution ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 11 formula). NOTE: Under Question 24.f., the Employer may only describe the allocation of Nonelective Contributions from the elections available under Question 24 and/or a combination thereof as to a Participant group or contribution type (e.g., pro rata allocation applies to Group A; contributions to other Employees will be allocated in accordance with the classifications allocation provisions of Plan Section 4.3 with each Participant constituting a separate classification). 25. ALLOCATION CONDITIONS (Plan Section 4.3). If 24.a., b., c., or f. is selected above, indicate requirements to share in allocations of Employer contributions (select a. OR b. and all that apply at c. - e.) a. [X] No conditions. All Participants share in the allocations regardless of service completed during the Plan Year or employment status on the last day of the Plan Year (skip to Question 26). b. [ ] Allocation conditions apply (select one of 1. - 5. AND one of 6. - 9. below) Conditions for Participants NOT employed on the last day of the Plan Year 1. [ ] A Participant must complete at least (not to exceed 500) Hours of Service if the actual hours/equivalency method is selected (or at least (not to exceed 3) months of service if the elapsed time method is selected). 2. [ ] A Participant must complete a Year of Service (or Period of Service if the elapsed time method is selected). 3. [ ] Participants will NOT share in the allocations, regardless of service. 4. [ ] Participants will share in the allocations, regardless of service. 5. [ ] Other: (must be definitely determinable and not subject to Employer discretion) Conditions for Participants employed on the last day of the Plan Year 6. [ ] No service requirement. 7. [ ] A Participant must complete a Year of Service (or Period of Service if the elapsed time method is selected). 8. [ ] A Participant must complete at least Hours of Service during the Plan Year. 9. [ ] Other: (must be definitely determinable and not subject to Employer discretion) Waiver of conditions for Participants NOT employed on the last day of the Plan Year. If b.1., 2., 3., or 5. above is selected, Participants who are not employed on the last day of the Plan Year in which one of the following events occur will be eligible to share in the allocations regardless of the above conditions (select all that apply; leave blank if none apply): c. [ ] Death d. [ ] Total and Permanent Disability e. [ ] Termination of employment on or after Normal Retirement Age 1. [ ] or Early Retirement Date 26. EMPLOYER MATCHING CONTRIBUTIONS (Plan Section 4.1(b)(2) and Plan Section 4.12). (skip to Question 29 if matching contributions are NOT selected at Question 11.c.) The Employer will (or may with respect to any discretionary contribution) make the following matching contributions: A. Employee contributions taken into account. For purposes of applying the matching contribution provisions below, the following amounts are being matched (hereafter referred to as "matched Employee contributions" (select one or more): a. [ ] Elective deferrals to a 457 plan. Enter Plan name(s): b. [ ] Elective deferrals to a 403(b) plan. Enter Plan name(s): c. [ ] Voluntary Employee Contributions d. [ ] Other: (specify amounts that are matched under this Plan and are provided for within this Adoption Agreement) B. Matching Formula. (select one) e. [ ] Fixed - uniform rate/amount. The Employer will make matching contributions equal to % (e.g., 50) of the Participant's "matched Employee contributions" 1. [ ] that do not exceed % of a Participant's Compensation (leave blank if no limit) Additional matching contribution (choose 2. if applicable): 2. [ ] plus an additional matching contribution of a discretionary percentage determined by the Employer, a. [ ] but not to exceed % of Compensation. Such contribution is subject to the Instructions and Notice requirement of Section 4.12. ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 12 f. [ ] Fixed - tiered. The Employer will make matching contributions equal to a uniform percentage of each tier of each Participant's "matched Employee contributions", determined as follows: NOTE: Fill in only percentages or dollar amounts, but not both. If percentages are used, each tier represents the amount of the Participant's applicable contributions that equals the specified percentage of the Participant's Compensation (add additional tiers if necessary): Tiers of Contributions Matching Percentage (indicate $ or %) First % Next % Next % Next % g. [ ] Fixed - Years of Service. The Employer will make matching contributions equal to a uniform percentage of each Participant's "matched Employee contributions" based on the Participant's Years of Service (or Periods of Service if the elapsed time method is selected), determined as follows (add additional tiers if necessary): Years (or Periods) of Service Matching Percentage % % % For purposes of the above matching contribution formula, a Year (or Period) of Service means a Year (or Period) of Service for: 1. [ ] vesting purposes 2. [ ] eligibility purposes h. [ ] Flexible Discretionary Match. (may not be elected if this Plan is a Money Purchase Pension Plan) "Flexible Discretionary Match" means a Matching Contribution which the Employer in its sole discretion elects to make to the Plan. Except as specified below, the Employer retains discretion over the formula or formulas for allocating the Flexible Discretionary Match, including the Discretionary Matching Contribution rate or amount, the limit(s) on Elective Deferrals or Employee Contributions subject to match, the per Participant match allocation limit(s), the Participants or categories of Participants who will receive the allocation, and the time period applicable to any matching formula(s) (collectively, the "Flexible Discretionary Matching Formula"), except as the Employer otherwise elects in its Adoption Agreement. Such contributions will be subject to the Instructions and Notice requirement of Section 4.12, reproduced below, unless the Employer elects to use a "Rigid Discretionary Match" in Election 26.B.h.1. below. The discretionary matching contribution under this Question 26.B.h. is a "Flexible Discretionary Match" unless the Employer elects to use a "Rigid Discretionary Match." (Choose 1. if applicable.) 1. [ ] Rigid Discretionary Match. A "Rigid Discretionary Match" means a Matching Contribution which the Employer in its sole discretion elects to make to the Plan. Such discretion will only pertain to the amount of the annual contribution. The Employer must select the allocation method for this Contribution by selecting among those Adoption Agreement options which confer no Employer Discretion regarding the allocation of such discretionary amount, for example, the limit(s) on Elective Deferrals or Employee Contributions subject to match, the per Participant match allocation limit(s), the Participants who will receive the allocation, and the time period applicable to any matching formula(s). This "Rigid Discretionary Match" is not subject to the Instructions and Notice requirement of Section 4.12. Section 4.12 provides: INSTRUCTIONS TO ADMINISTRATOR AND NOTIFICATION TO PARTICIPANTS. For Plan Years beginning after the end of the Plan Year in which this document is first adopted, if a "Flexible Discretionary Match" contribution formula applies (i.e., a formula that provides an Employer with discretion regarding how to allocate a matching contribution to Participants) and the Employer makes a "Flexible Discretionary Match" to the Plan, the Employer must provide the Plan Administrator or Trustee written instructions describing (1) how the "Flexible Discretionary Match" formula will be allocated to Participants (e.g., a uniform percentage of Elective Deferrals or a flat dollar amount), (2) the computation period(s) to which the "Flexible Discretionary Match" formula applies, and (3) if applicable, a description of each business location or business classification subject to separate "Flexible Discretionary Match" allocation formulas. Such instructions must be provided no later than the date on which the "Flexible Discretionary Match" is made to the Plan. A summary of these instructions must be communicated to Participants who receive an allocation of the "Flexible Discretionary Match" no later than 60 days following the date on which the last "Flexible Discretionary Match" contribution is made to the Plan for the Plan Year. i. [ ] Discretionary - tiered. (may not be elected if this Plan is a Money Purchase Pension Plan) The Employer may make matching contributions equal to a discretionary percentage of a Participant's "matched Employee contributions," to be determined by the Employer, of each tier, to be determined by the Employer. Such discretion will only pertain to the ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 13 amount of the contribution. The tiers may be based on the rate of a Participant's "matched Employee contributions" or Years of Service. Such contribution is subject to the Instructions and Notice requirement of Section 4.12. NOTE: Fill in only percentages or dollar amounts, but not both. If percentages are used, each tier represents the amount of the Participant's applicable contributions that equals the specified percentage of the Participant's Compensation (add additional tiers if necessary): Tiers of Contributions Matching Percentage (indicate $ or %) First % Next % Next % Next % j. [ ] Other: (the formula described must satisfy the definitely determinable requirement under Regulation §1.401-1(b) and if this is a Money Purchase Pension Plan, it must not be a discretionary contribution formula. NOTE: Under Question 26.B.j., the Employer may only describe the allocation of Matching Contributions from the elections available under Question 26 and/or a combination thereof as to a Participant group or contribution type (e.g., fixed – uniform rate applies to Group A; contributions to other Employees will be allocated as a tiered contribution.) 27. MATCHING CONTRIBUTION PROVISIONS A. Maximum matching contribution. The total matching contribution made on behalf of any Participant for any Plan Year will not exceed: a. [ ] N/A (no Plan specific limit on the amount of matching contribution) b. [ ] $ . c. [ ] % of Compensation. B. Period of determination. Any matching contribution other than a "Flexible Discretionary Match" will be applied on the following basis (and "matched Employee contributions" and any Compensation or dollar limitation used in determining the matching contribution will be based on the applicable period. Skip if the only Matching Contribution is a Flexible Discretionary Match.): d. [ ] the Plan Year (potential annual true-up required) e. [ ] each payroll period (no true-up) f. [ ] each month (potential monthly true-up required) g. [ ] each Plan Year quarter (potential quarterly true-up required) h. [ ] each payroll unit (e.g., hour) (no true-up) i. [ ] Other (specify): The time period described must be definitely determinable under Treas. Reg. §1.401-1(b). This line may be used to apply different options to different matching contributions (e.g., Discretionary matching contributions will be allocated on a Plan Year period while fixed matching contributions will be allocated on each payroll period.) Such contribution period is subject to the Instructions and Notice requirement of Section 4.12. 28. ALLOCATION CONDITIONS (Plan Section 4.3) Select a. OR b. and all that apply of c. - h. a. [ ] No conditions. All Participants share in the allocations regardless of service completed during the Plan Year or employment status on the last day of the Plan Year (skip to Question 29). b. [ ] Allocation conditions apply (select one of 1. - 5. AND one of 6. - 9. below) Conditions for Participants NOT employed on the last day of the Plan Year. 1. [ ] A Participant must complete more than Hours of Service (or months of service if the elapsed time method is selected). 2. [ ] A Participant must complete a Year of Service (or Period of Service if the elapsed time method is selected). 3. [ ] Participants will NOT share in the allocations, regardless of service. 4. [ ] Participants will share in the allocations, regardless of service. 5. [ ] Other: (must be definitely determinable) Conditions for Participants employed on the last day of the Plan Year 6. [ ] No service requirement. 7. [ ] A Participant must complete a Year of Service (or Period of Service if the elapsed time method is selected). 8. [ ] A Participant must complete at least Hours of Service during the Plan Year. 9. [ ] Other: (must be definitely determinable and not subject to Employer discretion) Waiver of conditions for Participants NOT employed on the last day of the Plan Year. If b.1., 2., 3., or 5. is selected, Participants who are not employed on the last day of the Plan Year in which one of the following events occur will be eligible to share in the allocations regardless of the above conditions (select all that apply; leave blank if none apply): c. [ ] Death d. [ ] Total and Permanent Disability e. [ ] Termination of employment on or after Normal Retirement Age 1. [ ] or Early Retirement Date ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 14 Conditions based on period other than Plan Year. The allocation conditions above will be applied based on the Plan Year unless otherwise selected below. If selected, the above provisions will be applied by substituting the term Plan Year with the specified period (e.g., if Plan Year quarter is selected below and the allocation condition is 250 Hours of Service per quarter, enter 250 hours (not 1000) at b.8. above). f. [ ] The Plan Year quarter. g. [ ] Payroll period. h. [ ] Other: (must be definitely determinable and not subject to Employer discretion and may not be longer than a twelve month period). 29. FORFEITURES (Plan Sections 1.21 and 4.3(e)) Timing of Forfeitures. Except as provided in Plan Section 1.21, a Forfeiture will occur: a. [ ] N/A (may only be selected if all contributions are fully Vested (default provisions at Plan Section 4.3(e) apply)) b. [X] As of the earlier of (1) the last day of the Plan Year in which the former Participant incurs five (5) consecutive 1-Year Breaks in Service, or (2) the distribution of the entire Vested portion of the Participant's Account. c. [ ] As of the last day of the Plan Year in which the former Participant incurs five (5) consecutive 1-Year Breaks in Service. d. [ ] As soon as reasonably practical after the date the Participant severs employment. Use of Forfeitures. (skip if this is NOT a Money Purchase Pension Plan; for Profit Sharing Plans, Forfeitures are disposed of in accordance with Employer direction that is consistent with Section 4.3(e)). Forfeitures will be (select one): e. [ ] added to the Employer contribution and allocated in the same manner f. [ ] used to reduce any Employer contribution g. [ ] allocated to all Participants eligible to share in the allocations of Employer contributions or Forfeitures in the same proportion that each Participant's Compensation for the Plan Year bears to the Compensation of all Participants for such year h. [X] other: Forfeitures will be used first to pay plan expenses and then to offset Employer Contributions. The Employer has discretion as to when the forfeitures will be applied. (describe the treatment of Forfeitures in a manner that is definitely determinable and that is not subject to Employer discretion) 30. MANDATORY EMPLOYEE CONTRIBUTIONS (Plan Section 4.8) (skip if mandatory Employee contributions NOT selected at Question 11.d.) Type of mandatory Employee Contribution. The mandatory Employee contribution is being made in accordance with the following: (select one) a. [X] The mandatory Employee contribution is a condition of employment. b. [ ] The Employee must make, on or before first being eligible to participate under any Plan of the Employer, an irrevocable election to contribute the mandatory Employee contribution to the Plan. No Eligible Employee will become a Participant unless the Employee makes such an irrevocable election. Amount of mandatory Employee Contribution (select one) c. [X] An Eligible Employee must contribute to the Plan 11 % (not to exceed 25%) of Compensation. d. [ ] An Eligible Employee must, prior to his or her first Entry Date, make a one-time irrevocable election to contribute to the Plan from % (not less than 1%) to % (not to exceed 25%) of Compensation. Conditions of Mandatory Employee Contributions e. [ ] Additional provisions and conditions: (must be definitely determinable; e.g., Only full-time Employees must make mandatory Employee contributions) Employer pick-up contribution. The mandatory Employee contribution is "picked-up" by the Employer under Code §414(h)(2) unless elected below. (select if applicable) f. [ ] The mandatory Employee contribution is not "picked-up" by the Employer. DISTRIBUTIONS 31. FORM OF DISTRIBUTIONS (Plan Sections 6.5 and 6.6) Distributions under the Plan may be made in (select all that apply; must select at least one): a. [X] lump-sums b. [X] substantially equal installments c. [ ] partial withdrawals, provided the minimum withdrawal is $ (leave blank if no minimum) d. [ ] partial withdrawals or installments are only permitted for Participants or Beneficiaries who must receive required minimum distributions under Code §401(a)(9) except for the following (leave blank if no exceptions): 1. [ ] Only Participants (and not Beneficiaries) may elect partial withdrawals or installments 2. [ ] Other: (e.g., partial is not permitted for death benefits. Must be definitely determinable and not subject to Employer discretion.) ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 15 e. [ ] annuity: (describe the form of annuity or annuities) f. [ ] other: (must be definitely determinable and not subject to Employer discretion) NOTE: Regardless of the above, a Participant is not required to request a withdrawal of his or her total Account for an in-service distribution, a hardship distribution, or a distribution from the Participant's Rollover Account. Cash or property. Distributions may be made in: g. [X] cash only, except for (select all that apply; leave blank if none apply): 1. [ ] insurance Contracts 2. [ ] annuity Contracts 3. [ ] Participant loans 4. [ ] all investments in an open brokerage window or similar arrangement h. [ ] cash or property, except that the following limitation(s) apply: (leave blank if there are no limitations on property distributions): 1. [ ] (must be definitely determinable and not subject to Employer discretion) Joint and Survivor Annuity provisions. (Plan Sections 6.5(e) and 6.6(e) (select one) The Joint and Survivor Annuity provisions do not apply to the Plan unless selected below (choose if applicable) i. [ ] Joint and Survivor Annuity applicable as normal form of distribution. The Joint and Survivor annuity rules set forth in Plan Sections 6.5(e) and 6.5(f) apply to all Participants (if selected, then annuities are a form of distribution under the Plan even if e. above is not selected) j. [ ] Joint and Survivor Annuity rules apply based on Participant election. Plan Section 6.5(f) will apply and the joint and survivor rules of Code §§401(a)(11) and 417 (as set forth in Plan Sections 6.5(e) and 6.6(e) will apply only if an annuity form of distribution is selected by a Participant. AND, if i. or j. is selected above, the one-year marriage rule does not apply unless selected below (choose if applicable). 1. [ ] The one-year marriage rule applies. Spousal consent requirements. Spousal consent is not required for any Plan provisions (except as otherwise elected in i. above for the joint and survivor annuity rules) unless selected below (choose if applicable) k. [ ] Required for all distributions. A Spouse must consent to all distributions (other than required minimum distributions). l. [ ] Beneficiary designations. A married Participant's Spouse will be the Beneficiary of the entire death benefit unless the Spouse consents to an alternate Beneficiary. AND, if k. or l. is selected, the one-year marriage rule does not apply unless selected below (choose if applicable). 1. [ ] The one-year marriage rule applies. 32. CONDITIONS FOR DISTRIBUTIONS UPON SEVERANCE OF EMPLOYMENT. Distributions upon severance of employment pursuant to Plan Section 6.4(a) will not be made unless the following conditions have been satisfied: A. Accounts in excess of $5,000 a. [X] Distributions may be made as soon as administratively feasible following severance of employment. b. [ ] Distributions may be made as soon as administratively feasible after the last day of the Plan Year coincident with or next following severance of employment. c. [ ] Distributions may be made as soon as administratively feasible after the last day of the Plan Year quarter coincident with or next following severance of employment. d. [ ] Distributions may be made as soon as administratively feasible after the Valuation Date coincident with or next following severance of employment. e. [ ] Distributions may be made as soon as administratively feasible after months have elapsed following severance of employment. f. [ ] No distributions may be made until a Participant has reached Early or Normal Retirement Date. g. [ ] Other: (must be objective conditions which are ascertainable and may not exceed the limits of Code §401(a)(14) as set forth in Plan Section 6.7) B. Accounts of $5,000 or less h. [X] Same as above i. [ ] Distributions may be made as soon as administratively feasible following severance of employment. j. [ ] Distributions may be made as soon as administratively feasible after the last day of the Plan Year coincident with or next following severance of employment. k. [ ] Other: (must be objective conditions which are ascertainable and may not exceed the limits of Code §401(a)(14) as set forth in Plan Section 6.7) C. Timing after initial distributable event. If a distribution is not made in accordance with the above provisions upon the occurrence of the distributable event, then a Participant may elect a subsequent distribution at any time after the time the amount ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 16 was first distributable (assuming the amount is still distributable), unless otherwise selected below (may not be selected with 32.f. and 32.h.): l. [ ] Other: (e.g., a subsequent distribution request may only be made in accordance with l. above (i.e., the last day of another Plan Year); must be objective conditions which are ascertainable and may not exceed the limits of Code §401(a)(14) as set forth in Plan Section 6.7) D. Participant consent (i.e., involuntary cash-outs). Should Vested Account balances less than a certain dollar threshold be automatically distributed without Participant consent (mandatory distributions)? NOTE: The Plan provides that distributions of amounts of $5,000 or less are only paid as lump-sums. m. [ ] No, Participant consent is required for all distributions. n. [X] Yes, Participant consent is required only if the distribution is over: 1. [X] $5,000 2. [ ] $1,000 3. [ ] $ (less than $1,000) NOTE: If 2. or 3. is selected, rollovers will be included in determining the threshold for Participant consent. Automatic IRA rollover. With respect to mandatory distributions of amounts that are $1,000 or less, if a Participant makes no election, the amount will be distributed as a lump-sum unless selected below. 4. [ ] If a Participant makes no election, then the amount will be automatically rolled over to an IRA provided the amount is at least $ (e.g., $200). E. Rollovers in determination of $5,000 threshold. Unless otherwise elected below, amounts attributable to rollover contributions (if any) will be included in determining the $5,000 threshold for timing of distributions, form of distributions, or consent rules. o. [ ] Exclude rollovers (rollover contributions will be excluded in determining the $5,000 threshold) NOTE: Regardless of the above election, if the Participant consent threshold is $1,000 or less, then the Administrator must include amounts attributable to rollovers for such purpose. In such case, an election to exclude rollovers above will apply for purposes of the timing and form of distributions. 33. DISTRIBUTIONS UPON DEATH (Plan Section 6.8(b)(2)) Distributions upon the death of a Participant prior to the "required beginning date" will: a. [X] be made pursuant to the election of the Participant or "designated Beneficiary" b. [ ] begin within 1 year of death for a "designated Beneficiary" and be payable over the life (or over a period not exceeding the "life expectancy") of such Beneficiary, except that if the "designated Beneficiary" is the Participant's Spouse, begin prior to December 31st of the year in which the Participant would have attained age 70 1/2 c. [ ] be made within 5 (or if lesser ) years of death for all Beneficiaries d. [ ] be made within 5 (or if lesser ) years of death for all Beneficiaries, except that if the "designated Beneficiary" is the Participant's Spouse, begin prior to December 31st of the year in which the Participant would have attained age 70 1/2 and be payable over the life (or over a period not exceeding the "life expectancy") of such "surviving Spouse" NOTE: The elections above must be coordinated with the Form of distributions (e.g., if the Plan only permits lump-sum distributions, then options a., b. and d. would not be applicable). 34. OTHER PERMITTED DISTRIBUTIONS (select all that apply; leave blank if none apply) A. IN-SERVICE DISTRIBUTIONS (Plan Section 6.11) In-service distributions will NOT be allowed (except as otherwise permitted under the Plan without regard to this provision) unless selected below (if applicable, answer a. - e.; leave blank if not applicable): a. [X] In-service distributions may be made to a Participant who has not separated from service provided the following has been satisfied (select one or more) (options 2. - 5. may only be selected with Profit Sharing Plans): 1. [X] Age. The Participant has reached: (select one) a. [X] Normal Retirement Age b. [ ] age 62 c. [ ] age 59 1/2 (may not be selected if a Money Purchase Pension Plan) d. [ ] age (may not be less than age 62 for Money Purchase Pension Plans) 2. [ ] the Participant has been a Participant in the Plan for at least years (may not be less than five (5)) 3. [ ] the amounts being distributed have accumulated in the Plan for at least 2 years 4. [ ] other: (must satisfy the definitely determinable requirement under Regulations §401-1(b); may not be subject to Employer discretion; and must be limited to a combination of items a.1. – a.3. or a Participant's disability).) More than one condition. If more than one condition is selected above, then a Participant only needs to satisfy one of the conditions, unless selected below: 5. [ ] A Participant must satisfy each condition NOTE: Distributions from a Transfer Account attributable to a Money Purchase Pension Plan are not permitted prior to age 62. ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 17 Account restrictions. In-service distributions are permitted from the following Participant Accounts: b. [X] all Accounts c. [ ] only from the following Accounts (select one or more): 1. [ ] Account attributable to Employer matching contributions 2. [ ] Account attributable to Employer contributions other than matching contributions 3. [ ] Rollover Account 4. [ ] Transfer Account Permitted from the following assets attributable to (select one or both): a. [ ] non-pension assets b. [ ] pension assets (e.g., from a Money Purchase Pension Plan) 5. [ ] Mandatory Employee Contribution Account 6. [ ] Other: (specify Account(s) and conditions in a manner that satisfies the definitely determinable requirement under Regulation §1.401-1(b) and is not subject to Employer discretion) Limitations. The following limitations apply to in-service distributions: d. [X] N/A (no additional limitations) e. [ ] Additional limitations (select one or more): 1. [ ] The minimum amount of a distribution is $ . 2. [ ] No more than distribution(s) may be made to a Participant during a Plan Year. 3. [ ] Distributions may only be made from Accounts which are fully Vested. 4. [ ] In-service distributions may be made subject to the following provisions: (must satisfy the definitely determinable requirement under Regulation §1.401-1(b) and not be subject to Employer discretion). B. HARDSHIP DISTRIBUTIONS (Plan Sections 6.12) (may not be selected if this is a Money Purchase Pension Plan) Hardship distributions will NOT be allowed (except as otherwise permitted under the Plan without regard to this provision) unless selected below (leave blank if not applicable): f. [ ] Hardship distributions are permitted from the following Participant Accounts: 1. [ ] all Accounts 2. [ ] only from the following Accounts (select one or more): a. [ ] Account attributable to Employer matching contributions b. [ ] Account attributable to Employer contributions other than matching contributions c. [ ] Rollover Account (if not available at any time under Question 36) d. [ ] Transfer Account (other than amounts attributable to a money purchase pension plan) e. [ ] Mandatory Employee Contribution Account f. [ ] Other: (specify Account(s) and conditions in a manner that is definitely determinable and not subject to Employer discretion) NOTE: Hardship distributions are NOT permitted from a Transfer Account attributable to pension assets (e.g., from a Money Purchase Pension Plan). Additional limitations. The following limitations apply to hardship distributions: 3. [ ] N/A (no additional limitations) 4. [ ] Additional limitations (select one or more): a. [ ] The minimum amount of a distribution is $ . b. [ ] No more than distribution(s) may be made to a Participant during a Plan Year. c. [ ] Distributions may only be made from Accounts which are fully Vested. d. [ ] A Participant does not include a Former Employee at the time of the hardship distribution. e. [ ] Hardship distributions may be made subject to the following provisions: (must satisfy the definitely determinable requirement under Regulation §1.401-1(b) and not be subject to Employer discretion). Beneficiary Hardship. Hardship distributions for Beneficiary expenses are NOT allowed unless otherwise selected below. 5. [ ] Hardship distributions for expenses of Beneficiaries are allowed Special effective date (may be left blank if effective date is same as the Plan or Restatement Effective Date; select a. and, if applicable, b.) a. [ ] effective as of b. [ ] eliminated effective as of . ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 18 MISCELLANEOUS 35. LOANS TO PARTICIPANTS (Plan Section 7.4) a. [ ] New loans are NOT permitted. b. [X] New loans are permitted. NOTE: Regardless of whether new loans are permitted, if the Plan permits rollovers and/or plan-to-plan transfers, then the Administrator may, in a uniform manner, accept rollovers and/or plan-to-plan transfers of loans into this Plan. 36. ROLLOVERS (Plan Section 4.6) (skip if rollover contributions are NOT selected at 11.f.) Eligibility. Rollovers may be accepted from all Participants who are Employees as well as the following (select all that apply; leave blank if not applicable): a. [X] Any Eligible Employee, even prior to meeting eligibility conditions to be a Participant b. [ ] Participants who are Former Employees Distributions. When may distributions be made from a Participant's Rollover Account? c. [X] At any time d. [ ] Only when the Participant is otherwise entitled to any distribution under the Plan 37. HEART ACT (Plan Section 4.11) (select one or more) a. [ ] HEART ACT Continued benefit accruals. Continued benefit accruals will apply b. [X] Distributions for deemed severance of employment. The Plan permits distributions for deemed severance of employment. ATTACHMENT A Non-Standardized Governmental 401(a) © 2020 FIS Business Systems LLC or its suppliers 19 Reliance on Provider Opinion Letter. The Provider has obtained from the IRS an Opinion Letter specifying the form of this document satisfies Code §401 as of the date of the Opinion Letter. An adopting Employer may rely on the Provider’s IRS Opinion Letter only to the extent provided in Rev. Proc. 2017-41 or subsequent guidance. The Employer may not rely on the Opinion Letter in certain other circumstances or with respect to certain qualification requirements, which are specified in the Opinion Letter and in Rev. Proc. 2017-41 or subsequent guidance. In order to have reliance in such circumstances or with respect to such qualification requirements, the Employer must apply for a determination letter to Employee Plans Determinations of the IRS. An Employer who has ever maintained or who later adopts an individual medical account, as defined in Code §415(l)(2)) in addition to this Plan may not rely on the opinion letter issued by the Internal Revenue Service with respect to the requirements of Code§415. This Adoption Agreement may be used only in conjunction with the basic Plan document #03. This Adoption Agreement and the basic Plan document will together be known as FIS Business Systems LLC Non-Standardized Governmental 401(a) Pre-Approved Plan #03-001. The adoption of this Plan, its qualification by the IRS, and the related tax consequences are the responsibility of the Employer and its independent tax and legal advisors. Execution for Page Substitution Amendment Only. If this paragraph is completed, this Execution Page documents an amendment to Adoption Agreement Election(s) effective , by substitute Adoption Agreement page number(s) . The Employer should retain all Adoption Agreement Execution Pages and amended pages. (Note: The Effective Date may be retroactive or may be prospective.) The Provider, Eileen Shaw will notify the Employer of any amendment to this Pre-approved Plan or of any abandonment or discontinuance by the Provider of its maintenance of this Pre-approved Plan. In addition, this Plan is provided to the Employer either in connection with investment in a product or pursuant to a contract or other arrangement for products and/or services. Upon cessation of such investment in a product or cessation of such contract or arrangement, as applicable, the Employer is no longer considered to be an adopter of this Plan and FIS Business Systems LLC no longer has any obligations to the Employer that relate to the adoption of this Plan. For inquiries regarding the adoption of the Pre-approved Plan, the Provider's intended meaning of any Plan provisions or the effect of the Opinion Letter issued to the Provider, please contact the Provider or the Provider’s representative. Provider Name: Creative Retirement Plan Consulting LLC Address: 2000 S. Colorado Blvd., Tower 1 Denver Colorado 80222 Telephone Number: 7205514162 Email address (optional): Eileen.Shaw@CreativeRPC.com The Employer, by executing below, hereby adopts this Plan (add additional signature lines as needed). NOTE: If more than one Plan type is adopted, the Plan Provider must provide multiple plan documents for Employer signature. EMPLOYER: Town of Avon By: DATE SIGNED ATTACHMENT A APPENDIX A SPECIAL EFFECTIVE DATES AND OTHER PERMITTED ELECTIONS A. Special effective dates (leave blank if not applicable): a. [ ] Special effective date(s): . For periods prior to the specified special effective date(s), the Plan terms in effect prior to its restatement under this Adoption Agreement will control for purposes of the designated provisions. A special effective date may not result in the delay of a Plan provision beyond the permissible effective date under any applicable law. (The Employer has reliance on the IRS Opinion Letter only if the features described in the preceding sentence constitute protected benefits within the meaning of Code Section 411(d)(6) and the regulations thereunder, and only if such features are permissible in a "Cycle 3" preapproved plan, i.e., the features are not specifically prohibited by Revenue Procedure 2017-41 (or any superseding guidance) B. Other permitted elections (the following elections are optional): a. [ ] No other permitted elections The following elections apply (select one or more): b. [ ] Deemed 125 compensation (Plan Section 1.23). Deemed 125 compensation will be included in Compensation and 415 Compensation. c. [X] Break-in-Service Rules. The following Break-in-Service rules apply to the Plan.(select 1. or 2.) 1. [ ] Reemployed after five (5) 1-Year Breaks in Service ("rule of parity" provisions) (Plan Section 3.5(e)). The "rule of parity" provisions in Plan Section 3.5(d) will apply for (select one or both): a. [ ] eligibility purposes b. [ ] vesting purposes 2. [X] Break-in-Service rules for rehired Employees. The following Break-in-Service rules set forth in Plan Sections 3.2 and 3.5 apply: (select one or both) a. [X] all Break-in-Service rules set forth in such Sections. b. [ ] only the following: (specify which provisions apply to the Plan) d. [ ] Beneficiary if no beneficiary elected by Participant (Plan Section 6.2(f)). In the event no valid designation of Beneficiary exists, then in lieu of the order set forth in Plan Section 6.2(f), the following order of priority will be used: (specify an order of beneficiaries; e.g., children per stirpes, parents, and then step-children). e. [ ] Joint and Survivor Annuity/Pre-Retirement Survivor Annuity. If the Plan applies the Joint and Survivor Annuity rules, then the normal form of annuity will be a joint and 50% survivor annuity (i.e., if 31.i. or 31.j. is selected) and the Pre-Retirement Survivor Annuity will be equal to 50% of a Participant's interest in the Plan unless selected below (select 1. and/or 2.) 1. [ ] Normal form of annuity. Instead of a joint and 50% survivor annuity, the normal form of the qualified Joint and Survivor Annuity will be: (select one) a. [ ] joint and 100% survivor annuity b. [ ] joint and 75% survivor annuity c. [ ] joint and 66 2/3% survivor annuity 2. [ ] Pre-Retirement Survivor Annuity. The Pre-Retirement Survivor Annuity (minimum Spouse's death benefit) will be equal to 50% of a Participant's interest in the Plan unless a different percentage is selected below: (select one) a. [ ] 100% of a Participant's interest in the Plan. b. [ ] % (may not be less than 50%) of a Participant's interest in the Plan. f. [ ] Limitation Year (Plan Section 1.30). The Limitation Year for Code §415 purposes will be (must be a consecutive twelve month period) instead of the "determination period" for Compensation. g. [ ] 415 Limits when 2 defined contribution plans are maintained (Plan Section 4.4). If any Participant is covered under another qualified defined contribution plan maintained by the Employer or an Affiliated Employer, or if the Employer or an Affiliated Employer maintains a welfare benefit fund, as defined in Code §419(e), or an individual medical account, as defined in Code §415(l)(2), under which amounts are treated as "annual additions" with respect to any Participant in this Plan, then the provisions of Plan Section 4.4(b) will apply unless otherwise specified below: 1. [ ] Specify, in a manner that precludes Employer discretion, the method under which the plans will limit total "annual additions" to the "maximum permissible amount" and will properly reduce any "excess amounts": . h. [ ] Recognition of Service with other employers (Plan Sections 1.40 and 1.55). Service with the following employers (in addition to those specified at Question 15) will be recognized as follows (select one or more): Contribution Eligibility Vesting Allocation 1. [ ] Employer name: a. [ ] b. [ ] c. [ ] 2. [ ] Employer name: a. [ ] b. [ ] c. [ ] ATTACHMENT A 3. [ ] Employer name: a. [ ] b. [ ] c. [ ] 4. [ ] Employer name: a. [ ] b. [ ] c. [ ] 5. [ ] Employer name: a. [ ] b. [ ] c. [ ] 6. [ ] Employer name: a. [ ] b. [ ] c. [ ] Limitations 7. [ ] The following provisions or limitations apply with respect to the a. [ ] b. [ ] c. [ ] recognition of prior service: (e.g., credit service with X only on/following 1/1/19) i. [ ] Other vesting provisions. The following vesting provisions apply to the Plan (select one or more): 1. [ ] Special vesting provisions. The following special provisions apply to the vesting provisions of the Plan: (must be definitely determinable and satisfy the parameters set forth at Question 17) 2. [ ] Pre-amendment vesting schedule. (Plan Section 6.4(b)). If the vesting schedule has been amended and a different vesting schedule other than the schedule at Question 17 applies to any Participants, then the following provisions apply (must select one of a. – d.): Applicable Participants. The vesting schedules in Question 17 only apply to: a. [ ] Participants who are Employees as of (enter date). b. [ ] Participants in the Plan who have an Hour of Service on or after (enter date). c. [ ] Participants (even if not an Employee) in the Plan on or after (enter date). d. [ ] Other: (e.g., Participants in division A. Must be definitely determinable.) j. [ ] Minimum distribution transitional rules (Plan Section 6.8(e)(5)) NOTE: This Section does not apply to (1) a new Plan, (2) an amendment or restatement of an existing Plan that never contained the provisions of Code §401(a)(9) as in effect prior to the amendments made by the Small Business Job Protection Act of 1996 (SBJPA), or (3) a Plan where the transition rules below do not affect any current Participants. The "required beginning date" for a Participant is: 1. [ ] April 1st of the calendar year following the year in which the Participant attains age 70 1/2. (pre-SBJPA rules continue to apply) 2. [ ] April 1st of the calendar year following the later of the year in which the Participant attains age 70 1/2 or retires (the post-SBJPA rules), with the following exceptions (select one or both; leave blank if both applied effective as of January 1, 1996): a. [ ] A Participant who was already receiving required minimum distributions under the pre-SBJPA rules as of (may not be earlier than January 1, 1996) was allowed to stop receiving distributions and have them recommence in accordance with the post-SBJPA rules. Upon the recommencement of distributions, if the Plan permits annuities as a form of distribution then the following apply: 1. [ ] N/A (annuity distributions are not permitted) 2. [ ] Upon the recommencement of distributions, the original Annuity Starting Date will be retained. 3. [ ] Upon the recommencement of distributions, a new Annuity Starting Date is created. b. [ ] A Participant who had not begun receiving required minimum distributions as of (may not be earlier than January 1, 1996) may elect to defer commencement of distributions until retirement. The option to defer the commencement of distributions (i.e., to elect to receive in-service distributions upon attainment of age 70 1/2) applies to all such Participants unless selected below: 1. [ ] The in-service distribution option was eliminated with respect to Participants who attained age 70 1/2 in or after the calendar year that began after the later of (1) December 31, 1998, or (2) the adoption date of the restatement to bring the Plan into compliance with the SBJPA. k. [ ] Other spousal provisions (select one or more) 1. [ ] Definition of Spouse. The term Spouse includes a spouse under federal law as well as the following: . 2. [ ] Automatic revocation of spousal designation (Plan Section 6.2(g)). The automatic revocation of a spousal Beneficiary designation in the case of divorce does not apply. 3. [ ] Timing of QDRO payment. A distribution to an Alternate Payee shall not be permitted prior to the time a Participant would be entitled to a distribution. l. [ ] Applicable law. Instead of using the applicable laws set forth in Plan Section 9.4(a), the Plan will be governed by the laws of: ATTACHMENT A m. [X] Total and Permanent Disability. Instead of the definition at Plan Section 1.50, Total and Permanent Disability means: For purposes of authorizing a disability retirement, the Board will generally defer to the Colorado Fire and Police Pension Association's determination of Disability. However, for purposes of accelerated vesting of Employer Contributions, Disability means "Permanent Occupational Disability as the term is defined in applicable Colorado statutes and the FPPA Regulations. Further, for vesting to accelerate the Permanent Occupation Disability must be the actual and sole reason for termination of employment with the Town of Avon. (must be definitely determinable). n. [ ] Inclusion of Reclassified Employees (Plan Section 1.17(a)). The Employer does not exclude Reclassified Employees subject to the following provisions: (leave blank if not applicable): o. [ ] Claims procedures (Plan Section 2.10). The claims procedures forth in Plan Section 2.10(a) – (b) apply unless otherwise elected below or unless the Administrator has operationally adopted alternative procedures. 1. [ ] The claims procedures set forth in Plan Section 2.10(c) – (g) apply instead of Plan Section 2.10(a). 2. [ ] The claims procedures set forth in Plan Section 2.10(c)-(g) apply as follows: (specify which provisions apply and/or modified) p. [ ] Age 62 In-Service Distributions For Transferred Money Purchase Assets (Plan Section 6.11) In-service distributions will be allowed for Participants at age 62. (applies only for Transfer Accounts from a Money Purchase Pension Plan) (skip this question if the Plan is a Money Purchase Pension Plan or if in-service distributions are already permitted for Transferred Accounts at Question 34) Limitations. The following limitations apply to these in-service distributions: 1. [ ] The Plan already provides for in-service distributions and the restrictions set forth in the Plan (e.g., minimum amount of distributions or frequency of distributions) are applicable to in-service distributions at age 62. 2. [ ] N/A (no limitations) 3. [ ] The following elections apply to in-service distributions at age 62 (select one or more): a. [ ] The minimum amount of a distribution is $ (may not exceed $1,000). b. [ ] No more than distribution(s) may be made to a Participant during a Plan Year. c. [ ] Distributions may only be made from Accounts which are fully Vested. d. [ ] In-service distributions may be made subject to the following provisions: (must be definitely determinable and not subject to discretion). q. [ ] QLACs. (Plan Section 6.8(e)(4) A Participant may elect a QLAC (as defined in Plan Section 6.8(e)(4)) or any alternative form of annuity permitted pursuant to a QLAC in which the Participant’s Account has been invested. ATTACHMENT A Non-Standardized Governmental 401(a) ADMINISTRATIVE PROCEDURES The following are optional administrative provisions. The Administrator may implement procedures that override any elections in this Section without a formal Plan amendment. In addition, modifications to these procedures will not affect an Employer's reliance on the Plan. A. Loan Limitations. (complete only if loans to Participants are permitted; leave blank if none apply) a. [X] Limitations (select one or more): 1. [X] Loans will be treated as Participant directed investments. 2. [ ] Loans will only be made for hardship or financial necessity as specified below (select a. or b.) a. [ ] hardship reasons specified in Plan Section 6.12 b. [ ] financial necessity (as defined in the loan program). 3. [X] The minimum loan will be $ 1,000 . 4. [X] A Participant may only have 3 (e.g., one (1)) loan(s) outstanding at any time. 5. [X] All outstanding loan balances will become due and payable in their entirety upon the occurrence of a distributable event (other than satisfaction of the conditions for an in-service distribution (including a hardship distribution), if applicable). 6. [ ] The home loan term will be years. (if not selected, the Administrator establishes the term for repayment of a home loan) 7. [ ] Account restrictions. Loans will only be permitted from the following Participant Accounts (select all that apply or leave blank if no limitations apply): a. [ ] Account(s) attributable to Employer matching contributions b. [ ] Account attributable to Employer contributions other than matching contributions c. [ ] Rollover Account d. [ ] Transfer Account e. [ ] Other: AND, if loans are restricted to certain accounts, the limitations of Code §72(p) will be applied: f. [ ] by determining the limits by only considering the restricted accounts. g. [ ] by determining the limits taking into account a Participant's entire interest in the Plan. Additional Loan Provisions (select all that apply; leave blank if none apply) b. [X] Loan payments. Loans are repaid by (if left blank, then payroll deduction applies unless Participant is not subject to payroll (e.g., partner who only has a draw)): 1. [X] payroll deduction 2. [ ] ACH (Automated Clearing House) 3. [ ] check a. [ ] Only for prepayment c. [X] Interest rate. Loans will be granted at the following interest rate (if left blank, then 3. below applies): 1. [ ] percentage points over the prime interest rate 2. [ ] % 3. [X] the Administrator establishes the rate at the time the loan is made d. [ ] Refinancing. Loan refinancing is allowed. B. Life Insurance. (Plan Section 7.5) a. [X] Life insurance may not be purchased. b. [ ] Life insurance may be purchased... 1. [ ] at the option of the Administrator 2. [ ] at the option of the Participant Limitations 3. [ ] N/A (no limitations) 4. [ ] The purchase of initial or additional life insurance will be subject to the following limitations (select one or more): a. [ ] Each initial Contract will have a minimum face amount of $ . b. [ ] Each additional Contract will have a minimum face amount of $ . c. [ ] The Participant has completed Years (or Periods) of Service. d. [ ] The Participant has completed Years (or Periods) of Service while a Participant in the Plan. e. [ ] The Participant is under age on the Contract issue date. f. [ ] The maximum amount of all Contracts on behalf of a Participant may not exceed $ . g. [ ] The maximum face amount of any life insurance Contract will be $ . C. Plan Expenses. Will the Plan assess against an individual Participant's Account certain Plan expenses that are incurred by, or are attributable to, a particular Participant based on use of a particular Plan service? a. [ ] No b. [X] Yes ATTACHMENT A Non-Standardized Governmental 401(a) Use of Forfeitures Forfeitures of Employer contributions other than matching contributions will be: c. [ ] added to the Employer contribution and allocated in the same manner d. [ ] used to reduce any Employer contribution e. [ ] allocated to all Participants eligible to share in the allocations of Employer contributions or Forfeitures in the same proportion that each Participant's Compensation for the Plan Year bears to the Compensation of all Participants for such year f. [ ] other: (describe the treatment of Forfeitures in a manner that is definitely determinable and not subject to Employer discretion) Forfeitures of Employer matching contributions will be: g. [ ] N/A. Same as above or no Employer matching contributions. h. [ ] used to reduce the Employer matching contribution. i. [ ] used to reduce any Employer contribution. j. [ ] other: (describe the treatment of Forfeitures in a manner that is definitely determinable and not subject to Employer discretion) D. Directed investments a. [ ] Participant directed investments are NOT permitted. b. [X] Participant directed investments are permitted from the following Participant Accounts: 1. [X] all Accounts 2. [ ] only from the following Accounts (select one or more): a. [ ] Account attributable to Employer contributions b. [ ] Rollover Account c. [ ] Transfer Account d. [ ] Other: (specify Account(s) and conditions in a manner that is definitely determinable and not subject to Employer discretion) E. Rollover Limitations. Will the Plan accept rollover contributions and/or direct rollovers from the sources specified below? a. [ ] No, Administrator determines in operation which sources will be accepted. b. [ ] Yes Rollover sources. Indicate the sources of rollovers that will be accepted (select one or more) 1. [ ] Direct Rollovers. The Plan will accept a direct rollover of an eligible rollover distribution from (select one or more): a. [ ] a qualified plan described in Code §401(a) (including a 401(k) plan, profit sharing plan, defined benefit plan, stock bonus plan and money purchase plan), excluding after-tax employee contributions b. [ ] a qualified plan described in Code §401(a) (including a 401(k) plan, profit sharing plan, defined benefit plan, stock bonus plan and money purchase plan), including after-tax employee contributions c. [ ] a plan described in Code §403(a) (an annuity plan), excluding after-tax employee contributions d. [ ] a plan described in Code §403(a) (an annuity plan), including after-tax employee contributions e. [ ] a plan described in Code §403(b) (a tax-sheltered annuity), excluding after-tax employee contributions f. [ ] a plan described in Code §403(b) (a tax-sheltered annuity), including after-tax employee contributions g. [ ] a plan described in Code §457(b) (eligible deferred compensation plan) Direct Rollovers of Participant Loan. The Plan will NOT accept a direct rollover of a Participant loan from another plan unless selected below (leave blank if default applies) h. [ ] The Plan will accept a direct rollover of a Participant loan i. [ ] The Plan will only accept a direct rollover of a Participant loan only in the following situation(s): (e.g., only from Participants who were employees of an acquired organization). 2. [ ] Participant Rollover Contributions from Other Plans (i.e., not via a direct plan-to-plan transfer). The Plan will accept a contribution of an eligible rollover distribution (select one or more): a. [ ] a qualified plan described in Code §401(a) (including a 401(k) plan, profit sharing plan, defined benefit plan, stock bonus plan and money purchase plan) b. [ ] a plan described in Code §403(a) (an annuity plan) c. [ ] a plan described in Code §403(b) (a tax-sheltered annuity) d. [ ] a governmental plan described in Code §457(b) (eligible deferred compensation plan) 3. [ ] Participant Rollover Contributions from IRAs: The Plan will accept a rollover contribution of the portion of a distribution from a traditional IRA that is eligible to be rolled over and would otherwise be includible in gross income. Rollovers from Roth IRAs or a Coverdell Education Savings Account (formerly known as an Education IRA) are not permitted because they are not traditional IRAs. A rollover from a SIMPLE IRA is allowed if the amounts are rolled over after the individual has been in the SIMPLE IRA for at least two years. F. Trustee(s) or Insurer(s). Information regarding Trustee(s)/Insurer(s) (required for the Summary Plan Description and, if requested, the Trust Agreement) (Note: Select a. if not using provided trust. MUST select b and following questions as applicable): a. [ ] Do not produce the trust agreement b. [X] Complete the following UNLESS not selecting supporting forms: ATTACHMENT A Non-Standardized Governmental 401(a) Trustee/Insurer (select a. OR one or more of d. - e.) c. [ ] Insurer. This Plan is funded exclusively with Contracts (select one or more of 1. - 4) Name of Insurer(s) 1. [ ] 2. [ ] 3. [ ] Use Employer address/telephone number/email 4. [ ] Use following address/telephone number/email a. Street: b. City: c. State: d. Zip: e. Telephone: f. Email: d. [X] Individual Trustee(s) e. [ ] Corporate Trustee Name of Trust f. Specify name of Trust (required for FIS trust): Town Of Avon PoliceOfficers Money Purchase Pension Plan Trust Individual Trustees (if d. selected above, complete g. – j.) Directed/Discretionary Trustees. The individual Trustee(s) executing this Adoption Agreement are (select g. or h.) g. [ ] Select for each individual Trustee (skip to next question) h. [X] The following selections apply to all individual Trustee(s) (select 1. - 4. as applicable) 1. [X] A discretionary Trustee over all plan assets (may not be selected with 2. - 4.) 2. [ ] A nondiscretionary (directed) Trustee over all plan assets (may not be selected with 1., 3. or 4.) 3. [ ] The individual Trustee(s) will serve as a discretionary Trustee over the following assets: (may not be selected with 1. or 2.) 4. [ ] The individual Trustee(s) will serve as a nondiscretionary (directed) Trustee over the following assets: (may not be selected with 1. or 2.) Individual Trustee(s) (complete if d. selected above) i. [X] Individual Trustee(s) are (select one or more of a. - j.; enter address at j. below) a. Name The Board of Retirement Title/Email: 1. Title Board of Retirement 2. Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3. [ ] Discretionary Trustee over all plan assets (may not be selected with 4. – 6.) 4. [ ] A discretionary Trustee over the following plan assets: (may not be select with 3. or 5.) 5. [ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6. [ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) b. Name Title/Email: 1. Title 2. Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3. [ ] Discretionary Trustee over all plan assets (may not be selected with 4. – 6.) 4. [ ] A discretionary Trustee over the following plan assets: (may not be select with 3. or 5.) 5. [ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6. [ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) c. Name Title/Email: 1. Title 2. Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3. [ ] Discretionary Trustee over all plan assets (may not be selected with 4. – 6.) 4. [ ] A discretionary Trustee over the following plan assets: (may not be select with 3. or 5.) 5. [ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6. [ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) ATTACHMENT A Non-Standardized Governmental 401(a) d. Name Title/Email: 1. Title 2. Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3. [ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4. [ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5. [ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6. [ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) e. Name Title/Email: 1. Title 2. Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3. [ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4. [ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5. [ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6. [ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) f. Name Title/Email: 1. Title 2. Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3. [ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4. [ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5. [ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6. [ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) g. Name Title/Email: 1. Title 2. Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3. [ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4. [ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5. [ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6. [ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) h. Name Title/Email: 1. Title 2. Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3. [ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4. [ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5. [ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6. [ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) i. Name Title/Email: 1. Title 2. Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3. [ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4. [ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5. [ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6. [ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) ATTACHMENT A Non-Standardized Governmental 401(a) j. Name Title/Email: 1. Title 2. Email (optional) Trustee is: (complete if g. selected above; select 3. – 6. as applicable) 3. [ ] Discretionary Trustee over all plan assets (may not be selected with 4. or 6.) 4. [ ] A discretionary Trustee over the following plan assets: (may not be selected with 3. or 5.) 5. [ ] Nondiscretionary Trustee over all plan assets (may not be selected with 3., 4. or 6.) 6. [ ] A nondiscretionary (directed) Trustee or Custodian over the following plan assets (may not be selected with 3. or 5.) j. [X] Individual Trustee Address (complete if d. selected above) 1. [X] Use Employer address/telephone number/email 2. [ ] Use following address/telephone number/email a. Street: b. City: c. State: d. Zip: e. Telephone: f. Email: Corporate Trustee Name/Type/Address (complete if e. selected above) k. [ ] Name Address/telephone number/email 1. [ ] Use Employer address/telephone number/email 2. [ ] Use following address/telephone number/email a. Street: b. City: c. State: d. Zip: e. Telephone: f. Email: Directed/Discretionary. The Corporate Trustee is (select 3. - 6. as applicable) 3. [ ] A discretionary Trustee over all plan assets (may not be selected with 4. – 6.) 4. [ ] A nondiscretionary (directed) Trustee over all plan assets (may not be selected with 3., 5. or 6.) 5. [ ] A discretionary Trustee over the following plan assets over the following assets: (may not be selected with 3. – 4.) 6. [ ] A nondiscretionary (directed) Trustee over the following plan assets (may not be selected with 3. – 4.) Signee (optional): 7. [ ] Name of person signing on behalf of the corporate Trustee 8. [ ] Email address of person signing on behalf of the corporate Trustee Special Trustee for collection of contributions. The Employer appoints the following Special Trustee with the responsibility to collect delinquent contributions (optional) l. [ ] Name Title: 1. Address/telephone number/email 2. [ ] Use Employer address/telephone number/email 3. [ ] Use following address/telephone number/email a. Street: b. City: c. State: d. Zip: e. Telephone: f. Email: Custodian(s) Name/Address . The Custodian(s) are (optional) m. [ ] Name(s) Address/telephone number/email 1. [ ] Use Employer address/telephone number/email ATTACHMENT A Non-Standardized Governmental 401(a) 2. [ ] Use following address/telephone number/email a. Street: b. City: c. State: d. Zip: e. Telephone: f. Email: Investment in common, collective or pooled trust funds. The nondiscretionary Trustee, as directed or the discretionary Trustee acting without direction (and in addition to the discretionary Trustee's authority to invest in its own funds), may invest in any of the following trust funds: (optional) n. [ ] (Specify the names of one or more trust funds in which the Plan can invest) Choice of law o. [X] This trust will be governed by the laws of the state of: 1. [X] State in which the Employer's principal office is located 2. [ ] State in which the corporate trustee or insurer is located 3. [ ] Other ATTACHMENT A Non-Standardized Governmental 401(a) FIS BUSINESS SYSTEMS LLC NON-STANDARDIZED GOVERNMENTAL 401(A) MODIFICATIONS TOWN OF AVON POLICE OFFICERS MONEY PURCHASE PENSION PLAN The enclosed Plan is being submitted for expedited review as a Non-Standardized Plan. No modifications from the approved specimen plan have been made to this Plan. ATTACHMENT A 970.748.4004 eric@avon.org TO: Honorable Mayor Smith Hymes and Town Council members FROM: Eric Heil, Town Manager RE: Tract Y Development Agreement DATE: May 5, 2022 SUMMARY: Council reviewed the Tract Y Development Agreement on April 12, 2022. Council tabled consideration to allow for additional time to review and revise the Development Agreement language, receive information with regard to water rights, and receive information on costs of infrastructure development. Specific language changes to the Development Agreement include: • Revisions to the water rights to acknowledge the Developer is responsible for the cost of additional allocation of water rights. This amount has been estimated at $177,000. Eagle County Housing and the Water Authority have indicated that this project would not qualify for a dedication of the reserved water rights for housing because the project is not Deed Restricted. • Addition of Developer Obligation to strive to achieve Net Zero construction. • Obligation of Developer to comply with the stricter of amended and updated landscape regulations or a Development Plan and water budget as adopted with any allocation of water rights. Attached is the Tract Y Development Agreement in REDLINE format to indicate changes as well as the forms of the Deed Restriction for Exhibits B and C, also in REDLINE formant to indicate changes. REPORT INFORMATION from April 12, 2022 Council meeting: Legacy Mountain Development presented its proposal to construct 52 duplexes and townhomes on Tract Y late last fall. The basic proposal was to development the project with financial support from the Town of Avon and other housing partners in a manner similar to İMi Casa Avon! where there is purchaser assistance in the form of purchasing deed restrictions. Council provided direction at the last Council meeting to prepare a Development Agreement which would specify the proposed terms for this Community Housing project. TERMS: The terms of the Development Agreement are highlighted as follows: 3. Term. The term, or duration, of the Agreement is proposed as 10 ½ years. This term would allow the Town’s tax and fee waivers for Community Housing to remain in place for this duration. See 5. Tax and Fee Waivers. NOTE: the tax and fee waivers would not apply if the Property, or any portion, is not developed as Community Housing. This Development Agreement would constitute a vested right for this time period per 9. Vested Rights. The Town would initially appropriate $600,000 to support the construction of 6 residential units. The amounts due from Town would only be at the time of sale of each unit to a qualified buyer in a manner similar to İMi Casa Avon! in a maximum amount of $100,000 per residential unit. See 7.4. and 7.5. The Towns obligations to appropriate any additional monies would be subject to annual budget and appropriation, meaning subject to the discretion of future Town Councils. See 7.5. Two separate deed restrictions are contemplated – a Buyer-Occupant Deed Restriction (Exhibit B) and an Eagle County Employee Deed Restriction (Exhibit C). See 8. Community Housing Deed Restriction. The Buyer-Occupant Deed Restriction is essentially the same as the Mi Casa Deed Restriction with the exception of Section 9 in that Deed Restriction which allows this Deed Restriction to be subordinate to Page 2 of 2 Freddie Mac and Fannie Mae financing. The Eagle County Employee Deed Restriction does not define a “qualified buyer” or establish any requirements for the buyer or owner. Rather, this Deed Restriction is for direct sale to employers without any intent or obligation of the Town of Avon to provide funding assistance. The occupancy of the Eagle County Employee Deed Restrictions requires at least one occupant to meet the definition of Eagle County Employee. WATER: Water rights are addressed in 6.1. Eagle County has provided water rights to the Upper Eagle Regional Water Authority for potential use for housing projects. Tract Y has 5.7 SFEs already allocated to the property. A request for consideration of the Upper Eagle Regional Water Authority to allocate additional water to serve this project has been submitted. The next meeting of the Upper Eagle Regional Water Authority is on April 28. Section 6.2 address how the Town of Avon’s water tap would be treated. The Town of Avon’s water tap fee is $4,000, or potentially $208,000 for 52 residential units. As written, the Avon water tap fees can receive a credit, or reimbursement, for the cost of extending the water line to serve the 52 residential units. This is the first time this provision of Avon Municipal Code 3.14.070 has been applied to a Community Housing project. FINANCIAL CONSIDERATIONS: The initial commitment under this Development Agreement is $600,000 with the contemplation of an additional $1.1 Million to be appropriated in the future. The Town’s funding commitment is conditioned upon construction of six Community Housing units to start by December 31, 2024 (see 4.2) and finish by December 31, 2025 (see 7.1(b)). RESOLUTON 22-07: Resolution 22-07 is presented to Council because the approval of tax and fee waivers for Community Housing require adoption of a Resolution. OPTIONS: Council has the option of providing direction on any terms in this Development Agreement, requesting additional information, and continuing to a future Council meeting for additional consideration. PROPOSED MOTION: “I move to approve Resolution No. 22-07 Approving a Development Agreement with Legacy Mountain Development, LLC, for Approximately 52 Community Housing Units at Tract Y and Approving Tax and Fee Waivers Pursuant to Chapter 3.14 of the Avon Municipal Code.” Thank you, Eric ATTACHMENT A: Update Letter from Legacy Mountain Development ATTACHMENT B: Resolution No. 22-07 Development Agreement Thank you, Eric Track Y Development Update 4-3-22 Dear Avon Town Council members and Staff, This letter is an update as to the progress of the Track Y property. Although we do not yet have a signed commitment from the TOA, we have pushed our engineers and architects forward on the project due to the positive nature of the last meeting with the Town Council. We are finalizing initial plans with our architect and once finalized we can begin the pricing process. Our civil engineers have preliminary plans done and will finalize once they receive unit specifics from the architect. Soils engineers need one more soil sample to complete their scope which has been scheduled. We have had significant interest in the product from both individuals and businesses. That being said, the lending and construction market are both very volatile right now and having firm commitments of support from the Town of Avon is very important to this project being successful. Lastly, we are finalizing infrastructure costs and are hoping there is still assistance funding that could be available. For scheduling we are still optimistic to break ground during the summer to begin the extensive amount of grading and get the infrastructure moving. Once that is in place we can begin the phased construction and get delivery dates for these much needed units. We appreciate the continued support from all of the Town of Avon and look forward to a successful project. Kind Regards, Sean Reynolds Steve MacDonald Phil Matsen ATTACHMENT A: Update Letter 4-3-22 Resolution 22-07 Approving Development Agreement with Legacy Mountain Development Page 1 of 2 RESOLUTION NO. 22-07 APPROVING A DEVELOPMENT AGREEMENT WITH LEGACY MOUNTAIN DEVELOPMENT, LLC, FOR APPROXIMATELY 52 COMMUNITY HOUSING UNITS AT TRACT Y AND APPROVING TAX AND FEE WAIVERS PURSUANT TO CHAPTER 3.14 OF THE AVON MUNICIPAL CODE. WHEREAS, Legacy Mountain Development, LLC, owns the real property described as Tract Y, Avon, Colorado; and WHEREAS, Chapter 3.14 of the Avon Municipal Code sets forth a process whereby the Avon Town Council may waive or reduce certain fees related to the development of Community Housing projects; and WHEREAS, Legacy Mountain Development, LLC. intends to construct Community Housing on Tract Y of approximately to 52 units (“Community Housing Project”); and WHEREAS, Legacy Mountain Development, LLC submitted a written request to waive applicable development related fees (“Waiver”) for its Community Housings Project; and WHEREAS, in exchange for the Waiver, Legacy Mountain Development, LLC has agreed the terms and conditions of the Development Agreement attached hereto as Exhibit A; and WHEREAS, the Development Agreement provides for, among other things, the execution of deed restrictions for Community Housing for Eagle County employees; and WHEREAS, the Development Agreement meets all the criteria of Section 3.14.030 of the Avon Municipal Code; and WHEREAS, the Avon Town Council finds that the construction of the Community Housing Project will promote and support, benefit, and enhance the Avon community by providing housing; and, WHEREAS, the Avon Town Council finds that the promotion and support through the waiver of sales tax on construction materials and fixtures delivered to the Community Housing Project will promote the health, safety and general welfare of the Avon community. NOW THEREFORE, the Town Council, hereby RESOLVES: Section 1 The Town Council hereby finds the Waiver is necessary to promote Community Housing that will meet the current and projected housing needs for the Avon community. Resolution 22-07 Approving Development Agreement with Legacy Mountain Development Page 2 of 2 Section 2 The Town Council hereby finds the public as a whole will benefit from the Community Housing Project. Section 3 The Town hereby grants a waiver of taxes and fees the Community Housing Project, as detailed in the Development Agreement attached hereto as Exhibit A. ADOPTED ___________________, 2022 by the AVON TOWN COUNCIL By:_______________________________ Attest:_________________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk Tract Y Development Agreement – DRAFT April 8May 5, 2022 Page 1 of 12 DEVELOPMENT AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND LEGACY MOUNTAIN DEVELOPMENT THIS DEVELOPMENT AGREEMENT (“Agreement”) is entered into as on _________, 2022 (“Effective Date”) by and between the TOWN OF AVON, a Colorado home rule municipality (“Town”), and LEGACY MOUNTAIN DEVELOPMENT LLC, a Colorado limited liability company (“Developer”). RECITALS WHEREAS, Developer has a legal interest in certain real property known as Tract Y in Avon, Colorado, as more particularly described on Exhibit A, and known as Parcel Number _____________ (“Property”); and WHEREAS, Developer intends to construct a Community Housing Project which is intended to include approximately fifty-two (52) residential units on the Property (“Development”). Wherever used in this Agreement, the term “Community Housing” means any residential dwelling unit that is subject to either of the Deed Restrictions referenced in Section 8 of this Agreement, or otherwise meets the definition of Community Housing under the Avon Municipal Code, Section 3.14.020, as may be amended from time to time; and WHEREAS, on January 12, 2021, after a duly noticed public hearing, the Town of Avon Town Council approved the subdivision of the Property; and WHEREAS, Developer intends to submit future development plans for consideration and approval by the Town (“Development Approvals”); and WHEREAS, the Town and Developer desire to set forth their rights and obligations with respect to the Development in this Agreement; and WHEREAS, the Town desires to make an initial appropriation of $600,000 to support the initial construction of this Development and then define the conditions for additional appropriation of funds in accordance with the terms described in this Agreement. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the parties hereto agree as follows: TERMS 1. Recitals. The foregoing recitals are incorporated herein as material representations and acknowledgments of the Parties. 2. Purposes. The purpose of this Agreement is to set forth the terms and conditions to be met by the Developer with respect to the Development; and the Town providing Tax and Fee Tract Y Development Agreement – DRAFT April 8May 5, 2022 Page 2 of 12 Waivers for the Development and down-payment assistance for purchasers of Community Housing units within the Development. All terms and conditions contained herein are in addition to all requirements of the Avon Municipal Code, contained therein, except where specifically provided in this Agreement or a future Public Improvements Agreement. The Developer agrees to bear all costs and responsibility for completion of the improvements unless Town and Developer mutually agree in writing to another arrangement. This Agreement is not executed for the benefit of materialmen, laborers, or others providing work, services, or materials to the Property. The Developer and the Town agree to comply with all terms and conditions contained in this Agreement. 3. Term. The Term of this Agreement shall run until December 31, 2033, except that the Town’s obligation to provide funding pursuant to the terms of Section 7 of this agreement shall run until December 31, 2025. The intent is to appropriate additional funds and establish new timeframes for additional construction if the initial construction of six (6) Community Housing units is successful in accordance with the terms and timeframes set forth in Section 7. Town and Developer agree to negotiate additional appropriations and timeframes for additional construction under Section 7 in good faith. Notwithstanding the foregoing, the Town shall have the right to not approve an extension of additional funding similar to that provided in Section 7 in its sole discretion if the initial construction of six (6) Community Housing units is not completed in accordance with the terms and timeframes set forth in this Agreement. Any extension of Section 7 may include designation of a minimum number of additional Community Housing units and designated of a timeframe for Commencement of Construction and Completion of Construction (as defined in 4.3 and 4.4 below) in the Town’s sole discretion. Extension of Section 7 shall be approved by Town by motion of the Avon Town Council and shall be signed and executed as an amendment to this Agreement. 4. Developer Obligations. The Developer agrees to satisfy the following obligations with respect to the Development and in order to qualify for the Tax and Fee Waiver outlined in Section 4 below. 4.1. Compliance with and recordation of Subdivision Plat approved on January 12, 2021 via Resolution No. 21-01. 4.2. Submit a complete Development Application for Community Housing for the first phase of the Development by December 31, 2023. (a) Commence construction of at least six (6) Community Housing units by December 31, 2024. “Commence Construction” is defined as submitting all information required for a building permit, review and approval by the Town of such building permit application, which approval shall not be unreasonably withheld or delayed, and actual commencement of grading and foundation work. 4.3. All Community Housing units shall be subject to a deed restriction to be recorded prior to any liens or mortgages on the unit as provided in Section 8 of this Agreement. Upon recording of a deed restriction as provided in Section 8 against a Unit, the parties will record a release of this Agreement with respect to that Unit. Tract Y Development Agreement – DRAFT April 8May 5, 2022 Page 3 of 12 4.4. Comply with all Town of Avon requirements regarding water rights dedications. Developer shall secure such water rights as are necessary for completion of the proposed 52-unit development prior to the recordation of the Subdivision Plat. 4.5. Execute a Public Improvement Agreement (“PIA”) prior to commencing any onsite construction including infrastructure in the Town’s usual and customary format and terms, including but not limited to the requirements of Avon Municipal Code Section 7.32.100. The PIA shall address security and timing for public improvements necessary to complete the development. 4.6. Formation of Association. The Developer shall form a common interest community (“Association”) pursuant to the Colorado Common Interest Ownership Act (CRS §38- 33.3-101 et. seq.) prior to the issuance of a Temporary Certificate of Occupancy or Certificate of Occupancy for 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 Developer shall be liable for all obligations of the Association hereunder until such time as the Association is formed. Until such time as the Developer no longer has the right to appoint a majority of the executive board of the Association pursuant to State law, Developer shall remain liable for all obligations of both the Developer and the Association pursuant to this Agreement. 4.7. Association Deemed to be Developer. In addition to the rights and obligations of the Association, as specifically stated in this Agreement, with respect to any Common Area of the Development that is conveyed to the Association, except for any right of Developer to a refund of any deposit or other monetary security held by Town hereunder, the Association shall be deemed to be the Developer with respect to the provisions, rights, and obligations of this Agreement, if any, that apply to the ongoing use, ownership, maintenance or operation of that Common Area. The Association shall not be deemed to be the Developer with respect to the provisions, rights, and obligations of this Agreement to the extent that any portion of the Development remains subject to development rights under the Association’s Governing Documents. 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. 4.8. Approval of Governing Documents. Developer shall submit the Association Governing Document for review and approval by the Town as to those matters described in this Section 4 prior to recordation of the Association’s Governing Documents. The Association Governing Document shall include express permission that deed restrictions for community housing purposes similar to the Town of Avon’s ¡Mi Casa! deed restriction may be imposed and recorded on the Community Housing Units and any additional residential units; provided, the imposition of such deed restriction upon any additional residential units shall be subject to approval of the residential unit owner as agreed upon by the subject residential unit owner prior to any imposition and recordation of such deed restriction. The Town will respond to Association Governing Tract Y Development Agreement – DRAFT April 8May 5, 2022 Page 4 of 12 Document referral within fourteen (14) calendar days. The Association Governing Documents shall be submitted to the Town prior to the issuance of a certificate of occupancy or temporary certificate of occupancy, whichever is earlier, for Phase 1 of the Development. 4.9. Default by Developer or Association. Any failure of the Association Governing Documents to contain and maintain the provisions required by this Agreement shall be a default by 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. 4.10. Amendments to Association’s Governing Documents. As to those matters described in this Section 4, any future amendments to the Association Governing Documents shall require the written consent of the Town. 4.11. Applicability to Future Phases of the Development. Developer shall be entitled to the Tax and Fee Waiver described in Section 5, on the terms of Section 5, with respect to any future phases of the Development so long as such phase is developed for Community Housing and Developer has complied with this Section 4 with respect to the first phase of the Development. 4.12. Landscaping. Developer agrees to comply with the stricter of (1) Town’s landscaping requirements as may be amended and adopted before the installation of landscaping; or, (2) comply with landscaping requirements in any agreement to allocation water as described in Section 6 below. 4.13. Net Zero Energy Consumption. Developer shall use best efforts to utilize and achieve net zero energy consumption construction methods to the extent economically feasible. 5. Tax and Fee Waivers. The Town hereby grants a waiver of the Avon Real Estate Transfer Tax for the transfer of title to any Community Housing Units from Developer to any purchaser thereof, a waiver of the Avon Sales Tax applicable to the construction of all Community Housing Units, a waiver of all Development Application Review fees related to the Development (not including third party charges to the Town of Avon associated with review of development applications), and a waiver of Building Permit fees for construction of all Community Housing units (collectively the “Waivers”). 5.1. The Sales Tax Waivers shall only apply to the purchase of construction materials and fixtures delivered to the Development which are purchased for use in development of Community Housing. 5.2. The Waivers shall initially be conditional and shall only become permanent upon execution of a Deed Restriction by Developer and the Town for at least six (6) Community Housing units in the first phase of the Development and recording of the Deed Restrictions in the Eagle County Clerk and Recorders Office. For future phases of the Development, the Waivers shall initially be conditional and only become permanent Tract Y Development Agreement – DRAFT April 8May 5, 2022 Page 5 of 12 upon and to the extent of execution of Deed Restrictions by Developer and the Town for Community Housing Units in future phases. 5.3. Developer shall provide records, receipts, and documentation to the Town of the construction materials purchased on or prior to issuance of a Certificate of Occupancy for each residence and shall maintain such records as required by Chapter 3.12 Sales Tax of the Avon Municipal Code. 6. Water. 6.1. Water Rights. Town and Developer shall jointly and cooperatively request the allocation of additional water necessary to serve the Development from the Upper Eagle Regional Water Authority. The Town has 5.7 SFEs currently assigned to the Property, resulting in a need for approximately 46.3 additional SFEs. Town will request water rights allocation to be provided at no cost to the Developer to support this Development. Obtaining additional water rights allocation is a condition of Development approval If Upper Eagle Regional Water Authority determines to charge for the allocation of water then. The Developer shall be responsible for that cost. 6.2. Water Tap Fee Credit or Reimbursement. The Town agrees to allow the Avon Water Tap fee to be applied to the cost of water line extension and improvements as authorized by Avon Municipal Code Section 3.14.070, provided that only the portion and cost of water line extension and improvement which is identified and required in the PIA shall be eligible for credit or reimbursement. The Town shall make reimbursement payments to Developer within thirty (30) days after receipt by Town of payment by Developer of such water tap fees. 7. Town Obligations. The Town agrees to make funds available to assist individuals with the purchase of residences on the Property in accordance with the following: 7.1. The Town shall only be committed to make funds available if Developer satisfies the following obligations with respect to the Development: (a) Developer must commence construction of at least six (6) Community Housing units in the first phase of the Development by December 31, 2024. “Commence construction” is defined as submitting all information required for a building permit application, review and approval by the Town of such building permit application (which approval shall not be unreasonably withheld or delayed), and actual commencement of grading and foundation work. (b) Developer must Complete Construction of at least six (6) Community Housing units by December 31, 2025. “Compete Construction” is defined as completion of physical construction and receipt of a final Certificate of Occupancy. A Temporary Certificate of Occupancy does not meet the definition of Complete Construction. Tract Y Development Agreement – DRAFT April 8May 5, 2022 Page 6 of 12 7.2. Town shall use the eligibility criteria set forth in the Town of Avon ¡Mi Casa Avon! program, as may be amended from time to time by the Town in its sole discretion. 7.3. Funds shall only be provided for the purchase of Community Housing deed restrictions for qualified buyers that meet the ¡Mi Casa Avon! eligibility criteria upon execution of the Deed Restriction. 7.4. The amount of funds available for each residential unit shall be limited to 12% of the purchase price or appraised value (whichever is less) and shall not exceed a maximum amount of $100,000 per residence. Council may revise the percentage fund terms or the maximum amount per unit in its sole discretion on the same basis as the Town may revise the ¡Mi Casa Avon! Program terms. 7.5. The Town intends to provide funds for the full Development in an amount not to exceed $1.7 million. Town shall appropriate an initial amount of $600,000 for six (6) Units of Community Housing in the first phase of the Development, which shall be available in accordance with the terms of this Agreement. The remaining $1.1 million funds shall be subject to annual budget and appropriation by the Avon Town Council. The Avon Town Council may revise, increase, reduce, or rescind its commitment of the $1.1 million of funds in its sole discretion. 7.6. The Town agrees to exercise reasonable good faith efforts to pursue partnership funding contributions from other entities including but not limited to the Town of Vail and Eagle County to match the Town’s pledge of funds. 8. Community Housing Deed Restrictions. 8.1. Developer may elect to sell and convey residential units to qualified buyers that meet the eligibility criteria of ¡Mi Casa Avon! and receive funds from the Town subject to a Community Housing Deed Restriction that is executed and recorded which shall be substantially in the form attached hereto as EXHIBIT B: BUYER-OCCUPANT DEED RESTRICTION; or, 8.2. Developer, may elect to use residential units for occupants that meet the definition of Eagle County Employee or convey to a third party with a deed restriction that restricts use and occupancy of the residential unit to is an Eagle County Employee subject to a Community Housing Deed Restriction that is executed and recorded prior to occupancy and upon conveyance to a third party, which is substantially in the form attached hereto as EXHIBIT C: EAGLE COUNTY EMPLOYEE DEED RESTRICTION. No funds shall be provided by the Town as a condition of executing and recording the Eagle County Employee Deed Restriction on such residential units. The tax and fee waivers set forth in Section 5 shall be the only consideration for the obligation of Developer to execute and record the Eagle County Employee Deed Restriction. The execution and recording of the Eagle County Employee Deed Restriction shall be a condition to the use and occupancy of such residential units. Tract Y Development Agreement – DRAFT April 8May 5, 2022 Page 7 of 12 9. Vested Rights. In accordance with and subject to the provisions of C.R.S. §24-68-101 et. seq., Developer shall have the vested right to develop the Development pursuant to the Development Approvals once they are obtained. This Agreement shall not preclude the application to Developer of changes in laws, regulations, plans, or policies, to the extent that such changes are specifically mandated and required by changes in state or federal laws or regulations. In the event changes in the law prevent or preclude compliance with one or more provisions of this Agreement, such provisions of the Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary to comply with the law and according to the Town’s terms. In the event of a change of law, the Developer and Town shall take action as may be reasonably required in good faith to meet the intent of this Agreement. 10. Permitted Uses. 10.1. During the Term of this Agreement the use of any portion of the Development for which Tax and Fee Waivers have been provided by the Town shall be restricted to Community Housing subject to a Deed Restriction approved by the Town as described in this Agreement and as described in the Avon Municipal Code. 10.2. The permitted density and intensity of use of the Development, the maximum height, bulk and size of the proposed building, and the location of public improvements and public utilities, and other terms and conditions of development applicable to the Development shall be as set forth in the Development Plan and SIA approved by the Town. Nothing contained in this Agreement requires the Town to approve the Development and the processing of the Development Plan and SIA shall occur as with any other development application. 10.3. In the event that this Agreement is terminated, the permitted use of the property shall be governed by the underlying zoning in effect and as may be amended from time to time, provided that the Developer, as owner of the Property, shall be required to reimburse Town for any and all Tax and Fee Waivers for that portion of the Property which was not developed as Community Housing. Reimbursement of any and all Tax and Fee Waivers that are due shall be a condition of the Town accepting any development application or building permit for any use after termination of this Agreement. This provision shall be a covenant that runs with the land for the benefit of the Town and shall survive termination of this Agreement. 11. Default; Termination. Any failure by either party to perform any term or provision of this Agreement, which failure continues uncured for a period of thirty (30) days following written notice of such failure from the other party, unless such period is extended by written mutual consent, shall constitute a default under this Agreement. Any notice given pursuant to the preceding sentence shall specify the nature of the alleged failure and, where appropriate, the manner in which said failure satisfactorily may be cured. If the nature of the alleged failure is such that it cannot reasonably be cured within such thirty (30) day period, then the commencement of the cure within such time period, and the diligent prosecution to completion of the cure thereafter, shall be deemed to be a cure within such thirty (30) day period. Upon the occurrence of a default under this Agreement, the non-defaulting party may Tract Y Development Agreement – DRAFT April 8May 5, 2022 Page 8 of 12 take action pursuant to the Code or institute legal proceedings to enforce the terms of this Agreement. If the default is cured, then no default shall exist and the noticing Party shall take no further action. Notwithstanding anything to the contrary contained herein, neither Party shall be deemed to be in default where delays in performance or failures to perform are due to, and a necessary outcome of war, a pandemic for which a disaster emergency is declared by the Governor, insurrection, strikes or other labor disturbances, walk-outs, riots, floods, earthquakes, fires, casualties, acts of God, restrictions imposed or mandated by other governmental entities, enactment of conflicting state or federal laws or regulations, new or supplemental environmental regulations, or similar basis for excused performance which is not within the reasonable control of the Party to be excused. Upon the request of either Party hereto, an extension of time, including an extension of applicable contract dates, for such cause shall be granted in writing for the period of the enforced delay, or longer as may be mutually agreed upon. 12. Defense and Indemnity. 12.1. Developer’s Actions. Developer shall hold harmless and indemnify Town and its elected and appointed officers, agents, employees, and representatives from claims, costs, and liabilities for any personal injury, death, or physical damage (including inverse condemnation) which arises directly or indirectly, as a result of the construction of the Development, or of operations performed under this Agreement, by Developer or by Developer’s contractors, subcontractors, agents or employees, whether such operations were performed by Developer or any of Developer’s contractors, subcontractors, or any one or more persons directly or indirectly employed by, or acting as agent for, Developer or any of Developer’s contractors or subcontractors. 12.2. Town’s Actions. Nothing in this section shall be construed to mean that Developer shall indemnify or hold the Town or its elected and appointed representatives, officers, agents and employees harmless from any claims of personal injury, death or property damage arising from, or alleged to arise from any act or omission of the Town with regard to improvements that have been offered for dedication and accepted by Town for maintenance. Nothing contained herein is intended to nor shall be construed as a waiver of the Town’s governmental immunity under state or federal law. 13. No Agency, Joint Venture or Partnership. It is specifically understood and agreed to by and between the parties that: (1) the subject Development is a private development; (2) the Town has no interest or responsibilities for, or due to, third parties concerning any improvements until such time, and only until such time, that the Town accepts the same pursuant to the provisions of this Agreement or in connection with the Development Approvals (as defined in the Recitals above); (3) Developer shall have full power over and exclusive control of construction of the Development on the Property subject to the approvals and Conditions of Approval of the Town; and (4) the Town and Developer hereby renounce the existence of any form of agency relationship, joint venture or partnership between Town and Developer and agree that nothing contained herein or in any document executed in Tract Y Development Agreement – DRAFT April 8May 5, 2022 Page 9 of 12 connection herewith shall be construed as creating any such relationship between Town and Developer. 14. Miscellaneous Provisions. 14.1. Assignment. This Agreement may not be assigned by the Developer to any party that does not take title to the Development without the prior written consent of the Town, which consent shall not be unreasonably withheld, conditioned, or delayed. In the event the Developer desires to assign its rights and obligations herein, it shall so notify the Town in writing together with the proposed assignee's written agreement to be bound by the terms and conditions contained herein. 14.2. Waiver of Defects. In executing this Agreement, the Developer waives all objections it may have concerning defects, if any, in the formalities whereby it is executed, or concerning the power of the Town to impose conditions on the Developer as set forth herein, and concerning the procedure, substance, and form of the ordinances or resolutions adopting this Agreement. 14.3. Amendments. This Agreement shall not be amended, except by subsequent written agreement of the Parties. 14.4. Release of Liability. It is expressly understood that the Town cannot be legally bound by the representations of any of its officers or agents or their designees except in accordance with the Town of Avon Municipal Code and Ordinances and the laws of the State of Colorado, and that the Developer, when dealing with the Town, acts at its own risk as to any representation or undertaking by the Town officers or agents or their designees which is subsequently held unlawful by a court of law. 14.5. Captions. The captions in this Agreement are inserted only for the purpose of convenient reference and in no way define, limit, or prescribe the scope or intent of this Agreement or any part hereof. 14.6. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, successors, and assigns. 14.7. Invalid Provision. If any provisions of this Agreement shall be determined to be void by any court of competent jurisdiction, then such determination shall not affect any other provision hereof, all of which other provisions shall remain in full force and effect. It is the intention of the parties hereto that, if any provision of this Agreement is capable of two constructions, one of which would render the provision void, and the other of which would render the provision valid, then the provision shall have the meaning which renders it valid. 14.8. Governing Law. The laws of the State of Colorado shall govern the validity, performance, and enforcement of this Agreement. Should either party institute legal suit or action for enforcement of any obligation contained herein, it is agreed that the venue of such suit or action shall be in Eagle County, Colorado. Tract Y Development Agreement – DRAFT April 8May 5, 2022 Page 10 of 12 14.9. Attorneys’ Fees; Survival. Should this Agreement become the subject of litigation, each party shall be responsible for its own costs and attorneys’ fees, with the exception that each party may seek attorneys’ fees for frivolous claims as allowed under Colorado rules of civil procedure. 14.10. Authority. Each person signing this Agreement represents and warrants that he is fully authorized to enter into and execute this Agreement, and to bind the Party it represents to the terms and conditions hereof. 14.11. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which, when taken together, shall be deemed one and the same instrument. 14.12. Notice. All notices required under this Agreement shall be in writing and shall be hand-delivered or sent by registered or certified mail, return receipt requested, postage prepaid, to the addresses of the parties herein set forth, or sent by email to the email addresses stated below. All notices so given shall be considered effective 72 hours after deposit in the United States mail with the proper address as set forth below. Email notices shall be deemed received on the date that the recipient acknowledges receipt. Party by notice so given may change the address to which future notices shall be sent. Notice to Town: Town of Avon Attn: Town Manager P.O. Box 975 Avon, CO 81620 Telephone: 970-748-4004 Email: townmanager@avon.org And: Town of Avon Attn: Town Attorney P.O. Box 975 Avon, CO 81620 Telephone: 970-748-4001 Email: townattorney@avon.org If to Developer: Legacy Mountain Development Telephone: Email: 14.13. Construction. Each reference in this Agreement to any of the Development Approvals shall be deemed to refer to the Development Approval as it may be amended from time to time pursuant to the provisions of this Agreement, whether or not the particular reference refers to such possible amendment. Tract Y Development Agreement – DRAFT April 8May 5, 2022 Page 11 of 12 14.14. Covenants Running with the Land. All of the provisions contained in this Agreement constitute covenants running with the land. Each covenant herein to act or refrain from acting is for the benefit of or a burden upon the Property. [SIGNATURE PAGE FOLLOWS] Tract Y Development Agreement – DRAFT April 8May 5, 2022 Page 12 of 12 IN WITNESS WHEREOF, this Agreement has been entered into by and between the Town and Developer as of the date and year first above written. TOWN OF AVON ______________________________________ _____________________________________ By: Sarah Smith Hymes, Mayor Attest: Brenda Torres, Town Clerk APPROVED AS TO FOR: ___________________________________ Karl J. Hanlon, Town Attorney DEVELOPER: ___________________________ ______________________________________ ____________________, _________________ STATE OF COLORADO ) ) ss. COUNTY OF _______________ ) The foregoing Development Agreement was acknowledged before me this ______ day of __________________ 2022 by _____________________, as ______________ of __________________________________, Developer of the property Witness my hand and official seal.\ My commission expires: ____________ ______________________________________ Notary Public Exhibit B: Form of Buyer Occupied Deed Restriction Page 1 of 11 EXHIBIT B TOWN OF AVON - BUYER OCCUPIED DEED RESTRICTION (NON-PRICE CAPPED) THIS COMMUNITY HOUSING DEED RESTRICTION (“Deed Restriction”) is entered into on __________________ 202___ (the “Effective Date”) by and between the Town of Avon, Colorado, a Colorado home rule municipality with an address of 100 Mikaela Way, P.O. Box 975, Avon, Colorado 81620 (“Town”), and __________________________, individuals with an address of _________________________________, Avon, Colorado 81657 (collectively “Declarant”) (each individually a “Party” and collectively the “Parties”). WHEREAS, Declarant is purchasing the real property and the improvements situated thereon, located at _______________________, Avon, Colorado 81620 and more particularly described in Exhibit A hereto (“Property”); and WHEREAS, in exchange for the tax and fee waivers approved in the Tract Y Development Agreement and for the approval of Community Housing development, and in compliance with the stated conditions in the Tract Y Development Agreement, Declarant has agreed to place certain restrictions on the use of the Property for the benefit of the Town by requiring occupancy of the Property by at least one qualified resident, as defined below. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is mutually acknowledged, the Parties agree as follows: COVENANTS 1. Restriction and Recording. The Property is hereby burdened with the covenants and restrictions specified in this Deed Restriction. The use and development of the Property shall be restricted solely and exclusively to residential development for Community Housing as specified in this Deed Restriction and commercial and light industrial uses permitted by the underlying zone district shall not be permitted. The Town shall record this Deed Restriction against the Property at Declarant’s expense. 2. Definitions. The following definitions shall apply to terms used in the Deed Restriction: a. Buyer means a Qualified Owner who purchases the Property from an Owner. b. Eagle County Employee means an employee working in Eagle County who works an average of at least thirty-two (32) hours per week for at least eight (8) months in each calendar year or earns seventy-five percent (75%) of his or her income and earnings by working in Eagle County; or a retired individual, sixty (60) years or older, who has worked a minimum of five (5) years in Eagle County for an average of at least thirty- two Exhibit B: Form of Buyer Occupied Deed Restriction Page 2 of 11 c. (32) hours per week for at least eight (8) months in each calendar year; or a person who derives income from self-employment whose business is situated in Eagle County; or a person who works for an employer outside Eagle County if that person can demonstrate that such residence is the primary residence for that person. d. Owner means any person who acquires an ownership interest in the Property, subject to the conditions contained herein, and may include either a Qualified Owner or Non- Qualified Owner, as the context requires. e. Qualified Owner means a natural person(s) who is an Eagle County Employee as defined in Section 3.12.020 of the Avon Municipal Code, as amended. f. Non-Qualified Owner means any person who does not meet the definition of Qualified Owner including persons who originally qualified as a Qualified Owner but whose circumstances change and who no longer meet the definition of Qualified Owner. g. Primary Residence means the occupation and use of a residence as the primary residence, which shall be determined by the Town Manager by taking into account the following circumstances: voter registration in Avon, Colorado (or signing an affidavit stating that the applicant is not registered to vote in any other place); stated address on Colorado driver’s license or Colorado identification card; stated address on motor vehicle registration; ownership or use of other residences not situated in Avon, Colorado; stated residence for income and tax purposes; and such other circumstances as well as such processes for verification and investigation deemed appropriate by the Town Manager to determine that the applicant is continuously occupying and using the residence as a primary residence. Primary residence status may be maintained if unforeseen circumstances arise that requires the resident Eagle County Employee to temporarily leave the residence for a period not to exceed nine (9) months with the intent to return, and the residence is leased to another Eagle County Employee(s) after receiving written approval from the Town Manager. h. Second Home shall mean the status of the Property when used by any person who has a primary residence that is other than the Property. i. Short Term Rental shall mean the rental or lease of the Property for a period of time that is fewer than thirty (30) days. j. Town shall include employees of the Town of Avon or subcontractors retained by the Town who are tasked with enforcing Deed Restriction agreements. 3. Ownership and Use of the Property. a. Recording. Immediately upon execution of this Deed Restriction by the Town and Declarant, Declarant shall cause this Deed Restriction to be recorded against the Property in the real property records of . Exhibit B: Form of Buyer Occupied Deed Restriction Page 3 of 11 b. Ownership. Ownership of the Property shall be limited to a Qualified Owner (who may take title with such Qualified Owner’s spouse or civil union partner [if the Qualified Owner is a natural person who is an Eagle County Employee]. c. Occupancy and Use. During the first three (3) years of ownership by the Owner, the Owner shall occupy and use the Property as the Owner’s Primary Residence. On and after the third anniversary of the Owner’s acquisition of the Property, occupancy and use of the Property may include, but shall be limited to, (1) the Qualified Owner for their occupancy and use as a Primary Residence or (2) one or more Eagle County Employees for occupancy and use as a Primary Residence. Permitted occupancy and use shall include immediate family members of the Qualified Owner or such Eagle County Employee or Employees and temporary invitees who do not provide compensation for temporary residence at the Property. Any lease of the Property by the Owner shall be to an Eagle County Employee or Employees for use as a Primary Residence for periods of thirty (30) days or longer. Use or lease of the Property as a Second Home or for Short Term Rental is prohibited. Any use or lease of the Property which is not allowed or is prohibited by this Deed Restriction shall constitute a default and shall be subject to the enforcement provisions and remedies contained in this Deed Restriction. d. Exceptions. It shall not be deemed a violation of Sections 3(a) or (b) above if: i. The resident Eagle County Employee becomes disabled and is no longer able to work as determined by the Town in its sole exclusive discretion; or ii. The resident Eagle County Employee has lost full-time employment and is actively seeking reemployment, not to exceed ninety (90) days after loss of employment; or iii. The Property is unoccupied and the Owner of the Property is actively seeking to sell or lease the Property to an Eagle County Employee, provided that the period of vacancy of the Property shall not exceed twelve (12) months. e. Owner covenants that the Owner shall not permit any occupancy, use or lease of the Property in violation of this Section 3. f. Owner covenants that any lease of the Property shall include a reference that such lease is subject to the terms and conditions of this Deed Restriction, including but not limited to restrictions on the use and occupancy of the Property and cooperation on providing required documentation for verification of Eagle County Employee and Primary Residence status. g. No later than February 1st of each year, the Owner of the Property shall submit to the Town a certification setting forth evidence establishing that the Property’s occupancy and use complies with this Deed Restriction on a form provided by the Town, which form shall be sent to the address of record of the Owner according to the Eagle County Assessor’s Office. Exhibit B: Form of Buyer Occupied Deed Restriction Page 4 of 11 4. Re-Sale Controls. The Property may not be sold or otherwise transferred to any person other than a Qualified Owner in accordance with the procedures for prior verification contained in this Section 4. a. Owner shall deliver to the Town a written notice of intent to sell the Property which notice shall include the name(s) of the Buyer(s) and all information required to determine whether the Buyer(s) meets the definition of Qualified Owner. b. Buyer(s) shall submit an administrative fee in the amount of TWO HUNDRED AND FIFTY DOLLARS ($250.00) to the Town to pay for the cost of reviewing and rendering a determination as to whether a prospective Buyer(s) meets the definition of a Qualified Owner. The administrative fee may be increased by the Town Council over time by an amount equal to annual increases in the Consumer Price Index for All Urban Consumers for the Denver-Aurora-Lakewood, Colo., metropolitan area as defined by the United States Bureau of Labor Statistics (or such other Consumer Price Index as may be adopted by the United States Bureau of Labor Statistics for Colorado) to cover the Town’s costs associated with processing the application. c. Once the Town has received complete information concerning the prospective Buyers(s) and has received the administrative fee, the Town shall review the information and make a written determination as to whether the Buyer(s) meets the definition of a Qualified Owner within a reasonable time and not to exceed thirty (30) days. d. The Town may require the Buyer to reimburse the Town for any additional costs that are incurred in the review and determination of whether a Buyer(s) meets the definition of a Qualified Owner, including but not limited to legal costs, title review costs, and investigation costs if reasonably required by the Town to complete its investigation. e. The Owner may sell and convey the Property to the Buyer(s) that is determined in writing by the Town to be a Qualified Owner. f. Upon sale and conveyance of the Property by Owner to a Buyer, the Buyer shall be subject to the same occupancy and use requirements set forth in Section 3(c) herein. 5. Default by Owner. If the Town has reasonable cause to believe that the occupancy or use of the Property is in violation of any provision of this Deed Restriction, the Town may inspect the Property between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing the Owner and occupants with at least twenty four (24) hours written notice. Notice to the occupants may be given by posting notice on the door to the Property. This Deed Restriction shall constitute permission to enter the Property during such times upon such notice without further consent. A default by Owner shall include breach of the covenants set forth in this Deed Restriction, including without limitation any of the following: a. Transfer or conveyance of the Property to a person or entity that is not a Qualified Owner. b. Acceptance of the Property by a person or entity that is not a Qualified Owner. Exhibit B: Form of Buyer Occupied Deed Restriction Page 5 of 11 c. Transfer or conveyance of the Property to a person who is a Qualified Owner prior to obtaining certification from the Town that such person is a Qualified Owner. d. Any ownership, use or occupancy of the Property in violation of Section 3 above, including, without limitation, any lease of the Property to a person or entity that is not an Eagle County Employee. e. Failure to submit an annual certification of occupancy and use as described in Section 3.f above. f. Failure to make payments and comply with the terms of any deed of trust placed on the Property. g. Any action by the Owner to encumber the Property in a manner that conflicts with the terms of this Deed Restriction or renders compliance with the terms of this Deed Restriction impossible or impractical. h. Permitting the use of the Property as a Short Term Rental or Second Home. 6. Notice and Cure. In the event a violation of this Deed Restriction is discovered, the Town shall send a written notice of default to the Owner detailing the nature of the default and providing sixty-five (65) days for the Owner to cure such default. Notwithstanding the foregoing or any other term of this Deed Restriction, a default for lease or use of the Property as a Short Term Rental or a Second Home shall be cured by the Owner immediately. The notice shall state that the Owner may request an appeal of the violation finding in writing within ten (10) days of such notice, in which event the Town shall administratively review the finding and, if the violation finding is upheld, the Owner may request in writing within ten (10) days of such administrative decision a hearing before the Avon Town Council. A decision of the Avon Town Council may only be judicially appealed in the District Court of Eagle County pursuant to C.R.C.P. 106. If no administrative or Town Council appeal is timely requested in writing and the violation is not cured within sixty-five (65) days of mailing the notice of default, the Owner shall be deemed to be in violation of this Deed Restriction. If an administrative or Town Council appeal is requested, the decision of the Avon Town Council (or administrative decision if such decision is not timely appealed to the Town Council) shall be final for the purpose of determining if a violation has occurred and, if such violation is not cured within sixty-five (65) days of such final determination, the Owner shall be deemed to be violation of this Deed Restriction. If a decision of the Avon Town Council is judicially appealed, an order of the Court confirming the violation shall be final for the purpose of determining if a violation has occurred and, if such violation is not cured within sixty-five (65) days of such final determination, the Owner shall be deemed to be violation of this Deed Restriction. In the event of any lease to a person who is not an Eagle County Employee or use of the Property as a Short Term Rental or Second Home, any amounts collected or receipt of other things of value by the Owner or assigns under such leases shall be paid to the Town as a material requirement of curing the notice of default. Exhibit B: Form of Buyer Occupied Deed Restriction Page 6 of 11 7. Remedies. In the event of violation, non-performance, default or breach of any term of this Deed Restriction by the Owner, Town shall have the right to enforce Owner’s obligations herein by an action for any equitable remedy, including injunction or specific performance, as well as pursue an action to recover damages. In addition, any amount due and owing to the Town shall bear interest at the rate of one and one half percent (1.5%) per month (eighteen percent [18%] per annum, compounded annually) until paid in full. The Town shall be entitled to recover any costs related to enforcement of this Deed Restriction, including but not limited to attorney’s fees, court filing costs and county recording costs. In addition to any other remedy provided by law or equity, the Town may attach a lien for any amount due to the Town upon the Property and enforce the lien in the manner and according to the procedures set forth in Colorado Revised Statutes, Section 31-20-105, and the Owner expressly waives any objection to the attachment of a lien for amounts due to the Town. In the event of a transfer or conveyance of the Property which violates the terms of this Deed Restrictions and constitutes a violation of this Deed Restriction, both the grantor and grantee shall be jointly and severally liable for any damages and costs due under this Deed Restriction. 8. Liquidated Damages. The parties acknowledge and agree that in the event of a violation of this Deed Restriction by the Owner, the determination of actual monetary damages would be difficult to ascertain. Therefore, the Town and Owner hereby agree that liquidated damages shall be calculated and applied in the amount of THREE HUNDRED DOLLARS ($300.00) per day for each day that the Owner is in violation of this Deed Restriction after having failed to timely cure the violation of this Deed Restriction. Liquidated damages shall be in addition to the Town’s ability to recover costs as stated in Section 7 above. Liquidated damages shall be in addition to the Town’s right to seek equitable remedies of injunction and/or specific performance. In the event of any lease or use of the Property as a Second Home or Short Term Rental, any amounts collected or receipt of other things of value by the Owner or assigns under such leases shall be paid to the Town as liquated damages as demanded by the Town (in lieu of the $300 daily liquidated damages), including such amounts collected or received by Owner prior to receipt of a Notice of Default and prior expiration of a sixty-five (65) day period to cure, and such amounts shall be in addition to the right of the Town to recover costs and seek equitable remedies. 9. Freddie Mac and Fannie Mae. Notwithstanding the foregoing, in the event that the Federal Home Loan Mortgage Corporation (“Freddie Mac”) or the Federal National Mortgage Association (“Fannie Mae”) holds or is assigned a deed of trust for any Home, the rights of the Town pursuant to the provisions of Sections 6 and 7 shall be subordinate to such deed of trust and such deed of trust shall unconditionally be and remain at all times a lien or charge on the Home, prior and superior to the lien or charge of the Town. Until repayment in full of the deed of trust, the Town shall not exercise any of its rights or remedies with respect to Sections 6 or 7. 10. Release of Deed Restriction in Event of Foreclosure or Deed in Lieu. a. An Owner shall notify the Town, in writing, of any notification received from a lender of past due payments or defaults in payments or other obligations within five (5) days of receipt of such notification. Exhibit B: Form of Buyer Occupied Deed Restriction Page 7 of 11 b. An Owner shall immediately notify the Town, in writing, of any notice of foreclosure under the first deed of trust or any other subordinate security interest in the Property, or when any payment on any indebtedness encumbering the Property is required to avoid foreclosure of the first deed of trust or other subordinate security interest in the Property. c. Within sixty (60) days after receipt of any notice described herein, the Town may (but shall not be obligated to) proceed to make any payment required to avoid foreclosure. Upon making any such payment, the Town shall place a lien on the Property in the amount paid to cure the default and avoid foreclosure, including all fees and costs resulting from such foreclosure. d. Notwithstanding any other provision of this Deed Restriction (but subject to Section 9.f below), in the event of a foreclosure, acceptance of a deed-in-lieu of foreclosure, or assignment, this Deed Restriction shall remain in full force and effect, including without limitation Section 4 hereof, restricting Transfer of the Property. e. The Town shall have thirty (30) days after issuance of the public trustee’s deed or the acceptance of a deed in lieu of foreclosure by the holder in which to purchase by tendering to the holder, in cash or certified funds, an amount equal to the bid price or the redemption price paid by the holder, interest in the amount of eight (8) percent per annum from the date of the issuance of the public trustee’s deed or the recording of a deed in lieu of foreclosure through the date of the Town’s purchase. f. Notwithstanding Section 9.d above, in the event that the Property is encumbered by a mortgage or deed of trust insured by the U.S. Department of Housing and Urban Development (“HUD”) and representing a purchase money first priority mortgage or deed of trust, this Deed Restriction shall automatically and permanently terminate upon foreclosure of such mortgage or deed of trust, upon acceptance of a deed in lieu of foreclosure of such mortgage or deed of trust, or upon assignment of such mortgage or deed of trust to HUD. 11. Option to Purchase. In the event of default by the Owner which is not cured, or upon receipt of a notice of foreclosure or other notice of default provided by the holder of a deed of trust, lien or other encumbrance as provided in Section 9 above (whichever is earlier), the Town shall have the option to purchase (“Option to Purchase”) the Property in accordance with the procedures and terms set forth as follows: a. The Town shall have an Option to Purchase for sixty-five (65) days after receipt of notice as provided above (“Option Period”). b. The Town shall have right of entry onto and into the Property during the Option Period to inspect the Property. c. The Town shall have the right to purchase the Property for the amount due to the holders of any deeds of trust, liens or other encumbrances up to the maximum amount defined in Section 5.g. above (together with interest, fees and costs expressly chargeable under deed of trust, lien or other encumbrance instrument), which amounts Exhibit B: Form of Buyer Occupied Deed Restriction Page 8 of 11 shall be paid in order of priority of the holders of such deeds of trusts, liens or other encumbrances provided that this Deed Restriction shall remain in effect and burden the Property after acquisition by the Town and upon re-conveyance to a subsequent Qualified Owner. d. The Town shall have the right to assign the Town’s right to purchase the Property to any Qualified Owner provided that this Deed Restriction shall remain in effect and burden the Property. e. Upon payment by Town or assigns, Owner shall convey title to the Property by a special warranty deed in accordance with Colorado Revised Statute §38-30-115 and shall include the words, “and warrant title against all persons claiming under me.” f. Normal and customary closing costs shall be shared equally between the Owner and Town or Town’s assigns. The Town or assigns shall be responsible, at its cost, for any and all title insurance fees, document fees, and recording fees of the deed. Taxes shall be prorated based upon taxes for the calendar year immediately preceding closing. g. If the Town or assigns do not exercise the Option to Purchase during the Option Period, then the holder of a deed of trust shall nonetheless remain subject to this Deed Restriction as provided in Section 11.d above, subject, however, to Section 11.f above. In the event that Town’s Option to Purchase arises from a default by Owner and not a notice of foreclosure or notice of default submitted by the holder of a deed of trust to the Town, then the Town may unilaterally extend the Option Period until such time as Town, or assigns, exercise the Option to Purchase or the Owner cures any and all defaults. 12. Tax Sale. In the event of a tax sale this Deed Restriction shall remain in full force and effect, shall run with and burden the land, and shall constitute a condition of the subdivision and land use approval which shall survive and sale of the Property through a tax lien sale process. 13. General Provisions. a. Severability. If any term, provision, covenant or condition of this Deed Restriction is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Deed Restriction shall continue and remain in full force and effect. b. Counting Days. If the final day of any notice, default or other event falls on a Saturday, Sunday, legal holiday recognized by the State of Colorado or day upon which the Avon Town Hall is closed for any reason, then the final day shall be deemed to be the next day which is not a Saturday, Sunday, legal holiday or day that the Avon Town Hall is closed. c. Waiver. No waiver of one or more of the terms or provisions of this Deed Restriction shall be effective unless provided in writing. No waiver of any term or provision of this Deed Restriction in any instance shall constitute a waiver of such provision in any other instance. The Town Council may provide a waiver along with any conditions of the Exhibit B: Form of Buyer Occupied Deed Restriction Page 9 of 11 waiver with regard to any of the terms and provisions in this Deed Restriction where unusual or unforeseen circumstances exist and the Owner is diligently seeking to cure a default and such waiver, with conditions if any, supports the purpose and intention of this Deed Restriction. d. Amendment. This Deed Restriction may only be amended in writing by the mutual agreement of the Owner and the Town and recorded with the Clerk and Recorder’s Office of Eagle County, Colorado. e. Recording. The Owner shall record this Deed Restriction in the Property Records of Eagle County, Colorado and the original executed and record documents must be returned to the Town. f. Assignment. The Town may assign this Deed Restriction and all rights and obligations, without consent of the Owner, to any other public entity, non-profit corporation or other entity which is organized and exists for the purpose to provide and promote affordable housing for full time residents. g. No Third-Party Beneficiaries. Nothing contained in this Deed Restriction is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party. h. Choice of Law. This Deed Restriction shall be governed and construed in accordance with the laws of the State of Colorado. Venue for any legal action arising from this Deed Restriction shall be in Eagle County, Colorado. i. Successors. Except as otherwise provided herein, the provisions and covenanted contained herein shall inure to and be binding upon the heirs, successors and assigns of the parties. The covenants shall be a burden upon and run with the Property for the benefit of the Town or the Town’s assigns, who may enforce the covenants and compel compliance therewith through the initiation of judicial proceedings for, but not limited to, specific performance, injunctive relief, reversion, eviction and damages. j. Section Headings. Paragraph or section headings within this Deed Restriction are inserted solely for convenience of reference and are not intended to and shall not govern, limit or aid in the construction of any terms or provisions contained herein. k. Gender and Number. Whenever the context so requires in this Deed Restriction, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. l. Notice. Any notice, consent or approval, which is required to be given hereunder, shall be given by either depositing in the U.S. Mail with first class postage pre-paid; mailing by certified mail with return receipt requested; sending by overnight delivery with a nationally recognized courier service that delivers to the physical address of the Property; or, by hand- delivering to the intended recipient. Notices shall be provided to the Town of Avon at P.O. Box 975, 100 Mikaela Way, Avon, CO 81620. Notices shall be provided to Owner at the address provided by the Eagle County Assessor’s office. Exhibit B: Form of Buyer Occupied Deed Restriction Page 10 of 11 IN WITNESS WHEREOF, the Owner and Town have executed this instrument on the day and the year first written above. DECLARANT: [ ] By: Name: Its: STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was subscribed, sworn to and acknowledged before me this __ day of __________________, 202__, by _____________________, as the owner of the real property described above. Witness my hand and official seal. My commission expires: ____________________________________ Notary Public TOWN OF AVON, COLORADO: By: _______________________________ Attest: ______________________________ Eric Heil, Town Manager Brenda Torres, Town Clerk Exhibit B: Form of Buyer Occupied Deed Restriction Page 11 of 11 Exhibit A [Insert Property Legal Description] Exhibit C: Form of Eagle County Employee Deed Restriction Page 1 of 11 EXHIBIT C TOWN OF AVON EAGLE COUNTY EMPLOYEE DEED RESTRICTION (NON-PRICE CAPPED) THIS COMMUNITY HOUSING DEED RESTRICTION (“Deed Restriction”) is entered into on __________________ 202___ (the “Effective Date”) by and between the Town of Avon, Colorado, a Colorado home rule municipality with an address of 100 Mikaela Way, P.O. Box 975, Avon, Colorado 81620 (“Town”), and __________________________, individuals[DEVELOPMENT ENTITY], with an address of _________________________________, AvonPO Box 2181, Edwards, Colorado 81657 (collectively81632 (the “Declarant”) (each individually a “Party” and collectively the “Parties”). WHEREAS, Declarant is purchasingowns the real property and the improvements situated thereon, located at _______________________, Avon, Colorado 81620 and more particularly described in Exhibit A hereto (“Property”); and WHEREAS, in exchange for the tax and fee waivers approved in the Tract Y Development Agreement and for the approval of Community Housing development, and in compliance with the stated conditions in the Tract Y Development Agreement, Declarant has agreed to place certain restrictions on the use of the Property for the benefit of the Town by requiring occupancy of the Property by at least one qualified residentQualified Resident, as defined below. NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which is mutually acknowledged, the Parties agree as follows: COVENANTS 1. Restriction and Recording. The Property is hereby burdened with the covenants and restrictions specified in this Deed Restriction. The use and development of the Property shall be restricted solely and exclusively to residential development for Community Housing as specified in this Deed Restriction and commercial and light industrial uses permitted by the underlying zone district shall not be permitted. The Town shall record this Deed Restriction against the Property at Declarant’s expense. 2. Definitions. The following definitions shall apply to terms used in the Deed Restriction: a. Eagle County Employee means an employee working in Eagle County who works an average of at least thirty-two (32) hours per week for at least eight (8) months in each calendar year or earns seventy-five percent (75%) of his or her income and earnings by working in Eagle County; or a retired individual, sixty (60) years or older, who has worked a minimum of five (5) years in Eagle County for an average of at least thirty- Exhibit C: Form of Eagle County Employee Deed Restriction Page 2 of 11 two(32) hours per week for at least eight (8) months in each calendar year; or a person who derives income from self-employment whose business is situated in Eagle County; or a person who works for an employer outside Eagle County if that person can demonstrate that such residence is the primary residence for that person. a.b. Owner means any Person as defined in Section 3.12.020 of the Avon Municipal Code, as amended who acquires an ownership interest in the Property, subject to the conditions contained herein, and may include either a Qualified Owner or Non- Qualified Owner, as the context requires. b. Home means each separate single-family or multi-family dwelling constructed within the Property and the real property upon or within such dwelling is located. c. Owner means any person who acquires an ownership interest in a Home. d.c. Primary Residence means the occupation and use of a residence as the primary residence, which shall be determined by the Town Manager by taking into account the following circumstances: voter registration in Avon, Colorado (or signing an affidavit stating that the applicant is not registered to vote in any other place); stated address on Colorado driver’s license or Colorado identification card; stated address on motor vehicle registration; ownership or use of other residences not situated in Avon, Colorado; stated residence for income and tax purposes; and such other circumstances as well as such processes for verification and investigation deemed appropriate by the Town Manager to determine that the applicant is continuously occupying and using the residence as a primary residence. Primary residence status may be maintained if unforeseen circumstances arise that requires the resident Eagle County Employee to temporarily leave the residence for a period not to exceed nine (9) months with the intent to return, and the residence is leased to another Eagle County Employee(s) after receiving written approval from the Town Manager. e.d. Qualified Resident means an Eagle County Employee who occupies the applicable HomeProperty as their Primary Residence. f.e. Non-Qualified Resident means any person who does not meet the definition of Qualified Resident, including persons who originally qualified as a Qualified Resident but whose circumstances change and who no longer meets the definition of Qualified Resident. g.f. Second Home shall mean the status of the Property when used by any person who has a primary residence that is other than the Property. h.g. Short Term Rental shall mean the rental or lease of the Property for a period of time that is fewer than thirty (30) days. i.h. Town shall include employees of the Town of Avon or subcontractors retained by the Town who are tasked with enforcing Deed Restriction agreements. 3. Ownership and Use of the Property. Exhibit C: Form of Eagle County Employee Deed Restriction Page 3 of 11 a. Recording. Immediately upon execution of this Deed Restriction by the Town and Declarant, Declarantthe Town shall cause this Deed Restriction to be recorded against the Property in the real property records of Eagle County. b. Occupancy and Use. Every Home developed within theThe Property shall be occupied by at least one (1) Qualified Resident. Permitted occupancy and use shall include immediate family members of the Qualified Resident(s) and temporary invitees who do not provide compensation for temporary residence at the HomeProperty. Any lease of a Homethe Property shall be for periods of thirty (30) days or longer. Use or lease of a Homethe Property as a Second Home or for Short Term Rental is prohibited. Any use or lease of a Homethe Property that is not allowed or is prohibited by this Deed Restriction shall constitute a default of this Deed Restriction applicable to that Home only (and not any other Home or any other portion of the Property) and shall be subject to the enforcement provisions and remedies contained in this Deed Restriction against the Owner of the Home that is not compliant with this Deed Restriction but not any other Owner.. c. Exceptions. It shall not be deemed a violation of Sections 3(a) or (b) above if: i. The occupant of a Homethe Property who was a Qualified Resident at the time their occupancy began becomes a Non-Qualified Resident because the occupant becomes disabled and is no longer able to work as determined by the Town in its sole exclusive discretion; or ii. The occupant of a Homethe Property who was a Qualified Resident at the time their occupancy began becomes a Non-Qualified Resident because the occupant has lost full-time employment and is actively seeking reemployment, not to exceed ninety (90) days after loss of employment; or iii. A HomeThe Property is unoccupied and the Owner of the HomeProperty is actively seeking to sell or lease the HomeProperty to a Qualified Resident, provided that the period of vacancy of the HomeProperty shall not exceed twelve (12) months. d. Every Owner, by taking title to a Homethe Property, covenants that the Owner shall not permit any occupancy, use or lease of the Owner’s HomeProperty in violation of this Section 3. No Owner of a Home, nor Declarant, shall be liable for any default under this Deed Restriction by any other Owner. e. Every Owner, by taking title to a Homethe Property, covenants that any lease of the HomePropety shall include a reference that such lease is subject to the terms and conditions of this Deed Restriction, including but not limited to restrictions on the use and occupancy of the HomeProperty and cooperation on providing required documentation for verification of Qualified Resident status. f. No later than February 1st of each year, the Owner of each Home shall submit to the Town a certification setting forth evidence establishing that the occupancy and use of the HomeProperty complies with this Deed Restriction on a form provided by the Exhibit C: Form of Eagle County Employee Deed Restriction Page 4 of 11 Town, which form shall be sent to the address of record of the Owner according to the Eagle County Assessor’s Office. 4. Default by Owner. If the Town has reasonable cause to believe that the occupancy or use of a Homethe Property is in violation of any provision of this Deed Restriction, the Town may inspect the applicable Home (but not any other Home not alleged to be in violation of this Deed Restriction)Property between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday, after providing the Owner and occupants with at least twenty four (24) hours written notice. Notice to the occupants may be given by posting notice on the door to the applicable Home.residence on the Property. This Deed Restriction shall constitute permission to enter the applicable Home (but not any other Home not alleged to be in violation of this Deed Restriction)Property during such times upon such notice without further consent. A default by an Owner shall include breach of the covenants set forth in this Deed Restriction, including without limitation any of the following: a. Occupancy of the HomeProperty by a person who is a Qualified Resident prior to obtaining certification from the Town that such person is a Qualified Resident. b. Any use or occupancy of the HomeProperty in violation of Section 3 above. c. Failure to submit an annual certification of occupancy and use as described in Section 3.f above. d. Failure to make payments and comply with the terms of any deed of trust placed on the HomeProperty after any period for notice and cure provided in said deed of trust. e. Any action by the Owner to encumber the HomeProperty in a manner that conflicts with the terms of this Deed Restriction or renders compliance with the terms of this Deed Restriction impossible or impractical. f. Permitting the use of the HomeProperty as a Short Term Rental or Second Home. 5. Notice and Cure. In the event a violation of this Deed Restriction is discovered, the Town shall send a written notice of default to the Owner detailing the nature of the default and providing sixty-five (65) days for the Owner to cure such default. Notwithstanding the foregoing or any other term of this Deed Restriction, a default for lease or use of the Property as a Short Term Rental or a Second Home shall be cured by the Owner immediately. The notice shall state that the Owner may request an appeal of the violation finding in writing within ten (10) days of such notice, in which event the Town shall administratively review the finding and, if the violation finding is upheld, the Owner may request in writing within ten (10) days of such administrative decision a hearing before the Avon Town Council. A decision of the Avon Town Council may only be judicially appealed in the District Court of Eagle County pursuant to C.R.C.P. 106. If no administrative or Town Council appeal is timely requested in writing and the violation is not cured within sixty-five (65) days of mailing the notice of default, the Owner shall be deemed to be in violation of this Deed Restriction. If an administrative or Town Council appeal is requested, the decision of the Avon Town Council (or administrative decision if such decision is not timely appealed to the Town Council) shall be final for the purpose of determining if a violation has occurred and, if such violation is not cured within sixty-five (65) days of such final determination, Exhibit C: Form of Eagle County Employee Deed Restriction Page 5 of 11 the Owner shall be deemed to be violation of this Deed Restriction. If a decision of the Avon Town Council is judicially appealed, an order of the Court confirming the violation shall be final for the purpose of determining if a violation has occurred and, if such violation is not cured within sixty-five (65) days of such final determination, the Owner shall be deemed to be violation of this Deed Restriction. In the event of any lease of the Property to a person who is not an Eagle County Employee or use of the Property as a Short Term Rental or Second Home, any amounts collected or receipt of other things of value by the Owner or assigns under such leases shall be paid to the Town as a material requirement of curing the notice of default. 6. Remedies. In the event of violation, non-performance, default or breach of any term of this Deed Restriction by the Owner, Town shall have the right to enforce Owner’s obligations herein by an action for any equitable remedy, including injunction or specific performance, as well as pursue an action to recover damages. In addition, any amount due and owing to the Town shall bear interest at the rate of one and one half percent (1.5%) per month (eighteen percent [18%] per annum, compounded annually) until paid in full. The Town shall be entitled to recover any costs related to enforcement of this Deed Restriction, including but not limited to attorney’s fees, court filing costs and county recording costs. In addition to any other remedy provided by law or equity, the Town may attach a lien for any amount due to the Town upon the Property and enforce the lien in the manner and according to the procedures set forth in Colorado Revised Statutes, Section 31-20-105, and the Owner expressly waives any objection to the attachment of a lien for amounts due to the Town. In the event of a transfer or conveyance of the Property whichthat violates the terms of this Deed Restrictions and constitutes a violation of this Deed Restriction, both the grantor and grantee shall be jointly and severally liable for any damages and costs due under this Deed Restriction. 7. Liquidated Damages. The parties acknowledge and agree that in the event of a violation of this Deed Restriction by the Owner, the determination of actual monetary damages would be difficult to ascertain. Therefore, the Town and Owner hereby agree that liquidated damages shall be calculated and applied in the amount of THREE HUNDRED DOLLARS ($300.00) per day for each day that the Owner is in violation of this Deed Restriction after having failed to timely cure the violation of this Deed Restriction. Liquidated damages shall be in addition to the Town’s ability to recover costs as stated in Section 6 above. Liquidated damages shall be in addition to the Town’s right to seek equitable remedies of injunction and/or specific performance. In the event of any lease or use of the Property as a Second Home or Short Term Rental, any amounts collected or receipt of other things of value by the Owner or assigns under such leases shall be paid to the Town as liquated damages as demanded by the Town (in lieu of the $300 daily liquidated damages), including such amounts collected or received by Owner prior to receipt of a Notice of Default and prior expiration of a sixty-five (65) day period to cure, and such amounts shall be in addition to the right of the Town to recover costs and seek equitable remedies. 8. Freddie Mac and Fannie Mae. Notwithstanding the foregoing, in the event that the Federal Home Loan Mortgage Corporation (“Freddie Mac”) or the Federal National Mortgage Association (“Fannie Mae”) holds or is assigned a deed of trust for any Homethe Property, the rights of the Town pursuant to the provisions of Sections 6 and 7 shall be subordinate to such deed of trust and such deed of trust shall unconditionally be and remain at all times a lien or charge on Exhibit C: Form of Eagle County Employee Deed Restriction Page 6 of 11 the HomeProperty, prior and superior to the lien or charge of the Town. Until repayment in full of the deed of trust, the Town shall not exercise any of its rights or remedies with respect to Sections 6 or 7. 9. Release of Deed Restriction in Event of Foreclosure or Deed in Lieu. a. An Owner shall notify the Town, in writing, of any notification received from a lender of past due payments or defaults in payments or other obligations within five (5) days of receipt of such notification. b. An Owner shall immediately notify the Town, in writing, of any notice of foreclosure under the first deed of trust or any other subordinate security interest in the Property, or when any payment on any indebtedness encumbering the Property is required to avoid foreclosure of the first deed of trust or other subordinate security interest in the Property. c. Within sixty (60) days after receipt of any notice described herein, the Town may (but shall not be obligated to) proceed to make any payment required to avoid foreclosure. Upon making any such payment, the Town shall place a lien on the Property in the amount paid to cure the default and avoid foreclosure, including all fees and costs resulting from such foreclosure. d. Notwithstanding any other provision of this Deed Restriction (but subject to Section 9.f below), in the event of a foreclosure, acceptance of a deed-in-lieu of foreclosure, or assignment, this Deed Restriction shall remain in full force and effect, including without limitation Section 4 hereof, restricting Transfer of the Property. e. The Town shall have thirty (30) days after issuance of the public trustee’s deed or the acceptance of a deed in lieu of foreclosure by the holder in which to purchase by tendering to the holder, in cash or certified funds, an amount equal to the bid price or the redemption price paid by the holder, interest in the amount of eight (8) percent per annum from the date of the issuance of the public trustee’s deed or the recording of a deed in lieu of foreclosure through the date of the Town’s purchase. f. Notwithstanding Section 9.d above, in the event that the Property is encumbered by a mortgage or deed of trust insured by the U.S. Department of Housing and Urban Development (“HUD”) and representing a purchase money first priority mortgage or deed of trust, this Deed Restriction shall automatically and permanently terminate upon foreclosure of such mortgage or deed of trust, upon acceptance of a deed in lieu of foreclosure of such mortgage or deed of trust, or upon assignment of such mortgage or deed of trust to HUD. 10. Option to Purchase. In the event of default by the Owner which is not cured, or upon receipt of a Notice of Election and Demand, other notice of foreclosure or other notice of default provided by the holder of a deed of trust, lien or other encumbrance as provided in Section 9 above (whichever is earlier), the Town shall have the option to purchase (“Option to Purchase”) the Property in accordance with the procedures and terms set forth as follows: Exhibit C: Form of Eagle County Employee Deed Restriction Page 7 of 11 a. The Town shall have an Option to Purchase for sixty-five (65) days after receipt of notice as provided above (“Option Period”). b. The Town shall have right of entry onto and into the Property during the Option Period to inspect the Property. c. The Town shall have the right to purchase the Property for the amount due to the holders of any deeds of trust, liens or other encumbrances, which amounts shall be paid in order of priority of the holders of such deeds of trusts, liens or other encumbrances provided that this Deed Restriction shall remain in effect and burden the Property after acquisition by the Town and upon re-conveyance to a subsequent owner. d. The Town shall have the right to assign the Town’s right to purchase the Property to any party provided that this Deed Restriction shall remain in effect and burden the Property. e. Upon payment by Town or assigns, Owner shall convey title to the Property by a special warranty deed in accordance with Colorado Revised Statute §38-30-115 and shall include the words, “and warrant title against all persons claiming under me.” f. Normal and customary closing costs shall be shared equally between the Owner and Town or Town’s assigns. The Town or assigns shall be responsible, at its cost, for any and all title insurance fees, document fees, and recording fees of the deed. Taxes shall be prorated based upon taxes for the calendar year immediately preceding closing. g. If the Town or assigns do not exercise the Option to Purchase during the Option Period, then the holder of a deed of trust shall nonetheless remain subject to this Deed Restriction as provided in Section 9.d above, subject, however, to Sections 9.e and 9.f above. In the event that Town’s Option to Purchase arises from a default by Owner and not a notice of foreclosure or notice of default submitted by the holder of a deed of trust to the Town, then the Town may unilaterally extend the Option Period until such time as Town, or assigns, exercise the Option to Purchase or the Owner cures any and all defaults. 11. Tax Sale. In the event of a tax sale this Deed Restriction shall remain in full force and effect, shall run with and burden the land, and shall constitute a condition of the subdivision and land use approval which shall survive and sale of the Property through a tax lien sale process. 12. General Provisions. a. Severability. If any term, provision, covenant or condition of this Deed Restriction is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Deed Restriction shall continue and remain in full force and effect. b. Counting Days. If the final day of any notice, default or other event falls on a Saturday, Sunday, legal holiday recognized by the State of Colorado or day upon which the Avon Town Hall is closed for any reason, then the final day shall be deemed to be the next day which is not a Saturday, Sunday, legal holiday or day that the Avon Town Hall is closed. Exhibit C: Form of Eagle County Employee Deed Restriction Page 8 of 11 c. Waiver. No waiver of one or more of the terms or provisions of this Deed Restriction shall be effective unless provided in writing. No waiver of any term or provision of this Deed Restriction in any instance shall constitute a waiver of such provision in any other instance. The Town Council may provide a waiver along with any conditions of the waiver with regard to any of the terms and provisions in this Deed Restriction where unusual or unforeseen circumstances exist and the Owner is diligently seeking to cure a default and such waiver, with conditions if any, supports the purpose and intention of this Deed Restriction. d. Amendment. This Deed Restriction may only be amended in writing by the mutual agreement of the Owner and the Town and recorded with the Clerk and Recorder’s Office of Eagle County, Colorado. e. Recording. The Owner shall record this Deed Restriction in the Property Records of Eagle County, Colorado and the original executed and record documents must be returned to the Town. f. Assignment. The Town may assign this Deed Restriction and all rights and obligations, without consent of the Owner, to any other public entity, non-profit corporation or other entity which is organized and exists for the purpose to provide and promote affordable housing for full time residents. g. No Third-Party Beneficiaries. Nothing contained in this Deed Restriction is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party. h. Choice of Law. This Deed Restriction shall be governed and construed in accordance with the laws of the State of Colorado. Venue for any legal action arising from this Deed Restriction shall be in Eagle County, Colorado. i. Successors. Except as otherwise provided herein, the provisions and covenantedcovenants contained herein shall inure to and be binding upon the heirs, successors and assigns of the partiesParties. The covenants shall be a burden upon and run with the Property for the benefit of the Town or the Town’s assigns, who may enforce the covenants and compel compliance therewith through the initiation of judicial proceedings for, but not limited to, specific performance, injunctive relief, reversion, eviction and damages. j. Section Headings. Paragraph or section headings within this Deed Restriction are inserted solely for convenience of reference and are not intended to and shall not govern, limit or aid in the construction of any terms or provisions contained herein. k. Gender and Number. Whenever the context so requires in this Deed Restriction, the neuter gender shall include any or all genders and vice versa and the use of the singular shall include the plural and vice versa. l. Notice. Any notice, consent or approval, which is required to be given hereunder, shall be given by either depositing in the U.S. Mail with first class postage pre-paid; mailing Exhibit C: Form of Eagle County Employee Deed Restriction Page 9 of 11 by certified mail with return receipt requested; sending by overnight delivery with a nationally recognized courier service that delivers to the physical address of the Property; or, by hand- delivering to the intended recipient. Notices shall be provided to the Town of Avon at P.O. Box 975, 100 Mikaela Way, Avon, CO 81620. Notices shall be provided to Owner at the address provided by the Eagle County Assessor’s office. [signature page follows] Exhibit C: Form of Eagle County Employee Deed Restriction Page 10 of 11 IN WITNESS WHEREOF, the Owner and Town have executed this instrument on the day and the year first written above. DECLARANT: [ ] By: Name: Its: STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing instrument was subscribed, sworn to and acknowledged before me this __ day of __________________, 202__, by _____________________, as the owner of the real property described above. Witness my hand and official seal. My commission expires: ____________________________________ Notary Public TOWN OF AVON, COLORADO: By: _______________________________ Attest: ______________________________ Eric Heil, Town Manager Brenda Torres, Town Clerk Exhibit C: Form of Eagle County Employee Deed Restriction Page 11 of 11 Exhibit A [Insert Property Legal Description] 970.748.4413 matt@avon.org TO: Honorable Mayor Smith Hymes and Council FROM: Matt Pielsticker, AICP Planning Director RE: Retail Marijuana Businesses DATE: May 5, 2022 INTRODUCTION: The purpose of this report is to summarize land use, taxing, and development standards regarding potential marijuana sales in the Town. Last fall the Town Council and Planning and Zoning Commission (“PZC”) held a work session to discuss this topic. Direction was provided to proceed with exploring a ballot question to Avon voters for recreational marijuana sales. There was less support for pursuing cultivation or testing facilities. One to two retail stores in Town can be expected if a ballot question is approved by voters and common distancing parameters are implemented. If a 5% excise tax was approved and sales volume was comparable to other Eagle County retail stores, between $250,000 and $500,000 per year in additional revenue is projected. Final action to pursue ballot question(s) or not in 2022 is being requested at the meeting. BACKGROUND: At the national level, Colorado went from being the first adopter of marijuana legalization to one among many states with some sort of marijuana liberalization policy. Federally, marijuana is still a controlled substance, subject to penalties for production, transport, and sales. Colorado voters approved Amendment 64 in 2012, which resulted in the legalization of marijuana and recreational marijuana sales in the state, beginning in 2014. Amendment 64 passed Statewide with a vote of 55% in favor; in Eagle County the result was 66% in favor; and in Avon, 71%. Amendment 64 allowed local jurisdictions to prohibit marijuana sales and associated businesses within their borders. In 2014 the Town Council passed Ordinance 14-06, which bans marijuana businesses within the Town. After several years of legalization, there are fewer unanswered questions as to the impact of marijuana businesses on communities. Since 2014, the number of Colorado communities allowing marijuana businesses has grown substantially. The attached status report (“Attachment A”) prepared by Colorado Municipal League summarizes marijuana business allowance by type of facility, with tax information by jurisdiction. Eagle County tax collections are summarized (“Attachment B”) to provide local context with tax revenues. One of the Finance Department’s 2022 goals includes: Research and Support Consideration of Use Tax and Marijuana Tax: Council expressed interest in researching and considering both a Use Tax and Marijuana Tax for potential referral to the November 2022 general election. EAGLE COUNTY REGULATIONS: Eagle County regulates retail marijuana businesses, predominantly using distancing requirements. More specifically, Eagle County, medical and retail cannabis businesses are prohibited within 200 feet of residential, drug rehabilitation facilities, community centers, schools, parks, playgrounds, or family care facilities. Retail businesses are also prohibited within 500 feet of high schools in this unincorporated area. Distancing results in defining the resulting areas outside of this parameter that allow recreational marijuana sales, like Eagle-Vail’s commercial corridor illustrated below. Page 2 of 6 Eagle-Vail commercial corridor allows recreational marijuana sales and production based on the County's regulations. Locational buffers from houses, parks, etc., appear in yellow. STATE OF COLORADO REGULATIONS: At the state level, the Colorado Senate passed House Bill 21 - 1317. The bill was signed into law and seeks to limit high -potency THC products (i.e. concentrates) from being available to young people. Products are now being tracked with a software system to limit younger medical card carriers from buying more than is allowed per day for products available at various outlets.. The state cannabis WEBSITE contains a wealth of information on the topic, including resources related to health and the responsible use of cannabis. FEDERAL DISTANCING: Consideration should be given to federal-level penalties related to marijuana, which is still listed as a controlled substance. The federal standards are cited here for convenience: 21 USCS § 860 (a) Penalty. Any person who violates section 401(a)(1) or section 416 [21 USCS § 841(a)(1) or 856] by distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within one thousand feet of, the real property comprising a public or private elementary, vocational, or secondary school or a public or private college, junior college, or university, or a playground, or housing facility owned by a public housing authority, or within 100 feet of a public or private youth center, public swimming pool, or video arcade facility, is (except as provided in subsection (b)) subject to (1) twice the maximum punishment authorized by section 401(b) [21 USCS § 841(b)], and (2) at least twice any term of supervised release authorized by section 401(b) [21 USCS § 841(b)] for a first offense. A fine up to twice that authorized by section 401(b) [21 USCS § 841(b)] may be imposed in addition to any term of imprisonment authorized by this subsection. Except to the extent a greater minimum sentence is otherwise provided by section 401(b) [21 USCS § 841(b)], a person shall be sentenced under this subsection to a term of imprisonment of not less than one year. The mandatory minimum sentencing provisions of this paragraph shall not apply to offenses involving 5 grams or less of marijuana. TAXES/STATE OF COLORADO: There are three taxes for retail marijuana in Colorado: a 2.9% state sales tax, a 15% marijuana retail sales tax (not applicable to medical marijuana), and a 15% excise tax. These monies are distributed to local entities, public schools, the state’s general fund, and a Marijuana Tax Cash Fund (funding health care, monitoring marijuana health effects, health education, substance abuse prevention and treatment programs, and law enforcement). Page 3 of 6 Source: Colorado Department of Education TAXES/PEER MUNICIPALITIES: There are diverse tax structures in the area. Below is a breakdown of tax burdens for a $100 purchase in various nearby communities. Staff found a 5% local marijuana tax to be the most common rate for municipalities within the state. County retail marijuana sales in 2020, in millions Eagle $22.80 Garfield $29.20 Pitkin $14.40 Source: Colorado Department of Revenue Colorado marijuana tax revenue, in millions 2021 $423.46 2020 $387.50 2019 $302.50 2018 $266.50 2017 $247.40 2016 $193.60 2015 $130.40 2014 $67.6 Source: Colorado Department of Revenue Page 4 of 6 TAXES/EAGLE COUNTY: Eagle County has six (6) sales tax filers and five (5) excise (production) tax filers. Total marijuana sales and excise collections for 2020 was $773,113 at a rate of 2.5%. Assuming one to two retail locations in Avon, staff estimates $250,000 to $500,000 in sales tax contributions based on a 5% Marijuana and 4% retail sales tax rate respectively. See the attached (“Attachment B”) Eagle County report for more detailed analysis of month-over-month sales data for Eagle County collections. ANALYSIS: With a high concentration of marijuana businesses Eagle-Vail, it is not conspicuous to visitors that the Town of Avon prohibits marijuana businesses. Assuming Beaver Creek vacationers make up a large share of retail marijuana sales, many shoppers already pass-through Avon and shop at addresses labeled “Avon”, in Eagle-Vail. Avon’s valley floor includes many custom zone districts called Planned Unit Developments (“PUD”). If the Town allows marijuana businesses, any location with PUD zoning (i.e. Chapel Square) that is eligible for marijuana businesses would need to be custom modified to accommodate the use. That is, a Minor PUD amendment would need to be processed and approved by Town Council prior to any marijuana business opening in a PUD-zoned property. Additional locational requirements should include: • Special Review Use regulations, whereby aesthetic and community characteristics could be considered • Distancing between marijuana businesses • Distance from schools • Distance from other uses • Distance from public facilities • Cap of the number of licenses issued (e.g., only 2 marijuana dispensaries and only 2 production facilities allowed) Additional aesthetic requirements could include: • Design requirements for signage • Lighting standards • Store names • Storefront design Breckenridge Town of Eagle Carbondale Silverthorne Basalt TOTAL TAX 25.98$ 23.50$ 25.50$ 25.48$ 25.30$ TAX BREAK DOWN STATE 15.00$ 15.00$ 15.00$ 15.00$ 15.00$ COUNTY 2.00$ 1.50$ 1.00$ 2.00$ 1.00$ SPECIAL DISTRICT Mass Transportation 0.75$ 1.00$ 0.75$ 1.30$ Housing Authority 0.73$ 0.73$ TOWN-SALES 2.50$ 4.50$ 3.50$ 2.00$ 3.00$ TOWN-MARIJUANA 5.00$ 2.50$ 5.00$ 5.00$ 5.00$ Page 5 of 6 Example of store without strong design controls Aesthetically pleasing storefront with design standards BUFFERS: Federal penalty regulations applying to schools and playgrounds require 1,000 feet of separation, although as noted above in Eagle County’s regulations, local jurisdictions have control over those requirements. Assuming a 500-foot buffer (commonly accepted in other Colorado Municipalities) from schools and playgrounds is deemed appropriate for Avon, the attached map (“Attachment C”) illustrates that there are commercially zoned parcels with potential to host marijuana businesses between Avon Road and Chapel square in “East Avon”, and the small area of Neighborhood Commercial (“NC”) zoned parcels near the Interstate 70 Interchange . PROCESS: The Town Council has the option to modify land use regulations to permit retail marijuana by Ordinance. If there are changes to taxes, the Taxpayers Bill of Rights (“TABOR”) requires a vote of the electorate. It is common and convenient to ask voters for consideration of use and tax at the same time. If a ballot question were pursued, the following dates are worth noting: August 9 Last regularly scheduled Town Council meeting to introduce first reading of an ordinance to refer ballot question and self-execute implementation of use tax upon approval. August 23 Last regularly scheduled Town Council meeting in which to adopt a resolution certifying ballot content to the County Clerk and Recorder. September 7 Last day to certify the ballot content to the County Clerk and Rec order. November 8 General Election. RECCOMENDATION: I recommend pursuing a ballot question and specific language on how the excise tax funds would be utilized. Public health and education programs are the most common uses of marijuana tax funds. Page 6 of 6 OPTIONS: • Delay action until next year • Proceed with Ordinance to introduce land use controls and licensing regulations with no ballot question on use and/or tax • Proceed with Ballot process this summer for fall election to determine 1) voter acceptance of use, and 2) excise tax Thank you, Matt ATTACHMENT A: Municipal Retail Marijuana Status Summary ATTACHMENT B: Eagle County Tax Report ATTACHMENT C: Avon Buffer Analysis for Marijuana Businesses Sales Cultivation Manufacturing Testing Delivery On-site Consumption Tax Information Notes Site/Code Aguilar Aguilar Municipal Code Akron Akron Municipal Code Alamosa √5% sales tax on retail sales (not currently allowed)Alamosa Municipal Code Alma √√√√Alma Municipal Code Antonito √Antonito Retail Store Arriba Permanent moratorium.Link to Town Ordinances Arvada Arvada Municipal Code Aspen √√√√Aspen Municipal Code Ault Ault Municipal Code, Chapter 9.34 Aurora √√√√√5% excise tax, 4% sales tax on retail with authority up to 10%Aurora Marijuana Enforcement Division Avon Avon Municipal Code Basalt √5% sales tax on retail marijuana Basalt Municipal Code Bayfield $10 per retail transaction (sales not currently allowed)Bayfield Municipal Code Bennett Bennett Municipal Code Berthoud √7% sales and excise tax on retail sales Berthoud Municipal Code (Retail marijuana not yet codified) Bethune Black Hawk √5% sales on retail and medical Black Hawk Municipal Code Blanca √√5% excise on sale or transfer of unprocessed retail marijuana in CML files Blue River Blue River Municipal Code Boone Boulder √√√√5% excise tax, 3.5% sales tax Boulder Municipal Code Bow Mar Bow Mar Municipal Code Branson Breckenridge √√√5% excise tax on all sales of marijuana Breckenridge Municipal Code Brighton Rejected by voters November 2021 Brighton Municipal Code Brookside Brookside Marijuana Ordinance Broomfield √√√5% excise tax Prohibition ordinance for cult and mfg set to repeal on 4/1/25 Broomfield Municipal Code Brush Brush Municipal Code Buena Vista √5% sales tax with authority up to 15%Approved by voters November 2020 Buena Vista Municipal Code Burlington Rejected by voters April 2022 Burlington Municipal Code Calhan Calhan Zoning Code Campo CML Files Cañon City 5% excise and sales, authority up to 10%Moratorium with Ordinance 7-2014 Canon City Ordinances Carbonate Carbondale √√√√sales tax 5%, excise tax 5%Carbondale Municipal Code Castle Pines Castle Pines Zoning Ordinance Section 206 Castle Rock Castle Rock Municipal Code Cedaredge √5% sales tax Approved by voters November, 2020 Cedaredge Municipal Code Centennial Centennial Municipal Code Center Defeated by voters 11/19 Central City √5% on retail sales Central City Municipal Code Municipal Retail Marijuana Status ATTACHMENT A - COLORADO SUMMARY OF MUNICIPALITIES AND MARIJUANA Sales Cultivation Manufacturing Testing Delivery On-site Consumption Tax Information Notes Site/Code Municipal Retail Marijuana Status Cheraw Cherry Hills Village Cherry Hills Municipal Code Cheyenne Wells CML Files Coal Creek CML Files Cokedale Collbran Permanent moratorium Collbran Municipal Code Colorado Springs √Colorado Springs Municipal Code Columbine Valley Commerce City √√√√7% sales tax, 5% excise tax Commerce City Municipal Code Cortez √√√Cortez Municipal Code Craig √√√√up tp 4% sales tax Approved by voters 11/19 Craig Municipal Code Crawford 5% sales with authority up to 10, 5% excise (sales not currently allowed)Crawford Marijuana Ordinances Creede Creede Ordinance 375 Crested Butte √√√Crested Butte Municipal Code Crestone √5% sales tax CML Files Cripple Creek Cripple Creek Municipal Code Crook Crowley Dacono Dacono Municipal Code De Beque √√√√5% excise tax on sale and cultivation Marijuana Page on De Beque Website Deer Trail Del Norte Del Norte Municipal Code Delta 5% excise, 2% sales (sales not currently allowed)Delta Municipal Code Denver √√√√√√5.5% sales tax, authorized up to 15% approved delivery 4/21 to start by summer Link to Denver's Marijuana Business Licenses Page Dillon √5% sales tax; 5% excise Dillon Municipal Code Dinosaur √√√√5% excise, 10% sales Dinosaur Ordinance 3 Dolores √√√√$5 occupation tax per sales transaction; 5% excise Approved by voters 4/20 Dove Creek Durango √√3% sales tax Durango Municipal Code Eads Eagle √√√√2.5% sales and 2.5% excise each increasing .5%/year up to 5%Link to Eagle Marijuana Regulations Page Eaton Eaton Municipal Code Eckley Voted down 11/2020 Edgewater √√√√Edgewater Municipal Code Elizabeth Elizabeth Municipal Code Empire √√√$5/transaction Empire Ordinance 238 Englewood √3.5% with authority up to 5%Englewood Municipal Code Erie Erie Municipal Code Estes Park Voted down 12/19 Estes Park Municipal Code Evans Evans Municipal Code Fairplay Fairplay Municipal Code Federal Heights √√√√5% sales tax with authority up to 10%, 5% excise tax with authority up to 10%Federal Heights Marijuana Ordinance Firestone Firestone Municipal Code Flagler Prohibited (per email) Fleming ATTACHMENT A - COLORADO SUMMARY OF MUNICIPALITIES AND MARIJUANA Sales Cultivation Manufacturing Testing Delivery On-site Consumption Tax Information Notes Site/Code Municipal Retail Marijuana Status Florence √5% excise tax on wholesale Florence Municipal Code Fort Collins √√√√Link to Fort Collins Marijuana Page Fort Lupton √3.1% sales tax with authority up to 10%Approved by voters November, 2020 Fort Lupton Marijuana Ordinance Fort Morgan Fort Morgan Municipal Code Fountain Fountain Municipal Code Fowler Fowler Municipal Code Foxfield Foxfield Municipal Code Fraser √5% sales tax Fraser Municipal Code Frederick Frederick Municipal Code - Chapter 6 Frisco √√√5% sales tax Frisco Taxation Code Fruita 5% excise tax Fruita Ordinance 2013-13 Garden City √√√√Garden City Municipal Code Genoa Georgetown √√$5/transaction Georgetown Municipal Code Gilcrest Gilcrest Municipal Code Glendale √√√√√1.85% sales tax Glendale Municipal Code Glenwood Springs √√√√sales tax: 5% up to 15%, excise tax: 5%Glenwood Springs Municipal Code Golden √6% sales tax Approved by voters November 2021 Golden Municipal Code Granada Granby Granby Municipal Code - Chapter 16 Grand Junction √√√√5% sales tax, up to 15%; 3% excise tax, up to 10%Approved by voters April 2021 Grand Junction Marijuana Licensing Page Grand Lake Grand Lake Municipal Code - Chapter 7 Greeley Greeley Municipal Code Green Mountain Falls Green Mountain Falls Ordinance 01-2013 Greenwood Village Greenwood Village Municipal Code Grover Gunnison √√√√5% sales tax, 5% excise tax Gunnison Municipal Code Gypsum Gypsum Municipal Code Hartman Haswell Haxtun Hayden √√7.5% excise tax with authority up to 15%Hayden Municipal Code Hillrose Holly Holly Marijuana Prohibition Ordinance Holyoke Holyoke Ord. 7-2016 Hooper Rejected by voters April 2022 Hot Sulphur Springs Hot Sulphur Springs - Ordinance Hotchkiss 2% sales tax (up to 10%) in event sales are permitted by election CML Files Hudson Hudson Land Development Code - Chapter 16 Hugo Hugo Ordinance 237 Idaho Springs √√5% excise tax Idaho Springs Municipal Code Ignacio Rejected by voters April 2022 Ignacio Ordinance 308 - Permanent Ban Iliff ATTACHMENT A - COLORADO SUMMARY OF MUNICIPALITIES AND MARIJUANA Sales Cultivation Manufacturing Testing Delivery On-site Consumption Tax Information Notes Site/Code Municipal Retail Marijuana Status Jamestown Permanent moratorium Jamestown Ordinance 2013-01 Johnstown Johnstown Ordinance 2016-143 Julesburg Keenesburg Keenesburg Municipal Code Kersey Kersey Municipal Code Kim Kiowa Voted down 11/2020 Kiowa Municipal Code - Chp. 6 Kit Carson Kremmling La Jara La Junta La Junta Municipal Code La Salle CML Files La Veta √√√√Rejected by voters April 2022 La Veta Municipal Code Lafayette √√√√sales and excise tax 5%; up to 10%Lafayette Municipal Code Lake City Lake City Municipal Code Lakeside Lakewood √√Approved by voters November 2020 Lakewood Municipal Code Lamar Approved by voter initiative November 2021; Election results nullified in March 2022 because petition requirements were not met Lamar Municipal Code - Chp. 6 Larkspur Larkspur Municipal Code Las Animas √√√√5.75% sales tax; 5% excise tax, up to 10%Approved November 2018 election Leadville √√√√5% excise tax, up to 10%Leadville Municipal Code Limon Limon Municipal Code Littleton √Special 3% sales tax on retail Approved by voters November 2020 Littleton Municipal Code - Chp. 21 Lochbuie Lochbuie Municipal Code Log Lane Village √√√√5% excise tax Lone Tree Lone Tree Municipal Code Longmont √3.5% sales tax; 3% excise tax with authority up to 15%Longmont Marijuana Ordinance Louisville √√√5% excise tax on cultivation Louisville Municipal Code Loveland Defeated by voters 11/19 Loveland Municipal Code - 7.65.20 Lyons √√√√3.5% sales; 5% excise tax; both up to 10%Lyons Municipal Code Manassa Mancos √√√√occupation tax up to $10/transaction Mancos Municipal Code Manitou Springs √√6%, authority up to 10%cultivation and manufacturing prohibited Manitou Springs Municipal Code Manzanola Marble Marble Ordinance 8-2014 Mead Defeated by voters 11/19, 11/21 Mead Municipal Code Meeker Meeker Municipal Code Merino Milliken √√√√occupation tax up to $10/transaction Milliken Municipal Code Minturn Minturn Municipal Code Moffat √√√2% sales tax first year, increasing to 5% in year two CML Files ATTACHMENT A - COLORADO SUMMARY OF MUNICIPALITIES AND MARIJUANA Sales Cultivation Manufacturing Testing Delivery On-site Consumption Tax Information Notes Site/Code Municipal Retail Marijuana Status Monte Vista 18% excise tax, 18% sales tax Monte Vista Municipal Code Montezuma Montezuma Ordinance 3-2014 Montrose Montrose Ordinance 2321 Monument Monument Municipal Code Morrison √6.25% sales tax, with authority up to 11.25%Morrison Municipal Code Mountain View √√√√5% sales tax Mountain View Marijuana Ordinance Mountain Village CML Files Mt. Crested Butte Mt. Crested Butte Chp. 21 Naturita √√√√2% sales tax, with authority up to 10; excise tax of 5% Nederland √√√3.75% sales tax Nederland Municipal Code New Castle New Castle Municipal Code Northglenn √√√√4% sales tax, up to 10%Delivery approved June 2021 Northglenn Municipal Code Norwood √√√2% sales tax, up to 10%; 5% excise tax Approved by voters 4/20 Nucla Nunn √5% excise tax CML Files Oak Creek √√√√Oak Creek Municipal Code Olathe Olathe Municipal Code, Title IV, Chapter 4 Olney Springs CML Files Ophir Orchard City up to 5% sales tax, up to 5% excise tax, up to $10 occupation tax for each sale transaction Orchard City July 2017 Minutes Ordway √√√Ordway Municipal Code Otis Otis Ordinance 173 Ouray 5% with authority up to 10%Ouray Council Minutes Ovid Pagosa Springs √√Pagosa Springs Municipal Code Palisade √√√√ 5% excise tax; Occupation tax of $5.00 for each sales transaction that is less than $100, $10.00 for each sales transaction between $100.00 and $500.00 and $25.00 for each sales transaction of $500.00 or more Link to Palisade Marijuana Information Palmer Lake √ 5% sales tax with authority up to 10% (sales not currently allowed); 5% excise tax with authority up to 10%Palmer Lake Municipal Code, Section 5.40 Paoli Paonia √ excise and sales tax of 5%, both with authority up to 10%; $5.00 occupation tax per sales transaction Approved by voters November 2020 Paonia Ordinance 2021-01 Parachute √√√√√√5% excise tax Parachute Municipal Code Parker Parker Municipal Code Peetz CML Files Pierce CML Files Pitkin CML Files Platteville Platteville Municipal Code ATTACHMENT A - COLORADO SUMMARY OF MUNICIPALITIES AND MARIJUANA Sales Cultivation Manufacturing Testing Delivery On-site Consumption Tax Information Notes Site/Code Municipal Retail Marijuana Status Poncha Springs 5% sales tax; 5% excise tax (sales not currently allowed)Poncha Springs Ordinance 2013-1 Pritchett Pueblo √√√√8% excise tax with authority up to 15%Pueblo Municipal Code Ramah Rangley Raymer Red Cliff √√√√5% sales tax, 15% excise tax CML Files Rico √√√√ 10% sales and 10% excise on unprocessed retail marijauna sold or transferred from cultivation facility to retail facility Rico Marijuana Ordinance Ridgway √√√√Ridgway Municipal Code Rifle √√5% excise tax Rifle Municipal Code Rockvale Rocky Ford √6% sales tax with authority up to 8%Rocky Ford Municipal Code Romeo √√√√Approved by voters November 2020 Rye Saguache Saguache Ordinance 2013-1 Salida √Salida Municipal Code San Luis √√√San Luis Municipal Code Sanford Sawpit Sedgwick √√√√ 5% sales tax; 2% excise tax on cultivation; occupation tax of $5-$25 per wholesale manufacturing transaction In CML files Seibert Severance 7% sales tax (sales not currently allowed)Severance Municipal Code Sheridan 5% excise Sheridan Municipal Code Silt √√√√3.5% retail sales Silt Municipal Code Silver Cliff Silver Plume √4% and no greater than 8%Silver Plume Ordinance 335/336 Silverthorne √√5% excise tax on mj and products Silverthorne Municipal Code Silverton √√√√1% sales tax and 3% excise tax Silverton Municipal Code Simla Simla Municipal Code - Chp. 2 Snowmass Village √5% sales tax, up to 15% Ordinance 3, Series 2019 South Fork 5% sales tax South Fork Ordinance 15-06 Springfield Starkville Steamboat Springs √√√√Steamboat Springs Municipal Code Sterling Stratton CML Files Sugar City √ Superior √Superior Municipal Code Swink Telluride √√√√Telluride Municipal Code Thornton √√√5% sales tax Approved delivery April 2021 Thornton Municipal Code Timnath Timnath Municipal Code Trinidad √√√√5% sales tax Trinidad Marijuana Licensing Application ATTACHMENT A - COLORADO SUMMARY OF MUNICIPALITIES AND MARIJUANA Sales Cultivation Manufacturing Testing Delivery On-site Consumption Tax Information Notes Site/Code Municipal Retail Marijuana Status Two Buttes Vail Vail Municipal Code Victor Victor Municipal Code Vilas Vona Walden CML Files Walsenburg √√√√5% excise tax Link to Walsenburg's Marijuana Page Walsh Ward Wellington √3.5% sales tax, up to 5%Approved by voters November 2021 Westcliffe Westcliffe Municipal Code Westminster voters approved businesses in 11/21 but will not go into effect because was contingent on tax that failed Westminster Municipal Code Wheat Ridge √√√√3.5% sales tax Wheat Ridge Municipal Code Wiggins Wiggins Marijuana Ordinance Wiley Williamsburg Prohibited by Chapter 2 Article II of Code Windsor Windsor Municipal Code Winter Park √5% sales tax sales approved by ordinance 7/2021 to begin 2022 Winter Park Municipal Code Woodland Park Woodland Park Municipal Code Wray voters rejected mfg 11/21 Yampa Yuma 5% sales tax with authority up to 10 (sales not currently allowed)Yuma Municipal Code √ Totals:93 64 58 57 7 4 Permitted ATTACHMENT A - COLORADO SUMMARY OF MUNICIPALITIES AND MARIJUANA Eagle County Sales Tax Report 1% Sales Tax Charts YTD Comparison to Budget Monthly Trend (Actuals) Marijuana Sales and Excise Charts YTD Comparison to Budget Monthly Trend (Actuals) Tobacco Tax Charts YTD Comparison to Budget Monthly Trend (Actuals) ATTACHMENT B - EAGLE COUNTY TAXES Eagle County Sales Tax Report Eagle County 1% Sales Tax Collections Eagle County 1% Sales Tax Collections Year to Date Cumulative ●In 2020, sales tax revenue was $20 million, 2% over the 2020 budget. ●Through August 2021, sales tax revenue was $16.4 million, 40% over budget of 11.7 million. ●In the month of August 2021 sales tax revenue of $2.16 million was 24% ($415k) higher than the same month in 2020. ●Through August 2021, all towns saw sales tax collections higher than through the same months in 2020. Actual Actual Actual Budget Actual Comparing Current Actual to Prior Year Actual Comparing Current Actual to Budget Month Earned 2018 2019 2020 2021 2021 $ % $ % January $1,831,918 $2,142,674 $2,327,987 $1,909,555 $2,089,797 -$238,190 -10.23% $180,242 9.44% February $2,004,963 $2,153,604 $2,306,354 $1,909,555 $2,194,808 -$111,546 -4.84% $285,253 14.94% March $2,206,073 $2,350,403 $1,345,046 $2,083,151 $2,679,539 $1,334,493 99.22% $596,388 28.63% April $995,067 $1,128,768 $1,134,287 $954,778 $1,451,386 $317,098 27.96% $496,608 52.01% May $881,308 $923,895 $1,058,531 $867,979 $1,373,919 $315,389 29.79% $505,940 58.29% June $1,291,807 $1,326,148 $1,353,987 $1,128,373 $1,989,419 $635,432 46.93% $861,046 76.31% July $1,569,081 $1,808,130 $1,744,154 $1,475,565 $2,464,403 $720,249 41.30% $988,838 67.01% August $1,412,056 $1,629,209 $1,739,801 $1,388,767 $2,155,111 $415,310 23.87% $766,344 55.18% September $1,212,531 $1,466,687 $1,658,841 $1,215,171 0.00% 0.00% October $1,040,956 $1,256,502 $1,441,852 $1,041,575 0.00% 0.00% November $1,007,993 $1,488,894 $1,409,161 $1,128,373 0.00% 0.00% December $2,347,161 $2,748,128 $2,527,242 $2,256,746 0.00% 0.00% Total $17,800,915 $20,423,043 $20,047,243 $17,359,588 $16,398,381 $3,388,234 $4,680,658 % Increase (Decrease) 7.81% 14.73% -1.84% Actual Actual Actual Budget Actual Comparing Current Actual to Prior Year Actual Comparing Current Actual to Budget Month Earned 2018 2019 2020 2021 2021 $ % $ % January $1,831,918 $2,142,674 $2,327,987 $1,909,555 $2,089,797 -$238,190 -10.23% $180,242 9.44% February $3,836,881 $4,296,277 $4,634,341 $3,819,110 $4,284,605 -$349,736 -7.55% $465,495 12.19% March $6,042,954 $6,646,681 $5,979,387 $5,902,261 $6,964,144 $984,757 16.47% $1,061,883 17.99% April $7,038,022 $7,775,449 $7,113,674 $6,857,039 $8,415,530 $1,301,855 18.30% $1,558,491 22.73% May $7,919,330 $8,699,344 $8,172,205 $7,725,018 $9,789,449 $1,617,244 19.79% $2,064,431 26.72% June $9,211,137 $10,025,492 $9,526,192 $8,853,391 $11,778,868 $2,252,676 23.65% $2,925,477 33.04% July $10,780,218 $11,833,622 $11,270,346 $10,328,956 $14,243,270 $2,972,924 26.38% $3,914,314 37.90% August $12,192,274 $13,462,831 $13,010,147 $11,717,723 $16,398,381 $3,388,234 26.04% $4,680,658 39.95% September $13,404,805 $14,929,518 $14,668,988 $12,932,894 0.00% 0.00% October $14,445,761 $16,186,021 $16,110,840 $13,974,469 0.00% 0.00% November $15,453,754 $17,674,915 $17,520,001 $15,102,842 0.00% 0.00% December $17,800,915 $20,423,043 $20,047,243 $17,359,588 0.00% 0.00% ATTACHMENT B - EAGLE COUNTY TAXES Eagle County Sales Tax Report MJ Sales and Excise Tax Collections MJ Sales and Excise Tax Collections Year to Date Cumulative ●In 2020, MJ tax collected was $773k, 29% over the budget of $600k. ●Through August 2021, MJ tax collected was $561k, 9% over the budget of $515k. ●In August 2021 MJ tax revenue of $64k was 22% ($17.5k) lower than the same month in 2020. Actual Actual Actual Budget Actual Comparing Current Actual to Prior Year Actual Comparing Current Actual to Budget Month Earned 2018 2019 2020 2021 2021 $ % $ % January $33,458 $47,906 $64,602 $62,671 $90,969 $26,367 40.81% $28,298 45.15% February $37,804 $54,555 $63,592 $61,690 $77,863 $14,272 22.44% $16,173 26.22% March $47,285 $79,409 $71,829 $69,682 $89,305 $17,476 24.33% $19,623 28.16% April $28,467 $57,925 $43,653 $42,348 $59,461 $15,807 36.21% $17,113 40.41% May $17,202 $35,804 $42,842 $41,562 $42,942 $99 0.23% $1,380 3.32% June $33,141 $43,929 $64,807 $62,869 $63,042 -$1,764 -2.72% $173 0.28% July $36,786 $57,042 $98,051 $95,120 $73,735 -$24,317 -24.80% -$21,385 -22.48% August $37,917 $55,172 $81,436 $79,001 $63,880 -$17,556 -21.56% -$15,121 -19.14% September $30,673 $44,673 $67,270 $65,259 0.00% 0.00% October $26,202 $24,382 $51,127 $49,599 0.00% 0.00% November $26,178 $40,373 $47,693 $46,267 0.00% 0.00% December $43,056 $117,185 $76,211 $73,932 0.00% 0.00% Total $398,170 $658,354 $773,113 $750,000 $561,197 $30,384 $46,254 % Increase (Decrease) 65.35% 17.43% Actual Actual Actual Budget Actual Comparing Current Actual to Prior Year Actual Comparing Current Actual to Budget Month Earned 2018 2019 2020 2021 2021 Month $ Month % Month $ Month % January $33,458 $47,906 $64,602 $62,671 $90,969 $26,367 40.81% $28,298 45.15% February $71,262 $102,461 $128,194 $124,361 $168,832 $40,638 31.70% $44,471 35.76% March $118,548 $181,870 $200,023 $194,043 $258,138 $58,115 29.05% $64,095 33.03% April $147,015 $239,795 $243,676 $236,391 $317,598 $73,922 30.34% $81,207 34.35% May $164,217 $275,598 $286,519 $277,953 $360,540 $74,021 25.83% $82,587 29.71% June $197,358 $319,527 $351,326 $340,822 $423,582 $72,257 20.57% $82,760 24.28% July $234,144 $376,569 $449,377 $435,942 $497,317 $47,940 10.67% $61,375 14.08% August $272,061 $431,742 $530,813 $514,943 $561,197 $30,384 5.72% $46,254 8.98% September $302,734 $476,414 $598,083 $580,202 0.00% 0.00% October $328,936 $500,797 $649,210 $629,801 0.00% 0.00% November $355,113 $541,169 $696,903 $676,068 0.00% 0.00% December $398,170 $658,354 $773,113 $750,000 0.00% 0.00% ATTACHMENT B - EAGLE COUNTY TAXES Ea g l e C o u n t y , C o l o r a d o G o v m n t , G I S D e p t P : \ T o w n s \ T o w n _ o f _ A v o n \ M a r i j u a n a _ M a p p i n g _ 0 4 0 7 1 4 \ M a r i j u a n a M a p p i n g . m x d D a t e : 1 1 / 1 2 / 2 0 2 1 9 : 5 2 : 0 6 A M N a m e : a m y . k e e l e y Buffer Analysis for Marijuana Businesses This map was created by the Eagle County GIS Department. Use of this map should be for general purpose only. Eagle County does not warrant the accuracy of the data contained herein. 0 2,000 4,000Feet 1 inch = 2,000 feet Parcel Boundary 1,000 ft Buffer from School or Preschool (no marijuana facilities in accordance with federal regulations in these buffers) 500 ft Buffer from School or Public Park (no marijuana facilities in accordance with federal regulations in these buffers) ATTACHMENT C [970] 748-4055 swright@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Scott Wright, Finance Director; Eric Heil, Town Manager RE: Use Tax on Construction Materials DATE: April 27, 2022 SUMMARY: This report is a follow-up to last year’s presentations to Council regarding use tax on construction materials. Last year’s report, which is attached to this report as Attachment C, introduced to Council a possible means for funding Community Housing projects through the assessment of a use tax on construction materials. The report also provided an analysis of the various other types of use taxes, including motor vehicle use tax and consumer use tax. Neither of these were recommended or pursued by staff or Council. Ultimately Town Council decided to place on the November 2021 ballot a 2% Short -term Rental Tax to be earmarked for Community Housing and the idea of a use tax on construction materials was requested by Council to be brought back for discussion in 2022. This report uses the report from last year as a foundation with a few key revisions. First, since the 2% Short - term Rental Tax Community housing passed last year, it is staff’s recommendation to no longer earmark the revenues that would be collected from the proposed use tax. Secondly, staff has addressed the concern of some Council members regarding the impact to local citizens and is recommending an exemption of the collection of a use tax on projects requiring a building permit of less than $50,000. Implementing a use tax on construction materials is a change in tax policy that increases revenues and as such would be required to be approved by the Town’s electorate in a TABOR election. Critical dates pursuant to TABOR include the following: (1) August 9. Last regularly scheduled Town Council meeting to introduce first reading of an ordinance to refer ballot question and self-execute implementation of use tax upon approval. (2) August 23 Last regularly scheduled Town Council meeting in which to adopt a resolution certifying ballot content to the County Clerk and Recorder. (3) September 7. Last day to certify the ballot content to the County Clerk and Recorder. (4) November 8. General Election. BACKGROUND: A large number of cities and counties in Colorado levy a use tax on building materials including Eagle, Gypsum, Vail, Steamboat Springs and Grand Junction . The benefits of a use tax on construction materials include the following: (1) Generates fairness and simplicity in the imposition of the tax; (2) Helps to eliminate unfair competition using tax rates as a reason to shop outside of Avon; (3) Reduces tax liabilities for sub-contractors; (4) Retains tax dollars in the community where the burden on Town facilities and services is placed; (5) Eases the administrative burden of collection; Current Methodology for the Collection of Sales Tax on Building Materials The Town of Avon imposes a sales tax on building materials. However, the administrative burden of collection is extremely high and very ineffective. Most of the current collections of sales tax on construction materials is generated and remitted Page 2 of 3 by located Avon retailers such as Home Depot, and local Eagle County retailers such as Edwards Building Supply due to the fact that they have established physical nexus with the Town of Avon. For example, when a purchase is made from Edwards Building Supply and the materials are to be delivered into Avon, the retailer will collect and remit Avon sales tax. The administrative burden (and headache for contractors and developers) comes from project whereby the materials are being purchased from outside of Eagle County or the State of Colorado Sales tax is not typically collected on these materials by the vendor. In these instances, sales tax would be due to the Town by either a general contractor or sub-contractor at the time the materials are delivered to the job site. The fact of the matter is that most of the time tax is not remitted to the Town and Town staff has little or no knowledge of the transactions taking place in order to follow-up with the contractor. And if staff does have the information, it is often very difficult to track down out-of-town contractors or to have any sort of leverage to require them to remit the taxes due. Construction Materials Use Tax A construction use tax is a form of use tax levied on building materials. The use tax is collected at the time a building permit is issued. The use tax amount is determined by multiplying the use tax rate by the cost of the building materials using a predetermined formula. A common method is to determine that the cost of building materials to be fifty percent (50%) of the total valuation of the construction project. The builder then provides the building permit to the materials supplier to prove that use tax has already been paid, and then is exempt from paying a corresponding municipal sales tax in other locations. The administrative burden of collection under a use tax methodology is greatly reduced. In addition, the Town would have the authority when necessary to reconcile the final cost of a project versus the initial value placed on the project for permit purposes. FINANCIAL CONSIDERATIONS: Based on the Town’s 10-year average of the total value of building construction of $32,772,355, a 4% use tax on construction materials would have generated an average of $655,447 per annum in revenue. It should be noted that because the Town (excluding The Village (at Avon)) has only a few remaining vacant parcels for large potential developments remaining, the level of use tax from the past ten years might not be an accurate representation of the potential use tax that might be realized in the future. Redevelopment of East Avon Town Center and other underdeveloped prop erties in the Town core may provide additional use tax revenues. Village At Avon (Traer Creek Metro District). The Consolidated Amended and Restated Annexation and Development Agreement (“CARADA”) specifically contemplates that the Town may, at some point, impose a use tax. In the event a use tax is imposed, a corresponding “use tax credit” will automatically be applied to any transaction subject to the use tax. The CARADA also contemplates th at Traer Creek may impose a building materials fee if the Town imposes a use tax. The CARADA is silent as to whether the building materials fee must be used for the same purposes as the use tax. The CARADA does provide the Town must coordinate with Traer Creek regarding the implementation of any use tax, so the To wn will need to further explore the building materials fee with Traer Creek. Based on 1,835 remaining residential dwelling units (at 1,500 sq. ft. each) and 470,017 remaining commercial square footage left to be developed. At $400 per sq. ft. construction cost the total taxable value (50% of total construction value) is $644,503,400. Therefore the potential use tax revenue generation is estimated to be in excess of $25 million using a 4% tax rate. Given the existing debt of approximately $75 million and the Page 3 of 3 remaining Credit PIF Cap of over $21 million, the additional use tax revenues could make a meaningful reduction in the term of the life of this debt. SAMPLE BALLOT LANGUAGE: A draft of the use tax ballot question language is included with this Report as Attachment A. As mentioned above, there is not restriction to use of the revenues generated from a use tax. USE TAX CODE: A draft of the proposed Use Tax Code Chapter 3.09 is included with this Report as Attachment B. An ordinance approving the new Chapter would be presented to Council for first reading upon adopting a resolution certifying the ballot content to the County Clerk and Recorder. RECOMMENDATION: We recommend that Council provide direction regarding the possible adoption, either by resolution or by ordinance, of a construction materials use tax ballot question to be certified to the Eagle County Clerk and Recorder for inclusion in the November 8, 2022, general election. Thank you, Scott and Eric ATTACHMENTS: Attachment A – Draft - Use Tax Ballot Question Attachment B – Draft - Use Tax Code Chapter 3.09 Attachment C – 2021 Council Report SAMPLE USE TAX BALLOT QUESTION SHALL TOWN OF AVON TAXES BE INCREASED $____ MILLION ($____________) ANNUALLY IN 2023, AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER, BY THE IMPOSITION OF A FOUR PERCENT (4%) USE TAX ON THE PRIVILEGE OF USING OR CONSUMING IN THE TOWN ANY CONSTRUCTION MATERIALS, SUCH USE TAX REVENUES TO BE APPROPRIATED AND SPENT FOR ANY MUNICIPAL PURPOSE, IN ACCORDANCE WITH SUCH TERMS, CONDITIONS AND POLICIES AS MAY BE ADOPTED BY THE AVON TOWN COUNCIL, ALL IN ACCORDANCE WITH ORDINANCE NO. 22-____ ADOPTED BY THE TOWN COUNCIL; AND SHALL THE REVENUES COLLECTED FROM SUCH TAX AND ANY EARNINGS FROM THE INVESTMENT OF SUCH REVENUES BE COLLECTED AND SPENT AS A VOTER APPROVED REVENUE CHANGE AND AN EXCEPTION TO THE LIMITS WHICH WOULD OTHERWISE APPLY UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW. 1 CHAPTER 3.09 – Use Tax on Construction Materials 3.09.010 – Title, Purpose, and Applicability. (a) This Chapter shall be known and may be cited as “The Town of Avon Use Tax on Construction and Building Materials.” (b) The purpose of this Chapter is to raise revenue for municipal purposes and provide a complementary tax to the Town’s sales tax. The Town Council find that every person who uses or consumes in the Town any construction and building materials is exercising a taxable privilege. (c) Subject only to the exemptions set out at Section 3.09.040, the use tax imposed herein shall apply to any use or consumption in the Town of construction and building materials purchased at retail on or after January 1, 2023. 3.09.020 – Definitions When not otherwise clearly indicated by the context, the following words and phrases, as used in this chapter, shall have the following meanings: Building permit means a permit, issued by the Town, allowing the permit holder to construct, enlarge, repair, move, demolish, or change the occupancy of a building or structure, or to erect, install, enlarge, alter, repair, remove, convert, or replace any electrical, gas, mechanical , or plumbing system regulated by the adopted building codes of the Town. A building permit shall not include any permit for demolition or dewatering. Charitable organization means any entity which has been certified as a nonprofit organization under Section 501(c)(3) of the Internal Revenue Code. Construction equipment means any equipment, including mobile machinery and mobile equipment, which is used to erect, install, alter, demolish, repair, remodel, or otherwise make improvements to any real property, building, structure, or infrastructure, whether leased or owned. Construction Materials means tangible personal property which, when combined with other tangible personal property, loses its identity to become an integral and inseparable part of a structure or project including public and private improvements. Construction Materials include, but are not limited to, such things as: asphalt, bricks, builders' hardware, caulking material, cement, concrete, conduit, electric wiring and connections, fireplace inserts, electrical heating and cooling equipment, flooring, glass, gravel, insulation, lath, lead, lime, lumber, macadam, millwork, mortar, oil, paint, piping, pipe valves and pipe fittings, plaster, plumbing fixtures, putty, reinforcing mesh, road base, roofing, sand, sanitary sewer pipe, sheet metal, site lighting, steel, s tone, stucco, tile, trees, shrubs and other landscaping materials, wall board, wall coping, wallpaper, weather stripping, wire netting and screen, water mains and meters, and wood preserver. The above materials, when used for forms, or other items which do not remain as an integral and inseparable part of completed structure or project are not construction materials. 2 Construction valuation means the total value of the work, including labor and construction and building materials, for which a permit is issued, including leased construction equipment, electrical, gas, mechanical, plumbing equipment and permanent systems, as determined by the building department or building official. Consumption means the act or process of consuming, and includes waste, destruction, or use. Consumption is the normal use of property for the purpose for which it was intended. Contractor means any person who shall build, construct, reconstruct, alter, expand, modify, or improve any building, dwelling, structure, infrastructure, or other improvement to real property for another party pursuant to an agreement. For purposes of this definition, Contractor also includes subcontractor. Director means the Director of Finance for the Town or such person’s designee. Person means any individual, firm, partnership, joint venture, corporation, limited liability company, estate or trust, receiver, trustee, assignee, lessee, or any person acting in a fiduciary or representative capacity, whether appointed by court or otherwise, or any group or combination acting as a unit. Purchase or sale means the acquisition for any consideration by any person of tangible personal property by way of purchase, lease, or rental, including capital leases, installment and credit sales, and lease-purchase, rental or grant of a license to use, which consideration may include money, exchange of property or services, or any other thing of value. Purchase price means the aggregate value in money of anything or things paid or delivered or promised to be paid or delivered by a purchaser to a retailer or any person in the consummation of a retail sale as defined herein, without any deduction therefrom for the cost of the property sold, cost of materials used, labor or service cost, or any other expense whatsoever, and provided that when articles of tangible personal property are sold after manufacture or after having been made to order, the gross value of all materials, labor, service, and profit thereon shall be included in the purchase price; provided that the purchase price shall not include any direct tax imposed by the United States government, the state, or this chapter. Retail Sale or Purchased at Retail means any purchase or sale of tangible personal property, except a wholesale sale or purchase made for taxable resale. Taxpayer means any person obligated to collect and/or pay tax under this Code. Town means the Town of Avon. Use means the exercise, for any length of time, by any person with the Town of any right, power or dominion over tangible personal property or services when rented, leased, or purchased at retail from sources within or with the Town; or tangible personal property used in the 3 performance of a contract in the Town, whether or not owned by the taxpayer. Use also includes withdrawal of items from inventory for consumption. Wholesale sales mean a sale to a licensed retailer, jobber, dealer, or other wholesaler for resale. Sales by wholesalers to consumers, including persons who use or consume construction and building materials, as defined by this Section, are not wholesale sales. Sales by wholesalers to non-licensed retailers are not wholesale sales. Wholesaler means any person selling to retailers, jobbers, dealers, or other wholesalers, for the purpose of resale and not for storage, use, consumption, or distribution. 3.09.030 – Use tax imposed. (a) There is hereby imposed and levied in the Town, and shall be collected and paid, a use tax on the privilege of using or consuming within the Town construction and building materials of every kind and form purchased or leased inside or outside the Town. (b) The use tax imposed by this Chapter shall be at the rate of four percent (4%) of the cost of construction and building materials used or consumed in the Town, including leased equipment. For purposes of this Chapter, the cost of construction and building materials is deemed to be fifty percent (50%) of the construction valuation. (c) Any construction and building material used or consumed on a project which has received all final development review approvals required by Title 7 of the Avon Municipal Code on or before December 31, 2022, shall not be subject to the use tax imposed herein. If any approval expires by its terms after December 31, 2022, such application for development review shall then be subject to the use tax imposed by this Chapter. 3.09.040 – Exemptions. The following are exempt from the use tax imposed by this chapter, provided that the list of exemptions cannot be increased by implication or similarity and the burden of proof is upon the taxpayer to establish an exemption: (a) The use or consumption of construction and building materials the sale of which is subject to a retail sales tax imposed by the Town; (b) The use or consumption of construction and building materials purchased for resale in the Town, either in their original form or as an ingredient of a manufactured or compounded product, in the regular course of business; (c) The use or consumption of construction and building materials by the United States government; by the State, its departments or institutions or political subdivisions thereof in their governmental capacities only; or by the Town; providing, however, that no commercial, industrial or other banking institution, organized or chartered by 4 the United States government, any agency or department thereof, or by the State, shall be considered a governmental institution for the purpose of this exemption; (d) The use or consumption of construction and building materials by charitable organizations in the conduct of their regular charitable functions; except that nothing herein contained shall be deemed to exempt use of construction and building material or supplies used by a contractor for the construction of an improvement for a charitable organization; (e) The use or consumption of construction and building materials by a person engaged in the business of manufacturing or compounding for sale, profit, or use of any article, substance, or commodity, which construction and building materials enters into the processing of or becomes an ingredient or component part of the product or service which is manufactured, compounded, or furnished, and the container, label, or the furnished shipping case thereof; (f) The use or consumption of construction and building materials if a written contract for the purchase thereof was entered into prior to January 1, 2023; (g) The use or consumption of construction and building materials required or made necessary in the performance of any construction contract bid, let, or entered into at any time prior to January 1, 2023; (h) The storage of construction and building materials; (i) A building project, subject to a Town of Avon Building Permit, with a total construction valuation of fifty thousand dollars ($50,000.00) or less; (j) The use or consumption of construction and building materials in the Town on which the use tax imposed by this Chapter has already been paid; and (k) Any transaction which the Town is prohibited from taxing under applicable law. 3.09.050 – Credit for taxes paid to another taxing authority. (a) The Town’s use tax shall not apply to the use or consumption of any construction and building materials the sale or use of which has already been subjected to a legally imposed sales or use tax of another statutory or home rule town, city, or city and county equal to or in excess of the use tax imposed herein. (b) A credit shall be granted against the Town’s use tax in an amount equal to lawful tax previously paid by the purchaser or user to another taxing authority, provided that the amount of credit shall not exceed the amount of use tax imposed by this Chapter. (c) The burden of proof is upon the taxpayer to establish the right to any credit claimed. 5 (d) It is the intent of this Chapter for Town taxes to be paid at the time a building permit is issued. Once such permit is issued, persons engaged in construction projects in the Town are considered to be the end users of construction and building materials and must not pay municipal sales tax to a retailer in another jurisdiction for materials to be used or consumed in the Town. No refund or credit of another municipality’s tax will be allowed unless such tax is legally imposed. 3.09.055 – Tax credit for the Village (at Avon). Notwithstanding any other provisions of this Chapter, there shall be granted to each person owing tax on use or consumption of building materials within The Village (at Avon) a temporary tax credit equal to the amount of any Building Materials Use Fee paid by or on behalf of such person for that same use or consumption. The amount of the credit shall not exceed the amount of use tax owed. This credit shall expire with the termination of the Building Materials Use Fee as set out in the Consolidated, Amended and Restated Annexation and Development Agreement for The Village (at Avon), as recorded with Eagle County on August 1, 2014. Neither the ability of the Town to grant the temporary tax credit nor termination of the tax credit shall constitute a tax increase, the imposition of a new tax, or a tax policy change. 3.09.056 - Tax credit for Community Housing. Notwithstanding any other provision of this Chapter, there may be granted a tax credit to each person owing tax on the use or consumption of construction and building materials and fixtures used in a Community Housing project provided that such use tax credit is approved by Council by resolution in accordance with Chapter 3.14. Neither the ability of the Town to grant this tax credit nor the repeal or termination of this tax credit shall constitute a tax rate increase, the imposition of a new tax or a tax policy change. 3.09.057 - Temporary tax credit for renewable energy production components. Notwithstanding any other provision of this Chapter, there shall be granted a temporary tax credit to each person owing tax on the use or consumption of components used in the production of electricity, generation of heat or cooling of air, from a renewable energy source, including but not limited to wind, solar, solar thermal systems, and geothermal energy systems, provided that this temporary tax credit shall commence on the effective date of this ordinance and shall continue until December 31, 2024, whereupon this temporary tax credit shall automatically expire unless extended by adoption of an ordinance. 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. 3.09.060 – Collection and administration. (a) The administration of this chapter is hereby vested in the Director, who shall prescribe forms and promulgate rules and regulations for the proper administration and enforcement of this chapter. The Director may delegate to any person the power and authority necessary for the proper administration and enforcement of this chapter. 6 (b) The use tax required by this Chapter shall initially be made by estimate, which estimated amount must be paid at or prior to the time any permit for building or construction within the Town is issued. No permit shall be issued by the Town Building Official, or any other town employee, to any person requesting a permit for construction within the Town until such estimated use tax has been paid. The tax estimate shall be made by the Director, working with the Community Development Department to determine the Construction Valuation. (c) All use taxes due to the Town must be paid in full before a final building inspection may take place and a permanent or temporary certificate of occupancy issued. The Director may determine the amount of use taxes due to the Town before final inspections occur or certificates of occupancy issue. To assist in this determination, the Director may request information from the taxpayer, who shall timely provide it, which information may include proof of actual amounts paid for construction and building materials used or consumed in the building project. (d) A person engaged in a construction project in the Town who does not apply for and have issued a permit or who seeks and obtains prior approval of the Director to remit use taxes in accordance with this Subsection (d) shall, on or before the twentieth day of each succeeding month following the start of construction, file a return with the Director attaching all statements and invoices establishing the price paid for building and construction materials used in the local project, along with a summary sheet for materials purchased the previous month, and shall thereupon pay to the Town the full amount of use tax due for the preceding month or months. Any failure to make such return and payment of such use tax shall be deemed a violation of this Chapter, which may, upon conviction, subject the violator to penalties provided. 3.09.070 – Penalty and Interest. (a) If any person fails, neglects, or refuses to pay the use tax as required by this chapter, or if any taxpayer fails to remit the proper amount of tax or underpays the tax, then penalties and interest shall be imposed in accordance with this section. (b) If a person neglects or refuses to pay any use tax as required by this Chapter within ten (10) days after the same is due, the Director shall make an estimate, based upon such information as may be available, of the amount of use tax due for the period for which the taxpayer is delinquent and shall add thereto a penalty equal to the greater of fifteen dollars ($15.00) or ten percent (10%) of the amount due and interest at the rate of one-and-a-half percent (1.5%) per month from the time delinquent payment was due. (c) If any part of the deficiency is due to fraud with the intent to evade the tax, there shall be added a penalty of one hundred percent (100%) of the total amount of the deficiency, and in such case the whole amount of the tax unpaid, including the additions, shall become due and payable ten (10) days after written notice and demand 7 by the Director, and an additional three percent (3%) per month on said amount shall be added from the date payment was due, until paid. (d) The Director may, for good cause shown, waive any penalty or interest. 3.09.080 – Remedies not exclusive. In addition to enforcement remedies expressly provided in this chapter, the Town may pursue any other remedies available at law or in equity. 3.09.090 – Lien. The tax imposed by this Chapter, together with accrued interest and penalties, shall be a first and prior lien on any real property into which the construction and building materials were incorporated. 3.09.100 – Limitation of Action. Use tax, interest, and penalties shall be assessed, and any action to collect the same shall be commenced, within three (3) years of the issuance of a final certificate of occupancy for the improvement on which the use tax was paid. This period of limitation shall not run for any period of time covered by an audit if written notice of that audit is given to the taxpayer prior to expiration of the limitation period. 3.09.110 – Refunds. (a) Upon completion of construction, the taxpayer may apply to the Director for a refund of overpaid taxes. Such application shall be supported by documentation required by the Director or as needed to establish actual amounts paid for construction and building materials used or consumed as part of a building project. (b) A taxpayer claiming an exemption may pay the use tax under protest. Applications for refund of such protested tax must be made within sixty (60) days of issuance of the building permit for which the use tax was paid under protest. (c) A taxpayer claiming refund for use tax paid by mistake or in error must make that claim within three (3) years of the final inspection or issuance of a permanent certificate of occupancy, whichever comes later, for the improvement on which the use tax was paid. (d) All claims for refund shall be upon forms prescribed by the Director and made in such manner as required by the Director. The Director shall promptly review refund claims and issue a denial in writing, state the reason therefor, or provide the funds requested, after applying any refund amount against outstanding tax liabilities. 8 (e) If a taxpayer disputes a refund denial, the taxpayer shall provide the Director with a written protest, filed within 30 days of the Director’s notice. The protest shall identify specific grounds for dispute, including any necessary documentation, and shall request a hearing before the Director. This protest process, and that of any related appeal, shall be in accordance with Section 29-2-106.1, Colorado Revised Statutes. (e) The right to refund shall not be assignable. 3.09.120 – Audit. (a) The Town may audit, or the taxpayer request an audit, within three (3) years from the issuance of any certificate of occupancy for the improvement on which the use tax was paid. An audit requested by the taxpayer shall be at the taxpayer’s sole cost. (b) If the recomputed use tax is less than the amount of use tax paid by the taxpayer, the difference shall be refunded to the taxpayer within thirty (30) days of the final determination of the Town. If the recomputed use tax is more than the amount of use tax paid by the taxpayer, the difference, along with any interest and penalty imposed by this chapter, shall be due and payable by the taxpayer immediately upon the final determination of the Town with notice to the taxpayer. 3.09.130 – Book, Records, Reports, and Returns. (a) Every person liable for any use tax imposed by this chapter shall keep and preserve, for a period of three (3) years from the date of issuance of a final certificate of occupancy for the improvement on which the use tax was paid, all books, records, reports and returns necessary to determine the amount of tax liability. All such books, records, reports, and returns shall be open for examination at any time by the Director. (b) Any information gained by taxpayer disclosure or as part of an audit or investigation shall be entitled to the same level of confidentiality afford to sales tax information, as set out in Chapter 3.08 of the Avon Municipal Code. (c) 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 Chapter, 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 relevant knowledge, 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. 9 (d) The Municipal Judge, upon application of the Director, may compel the attendance of witnesses, the production of books, papers, records or memoranda, and the giving of testimony before the Director or any of his or her duly authorized agents, by the issuance and enforcement of subpoenas, in the same manner as production of evidence may be compelled before the court. 3.09.140 – Violation and Penalty (a) It is a violation of this Chapter for any person subject to the use tax levied by this chapter to submit any false or fraudulent use tax information to the town, to make any false statement on any document used to calculate taxes due under this chapter, to fail or refuse to make payment of any taxes due, to evade the payment of any taxes due, or to aid or abet another in any attempt to evade the payment of any taxes due under this chapter. (b) In addition to any other penalty provided in this Chapter, any person who violates any provision of this Chapter shall be punished in accordance with Section 1.08 of the Avon Municipal Code. [970] 748-4055 swright@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Scott Wright, Assistant Town Manager; Paul Wisor, Town Attorney; Eric Heil, Town Manager RE: Use Tax on Construction Materials DATE: July 7, 2021 SUMMARY: This report provides an overview of a potential Use Tax, including draft Ballot Language and recommendations. Council approved the 2021 Department goals early in the year which included a Finance Department Goal to present legal and financial analysis of Use Tax. Finance Department, Goal #12 states, Present Legal and Financial Analysis of Use Tax: Staff will prepare an overview of sales and use tax as commonly used throughout Colorado, potential revenues, potential dedication of such revenues for designated purposes such as capital improvements or community housing, and present that information to the Finance Committee. The 2018 Town of Avon Community Housing Plan established a goal to secure additional local funds for housing and to seek opportunities for new funding sources. The Community Housing Plan states on P. 6 under Funding, A two-step process is envisioned to secure additional local funds for housing. The first step will be to review current revenue streams and determine if additional funds can be directed to housing efforts through the annual budgeting process. This review will begin at the end of 2018. Depending on the outcome of the first step, the second step will be to seek opportunities for new funding sources, which could include approaches such as increased linkage fees, regional collaboration, and/or support for a local ballot initiative. The purpose of this report is to introduce to Council a possible means for funding Community Housing projects through the assessment of a use tax on construction materials. This is submitted as a written report and no formal action by Council is requested at this time. If Council decides that this might be a favorable way to raise funds for this purpose it must be approved by the Town’s electorate in a TABOR election, since implementing a use tax is a change in tax policy and increases revenue. Critical dates pursuant to TABOR include the following: (1) August 10. Last regularly scheduled Town Council meeting to introduce first reading of an ordinance to refer ballot question and self-execute implementation of use tax upon approval. (2) August 24 Last regularly scheduled Town Council meeting in which to adopt a resolution certifying ballot content to the County Clerk and Recorder. (3) September 3. Last day to certify the ballot content to the County Clerk and Recorder. (4) November 2. Election day. BACKGROUND: In 2002 a 4% construction use tax was submitted to the Town of Avon electors by the Avon Town Council. The tax was to be "spent solely for transportation and recreation capital projects and Page 2 of 4 services and infrastructure related thereto." The ballot question failed to pass by a vote of 379 in favor and 573 against (See Attachment A). ANALYSIS: Use taxes are levied on the consumption of tangible personal property within a city or county for which no sales or use tax has been previously paid. A use tax differs from a sales tax in that the purchaser (as opposed to the retailer) is generally held responsible for paying the use tax. Use taxes are considered complimentary to a sales tax and are applied in the jurisdiction where the product or materials are used rather than where purchased. Use taxes are typically assessed at the same rate as the sales tax that would have been owed and generally the taxability of the goods or services is the same. The State of Colorado imposes both a sales tax and a use tax. The use tax is imposed as a complement to Colorado sales tax, and is meant to capture revenue on transactions that are not subject to a sales tax as well as transactions which are more efficient and effective to impose and collect the use tax rather than the sales tax. The use tax is imposed for the privilege of storing, using, or consuming tangible personal property in Colorado. In general, whenever a purchaser acquires tangible personal property without paying sales tax at the time of the sale, they must pay consumer use tax directly to the Department of Revenue. If an item is exempt from sales tax, it is generally exempt from use tax as well. The Colorado use tax rate is 2.9%, the same as the sales tax rate in Colorado, and use tax is calculated in the same manner as sales tax. There are generally three types of use taxes that may be imposed on purchasers: (1) A Consumer Use Tax; (2) A Motor Vehicle Use Tax; (3) A Construction Use Tax levied on building materials. Consumer Use Tax. The first type of use tax - a consumer use tax - is defined as a "companion" tax for purchases made where sales tax is not charged. In Colorado, this companion tax is called a consumer use tax. Typically, a consumer use tax is imposed on transactions that are subject to sales tax, but tax was not charged. Usually, this occurs when items are purchased out-of-state, ordered through the mail, over the Internet, or by phone from another state. It is imposed on the use, storage, or consumption of tangible personal property in the state. The use tax often applies when a company makes a purchase from an out- of-state seller that is not required to collect sales tax in the purchaser’s state. Consumer use taxes are imposed by state and local governments for two reasons — to prevent someone from evading a sales tax by buying goods or taxable services from a non-taxing state and shipping them into the state that imposes the sales tax. In addition, the use tax protects retailers located in the state or municipality because it removes the incentive for consumers to shop outside that locality in order to avoid paying the sales tax. On June 21, 2018, the United States Supreme Court ruled in a 5-4 decision in South Dakota v. Wayfair, Inc., et al, that states can generally require an out-of-state seller to collect and remit sales tax on sales to in-state consumers even if the seller has no physical presence in the consumer's state. Because of this decision, we do not consider future lost sales taxes from out-of-state retail sales to be material enough to consider a consumer use tax ballot question. We do not recommend Council consider a Consumer Use Tax. Motor Vehicle Use Tax. In general, motor vehicle sales are subject to all state and local sales taxes that apply within the jurisdiction where the sale occurred. However, in most jurisdictions, sales are exempt from Page 3 of 4 the local sales tax if the motor vehicle is registered outside of Town. If the vehicle sale is exempt as described above, the purchaser must pay applicable use tax imposed by the municipality or county in which the vehicle is registered. If there is no use tax imposed, then the only tax paid is at the State level. Any applicable use taxes must be paid to the county clerk prior to titling and registration. From a practical standpoint, jurisdictions that do not have a motor vehicle use tax are unlikely to have new and used automobile dealerships because a resident purchasing a vehicle within that jurisdiction would have to pay sales tax vs. purchasing the vehicle outside of the jurisdiction. Use taxes on motor vehicles can raise a substantial amount of tax. A Motor Vehicle Use Tax would be a new tax for Avon residents purchasing a vehicle. We do not recommend Council consider a Consumer Use Tax. Construction Materials Use Tax. The Town of Avon currently imposes a sales tax on building materials. The administrative burden of collection is high and not entirely effective because Avon must collect the sales tax from vendors of construction materials and not the contractors or property owners. Many of the construction materials are purchased outside of the Town. In the case of materials purchased outside of Town and brought into Town by the purchaser (owner, general contractor or sub-contractors), the Town has lost out on the sales tax for those items because it is paid at the location of the retailer. In the case of materials purchased outside of Town and then delivered by the retailer to the job site, sales would not be collected by the retailer and the purchaser should remit the sales tax to the Town. However, due to the “on-your-honor” methodology, the large number of contractors and companies involved, the amount of records involved, and determining who is ultimately responsible for the tax (the owner, general contractor or subs), this methodology is very inefficient. A construction use tax is a form of use tax levied on building materials. The use tax is collected at the time a building permit is issued. The use tax amount is determined by multiplying the use tax rate by the cost of the building materials using a predetermined formula. A common method is to determine that the cost of building materials to be fifty percent (50%) of the total valuation of the construction project. The builder then provides the building permit to the materials supplier to prove that use tax has already been paid, and then is exempt from paying a corresponding municipal sales tax in other locations. A large number of cities and counties in Colorado levy a use tax on building materials including Eagle, Gypsum, Vail, Steamboat Springs and Grand Junction. See the comparison tables in the presentation. The benefits of a use tax on construction materials include the following: (1) fairness in the imposition of the tax; (2) elimination of unfair competition using tax rates as a reason to shop outside of Avon; (3) easing of the administrative burden of collection; (4) nexus of construction to community housing needs; FINANCIAL CONSIDERATIONS: Based on the Town’s 10-year average of the total value of building construction of $32,772,355, a 4% use tax on construction materials would have generated an average of $655,447 per annum in revenue. It should be noted that because the Town (excluding The Village (at Avon)) has only a few remaining vacant parcels for large potential developments remaining, the level of use tax from the past ten years might not be an accurate representation of the potential use tax that might be realized in the future. Redevelopment of East Avon Town Center and other underdeveloped properties in the Town core may provide additional use tax revenues. Page 4 of 4 The timing of the remittance of a use tax versus what was actually collected in sales tax on construction materials makes it very difficult to compare fiscal years. However, an average of the past seven years indicates that the Town has actually collected an average of $399,446 per year with 2020 collections at $537,553 representing almost 6% of total sales tax collections. Village At Avon (Traer Creek Metro District). The Consolidated Amended and Restated Annexation and Development Agreement (“CARADA”) specifically contemplates that the Town may, at some point, impose a use tax. In the event a use tax is imposed, a corresponding “use tax credit” will automatically be applied to any transaction subject to the use tax. The CARADA also contemplates that Traer Creek may impose a building materials fee if the Town imposes a use tax. The CARADA is silent as to whether the building materials fee must be used for the same purposes as the use tax. The CARADA does provide the Town must coordinate with Traer Creek regarding the implementation of any use tax, so the Town will need to further explore the building materials fee with Traer Creek. SAMPLE BALLOT LANGUAGE: Sample ballot language is included with this Report which would dedicate 100% of the revenues of a Use Tax to the Community Housing Fund. The use of these funds is broadly written to encompass all potential investments and expenditures related to Community Housing. OPTIONS: As an option to the sample ballot language contained in Attachment B, Council may consider retaining a portion of the use tax in the General Fund to be used for any legal purpose as a way to offset the amount of sales tax on construction materials that will no longer be collected in that manner. As discussed above, that amount in 2020 equates to approximately 6% of gross sales tax revenues or a total of $537,553. Another option regarding the use tax on construction materials would include not specifically earmarking the funds and leave the appropriation of the funds up to the discretion of the Town Council. RECOMMENDATION: We recommend that Council provide direction regarding the possible adoption, either by resolution or by ordinance, of a construction materials use tax ballot question to be certified to the Eagle County Clerk and Recorder for inclusion in the November 2, 2021 general election. Direction should include addressing the options above. TOWN MANAGER’S RECOMMENDATION: I recommend that Council consider approving the ballot question as presented with 100% of the revenues to be dedicated to Community Housing. In my experience working with ballot questions for new taxes, voters will more likely support a new tax that is dedicated to a pressing community need. Presenting the Use Tax as a new tax to support Community Housing is simple and easy for the general public to understand and I expect would resonate with the community based on the current housing shortage. The Sales Tax on construction materials collected in 2020 amounts to 2.9% of the General Fund operating revenues. Considering the magnitude and scope of housing as well as the need to generate significant sums to leverage with regional partners and state and federal grant funds, Council should be striving for annual revenues to be dedicated or allocated towards Community Housing in the range of $1 million to $2 million. Thank you, Scott, Paul and Eric ATTACHMENTS: Attachment A - Ordinance No. 2002-18 Attachment B - Sample Use Tax Ballot Question TOWN OF AVON ORDINANCE NO. 02-18 SERIES OF 2002 AN ORDINANCE ADDING A USE TAX ON CONSTRUCTION MATERIALS. BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. Chapter 3.08 of the Avon Municipal Code is amended as follows: a) Title. The title of chapter 3.08 is amended to state "SALES AND USE TAX." b) 43.08.020. Taxable items. A new subpart D. is added to state as follows: D. Upon the purchase price paid for or the acquisition costs of construction materials brought within the boundaries of the town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property in the town." c) 43.08.030. Sales tax levy. i) The title of §3.08.030 is changed to state "Sales and use tax levy." ii) Section 3.08.030C is repealed and reenacted to state as follow: The retailer shall add the sales tax imposed hereto to the sale or charge of the item sold, showing such tax as a separate and distinct item, and, when added, such tax shall constitute a part of such price or charge, shall be a debt from the purchaser to the retailer until paid and shall be recoverable at law in the same manner as other debts." iii) A new subpart E. is added to state as follows: E. (1) A use tax of four percent is imposed upon the purchase price paid for or the acquisition costs of construction materials brought within the boundaries of the town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property in the town. 1 ATTACHMENT A 2)(a) Any person who shall build or improve any dwelling or other structure or improvement to realty within the town, including underground improvements, and who shall purchase the necessary construction materials needed therefor from any source inside or outside of the town, shall remit to the Finance Director prior to the issuance of any building permit for such improvement full payment of the use tax, to be calculated as provided herein. The full amount of the use tax shall be due and payable at the time that the applicable building permit is issued. The estimate of the cost of the construction materials shall be determined by the Town Building Official in the manner set forth below, and the amount of the tax shall be subject to adjustment if the actual cost of the construction materials needed for the improvement is either less than or greater than the estimate. Upon payment of the use tax, the Finance Director shall issue the taxpayer a receipt identifying the property that is the subject of the tax and the building permit number. b) For the purpose of calculating the amount of the use tax as provided for herein, the value of the construction materials in the improvement shall be estimated to be equal to fifty percent of the total value of the improvement as determined by the Building Official for building permit purposes. The use tax obligation shall be an amount equal to four percent of such estimated value of the construction materials. c) If it is determined by the Finance Director through audit or other means that the actual cost of the construction materials for the improvement is greater than the estimate on which the tax was based, and that additional tax is owing, then the Finance Director shall make a demand to the taxpayer for the additional use tax owed together with interest calculated pursuant to § 3.08.353; provided, in no case may the Finance Director make a claim for amounts due more than three years after a certificate of occupancy or final inspection approval has been issued by the town for the improvement. A taxpayer's failure to honor the Finance Director's claim for additional tax due, as set forth in this paragraph, shall constitute a violation of this chapter. 3) All use tax funds collected by the Town in accordance with the provisions of this chapter shall be appropriated and spent solely for transportation and recreation capital projects and services and infrastructure related thereto." d) & 3.08.320. Sales tax - Credit for sales or use taxes previously paid to another municipality. i) The title of § 3.08.320 is changed to state "Sales and use tax - Credit for sales or use taxes previously paid to another municipality." ii) Section 3.08.320 is repealed and reenacted to state as follow: 2 ATTACHMENT A For transactions consummated on or after January 1, 1986, the town's sales tax shall not apply to the sale of tangible property at retail or the furnishing of services if the transaction was previously subjected to a sales or use tax lawfully imposed on the purchaser or user by another statutory or home rule municipality equal to or in excess of that provided for in Section 3.08.030. A credit shall be granted against the town's lawfully imposed local sales or use tax previously paid by the purchaser or user to the previous statutory or home rule municipality. The amount of the credit shall not exceed the town's sales or use tax imposed pursuant to Section 3.08.030." Section 2. Section 3.08.035 of the Avon Municipal Code is amended as follows: 3.08.035 Tax Credit. Notwithstanding any other provisions of this chapter, there shall be granted to each person owing 1) the sales tax on sales consummated within The Village (at Avon) or 2) the use tax on the purchase price paid or the acquisition costs of construction materials brought within the boundaries of the Town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property within The Village (at Avon) a temporary tax credit against collection of the tax equal to the amount of any retail sales or use fee paid by or on behalf of such person. The amount of the credit shall not exceed the amount of the tax. No such credit shall shall be granted subsequent to termination of the collection of the retail sales fees and use fees terminate pursuant to the Annexation and Development Agreement for The Village (at Avon). Neither the ability of the Town to grant the temporary tax credit nor the termination of the credit shall constitute a tax increase, the imposition of a new tax or a tax policy change." Section 3. Election and Effective Date. Under Article X, Section 20 of the Colorado Constitution, the Council refers the tax increase provided in this ordinance to the qualified electors of the Town for approval at the regular Town election scheduled for November 5, 2002. If approved by a majority of the electors voting thereon, this ordinance shall become effective when the Town Clerk or other designated election official duly files the required certificate of election, or on January 1, 2003, whichever occurs last. Section 4. Ballot Title and Question. The ballot title and question submitted to the electors shall be as follows: ATTACHMENT A SHALL TOWN OF AVON TAXES BE INCREASED $1.6 MILLION ($1,600,000) ANNUALLY IN 2003, AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER, BY THE IMPOSITION OF A FOUR PERCENT (4%) USE TAX ON THE PRIVILEGE OF USING OR CONSUMING IN THE TOWN ANY CONSTRUCTION MATERIALS, SUCH USE TAX REVENUES TO BE APPROPRIATED AND SPENT SOLELY FOR TRANSPORTATION AND RECREATION CAPITAL PROJECTS AND SERVICES AND INFRASTRUCTURE RELATED THEREO, ALL IN ACCORDANCE WITH ORDINANCE NO. 02-18 ADOPTED BY THE TOWN COUNCIL; AND SHALL THE REVENUES COLLECTED FROM SUCH TAX AND ANY EARNINGS FROM THE INVESTMENT OF SUCH REVENUES BE COLLECTED AND SPENT AS A VOTER APPROVED REVENUE CHANGE AND AN EXCEPTION TO THE LIMITS WHICH WOULD OTHERWISE APPLY UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW? INTRODUCED, APPROVED ON FIRST READING, AND ORDERED PUBLISHED IN FULL AND POSTED, this 9th day of July, 2002, and a public hearing on this ordinance shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado on the 27th day of August, 2002, at 5:30 p.m. in the Municipal Building of the Town of Avon, Colorado. TOWN OF AVON, COLORADO: ATT To Cl rk yor 4 ATTACHMENT A INTRODUCED, APPROVED ON SECOND READING, AND ORDERED PUBLISHED AND POSTED this 27th day of August, 2002. TOWN OF AVON, COLORADO: Jyor ATT oc- To Cl rk EARS APPROVED AS TO FORM: Town ttorney ATTACHMENT A STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 27TH DAY OF AUGUST 2002, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 02-18, SERIES OF 2002: AN ORDINANCE ADDING A USE TAX ON CONSTRUCTION MATERIALS. A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado Dated this 23rd day of August 2002. TOWN OF AVON, COLORADO BY: P ! "lc/ Patty Yel envy Town Cie& POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON AUGUST 23, 2002: AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY ATTACHMENT A STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 13TH DAY OF AUGUST 2002, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 02-18, SERIES OF 2002: AN ORDINANCE ADDING A USE TAX ON CONSTRUCTION MATERIALS. A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado Dated this 6`" day of August, 2002. TOWN OF AVON, COLORADO BY: 201 /~c Pa " cKenn Town Clerk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON AUGUST 6, 2002: AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY ATTACHMENT A STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 23RD DAY OF JULY 2002, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 02-18, SERIES OF 2002: Ordinance 02-18, Series of 2002 - An Ordinance Adding a Use Tax on Construction Materials A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado Dated this 19th day of July, 2002. TOWN OF AVON, COLORADO BY: c Pay c envy Town erk POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON JULY 19,2002: AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY ATTACHMENT A ORDINANCE NO. 02-18 gad SERIES OF 2002 NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON,COLORADO: Section 1. Chapter 3.08 of the Avon Municipal Code is amended as follows: a) Title. The title of chapter 3.08 is amended to state "SALES AND USE TAX." b) 43.08.020. Taxable items. A new subpart D. is added to state as follows: D. Upon the purchase price paid for or the acquisition costs of construction materials brought within the boundaries of the town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property in the town." c) 43.08.030. Sales tax levy. i) The title of §3.08.030 is changed to state "Sales and use tax levy." ii) Section 3.08.030C is repealed and reenacted to state as follow: The retailer shall add the sales tax imposed hereto to the sale or charge of the item sold, showing such tax as a separate and distinct item, and, when added, such tax shall constitute a part of such price or charge, shall be a debt from the purchaser to the retailer until paid, and shall be recoverable at law in the same manner as other debts." iii) A new subpart E. is added to state as follows: E. (1) A tax of four percent is imposed upon the purchase price paid for or the acquisition costs of construction materials brought within the boundaries of the town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property in the town. AN ORDINANCE ADDING A USE TAX ON CONSTRUCTION MATERIALS. 2) Any person who shall build or improve any dwelling or other structure or improvement to realty within the town, including underground ATTACHMENT A improvements, and who shall purchase the necessary construction materials needed therefore from any source inside or outside of the town, shall keep all invoices and statements regarding such materials from both the general and subcontractors, along with a summary sheet showing such purchases, and shall, on or before the tenth day of each succeeding month following the start. of construction, file a return with the Finance Director, to which he shall attach such invoices, statements and. summary for the construction materials purchased the previous month, and . shall thereupon pay to the Finance Director the full amount of the use tax due thereon for the preceding month or months. Any failure to preserve such statements and invoices, and to make such return and payment of such use tax, shall be deemed a violation of this chapter. The full amount of any use tax due and not paid for construction materials shall be a lien upon the real property benefited by such improvements, and the Finance Director is authorized to file a notice of such lien with the County Clerk and Recorder. 3)(a) Any person who shall build or improve any dwelling or other structure or improvement to realty within the town, including underground improvements, and who shall purchase the necessary construction materials needed therefore from any source inside or outside of the town, may, at such person's option, remit a deposit to the Finance Director prior to the issuance of any building permit for such improvement, such deposit to insure and indemnify the town for the amount of use tax due. The amount of the deposit shall be based upon an estimate of the use tax to be payable on the construction materials used for the improvement. Such estimate shall be made, and such deposit shall be paid, at the time that the applicable building permit is issued. The estimate of the cost of the construction materials shall be determined by the Town Building Official, and the estimate shall be subject to adjustment if the actual cost of the construction materials needed for the improvement is either. less than or greater than such estimate. If the taxpayer elects the deposit procedure set forth in this subsection (3), then the provisions of subsection (2) hereof shall be waived. Upon payment of the deposit as set forth herein, the Finance Director shall issue the taxpayer a receipt identifying the property that is the subject of the deposit and the building permit number. b) For the purpose of calculating the amount of the deposit as provided for herein, the value of the construction materials in the improvement shall be estimated to be equal to fifty percent of the total value of the improvement as determined by the Building Official for building permit purposes. The deposit shall be in the amount of four percent of such estimated value of the construction materials. c) If it is determined by the Finance Director that the actual cost of the construction materials for the improvement is.greater than the estimate therefore, and that the amount of the use tax deposit is not sufficient to 2 ATTACHMENT A provide for full payment of the use tax, then the Finance Director shall make a demand to the. taxpayer for the additional use tax owed; provided, in no case may the Finance Director make a claim for amounts due over and above the amount of the deposit more than three years after a certificate of occupancy or final inspection approval has been issued by the town for the improvement. A taxpayer's failure to honor the Finance Director's claim for additional tax due, as set forth in this paragraph, shall constitute a violation of this chapter. d) If it is determined by the Finance Director that the deposit is sufficient to provide for full payment of the use tax, then the deposit shall be used to pay the amount of the use tax due. If the Finance Director determines that the amount of the deposit is in excess of the use tax owned, then he shall return any excess amount of the deposit to the person who made the deposit within thirty days of such determination. 4) If a taxpayer purchases construction materials subject to the use tax imposed herein from a vendor possessing a valid Town of Avon retail sales tax license, and if he pays the town's sales tax at the time of purchase of such construction materials, then he shall be entitled to a credit, to the extent of such sales tax paid, to be applied to the amount of use tax owed. 5) Construction materials subjected at the time of purchase to a sales or use tax lawfully imposed on the purchaser by another statutory or home rule municipality in the State of Colorado, if taxed at a rate equal to or greater than the four percent rate provided for herein, are exempted from the Town of Avon's use tax. If the rate of the sales or use tax imposed by such other Colorado statutory or home rule municipality is less than four percent, the difference between the tax due under this chapter and the tan paid by the purchaser shall be due to the Town of Avon, and shall be remitted to the Finance Director. 6) All use tax funds collected by the Town in accordance with the provisions of this chapter shall be appropriated and spent solely for transportation and recreation capital projects and services." d) 4 3.08.320. Sales tax - Credit for sales or use taxes previously paid to another municipality. i) The title of § 3.08.320 is changed to state "Sales and use tax - Credit for sales or use taxes previously paid to another municipality." ii) Section 3.08.320 is repealed and reenacted to state as follow: For transactions consummated on or after January 1, 1986, the town's sales tax shall not apply to the sale of tangible property at retail or the furnishing of services if the transaction was previously subjected to a sales or use tax lawfully imposed on the 3 ATTACHMENT A purchaser or user by another statutory or home rule municipality equal to or in excess of that provided for in Section 3.08.030. A credit shall be granted against the town's lawfully imposed local sales or use tax previously paid by the purchaser or user to the previous statutory or home rule municipality. The amount of the credit shall not exceed the town's sales or use tax imposed pursuant to Section 3.08.030." Section 2. Election and Effective Date. Under Article X, Section 20 of the Colorado Constitution, the Council refers the tax increase provided in this ordinance to the qualified electors of the Town for approval at the regular Town election scheduled for November 5, 2002. If approved by a majority of the electors voting thereon, this ordinance shall become effective when the Town Clerk or other designated election official duly files the required certificate of election, or on January 1, 2003, whichever occurs last. Section 3. Ballot Title and Question. The ballot title and question submitted to the electors shall be as follows: SHALL TOWN OF AVON TAXES BE INCREASED $1.6 MILLION ($1,600,000) ANNUALLY IN 2003, AND. BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER, BY THE IMPOSITION OF A FOUR PERCENT (4%) USE TAX ON THE PRIVILEGE OF USING OR CONSUMING IN THE TOWN ANY CONSTRUCTION MATERIALS, SUCH USE TAX REVENUES TO BE APPROPRIATED AND SPENT SOLELY FOR TRANSPORTATION AND RECREATION CAPITAL PROJECTS AND SERVICES, ALL IN ACCORDANCE WITH ORDINANCE NO. 01-08 ADOPTED BY THE TOWN COUNCIL; AND SHALL THE REVENUES COLLECTED FROM SUCH TAX AND ANY EARNINGS FROM THE INVESTMENT OF SUCH REVENUES BE COLLECTED AND SPENT AS A VOTER APPROVED REVENUE CHANGE AND AN EXCEPTION TO THE LIMITS WHICH WOULD OTHERWISE APPLY UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW? YES 4 ATTACHMENT A NO Section 4. Repealer. If the electors approve this ordinance, then on the effective date specified above, all ordinances or parts of ordinances in conflict herewith are hereby repealed, but only to the extent of such inconsistency. Section 5. Severability. The provisions of this ordinance. are severable, and invalidity of any part shall not affect the validity or effectiveness of the rest of this ordinance. INTRODUCED, APPROVED ON FIRST READING, AND ORDERED PUBLISHED IN FULL AND POSTED, this day of July, 2002, and a public hearing on this ordinance shallCaie held at t e regular meeting of the Town Council of the Town of Avon, Colorado on the a3 day of , 2002, at 5:30 p.m. in the Municipal Building of the Town of Avon, Colorado,,,- ATT 7,Cp`p Town lerk TOWN OF AVON, COLORADO: Wor 5 ATTACHMENT A INTRODUCED, APPROVED ON S COND READING, AND ORDERED PUBLISHED AND POSTED this-'1 %ay of )t,,L-t , 2002. Q-T~WN OF AVON, COLORADO: Wor ATT T: o C~ To Cle APPROVED AS TO FORM: Town Attorney 6 ATTACHMENT A STATE OF COLORADO ) COUNTY OF EAGLE ) SS TOWN OF AVON ) NOTICE IS HEREBY GIVEN OF A PUBLIC HEARING BEFORE THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO AT 5:30 P.M. ON THE 23R) DAY OF JULY 2002, AT THE TOWN OF AVON MUNICIPAL BUILDING FOR THE PURPOSE OF CONSIDERING THE ADOPTION OF ORDINANCE NO. 02-18, SERIES OF 2002: Ordinance 02-18, Series of 2002 - An Ordinance Adding a Use Tax on Construction Materials A copy of said Ordinance is attached hereto, and is also on file at the office of the Town Clerk, and may be inspected during regular business hours. Following this hearing, the Council may consider final passage of this Ordinance. This notice is given and posted by order of the Town Council of the Town of Avon, Colorado Dated this 19th day o 0 F TOWN OF AVON, COLORADO SEA L LBY: Pa Mc envy LOOA®® To k POSTED AT THE FOLLOWING PUBLIC PLACES WITHIN THE TOWN OF AVON ON JULY 19, 2002: AVON MUNICIPAL BUILDING, MAIN LOBBY ALPINE BANK, MAIN LOBBY AVON RECREATION CENTER, MAIN LOBBY CITY MARKET, MAIN LOBBY ATTACHMENT A Memo To: Honorable Mayor and Town Council Thru: Bill Efting, Town Manager From: Scott Wright, Finance Director Date: August 9, 2002 Re: Use Tax Ordinance Summary: On July 9, Council passed on 1st reading a use tax ordinance that levied a 4% use tax on the use, storage, or consumption of building materials within the Town of Avon. Subsequent to the 1st reading, there have been several reviews of the various administrative and collection provisions of the ordinance that were prompted by the Town's Annexation and Development Agreement with the Village at (Avon) entities. As a result of these reviews, there are changes to the ordinance for 2nd reading as summarized below: Section 3.08.030 E. (2) of the original ordinance regarding collection of the use tax has been changed to reflect that only projects required to have a building permit would be required to pay a use tax. This change eliminates the reporting and tax burden on individuals with small home improvement projects that don't require permits and eliminates any consumer use tax issues from the ordinance. Sections 3.08.030 E. (2)(a), (b), and (c) of the original ordinance regarding payment of the tax at the time a building permit is issued have been changed to reflect that the full payment of the tax is made, rather than a deposit. This change was necessary to remain consistent with the concept that the use tax is levied at the time a building permit is issued. Sections 3.08.030 E. (4) and (5) have been eliminated as duplicative with existing sections of the existing sales tax code and unnecessary due to the changes above. Section 3.08.030 E. (3) has been changed to add language allowing the use tax funds to be used for infrastructure related to transportation and recreation. Section 3.08.035 has been added to grant a credit against the use tax fee collected by the Village at (Avon) for permitted projects occurring within the Village. Page 1 ATTACHMENT A Town Manager Comments: Attachments: Ordinance No. 02-18 - Black Line Version 0 Page 2 ATTACHMENT A ORDINANCE NO. 02-18 SERIES OF 2002 AN ORDINANCE ADDING A USE TAX ON CONSTRUCTION MATERIALS. NOW, THH FORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON,COLORADO: Section 1. Chapter 3.08 of the Avon Municipal Code is amended as follows: a) Title. The title of chapter 3.08 is amended to state "SALES AND USE TAX." b) 43.08.020. Taxable items. A new subpart D. is added to state as follows: D. Upon the purchase price paid for or the acquisition costs of construction materials brought within the boundaries of the town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property in the town." c) 43.08.030. Sales tax lees. i) The title of §3.08.030 is changed to state "Sales and use tax levy." ii) Section 3.08.030C is repealed and reenacted to state as follow: The retailer shall add the sales tax imposed hereto to the sale or charge of the item sold, showing such tax as a separate and distinct item, and, when added, such tax shall constitute a part of such price or charge, shall be a debt from the purchaser to the retailer until paid and shall be recoverable at law in the same manner as other debts." iii) A new subpart E. is added to state as follows: E. (1) A use tax of four percent is imposed upon the purchase price paid for or the acquisition costs of construction materials brought within the boundaries of the town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property in the town. ATTACHMENT A h l l k R inveiees and sta4ements e a di s h at i l ft b th a7s th eep-a l drgrnguemerasemeegeneraan d shall 7 anf trofcr t.itu°t;°-- f with t 1;~h t 11hvrvracrcrGTrOrrrnceTiirmiErrcGviceE6r~e F~C i e nurr umhased 7 the m4h an d shall the e e a th Fi eprupnpyaenanse th A f il t e h A M 1a r t d k i d t kmens.ny a ure e pr eserve Su nen s h ll b an we d d ses, an i l ti e ma e f thi h t Th f ll m t ef a us afs tax due an e eeme a d net aid v e a f en e s t fieapen i l e u a eun h AIR b A li ny n u n e the real r p o ert be er ee n fit d ns me en b hmmer-a s s e -e d the Finnt" pe ance Dife p eter_ is aut-he p y r-ize to file e e ti° y sue. f lien with t 7 he Geunty Cler-k and Reeer-der-. ee 2)(a) Any person who shall build or improve any dwelling or other structure or improvement to realty within the town, including underground improvements, and who shall purchase the necessary construction materials needed therefore from any source inside or outside of the town, may, a4 sueh p , shall remit a depesit to the Finance Director prior to the issuance of any building permit for such improvement full payment of the use tax, to be calculated as provided herein , the tew f - the ° nt of use tax a--° The full amount of the depesit use tax shall be due and navable base' ueea an estimate of the use tam to be ~ paid, be made, and sueh depesit shall be at the time that the applicable building permit is issued. The estimate of the cost of the construction materials shall be determined by the Town Building Official in the manner set forth below, and the °e amount of the tax shall be subject to adjustment if the actual cost of the construction materials needed for the improvement is either less than or greater than seeh the estimate. if the taxpa~,er- eleets depesit pr-eeedufe set feAh in this s-74-4b- Se e t i An (3), then the pmvisiefls 0 subseetien (2) her-eef shall be waived-. Upon payment of the use tax depesit-as t f fth h, the Finance Director shall issue the taxpayer a receipt identifying the property that is the subject of the depesit tax and the building permit number. b) For the purpose of calculating the amount of the depesit use tax as provided for herein, the value of the construction materials in the improvement shall be estimated to be equal to fifty percent of the total value of the improvement as determined by the Building Official for building permit purposes. The depesit use tax obligation shall berme an amount of equal to four percent of such estimated value of the construction materials. 2 ATTACHMENT A t c) If it is determined by the Finance Director through audit or other means that the actual cost of the construction materials for the improvement is greater than the estimate on which the tax was based tie, and that additional tax is owing then nt of the use tax depe,it ; net suf- ei°nt t„ P=ovide f r- full payment of the • ° to*, then the Finance Director shall make a demand to the taxpayer for the additional use tax owed together with interest calculated pursuant to & 3.08.353; provided, in no case may the Finance Director make a claim for amounts due over and above the amount of the deposit more than three years after a certificate of occupancy or final inspection approval has been issued by the town for the improvement. A taxpayer's failure to honor the Finance Director's claim for additional tax due, as set forth in this paragraph, shall constitute a violation of this chapter. d) if it is determined b the Fi Di t A .th t th dyeereeer ns.Ffinient to i tde file ot~'full ao th a epoe 1.1°nit ..1. 11thri:r-ciiczacy use en used -te the-amount ef the-use-ta if th Fide e Di t d tpyexunanee that the n nt ofthe .7e se tnvesit is in xeess ofth r-es er e er es d th 1.h llpaeueeesa itl,ir,_t iAy days ofn..nh deten: inn ien nTftn.,4 1,asu~e titcS t t ttbilthr..i d herein ff-eIsn ri n ve d e e max~cruccrvrrzircc er- n °l s u j ,Tccc-er a c cv m--cccxeuse fAn lidTtilvr eta d-if hhe n th va t t ee o esveresaa ti f h chtthfxense~r pays oi~ne s aax e-me-pttm ase o su eenstmetien materSAn[GI ls, then j.,he shall be entitled te-a er-edit, to-LYYl7 extente su.eh nnl°n tn„ p i.af t o ben pl ied to theamount o f use tnv e e straetien m5) G-bjet alateri t th ti f t tax-lawfWl im osed as .a en-the umhse e p uff asmee1~11V 11./Ml Vll{4V b et °t te eV 7,V VI-JGoasales 1hyp litmuniei in the St ap ifate ,.f'!''eie -ad r y--an s a u 4ttd l eme t t thpy er-eeet ratethefetff- d ro idedfe h r-a e equaaxea i t d f o e g an fthTp ven's use tax if t p v r-ere he ate tl l n, are exemp e r vtn om e own e 7 b h t hYY Geier-ado statutor e r e-sae rhe l es er ase c~a l th y efeaeeT f iy differ-enee betw t me-Pa tere na°,.h t d ess an thi h t d th euf eext-,-t e id b heen urehasealll be " e ai ue e-te the Te s e ap er- an e f A d h ll tar, pa y t e tt d t thp 1;in ° Di, °t,. o an s a ra e o e 3) All use tax funds collected by the Town in accordance with the provisions of this chapter shall be appropriated and spent solely for transportation and recreation capital projects and services and infrastructure related thereto." d) § 3.08.320. Sales tax - Credit for sales or use taxes previously paid to another municipality. i) The title of § 3.08.320 is changed to state "Sales and use tax - Credit for sales or use taxes previously paid to another municipality." 3 ATTACHMENT A ii) Section 3.08.320 is repealed and reenacted to state as follow: For transactions consummated on or after January 1, 1986, the town's sales tax shall not apply to the sale of tangible property at retail or the furnishing of services if the transaction was previously subjected to a sales or use tax lawfully imposed on the purchaser or user by another statutory or home rule municipality equal to or in excess of that provided for in Section 3.08.030. A credit shall be granted against the town's lawfully imposed local sales or use tax previously paid by the purchaser or user to the previous statutory or home rule municipality. The amount of the credit shall not exceed the town's sales or use tax imposed pursuant to Section 3.08.030." Section 2. Section 3.08.035 of the Avon Municipal Code is amended as follows: 3.08.035 Tax Credit. Notwithstanding any other provisions of this chapter, there shall be granted to each person owing 1) the sales tax on sales consummated within The Village (at Avon) or 2) the use tax on the purchase price paid or the acquisition costs of construction materials brought within the boundaries of the Town for the purpose of being used to build, construct, reconstruct, alter, expand, modify or improve any building, dwelling or other structure or improvement to real property within The Village (at Avon) a temporary tax credit against collection of the tax equal to the amount of any retail sales or use fee paid by or on behalf of such person. The amount of the credit shall not exceed the amount of the tax. No such credit shall shall be granted subsequent to termination of the collection of the retail sales fees and use fees terminate pursuant to the Annexation and Development Agreement for. The Village (at Avon). Neither the ability of the Town to grant the temporary tax credit nor the termination of the credit shall constitute a tax increase, the imposition of a new tax or a tax policy change_" . 4 ATTACHMENT A Section 2 3. Election and Effective Date. Under Article X, Section 20 of the Colorado Constitution, the Council refers the tax increase provided in this ordinance to the qualified electors of the Town for approval at the regular Town election scheduled for November 5, 2002. If approved by a majority of the electors voting thereon, this ordinance shall become effective when the Town Clerk or other designated election official duly files the required certificate of election, or on January 1, 2003, whichever occurs last. Section -3 4. Ballot Title and Question. The ballot title and question submitted to the electors shall be as follows: SHALL TOWN OF AVON TAXES BE INCREASED $1.6 MILLION ($1,600,000) ANNUALLY IN 2003, AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER, BY THE IMPOSITION OF A FOUR PERCENT (4%) USE. TAX ON THE PRIVILEGE OF USING OR CONSUMING IN THE TOWN ANY CONSTRUCTION MATERIALS, SUCH USE TAX REVENUES TO BE APPROPRIATED AND SPENT SOLELY FOR TRANSPORTATION AND RECREATION CAPITAL PROJECTS AND SERVICES AND INFRASTRUCTURE RELATED THEREO, ALL IN ACCORDANCE WITH ORDINANCE NO. 01 08 02-18 ADOPTED BY THE TOWN COUNCIL; AND SHALL THE REVENUES COLLECTED FROM SUCH TAX AND ANY EARNINGS FROM THE INVESTMENT OF SUCH REVENUES BE COLLECTED AND SPENT AS A VOTER APPROVED REVENUE CHANGE AND AN EXCEPTION TO THE LIMITS WHICH WOULD OTHERWISE .APPLY UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW? 5 ATTACHMENT A if the-eleeter-s fie-this -ewee, then en the-effies4ive date spesified abeve, all er,dinamees or- aAs of ` r-di anew in ` enfl et herewith are hereby eale a but enAy to the °40..4 The provisions of tMs " -difial}se-ar~aei bleu and invalidity of an pap shall not a ff `.t thee INTRODUCED, APPROVED ON FIRST READING, AND ORDERED PUBLISHED IN FULL AND POSTED, this 9th day of July, 2002, and a public hearing on this ordinance shall be held at the regular meeting of the Town Council of the Town of Avon, Colorado on the 23rd day of July, 2002, at 5:30 p.m. in the Municipal Building of the Town of Avon, Colorado. TOWN OF AVON, COLORADO: Mayor ATTEST: Town Clerk 6 ATTACHMENT A INTRODUCED, APPROVED ON SECOND READING, AND ORDERED PUBLISHED AND POSTED this _ day of , 2002. TOWN OF AVON, COLORADO: Mayor ATTEST: Town Clerk APPROVED AS TO FORM: Town Attorney 7 ATTACHMENT A SAMPLE USE TAX BALLOT QUESTION SHALL TOWN OF AVON TAXES BE INCREASED $____ MILLION ($____________) ANNUALLY IN 2022, AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY THEREAFTER, BY THE IMPOSITION OF A FOUR PERCENT (4%) USE TAX ON THE PRIVILEGE OF USING OR CONSUMING IN THE TOWN ANY CONSTRUCTION MATERIALS, SUCH USE TAX REVENUES TO BE APPROPRIATED AND SPENT SOLELY FOR THE PURPOSE OF FUNDING COMMUNITY HOUSING, INCLUDING THE ACQUISITION OF LAND FOR HOUSING, CONSTRUCTION OF HOUSING, EXTENSION OF PUBLIC INFRASTRUCTURE TO SERVE HOUSING DEVELOPMENT, PURCHASE OF DEED RESTRICTIONS, DOWNPAYMENT ASSISTANCE PROGRAMS, AND PARTNERSHIP WITH PUBLIC AND PRIVATE ENTITIES TO DEVELOP COMMUNITY HOUSING, IN ACCORDANCE WITH SUCH TERMS, CONDITIONS AND POLICIES AS MAY BE ADOPTED BY THE AVON TOWN COUNCIL, ALL IN ACCORDANCE WITH ORDINANCE NO. 21-____ ADOPTED BY THE TOWN COUNCIL; AND SHALL THE REVENUES COLLECTED FROM SUCH TAX AND ANY EARNINGS FROM THE INVESTMENT OF SUCH REVENUES BE COLLECTED AND SPENT AS A VOTER APPROVED REVENUE CHANGE AND AN EXCEPTION TO THE LIMITS WHICH WOULD OTHERWISE APPLY UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW. ATTACHMENT B 970-748-4055 swright@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Scott Wright, Finance Director RE: 2022 Supplemental Budget Amendment, Resolution 22-08 DATE: May 4, 2022 SUMMARY: It has been the historical practice to adopt a supplemental budget amendment in order to update beginning fund balance estimates and generally recognize revisions to the budget that were not identified at the time the budget was originally adopted. These resolutions amend the General Fund, Community Housing Fund, Mobility Fund, Fleet Maintenance Fund, Equipment Replacement Fund, and Capital Projects Fund. FINANCIAL CONSIDERATIONS: Below is a summary of the proposed budget revisions and the estimated impacts to fund balances. General Fund The following are proposed revisions to expenditure appropriations in the General Fund: • Increase of $85,691 in regular full-time salaries in order to increase potential mid-year market salary increases from 5.5% to 8%; • Increase of $140,630 in Town Manager’s budget for the hiring of a Deputy Town Manager; • Increased Youth Program expenditures in the amount of $17,789 for afterschool care and summer camp programs. (See grant revenues below); • Increased Miscellaneous Operating Supplies in the Parks budget for the purchase of two boat storage racks and two outdoor storage boxes for paddles; • Increased the Economic Development budget for $5,000 for a Human-Bear Conflict Reduction Grant; • Increased Engineering by $2,200 for the purchase of a laptop computer; • Increased the Planning budget by $3,120 for the purchase of a workstation and additional laptop; • Increased the Roads and Streets budget by $37,025 due to the increase in cost for the purchase of the Vactor truck which will be used for cleaning out culverts; • Increased the Parks budget for the parking lot snow removal contract in the amount of $27,000. This amount was budgeted in 2021 and is a carryover of the unspent funds. • Various line item changes for Special Events in the amount of $47,185. The includes increases in portable facilities of $9,255, Rentals & Traffic Control of $4,400, Security Services of $10,122, and Other Contracted Services of $39,636. Savings from Other Professional Services and Audio/Visual Services from AvonLive of $14,970 helped offset these increases. • Increases totaling $10,143 in hourly wages for Recreation Department employees; • Increase of $3,237 in the Parks budget for replacement of out-of-date signage in Harry A. Nottingham Park; • Increase of $1,255 for the replacement of the sound mixer in the Fitness program budget; The following are proposed revisions to revenue estimates: • Increased grant revenues in the amount of $52,789 for a grant from Colorado Dept. of Human Services for a Child Care Operations and Stabilization and Sustainability Grant. Decreased Youth Program revenues in the amount of $35,000 for discounts offered in this program. The revised ending fund balance of the General Fund reports a total of $12,460,333. Of this amount, the 27% reserve is $6,110,893, $829,650 is in the 3% TABOR emergency reserve and the remaining amount of $5,519,790 is undesignated and unreserved and can be used for any legal purpose. 970-748-4055 swright@avon.org Community Housing Fund The revisions to the Community Housing Fund are as follows: • Reappropriation of 2021 unexpended funds from the Mi Casa program in the amount of $238,018; • Added $1,000 for the Mi Casa logo creation; • Added $862,000 for design related to the Swift Gulch Employee Housing project; • Added $$50,000 for engineering work related to the East Avon Preserve project. The revised beginning fund balance of the Community Housing Fund shows a total of $1,303,309 which is $378,433 higher than the original projected beginning fund balance for 2022. Projected ending fund balance for 2022 is $358,058. Capital Projects Fund The changes to the Capital Project Fund are as follows: • Carried-forward all unspent, active project budgets from 2021 to 2022, totaling $1,917,893; • Added $20,845 for Lake Street culvert repair to complete the Utility Upgrade project; • Added $76,000 for office furniture for Engineering and Town Hall; • Added #$25,000 for New Town Hall ADA access; • Added $305,436 for the Wildridge Emergency Warning Siren project; • Added $90,000 for ARTF roofing repairs; • Added $40,439 to complete the Recreation Center Locker Replacement project; • Added $45,788 for Recreation Water Slide refurbishment and diving board replacement. These funds will be transferred in from the Equipment Replacement Fund; • Added $355,523 to the Nottingham Park West Courts Reconstruction; • Added $50,000 for painting for the Avon Rd/I70 Overpass project; • Added $14,000 for Metcalf Road manhole repair; • Added $175,810 for the Nottingham Rd. Debris Flow project; The revised ending fund balance of the Capital Projects Fund shows a total of $7,260,676 which is $939,573 higher than the original projected ending fund balance for 2022. Of this amount, $450,230 is reserved for asphalt overlay projects in the Village at Avon, $844,108 is reserved for Tract G/URA projects. The remaining amount of $5,965,288 can be used for capital improvements as defined by the municipal code and up to 10% of real estate transfer tax revenues can be transferred to the Community Housing Fund. Staff has not revised our projections for real estate transfer taxes for 2022. However, based on revenue levels from the past three years we expect that we will revise our estimates at the next supplemental budget amendment. Mobility Fund Revisions to the Mobility Fund include the following items: • Increase of $8,108 in regular full-time salaries in order to increase potential mid-year market salary increases from 5.5% to 8%; • Created a new Parking Management program and added a budget of $129,000 in expenditures and $25,000 in parking fines; • Carried forward from 2021 a total of $13,000 of unspent funds for completing the bus wrap ($4,500) and backordered radios ($8,500); • Increased capital outlay for 2 diesel buses by a total of $130,000; • Reduced net budgeted expenditures by $20,000 for costs related to planning for the Regional Transit Authority formation. 970-748-4055 swright@avon.org The following are proposed revisions to revenue estimates: • Increased lease revenues by $57,528 for expansion of the CDOT operated regional transit service by a total of 6 bus parking spaces; • Reduced grant revenues in the net amount of $39,907 related to planning for the Regional Transit Authority formation; • Increased by $40,000 the CDOT Faster Grant to a total of $840,000 for the purchase of 2 diesel buses. The revised beginning fund balance of the Mobility Fund shows a total of $1,595,418 which is $218,778 higher than the original projected beginning fund balance for 2022. Projected ending fund balance for 2022 is $334,377. Fleet Maintenance Fund Revisions to Fleet Maintenance include the following: • Increase of $7,098 in regular full-time salaries in order to increase potential mid-year market salary increases from 5.5% to 8%; • Increase in Overtime ($10,000), Office Supplies ($1,000), and Professional Development ($7,500). Overtime increases are due to increase YTD in billable hours. The increase in professional development is for Pierce Fire Truck Electrical training. The Fleet Maintenance Fund reports a revised beginning fund balance of $431,174 which is an increase of $194,503 from the original budget and a revised ending fund balance of $460,160. Equipment Replacement Fund Revisions to the Equipment Replacement Fund include the following items: • Carryover of appropriations from 2021 totaling $330,913 for vehicles that were ordered in 2021 but not yet received. These are all replacement vehicles and includes a pickup w/ plow, a flatbed pickup, a tractor, and a lift truck. • Increase for replacement of Police Vehicle #352 from $43,675 to $57,000. • Increase of $8,211 for the purchase of a Smith Machine, Swimsuit Extractors (2) and Dry Vacuum. These items were due to be replaced in 2022 but were not included in the original budget. • Increase of $36,000 for the purchase of 8 Police MDT laptop computers. The purchase of these laptops was delayed due to the pandemic but should have been replaced in 2021. • Increase in Operating Transfers-out to the Capital Projects Fund of $32,295 for replacement of the diving board and refurbishment of the water slide. The Equipment Replacement Fund reports a revised beginning fund balance of $3,472,958 which is an increase of $315,303 from the original budget and an ending fund balance of $3,404,958. PROPOSED MOTION: "I move to approve Resolution No. 22-08, A Resolution Amending the 2022 Town of Avon Budget." Thank you, Scott 970-748-4055 swright@avon.org ATTACHMENTS: Attachment A Resolution No. 2022-08 Attachment B General Fund Supplemental Amendment No. 1 Attachment C Community Housing Fund Supplemental Amendment No. 1 Attachment D Capital Projects Fund Supplemental Amendment No. 1 Attachment E Mobility Fund Supplemental Amendment No. 1 Attachment F Fleet Maintenance Fund Supplemental Amendment No. 1 Attachment G Equipment Replacement Fund Supplemental Amendment No. 1 Res. No. 22-08 May 10, 2022 Page 1 of 3 TOWN OF AVON, COLORADO RESOLUTION NO. 22-08 A RESOLUTION TO AMEND THE 2022 TOWN OF AVON BUDGET WHEREAS, the Town Council of the Town of Avon has previously adopted the 2022 budget; and WHEREAS, the Town Council has reviewed the revised estimated revenues and expenditures for 2022; and WHEREAS, the Town Council finds it necessary to amend the 2022 budget to more accurately reflect the revenues and expenditures for 2022; and WHEREAS, the Town Council has caused to be published a notice containing the date and time of a public hearing at which the adoption of the proposed budget amendment will be considered and a statement that the proposed budget amendment is available for public inspection at the office of the Town Clerk located in the Avon Town Hall during normal business hours, and that any interested elector of the Town of Avon may file any objection to the proposed budget amendment at any time prior to the final adoption of the proposed budget amendment; and WHEREAS, whatever increases may have been made in the expenditures, like increases were added to the revenues so that the budget remains in balance as required by law. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: Section 1. That estimated revenues and expenditures for the following funds are revised as follows for 2022: Original or Previously Amended 2022 Budget Current Proposed Amended 2022 Budget General Fund Beginning Fund Balance Revenues and Other Sources Expenditures and Other Uses $ 12,664,061 22,411,420 22,199,792 $ 12,664,061 22,429,209 22,632,937 Ending Fund Balance $ 12,875,689 $ 12,460,333 ATTACHMENT A Res. No. 22-08 May 10, 2022 Page 2 of 3 Original or Previously Amended 2022 Budget Current Proposed Amended 2022 Budget Capital Projects Fund Beginning Fund Balance Revenues and Other Sources Expenditures and Other Uses Ending Fund Balance $ 9,758,398 4,577,500 8,014,795 $ 6,321,103 $ 13,782,410 4,609,795 11,131,529 $ 7,260,676 Community Housing Fund Beginning Fund Balance Revenues and Other Sources Expenditures and Other Uses Ending Fund Balance $ 924,876 1,405,767 1,200,000 $ 1,130,643 $ 1,303,309 1,405,767 2,351,018 $ 358,058 Fleet Maintenance Fund Beginning Fund Balance Revenues and Other Sources Expenditures and Other Uses Ending Fund Balance $ 236,671 1,788,286 1,733,702 $ 291,255 $ 431,174 1,788,286 1,759,300 $ 460,160 Mobility Fund Beginning Fund Balance Revenues and Other Sources Expenditures and Other Uses Ending Fund Balance $ 1,376,640 4,567,025 5,554,578 $ 389,087 $ 1,595,418 4,553,646 5,814,687 $ 334,377 Equipment Replacement Fund Beginning Fund Balance Revenues and Other Sources Expenditures and Other Uses $ 3,156,791 1,206,958 853,350 $ 3,472,094 1,206,958 1,274,094 Ending Fund Balance $ 3,510,399 $ 3,404,958 Section 2. That the budget, as submitted, amended, and hereinabove summarized by fund, hereby is approved and adopted as the budget of the Town of Avon for the year stated above. Section 3. That the budget hereby approved and adopted shall be signed by the Mayor and made part of the public record of the Town. ATTACHMENT A Res. No. 22-08 May 10, 2022 Page 3 of 3 ADOPTED this 10th May, 2022. AVON TOWN COUNCIL By:___________________________ Attest:________________________ Sarah Smith Hymes, Mayor Brenda Torres, Town Clerk ATTACHMENT A Proposed Original Amended Difference Unaudited Budget Budget Increase 2021 2022 2022 (Decrease) REVENUES Taxes 17,588,200$ 18,469,729$ 18,469,729$ -$ Licenses and Permits 320,325 320,325 320,325 - Intergovernmental 1,169,778 1,086,080 1,138,869 52,789 Charges for Services 1,290,694 1,423,493 1,388,493 (35,000) Fines and Forfeitures 38,700 38,700 38,700 - Investment Earnings 75,000 75,000 75,000 - Other Revenue 502,500 503,500 503,500 - Total Operating Revenues 20,985,197 21,916,827 21,934,616 17,789 Other Sources Transfer-In From Capital Projects Fund 341,648 494,593 494,593 - Total Other Sources 341,648 494,593 494,593 - TOTAL REVENUES 21,326,845$ 22,411,420$ 22,429,209$ 17,789$ EXPENDITURES General Government 5,445,933$ 5,944,298$ 6,201,854$ 257,556$ Community Development 551,108 703,454 711,893 8,439 Public Safety 4,279,054 4,834,501 4,858,645 24,144 Public Works 5,118,144 7,019,921 7,123,255 103,334 Recreation 1,771,432 2,097,618 2,137,290 39,672 Total Operating Expenditures 17,165,671 20,599,792 21,032,937 433,145 Other Uses Transfers-Out to Affordable Housing Fund - - - - Transfers-Out to Mobility 1,300,000 1,300,000 1,300,000 - Transfers-Out to Fleet Maintenance 400,000 300,000 300,000 - Total Other Uses 1,700,000 1,600,000 1,600,000 - TOTAL EXPENDITURES 18,865,671 22,199,792 22,632,937 433,145 NET SOURCE (USE) OF FUNDS 2,461,174 211,628 (203,728) (415,356) FUND BALANCES, Beginning of Year 10,202,887 12,664,061 12,664,061 - FUND BALANCES, End of Year 12,664,061$ 12,875,689$ 12,460,333$ (415,356)$ FUND BALANCES: Restricted For: 3% TABOR Emergency Reserve 829,650$ 829,650$ 829,650$ -$ Unassigned: 27% Minimum Reserve Balance 5,093,731 5,993,944 6,110,893 116,949 Undesignated, Unreserved 6,740,680 6,052,095 5,519,790 (532,305) TOTAL FUND BALANCES 12,664,061$ 12,875,689$ 12,460,333$ (415,356)$ Fund Summary General Fund #10 Supplemental Amendment No. 1 ATTACHMENT B Proposed Original Amended Difference Account Unaudited Budget Budget Increase Number Description 2021 2022 2022 (Decrease) Taxes: 51101 General Property Tax 2,045,905$ 2,103,515$ 2,103,515$ -$ 51102 General Property Tax - Delinquencies 500 500 500 - 51103 General Property Tax - Interest 1,500 1,500 1,500 - 51104 General Property Tax - Abatements (3,615) - - - 51201 Specific Ownership Tax 130,000 130,000 130,000 - 51301 Sales Tax 11,264,470 11,810,245 11,810,245 - 51302 Utility Tax 120,000 120,000 120,000 - 51303 Accommodation Tax 2,017,544 2,268,969 2,268,969 - 51304 Penalties and Interest 51,896 50,000 50,000 - 51305 Sales Tax Audit Assessments 100,000 100,000 100,000 - 51307 VAA Retail Sales Fee 875,000 900,000 900,000 - 51308 Cigarette Excise Tax 255,000 255,000 255,000 - 51309 Tobacco Add-on Sales Tax 300,000 300,000 300,000 - 51402 Franchise Fees 430,000 430,000 430,000 - 51000 Total Taxes 17,588,200 18,469,729 18,469,729 - Licenses and Permits: 52101 Liquor Licenses 8,300 8,300 8,300 - 52102 Business Licenses 95,000 95,000 95,000 - 52103 Contractor's Licenses 18,625 18,625 18,625 - 52104 Tobacco/Cigarette Licenses 1,750 1,750 1,750 - 52105 Booting/Towing Licenses 600 600 600 - 52201 Building Permits 190,000 190,000 190,000 - 52205 Road Cut Permits 5,700 5,700 5,700 - 52207 Mobile Vendor Cart Permits 350 350 350 - 52000 Total Licenses and Permits 320,325 320,325 320,325 - Intergovernmental: Federal Grants: 53106 Click It or Ticket 3,000 3,000 3,000 - 53107 Ballistic Vests 2,000 2,000 2,000 - 53108 CARES Act - - - - 53204 LEAF Grant 3,808 - - - State Grants 53206 High Visibility Grant 20,000 20,000 20,000 - 53207 POST I70 Training Grants 48,135 20,000 20,000 - 53208 DOLA Grants 47,000 - - - 53210 Recreation Center Grants 8,250 - - - 53299 Other State Grants (DOLA)- - 52,789 52,789 Local Government/Other Agency 53405 El Pomar Grant - - - - 53900 Other Local Grants - - - - Revenue Detail General Fund Supplemental Amendment No. 1 ATTACHMENT B Proposed Original Amended Difference Account Unaudited Budget Budget Increase Number Description 2021 2022 2022 (Decrease) Revenue Detail General Fund Supplemental Amendment No. 1 State/County Shared Revenue: 53301 Conservation Trust 70,000 70,000 70,000 - 53302 Motor Vehicle Registration 24,800 24,800 24,800 - 53303 Highway User's Tax 190,465 190,530 190,530 - 53305 County Sales Tax 586,570 590,000 590,000 - 53306 Road & Bridge Fund 165,000 165,000 165,000 - 53308 State Severance Tax 750 750 750 - 53000 Total Intergovernmental 1,169,778 1,086,080 1,138,869 52,789 Charges for Services: General Government: 54102 Photocopying Charges 100 100 100 - 54103 License Hearing Fees 100 100 100 - 54104 Other Fees and Charges 3,500 3,500 3,500 - 54105 CC & Paper Filing Fees 2,500 2,500 2,500 - Community Development: 54201 Plan Check Fees 120,000 120,000 120,000 - 54672 Subdivision Review Fees - - - - 54203 Development Review Fees 15,000 15,000 15,000 - 54204 Animal Control Fees 150 150 150 - 54206 Fire Impact Fee Administration Fees 1,500 1,500 1,500 - Public Safety: 54301 Police Reports 1,000 1,000 1,000 - 54302 Off-duty Police Employment 12,000 25,000 25,000 - 54303 Fingerprinting Fees 500 500 500 - 54304 VIN Inspection Fees 2,000 2,000 2,000 - 54305 False Alarm Fees/Misc Police Dept Fees 75 75 75 - 54306 National Night Out 1,500 1,500 1,500 - 54399 DUI Reimbursement 15,000 15,000 15,000 - Avon Recreation Center: 54601 Admission Fees 650,000 750,000 750,000 - 54602 Program Fees 15,000 18,000 18,000 - 54603 Facility Rentals 2,000 3,000 3,000 - 54604 Merchandise Sales 4,596 4,596 4,596 - 54606 Rec Center Services 5,004 5,004 5,004 - 54607 Fitness Program Revenues 25,000 30,000 30,000 - 54610 Swim Team Revenue 65,000 77,593 77,593 - 54611 Private Lessons 32,000 37,500 37,500 - ATTACHMENT B Proposed Original Amended Difference Account Unaudited Budget Budget Increase Number Description 2021 2022 2022 (Decrease) Revenue Detail General Fund Supplemental Amendment No. 1 General Recreation: 54651 Adult Program Revenues 1,500 5,500 5,500 - 54652 Cabin Equipment Rentals 60,000 60,000 60,000 - 54653 Athletic Field Rentals 2,000 2,000 2,000 - 54654 Cabin Concessions 700 700 700 - 54655 Youth Program Revenues 160,000 160,000 125,000 (35,000) Special Events 54670 Ticket Sales - - - 54671 Revenue from Vendor Sales - - - 54672 Concession Sales 58,548 49,375 49,375 - 54676 Sponsorships 16,000 16,000 16,000 - 54678 Event Fees 8,740 8,600 8,600 - 54679 Special Event Admission Fees 5,977 5,700 5,700 - 54680 Pavilion Rental Fees 3,704 2,000 2,000 - 54000 Total Charges for Services 1,290,694 1,423,493 1,388,493 (35,000) Fines and Forfeitures: 55101 Court Fines - Traffic 23,000 23,000 23,000 - 55102 Court Fines - Criminal 6,500 6,500 6,500 - 55103 Court Fines - Parking 3,000 3,000 3,000 - 55105 Court Costs 3,000 3,000 3,000 - 55106 Jury Fees 100 100 100 - 55107 Bond Forfeitures 100 100 100 - 55110 Police Training Surcharge 3,000 3,000 3,000 - 55120 Police Forfeiture Revenue - - - - 55000 Total Fines and Forfeitures 38,700 38,700 38,700 - 57101 Investment Earnings 75,000 75,000 75,000 - Miscellaneous Revenues: 58101 Recreational Amenity Fees 315,000 320,000 320,000 - 58201 Lease of Town-Owned Property 58,500 58,500 58,500 - 58999 Miscellaneous Nonclassified Revenues 129,000 125,000 125,000 - 58000 Total Miscellaneous Revenues 502,500 503,500 503,500 - 50000 TOTAL REVENUES 20,985,197$ 21,916,827$ 21,934,616$ 17,789$ ATTACHMENT B Department Expenditure Summaries Proposed Original Amended Difference Dept./Div.Unaudited Budget Budget Increase Number Description 2021 2022 2022 (Decrease) General Government: 111 Mayor and Town Council 295,825$ 306,106$ 306,106$ -$ 113 Town Attorney 255,000 245,000 245,000 - 115 Town Clerk 137,754 144,770 145,660 890 121 Municipal Court 135,767 198,721 199,660 939 131 Town Manager 462,167 615,576 761,134 145,558 133 Community Relations 287,104 321,996 323,045 1,049 134 Economic Development 172,774 200,998 205,998 5,000 136 Special Events 844,162 1,089,617 1,139,245 49,628 137 Community Grants 99,650 99,250 99,250 - Subtotal General Government 2,690,203 3,222,034 3,425,098 203,064 Human Resources: 132 Human Resources 609,680 712,897 717,450 4,553 Finance and IT: 141 Finance 1,053,941 1,009,195 1,056,452 47,257 143 Information Systems 473,381 577,324 580,006 2,682 149 Nondepartmental 618,728 422,848 422,848 - Subtotal Finance and IT 2,146,050 2,009,367 2,059,306 49,939 Total General Government and Finance 5,445,933 5,944,298 6,201,854 257,556 Community Development: 220 Boards and Commissions 21,177 17,468 17,468 - 212 Planning 302,546 448,428 454,896 6,468 213 Building Inspection 227,385 237,558 239,529 1,971 Total Community Development 551,108 703,454 711,893 8,439 . Police Department: 311 Administration 852,169 964,551 970,517 5,966 312 Patrol 3,089,281 3,546,465 3,562,420 15,955 313 Investigations 337,604 323,485 325,708 2,223 Total Police Department 4,279,054 4,834,501 4,858,645 24,144 Public Works Engineering: 412 Engineering 341,027 542,050 547,810 5,760 418 Buildings and Facilities 2,803,655 3,823,758 3,828,973 5,215 Roads and Bridges: 413 Roads and Bridges 619,179 784,228 836,350 52,122 415 Parks and Grounds 1,354,283 1,869,885 1,910,122 40,237 Total Public Works Department 5,118,144 7,019,921 7,123,255 103,334 General Fund Supplemental Amendment No. 1 ATTACHMENT B Department Expenditure Summaries Proposed Original Amended Difference Dept./Div.Unaudited Budget Budget Increase Number Description 2021 2022 2022 (Decrease) General Fund Supplemental Amendment No. 1 Recreation Department: 514 Administration 267,702 272,008 276,366 4,358 515 Adult Programs 36,526 24,054 24,197 143 516 Aquatics 634,669 722,216 730,295 8,079 518 Fitness 123,820 226,870 226,870 - 519 Guest Services 353,468 418,366 421,275 2,909 521 Youth Programs 196,359 239,123 259,051 19,928 523 Community Swim Programs 158,888 194,981 199,236 4,255 Total Recreation 1,771,432 2,097,618 2,137,290 39,672 TOTAL OPERATING EXPENDITURES 17,165,671$ 20,599,792$ 21,032,937$ 433,145$ ATTACHMENT B Proposed Original Amended Difference Unaudited Budget Budget (Increase) 2021 2022 2022 Decrease REVENUES Taxes Short-term Rental Tax -$ 750,000$ 750,000$ -$ Charges for Services Rental Revenues - Employees 40,962 49,068 49,068 Investment Earnings 34 - - - Other Revenue: Bond Issuance Fees 9,514 9,000 9,000 - Loan Principal Repayment 2,636 - - - Miscellaneous Nonclassified Revenues 4,728 - - - Total Operating Revenues 57,874 808,068 808,068 - Other Sources Operating Transfers-In: Capital Projects Fund - 597,699 597,699 - Total Other Sources - 597,699 597,699 - TOTAL REVENUES 57,874 1,405,767 1,405,767 - EXPENDITURES General Government: Community Housing 920,422 1,200,000 2,351,018 1,151,018 Total Operating Expenditures 920,422 1,200,000 2,351,018 1,151,018 TOTAL EXPENDITURES 920,422 1,200,000 2,351,018 1,151,018 NET SOURCE (USE) OF FUNDS (862,548) 205,767 (945,251) (1,151,018) FUND BALANCES, Beginning of Year 2,165,857 924,876 1,303,309 378,433 FUND BALANCES, End of Year 1,303,309$ 1,130,643$ 358,058$ (772,585)$ Fund Summary Community Housing Fund #25 Supplemental Amendment No. 1 ATTACHMENT C Fund Summary Proposed Original Revised Difference Unaudited Budget Budget Increase 2021 2022 2022 (Decrease) REVENUES Taxes 7,354,186$ 3,300,000$ 3,300,000$ -$ Intergovernmental 61,153 70,000 70,000 - Investment Earnings (6,235) 25,000 25,000 - Other Revenue 34,550 - - - Total Revenues 7,443,654 3,395,000 3,395,000 - Other Sources: Transfer In from Other Funds 928,500 1,182,500 1,214,795 32,295 Total Other Sources 928,500 1,182,500 1,214,795 32,295 TOTAL REVENUES AND OTHER SOURCES 8,372,154 4,577,500 4,609,795 32,295 EXPENDITURES Capital Improvements: Facilities 1,856,104 1,585,000 2,731,895 1,146,895 Land and Land Improvements 584,694 1,777,000 2,274,875 497,875 Roads and Streets 1,770,549 1,890,000 2,685,504 795,504 Utility Projects 68,162 187,500 581,042 393,542 Planning and Consulting - 100,000 100,000 - Communications and Technology 200,886 145,939 428,857 282,918 Debt Service: Capital Leases 81,999 81,999 81,999 - Total Expenditures 4,562,394 5,767,438 8,884,172 3,116,734 Other Uses Operating Transfer-Out - General Fund 341,648 494,593 494,593 - Operating Transfer-Out - Mi Casa Program - 597,699 597,699 - Operating Transfer-Out - Debt Service Fund 968,485 959,708 959,708 - Operating Transfer-Out - Mobility Fund 200,000 - - - Operating Transfer-Out - Fleet Maintenance Fund 193,460 195,357 195,357 - Operating Transfer-Out - Equipment Replacement Fund 425,000 - - - Total Other Uses 2,128,593 2,247,357 2,247,357 - TOTAL EXPENDITURES AND OTHER USES 6,690,987 8,014,795 11,131,529 3,116,734 NET SOURCE (USE) OF FUNDS 1,681,167 (3,437,295) (6,521,734) (3,084,439) FUND BALANCE, Beginning of Year 12,101,243 9,758,398 13,782,410 4,024,012 FUND BALANCE, End of Year 13,782,410$ 6,321,103$ 7,260,676$ 939,573$ Fund Balances Restricted For: Asphalt Overlay 451,280$ 451,280$ 451,280$ -$ Assigned For: Tract G/URA Projects 1,155,610 800,610 844,108 43,498 Unreserved 12,175,520 5,069,213 5,965,288 896,075 Total Fund Balances 13,782,410$ 6,321,103$ 7,260,676$ 939,573$ Capital Projects Fund #41 Supplemental Amendment #1 ATTACHMENT D Proposed Original Revised Difference Account Unaudited Budget Budget Increase Number Description 2021 2022 2022 (Decrease) Taxes: 51401 Real Estate Transfer Tax 7,348,714$ 3,300,000$ 3,300,000$ -$ 51304 Penalties and Interest 5,472 - - - 51000 Total Taxes 7,354,186 3,300,000 3,300,000 - Intergovernmental: Federal / State: 53202 DOLA - Broadband Grant 17,153 - - - 53208 GOCO Grant (Lee's Way Rebuild)- 25,000 25,000 - 53299 Colorado Energy Office - 2021 Charge Ahead Grant 44,000 - - - 53299 Colorado Energy Office - 2022 Charge Ahead Grant - 45,000 45,000 - 53000 Total Intergovernmental 61,153 70,000 70,000 - Investment Earnings: 57101 Interest Earnings (6,235) 25,000 25,000 - 57000 Total Investment Earnings (6,235) 25,000 25,000 - Other Revenues: 58213 Project Cost Reimbursement 27,500 - - - 58999 Nonclassified Revenues 7,050 - - - 58000 Total Other Revenues 34,550 - - - Other Sources: Transfer In from Avon URA: 59201 Tract G Projects 750,000 1,000,000 1,000,000 - Transfer in from Community Enhancement Fund 59201 West Avon Preserve Trail Improvements 28,500 - - - 59201 Powerline Undergrounding - 120,000 120,000 - Transfer in from Water Fund 59201 Nottingham-Puder Ditch Piping - 62,500 62,500 - Transfer in from Equipment Replacement Fund 59201 Diving Board and Water Slide - - 32,295 32,295 59201 Pool Replastering 150,000 - - - 59000 Total Other Sources 928,500 1,182,500 1,214,795 32,295 50000 TOTAL REVENUES 8,372,154$ 4,577,500$ 4,609,795$ 32,295$ Revenue Detail Capital Projects Fund #41 Supplemental Amendment #1 ATTACHMENT D (1)(2)(3)(4)(1+2+4) Proposed Revised 2020 and Original Revised Estimated Difference Account Prior Unaudited Budget Budget Project-to-Date Increase Number Description Actuals 2021 2022 2022 Expenditures Current Proposed (Decrease)Project Status CAPITAL IMPROVEMENT PROJECTS Facilities: General Government Facilities: 11019 Utility Upgrade 157,002$ 293,731$ -$ 32,945$ 483,678$ 450,000$ 470,845$ 20,845$ Carryover. To Be Completed - 2022 11021 Level 2 EV Charging Station - NTH 5,322 38 - - 5,360 5,000 5,000 - Completed - 2020 11023 New Town Hall 2nd and 3rd Floor Updates 3,335 33,423 - 93,242 130,000 130,000 130,000 - Carryover. To Be Completed - 2022 11024 Asbestos Mitigation / Demolition 1,200 442,050 - - 443,250 643,359 643,359 - Completed - 2021 11025 H.A. Nottingham Park East Improvements - 58,556 765,000 791,444 850,000 2,850,000 2,850,000 - Carryover. To Be Completed - 2023 11028 Office Furniture - 27,184 - 76,000 103,184 27,000 103,000 76,000 Carryover. To Be Completed - 2022 11029 Building Access Control - - 70,000 70,000 70,000 70,000 70,000 - New Project 2022 New Town Hall Front Entry ADA Access - - - 25,000 25,000 - 25,000 25,000 New Project 2022 Public Safety Facilities: 12006 PSF Parking Lot Canopy Design - 14,153 - 5,847 20,000 20,000 20,000 - Carryover. To Be Completed - 2022 12007 Wildridge Emergency Warning Siren - 28,436 25,000 328,000 356,436 51,000 356,436 305,436 Carryover. To Be Completed - 2022 Public Works Facilities: 13014 Public Works Facilities Expansion Planning - - 100,000 100,000 100,000 600,000 600,000 - New Project 2022 Fleet and Transportation Facilities: 14010 Fleet Maintenance EPDM Roof Replacement - 10,500 - 9,500 20,000 320,000 320,000 - Carryover to 2022 14019 Piedmont Bus Shelter - - - 30,000 - 30,000 - (30,000) Carryover to 2022 14019 Bus Shelters (6)- - 240,000 240,000 270,000 240,000 270,000 30,000 New Project, Combined w/ CIP14019 14020 Fleet Maintenance - HVAC / AC - - 25,000 25,000 25,000 25,000 25,000 - New Project 2022 14021 ARTF Roof Improvements / Snow - - 50,000 50,000 50,000 50,000 50,000 - New Project 2022 14022 ARTF Roof Repair - - - 90,000 90,000 - 90,000 90,000 New Project 2022 Cultural and Recreational Facilities: 15019 Pavilion - Deck Railing and Floor Replacement 95,434 301,719 - 28,447 425,600 425,600 425,600 - Carryover. To Be Completed - 2022 15021 Recreation Center Locker Replacement - 303,412 - 27,027 330,439 290,000 330,439 40,439 Carryover. To Be Completed - 2022 15023 Recreation Center HVAC Upgrade - 7,500 - 242,500 250,000 250,000 250,000 - Carryover. To Be Completed - 2022 Project Expenditures Total Project Budget CIP Projects Inventory Capital Projects Fund #41 2022 Supplemental Amendment #1 ATTACHMENT D (1)(2)(3)(4)(1+2+4) Proposed Revised 2020 and Original Revised Estimated Difference Account Prior Unaudited Budget Budget Project-to-Date Increase Number Description Actuals 2021 2022 2022 Expenditures Current Proposed (Decrease)Project Status CAPITAL IMPROVEMENT PROJECTS Project Expenditures Total Project Budget CIP Projects Inventory Capital Projects Fund #41 2022 Supplemental Amendment #1 15024 Recreation Center ADA Parking - 865 10,000 9,135 10,000 10,000 10,000 - Carryover. To Be Completed - 2022 15025 Metcalf Family Cabin Feasibility Analysis - - - - - 20,000 20,000 - Carryover to 2023 15026 Recreation Center Yoga Studio Bathroom Conversion - 28,690 - - 28,690 30,000 30,000 - Completed - 2021 15027 Recreation Center Jacuzzi Leak Repair - 27,406 - - 27,406 60,000 60,000 - Completed - 2021 15028 Recreation Center Pool Replastering - 202,980 - 2,020 205,000 205,000 205,000 - Carryover. To Be Completed - 2022 15029 Recreation Center Aquatics Remodel Plan and Design - - 50,000 50,000 - 50,000 50,000 - New Project 2022 15030 Pavilion Ramp - - 100,000 100,000 - 100,000 100,000 - New Project 2022 Water Slide Repiar and Diving Board - - - 45,788 - - 45,788 45,788 New Project 2022 Other Facilities: 19006 DC Fast EV Charging Station - Tract A 51,103 317 - - 51,420 75,000 75,000 - Completed - 2020 19007 Level 2 and DC Fast EV Charging Stations - Tract A - 75,144 - - 75,144 81,000 81,000 - Completed - 2021 19008 EV Charging Stations (6)- - 110,000 220,000 220,000 220,000 220,000 - New Project 2022 19009 2120 Saddle Ridge Loop Window Replacement - - 40,000 40,000 40,000 40,000 40,000 - New Project 2022 Land and Land Improvements: 21027 O'Neil Spur Park Improvements Design 1,988 - - 18,012 20,000 20,000 20,000 - Carryover. To Be Completed - 2022 21053 Nottingham Park West Courts Reconstruction - 24,853 1,057,000 1,407,670 1,432,523 1,077,000 1,432,523 355,523 Carryover. To Be Completed - 2022 21054 Wildland Fire Mitigation 22,859 - 40,000 40,000 NA NA NA - Ongoing 21055 Power Line Undergrounding - 333 120,000 120,000 120,333 120,000 120,000 - Carryover to 2022 21056 West Nottingham Park Improvements/Soccer Field 9,307 291,058 - - 300,365 318,000 318,000 - Completed - 2021 21057 O'Neil Spur Park Parking Lot Rebuild - - - 100,000 100,000 100,000 100,000 - Carryover to 2022 21058 Lot 16 Parking Lot Asphalt Overlay - - 40,000 - - 40,000 - (40,000) Combine w/ CIP21058 21058 North Restrooms - Nottingham Lake Beach - 19,942 450,000 520,058 540,000 500,000 540,000 40,000 Carryover to 2022 21060 Nottingham Park Light Upgrade- Phase 2 - 247,643 - - 247,643 281,200 281,200 - Completed - 2021 21061 Beach Expansion Planning - 865 20,000 19,135 20,000 20,000 20,000 - Carryover to 2022 21062 Nottingham Park - Irrigation Replacement Design - - 50,000 50,000 50,000 50,000 50,000 - New Project 2022 ATTACHMENT D (1)(2)(3)(4)(1+2+4) Proposed Revised 2020 and Original Revised Estimated Difference Account Prior Unaudited Budget Budget Project-to-Date Increase Number Description Actuals 2021 2022 2022 Expenditures Current Proposed (Decrease)Project Status CAPITAL IMPROVEMENT PROJECTS Project Expenditures Total Project Budget CIP Projects Inventory Capital Projects Fund #41 2022 Supplemental Amendment #1 Roads and Streets: Streetscape Improvements: 31030 Mall Activation Elements 15,088 1,613 - 23,299 40,000 40,000 40,000 - Carryover. To Be Completed - 2022 31031 Avon Rd./I70 Aesthetics Improvements 53,133 854,960 - 190,151 1,098,244 1,048,245 1,098,245 50,000 Carryover. To Be Completed - 2022 32035 Metcalf Road - Retaining Wall Stabilization - - 80,000 80,000 80,000 80,000 80,000 - New Project 2022 Street Improvements: 32039 US Hwy 6 Crosswalks - - 80,000 - - 80,000 - (80,000) Combine w/ CIP32039 32039 US Hwy 6 & Stonebridge Rd. Roundabout - - 300,000 380,000 380,000 2,500,000 2,580,000 80,000 New Project 2022 Annual Street Maintenance and Repair: 32026 Retaining Wall Repairs - Nottingham & Swift Gulch Rd.- 6,179 - 143,821 150,000 150,000 150,000 - Carryover. To Be Completed - 2022 32030 Avon RD. Roundabout Aprons Repair - - 150,000 150,000 150,000 750,000 750,000 - New Project 2022 32031 Mikaela Way and Benchmark Rd.- 312,692 - - 312,692 400,000 400,000 - Completed - 2021 32032 Hurd Lane Intersection Improvements - 7,030 - 12,970 20,000 20,000 20,000 - Carryover. To Be Completed - 2022 32033 W. B/C Blvd - US Hwy 6 to Avon Elem.- - 515,000 515,000 515,000 515,000 515,000 - New Project 2022 32034 Buck Creek Repairs 11,651 520,978 - - 532,629 800,000 800,000 - Completed - 2021 32036 Fawcett Road Asphalt Overlay - - 375,000 375,000 375,000 375,000 375,000 - New Project 2022 32037 Avon Elem. School Sidewalk Repair - - 200,000 200,000 200,000 200,000 200,000 - New Project 2022 32038 Metcalf Road Culvert Repair - 41,610 - 408,390 450,000 450,000 450,000 - Carryover. To Be Completed - 2022 32040 Metcalf Road Manhole Repair - - - 14,000 14,000 - 14,000 14,000 New Project 2022 33220 Annual Guard Rail Improvements 38,668 7,035 40,000 40,000 NA NA NA - Ongoing Multi-Modal/Alternative Mobility: 34040 West B/C Blvd./ Beach On-steet Parking Imp.- 10,325 - - 10,325 10,325 10,325 - Project Discontinued 34044 June Creek Emergency Access - 7,127 100,000 102,873 110,000 110,000 110,000 - Carryover. To Be Completed - 2022 Recreational Trails Program: 34041 Lee's Way Trail Rebuild - - 50,000 50,000 50,000 50,000 50,000 - New Project 2022 34043 West Avon Preserve Trail Improvements 52,464 1,000 - - 53,464 57,000 57,000 - Completed - 2021 ATTACHMENT D (1)(2)(3)(4)(1+2+4) Proposed Revised 2020 and Original Revised Estimated Difference Account Prior Unaudited Budget Budget Project-to-Date Increase Number Description Actuals 2021 2022 2022 Expenditures Current Proposed (Decrease)Project Status CAPITAL IMPROVEMENT PROJECTS Project Expenditures Total Project Budget CIP Projects Inventory Capital Projects Fund #41 2022 Supplemental Amendment #1 Utility Projects: 21026 Nottingham Rd. Debris Flow Improvements and Water Qua 200,134 64,056 - 336,620 600,810 425,000 600,810 175,810 Carryover. To Be Completed - 2022 21028 Avon Road Water Quality Vault Projects 253,972 4,106 - 56,922 315,000 315,000 315,000 - Carryover. To Be Completed - 2022 21029 GIS Implementation - Drainage Infrastructure Layers - - 75,000 75,000 75,000 75,000 75,000 - New Project 2022 61011 Tract A Drainage Improvements - - 50,000 50,000 50,000 50,000 50,000 - New Project 2022 61012 Nottingham-Puder Ditch Piping - - 62,500 62,500 62,500 687,500 687,500 - New Project 2022 Planning and Consulting: 79114 Schematic Design / Final Design - W. Main Street - - 100,000 100,000 100,000 275,000 275,000 - Communications and Technology: 81011 Broadband - 44,598 - 20,402 65,000 125,000 125,000 - Carryover. To Be Completed - 2022 81012 Fiber - CDOT Hand hold to PSF - - - - - 80,000 80,000 - Carryover. To Be Completed - 2022 81013 RR Bridge LED Messaging Boards - 55,930 - - 55,930 75,000 75,000 - Completed - 2021 81014 Permanent Variable Message Boards (3)- 17,719 - 132,281 150,000 150,000 150,000 - Carryover. To Be Completed - 2022 81015 Finance/Comm Dev. ERP System 142,756 22,299 - 110,235 275,290 275,290 275,290 - Carryover. To Be Completed - 2022 81016 Mini-split NTH Data Center - - - 20,000 20,000 20,000 20,000 - Carryover. To Be Completed - 2022 81017 Firearms Simulator - 32,000 - - 32,000 32,000 32,000 - Completed - 2021 81018 Hybrid Meeting Technical Improvements - 28,340 - - 28,340 30,000 30,000 - Completed - 2021 81019 Microsoft Teams Phone System Migration - - 38,939 38,939 38,939 38,939 38,939 - New Project 2022 81020 Survellance NVR Server Consolidation and Replacement - - 32,000 32,000 32,000 32,000 32,000 - New Project 2022 81021 Nottingham Park Wi-Fi Access - - 75,000 75,000 75,000 150,000 150,000 - New Project 2022 Total Capital Improvement Projects 1,115,416$ 4,480,395$ 5,685,439$ 8,802,173$ 14,053,634$ 20,365,458$ 21,564,299$ 1,198,841$ ATTACHMENT D Proposed Original Amended Difference Unaudited Budget Budget (Increase) 2020 2022 2022 Decrease REVENUES Charges for Services 1,282,438$ 1,292,929$ 1,292,929$ -$ Other Revenue 9,911 - - - Total Operating Revenues 1,292,349 1,292,929 1,292,929 - Other Sources Transfers-In from General Fund 400,000 300,000 300,000 - Transfers-In from Capital Projects Fund 193,460 195,357 195,357 - Total Other Sources 593,460 495,357 495,357 - TOTAL REVENUES 1,885,809 1,788,286 1,788,286 - EXPENDITURES Public Works: Fleet Maintenance 1,643,956 1,733,702 1,759,300 25,598 Total Operating Expenditures 1,643,956 1,733,702 1,759,300 25,598 TOTAL EXPENDITURES 1,643,956 1,733,702 1,759,300 25,598 NET SOURCE (USE) OF FUNDS 241,853 54,584 28,986 25,598 FUND BALANCES, Beginning of Year 189,321 236,671 431,174 194,503 FUND BALANCES, End of Year 431,174$ 291,255$ 460,160$ 220,101$ Fund Summary Fleet Maintenance Enterprise Fund #61 Supplemental Amendment #1 ATTACHMENT E Proposed Original Amended Difference Acct.Unaudited Budget Budget (Increase) Number Description 2020 2022 2022 Decrease Charges for Services: 54806 3rd Party Fleet Maintenance Chrgs.683,105$ 618,545$ 618,545$ -$ 54901 Dept. Fleet Maintenance Chrgs.603,293 639,384 639,384 - 54903 Sales of Fuel (3,960) 35,000 35,000 - 54000 Total Charges for Services 1,282,438 1,292,929 1,292,929 - Other Revenues: 58205 Insurance Reimbursements 9,461 - - - 58217 Sales of Surplus Property 450 - - - 58999 Miscellaneous Nonclassified Revenues - - - - 58000 Total Other Revenues 9,911 - - - Other Sources: 59201 Transfers-In from General Fund 400,000 300,000 300,000 - 59201 Transfers-In from Capital Projects Fund 193,460 195,357 195,357 - 59000 Total Other Sources 593,460 495,357 495,357 - 50000 TOTAL REVENUES 1,885,809$ 1,788,286$ 1,788,286$ -$ Revenue Summary Fleet Maintenance Enterprise Fund #61 Supplemental Amendment #1 ATTACHMENT E ProposedOriginalAmended Difference Unaudited Budget Budget Increase 2021 2022 2022 (Decrease) REVENUES Taxes 42,069$ 46,004$ 46,004$ -$ Intergovernmental 1,993,388 2,802,907 2,686,000 (116,907) Charges for Services 252,272 266,625 266,625 - Fines and Forfeitures - - 25,000 25,000 Other Revenues 111,413 151,489 230,017 78,528 Total Operating Revenues 2,399,142 3,267,025 3,253,646 (13,379) Other Sources Transfers In from General Fund 1,300,000 1,300,000 1,300,000 - Transfers In from Capital Projects Fund 200,000 - - - Total Other Sources 1,500,000 1,300,000 1,300,000 - TOTAL REVENUES 3,899,142 4,567,025 4,553,646 (13,379) EXPENDITURES Administration 276,218 339,933 341,064 1,131 Transit Operations 2,280,126 4,475,837 4,624,332 148,495 Washbay 161,005 192,336 192,996 660 Mobility Programs 311,899 546,472 527,295 (19,177) Parking Management - - 129,000 129,000 TOTAL EXPENDITURES 3,029,248 5,554,578 5,814,687 260,109 NET SOURCE (USE) OF FUNDS 869,894 (987,553) (1,261,041) (273,488) FUND BALANCES, Beginning of Year 725,524 1,376,640 1,595,418 218,778 FUND BALANCES, End of Year 1,595,418$ 389,087$ 334,377$ (54,710)$ Fund Summary Mobility Enterprise Fund #52 Supplemental Amendment #1 ATTACHMENT F Proposed Original Amended Difference Acct.Unaudited Budget Budget Increase Number Description 2021 2022 2022 (Decrease) Taxes: Property Taxes 51101 Property Tax/ Gates GID 41,976$ 46,004$ 46,004$ -$ 51103 Current & Delinquent interest 93 - - - 51000 Total Taxes 42,069 46,004 46,004 - Intergovernmental: State Grants: 53201 2022 CDOT Planning Grant - - 96,000 96,000 53205 2022 CDOT FASTER Grant 775,592 800,000 840,000 40,000 53205 2022 Regional Transit Authority Grant - 156,907 - (156,907) 53208 2021 DOLA Small Dollar Grant 4,173 - - - Federal Grants: 53104 FTA Formula Grant for Rural Areas - 5311 245,981 246,000 246,000 - 53199 FTA Grant for Buses and Bus Facilities - 5 - - - - 53199 FTA Low or No-Emission Vehicle Program - 1,600,000 1,600,000 - 53199 FTA - CRRSAA - 5311 967,642 - - - 53000 Total Intergovernmental 1,993,388 2,802,907 2,686,000 (116,907) Charges for Services: 54501 Beaver Creek 153,217 119,695 119,695 - 54507 Wash Bay Services- External 86,159 100,000 100,000 - 54902 Wash Bay Services- Internal 12,896 46,930 46,930 - 54000 Total Charges for Services 252,272 266,625 266,625 - Fines and Forfeitures 55103 Parking Violations - - 25,000 25,000 55000 Total Fines and Forfeitures - - 25,000 25,000 Other Revenues: 58201 Lease of Town-owned Property 82,201 123,036 180,564 57,528 58205 Restitution and Insurance - - - - 58215 Sale of Electricty 20,024 24,453 24,453 - 58216 Chargepoint Sales 1,047 - - - Revenue Detail Mobility Enterprise Fund #52 Supplemental Amendment #1 ATTACHMENT F Proposed Original Amended Difference Acct.Unaudited Budget Budget Increase Number Description 2021 2022 2022 (Decrease) Revenue Detail Mobility Enterprise Fund #52 Supplemental Amendment #1 58995 Bus Advertising Revenue 5,865 4,000 4,000 - 58996 Miscellaneous Reimbursement 2,276 - 21,000 21,000 58999 Misc. Nonclassifed Revenue - - - - 58000 Total Other Revenues 111,413 151,489 230,017 78,528 Other Sources: 59201 Transfers In from General Fund 1,300,000 1,300,000 1,300,000 - 59201 Transfers In from Capital Projects Fund 200,000 600,000 600,000 - 59000 Total Other Sources 1,500,000 1,900,000 1,900,000 - 50000 TOTAL REVENUES 3,899,142$ 5,167,025$ 5,153,646$ (13,379)$ ATTACHMENT F Proposed Original Amended Difference Unaudited Budget Budget (Increase) 2021 2022 2022 Decrease REVENUES Charges for Services: Equipment Replacement Charges 750,789$ 1,131,958$ 1,131,958$ -$ Investment Earnings 169 Other Revenue Insurance Claim Reimbursements - - - - Total Operating Revenues 750,958 1,131,958 1,131,958 - Other Sources Transfers-In from Capital Projects Fund 425,000 - - - Sales of Fixed Assets 1,180 75,000 75,000 - Total Other Sources 426,180 75,000 75,000 - TOTAL REVENUES 1,177,138 1,206,958 1,206,958 - EXPENDITURES Capital Outlay: Fleet and Heavy Equipment 653,240 414,862 759,100 344,238 Recreation Center Equipment 23,215 37,399 45,610 8,211 Computer and Office Equipment 34,543 214,109 250,109 36,000 Machinery and Equipment - 11,980 11,980 - Heat Recovery - 175,000 175,000 - Total Operating Expenditures 710,998 853,350 1,241,799 388,449 Other Uses: Transfer-Out to Capital Projects Fund 150,000 - 32,295 32,295 TOTAL EXPENDITURES 860,998 853,350 1,274,094 420,744 NET SOURCE (USE) OF FUNDS 316,140 353,608 (67,136) (420,744) FUND BALANCES, Beginning of Year 3,155,954 3,156,791 3,472,094 315,303 FUND BALANCES, End of Year 3,472,094$ 3,510,399$ 3,404,958$ (105,441)$ Fund Summary Equipment Replacement Internal Service Fund #63 Supplemental Amendment No. 1 ATTACHMENT G Proposed Original Amended Difference Account Unaudited Budget Budget (Increase) Number Description 2021 2022 2022 Decrease Charges for Services: Equipment Rental Charges 54904 Nondepartmental 71,126 126,011 126,011 - 54905 Comm Dev - Building Inspection 3,997 - - - 54904 Police - Administration 32,923 42,139 42,139 - 54904 Police - Patrol 103,379 175,916 175,916 - 54904 Police - Investigations 17,800 17,615 17,615 - 54904 Engineering 3,986 1,809 1,809 - 54904 Buildings and Facilities 100,522 122,480 122,480 - 54904 Public Works - Roads and Bridges 99,819 206,803 206,803 - 54904 Public Works - Parks 121,542 152,885 152,885 - 54904 Mobility - Operations 13,724 15,259 15,259 - 54904 Mobility - Wash Bay 65,241 43,769 43,769 - 54904 Fleet Maintenance 8,428 15,977 15,977 - 54903 Recreation - Administration 11,804 11,473 11,473 - 54904 Recreation - Aquatics 21,933 27,629 27,629 - 54904 Recreation - Fitness 74,565 172,193 172,193 - 54000 Total Charges for Services 750,789 1,131,958 1,131,958 - Other Revenue 58205 Insurance Claim Reimbursements - - - - Other Sources: 59201 Transfers-In from Capital Projects Fund 425,000 - - - 59101 Sale of Fixed Assets 75,000 75,000 75,000 - 59000 Total Other Sources 500,000 75,000 75,000 - 50000 TOTAL REVENUES 1,250,789$ 1,206,958$ 1,206,958$ -$ Revenue Detail Equipment Replacement Internal Service Fund #63 Supplemental Amendment No. 1 ATTACHMENT G TOWN OF AVON DETAILED BUDGET REQUESTS 2022 Amended Budget Department:N/A Program: Fleet and Heavy Equipment #811 Account 2022 Amended Number Account Name Justification Budget EQUIPMENT REPLACEMENT: Fleet and Heavy Equipment General Goverenment: Utility 4x4 EV: Replaces #401 43,675$ Police: Utility 4x4 Hybrid: Updated Cost Replaces #352 43,675 57,000 Public Works - Roads & Bridges: Pickup w. Plow - Replaces #210 45,959 Public Works - Parks: Pickup w. Plow - Replaces #208 45,959 Carryover from 2021 Pickup w/ Plow (4X4) - Replaces #209 42,273 Carryover from 2021 Flatbed - Replaces #287 46,348 66501 Automobiles and Light-duty Trucks 281,214 Fleet Maintenance: Service Truck - Replaces #700 175,000 Public Works - Parks: Bobcat Toolcat - Replaces #214 60,594 Carryover from 2021 Tractor - Replaces #217 and #286 66,609 Carryover from 2021 Lift Truck - Replaces #104 175,683 66502 Heavy Trucks and Moving Equipment 477,886 66000 Total Capital Outlay 759,100$ ATTACHMENT G TOWN OF AVON DETAILED BUDGET REQUESTS 2022 Amended Budget lobby furntiurN/A Program:Recreation Equipment #812 2022 Account Amended Number Account Name Justification Budget EQUIPMENT REPLACEMENT: Recreation Center Facilities: Lobby Furniture 14,442$ 66404 Furniture and Fixtures 14,442 Aquatics: Diving Board Platform 5,788 Waterslide 10,360 Rock Wall Refurbishment 6,809 Swim Suit Extractors (2)2,374 Fitness: Smith Machine 4,833 Facilities: Dry Vacuum 1,004 66407 Athletic and Recreational Equipment 31,168 66000 Total Capital Outlay 45,610$ ATTACHMENT G TOWN OF AVON DETAILED BUDGET REQUESTS 2022 Amended Budget Department:N/A Program:Computers and Office Equipment #813 2022 Account Amended Number Account Name Justification Budget EQUIPMENT REPLACEMENT: Computers and Office Equipment Information Technology: Switches: Replaces #1993, #1994, #2186, #2527, #2528 #2529, #2530, #2523 111,109$ Network Storage: Replaces #2214, #2215 103,000 Police Dept: MDT Laptop Computers (8)36,000 66402 Computers and Peripherals 250,109 66000 Total Capital Outlay 250,109$ ATTACHMENT G TOWN OF AVON DETAILED BUDGET REQUESTS 2022 Amended Budget Department:N/A Program:Machinery and Equipment #814 2022 Account Amended Number Account Name Justification Budget EQUIPMENT REPLACEMENT: Machinery and Equipment Public Works - Parks: Hotsy Pressure Washer - Replaces #222 11,980$ 66499 Other Machinery and Equipment 11,980 66000 Total Capital Outlay 11,980$ ATTACHMENT G TOWN OF AVON DETAILED BUDGET REQUESTS 2022 Amended Budget Department:N/A Program:Heat Recovery #815 2022 Account Amended Number Account Name Justification Budget EQUIPMENT REPLACEMENT: Heat Recovery Buildings and Facilities: Heat Recovery Heat Pump 175,000$ 66704 Heat Recovery 175,000 66000 Total Capital Outlay 175,000$ ATTACHMENT G [Phone Number] [E-Mail] TO: Honorable Mayor Smith Hymes and Council members FROM: Eric Heil, Town Manager RE: Ord 22-03 Grading Permits DATE: May 6, 2022 SUMMARY: Ordinance No. 22-03 regarding Grading Permits is presented to Council. Council continued second reading of this Ordinance several times to allow for additional consideration with regard to application to the Village (at Avon). Language was added to allow for administrative review of Planning Areas A, C, D, F, J and P3 in the Village (at Avon), which are all the large parcels on the valley floor. All of these parcels have already been substantially disturbed since the approval of the Village (at Avon) PUD in 1998. PROPOSED MOTION: “I move to approved Ordinance No. 22-03 Amending Section 15.08.160 of the Avon Municipal Code Regarding Issuance of Grading Permits.” Thank you, Eric ATTACHMENT A: Town Attorney Karl Hanlon memo ATTACHMENT B: Ordinance No. 22-03 www.mountainlawfirm.com 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 Office: 970.945.2261 Fax: 970.945.7336 *Direct Mail to Glenwood Springs DATE: February 3, 2022 TO: Avon Mayor and Council FROM: Karp Neu Hanlon, P.C. RE: Ordinance 22-03 Amending Section 15.08.160 of the Avon Municipal Code Regarding Issuance of Grading Permits. Background: Attached please find Ordinance No. 22-03 regarding Amending Section 15.08.160 of the Avon Municipal Code Regarding Issuance of Grading Permits. Due to several projects having been issued grading permits that did not continue forward to vertical development, Council directed staff to reevaluate the current grading permit process. The International Building Code (IBC) with local amendments has been adopted by the Town and controls the issuance and administration of not only building permits but grading permits. Per the Town Code the Town Engineer issues and administers grading permits. Working together the Town Manager, Attorney, Engineer, Community Development Director and Building Official, developed the attached modification to Appendix J of the IBC. The amendment provides that grading permits may only be issued in limited circumstances under which either very small amounts of material are being moved or when security is provided pursuant to either a Public Improvements Agreement or a Restoration and Security Agreement approved by Town Council. The inclusion of security requirements on larger grading permits will provide a mechanism whereby the Town can, if necessary, restore projects which have failed to move forward. Ordinance No. 2022-03 was passed by Town Council on first reading on February 8, 2022. Town Manager Recommendation: Town Manager recommends approval of Ordinance No. 2022-03. Motion: “I move to approve Ordinance No. 2022-03 Amending Section 15.08.160 of the Avon Municipal Code to Prohibit the Issuance of a Grading Permit Without the Contemporaneous Issuance of a Building Permit.” Attachments: Ordinance 22-03 IBC Appendix J ATTACHMENT A: Hanlon Report ORDINANCE 22-03 AMENDING SECTION 15.08.160 OF THE AVON MUNICIPAL CODE REGARDING ISSUANCE OF GRADING PERMITS. WHEREAS, the Town of Avon, Colorado (“Town”) is a home rule municipality and political subdivision of the State of Colorado organized and existing under a home rule charter (“Charter”) pursuant to Article XX of the Constitution of the State; and WHEREAS, pursuant to Ordinance No. 13, Series 2018 the Avon Town Council (“Council”) duly adopted the International Building Code as amended by the Town’s local amendments; and WHEREAS, a local amendment codified at Avon Municipal Code § 15.08.160 provides for the regulation and permitting of grading permits; and WHEREAS, in certain circumstances some property owners have obtained grading permits without subsequently obtaining a building permit thus creating blighted and incomplete construction sites; and WHEREAS, the Town Council of the Town of Avon has determined that it is in the best interest of the Town of Avon to adopt an ordinance amending § 15.08.160 to prohibit the issuance of a grading permit without the contemporaneous issuance of a building permit; and WHEREAS, Council finds that amendments to grading permits will promote the health, safety and general welfare of the Avon Community; and WHEREAS, Approval of this ordinance on first reading is intended only to conform that Council desires to comply with the requirement of Section 6.5(d) of the Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence and that approval of this Ordinance on first reading does not constitute a representation that Council, or any member of the Council, has determined to take final action on this Ordinance prior to concluding the public hearing on second reading. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. ATTACHMENT B: ORD 22-03 GRADING REGULATIONS Section 2. Amendment to Chapter 15.08.160. Section 15.08.160 is hereby amended to read as follows with strike-out indicating language to be deleted and underline indicating language to be adopted: 15.08.160 - Appendix J—Grading. Section J101.1, Scope, is amended by adding the following sentence: "Grading permits shall be permitted, regulated and enforced by the Town of Avon Engineer.” Section J103.1, Permits required, is amended by adding the following sentence: “Except as provided herein no grading permit shall be issued unless: (1) a Public Improvement Agreement is approved by Town Council; or (2) less than 100-cubic yards of material is excavated. Grading Permits may be issued administratively for the Village at Avon Planning Areas A, C, D, F, J and P3 provided a Grading Permit and Security Agreement is approved by the Town Engineer.” 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 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 thirty days after the date of final passage in accordance with Section 6.4 of the Avon Home Rule Charter. 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 ATTACHMENT B: ORD 22-03 GRADING REGULATIONS 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, MuniCode 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. INTRODUCED AND ADOPTED ON FIRST READING AND REFERRED TO PUBLIC HEARING on February 8, 2022, and setting such public hearing for February 22, 2022, at 5:00 pm, or as soon thereafter as possible, 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, Deputy Town Clerk ADOPTED ON SECOND AND FINAL READING on May 10, 2022. BY: ATTEST: _______________________ _____ ______________________________ Sarah Smith Hymes, Mayor Brenda Torres, Deputy Town Clerk APPROVED AS TO FORM: ____________________________ Karl J. Hanlon, Town Attorney ATTACHMENT B: ORD 22-03 GRADING REGULATIONS 970-748-4083 clin@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Charlotte Lin, Sustainability Coordinator RE: Climate Action Strategies Overview DATE: May 3, 2022 SUMMARY: This report provides a comprehensive overview of Climate Action strategies and goals, current activities to implement policies and programs, and anticipated timeframes for implementation. Council direction or input is welcome on any of the Climate Action strategies, goals or programs discussed in this report. BACKGROUND: Town of Avon has adopted Eagle County’s Climate Action Plan since 2016 (Resolution 16-38). Following the updates of the Climate Action Plan in December 2020 (“Climate Action Plan, Update 2020”), the Town adopted the updates in 2021 through Resolution 21-14. The Climate Action Plan, Update 2020, set aggressive Green House Gas (GHG) emission reduction goals of: 25% by 2025, 50% by 2030, 70% by 2045, and 80% by 2050 (baseline 2014 of 1,348,796 metric tons CO2 equivalent). In addition, Town of Avon has been an active participant and partner in the Climate Action Collaborative and their working groups: Education & Outreach, Energy Supply, Residential and Commercial Buildings, Transportation, Materials Management, Water, and Carbon Sequestration. It is important that Town leads by example in order to effectively influence citizen behaviors that directly affect climate change such as transportation options, energy consumption patterns in buildings, and general consumer decisions. The Climate Action Plan, Update 2020, focuses specifically on seven areas: (1) Buildings, (2) Transportation & Mobility, (3) Energy Supply, (4) Materials Management, (5) Carbon Sequestration, (6) Education & Outreach and (7) Resiliency. The areas that have the highest carbon emission reduction potential are Buildings, Transportation & Mobility and beneficial electrification that covers both areas. Town prioritizes its climate action efforts on these areas with the highest GHG reduction potentials. The Town recognizes the far-reaching nature of the Climate Action Plan and has adopted it widely across Departments where it is suitable. The analysis will present in detail what has been done recently and what the next steps are regarding various Department Goals, as well as new Climate Action Strategies that are under development. ANALYSIS: Eagle County Climate Action Plan Categories Eagle County Climate Action Plan Recommendations Town of Avon Climate Action Strategies & Progress Multi-Sector Strategies “Beneficial electrification” for both the Building and Transportation & Mobility sectors. Beneficial electrification refers to any reductions of cost and emissions from replacing fossil fuels with electricity. Research Net Zero Communities: Avon endorses the Net Zero Mountain Towns 2030 goals of reducing community greenhouse gas emissions to a “net zero” level. This goal involves researching and presenting the actions, economy and lifestyle of communities that have achieved net zero greenhouse gas emissions. Staff expects to update existing information during the second quarter and plans to present information in the 3rd Quarter. Page 2 of 13 Methane digester across the energy supply, buildings and waste sectors. Analyze all Climate Action Organizations: Create a list of our existing relationships and subscriptions to climate action related organizations and evaluate benefit of those relationships. An initial list of climate action organizations has been compiled, but specific details of how they could help our Climate Action Strategies still need to be added. A list of grant opportunities and their associated organizations have recently been updated for Environment and Climate Actions. Staff expects to beginning applying in May. Establish a Climate Action Investment Matrix: Avon appropriates and invests funds every year to implement greenhouse gas reduction and advance climate action goals. Establishment of an investment matrix is a carry- over project from 2020. The intent is to summarize various climate action projects, the financial investment for each project, the reduction of greenhouse gas and then provide a comparison of return on investment for various projects. Staff is doing data collection on our buildings in the town to identify buildings to recommend and refer to Energy Smart for building electrification. Staff is preparing to report about this for the June 14th Council Meeting. Review Recreation Center Facility Operations to Advance Town’s Climate Action Goals: Add automatic faucets to all sinks, implement composting plan for staff and birthday parties/events held at the recreation center, understand energy consumption and greenhouse gas emissions and propose policies to reduce emissions. The Rec Center is also working on updating its HVAC systems, changing all lighting to LED bulbs, reducing paper towel use in bathrooms, adding extra recycling bins and developing recycling education for both patrons and Avon Elementary School. Additional Staff comment on CAP Recommendations and Applicability in Avon: Communication between Staff is crucial for the success of multi-sector Climate Action Strategies. The interactive map of Climate Action Strategies is just one tool that aims to provide a clear visual presentation of the connections between each strategy. Buildings Beneficial Electrification for 5% of existing residential Energy Smart Colorado Program: In 2016, while adopting the 2015 ICC/IECC building codes, the Town of Page 3 of 13 and commercial buildings each year. Avon approved the adoption of the Exterior Energy Offset Program (EEOP), which allows Walking Mountains and the Energy Smart Colorado program to assist with 1) annual energy savings report, energy reductions and other data, 2) the ability to provide $50 home energy assessments within the Town of Avon, free energy coaching, and increased rebates to homes and businesses, and 3) educating Staff and locals about energy resources and develop best practices for marketing and outreach. The Town is currently awaiting Q1 report from Walking Mountains. Adopt 2021 International Building Codes: The Town of Avon currently administers the 2015 International Building Codes (Building, Residential, Energy Conservation, Plumbing, Fuel Gas, Mechanical, Fire Code, Property Maintenance, Wildland-Urban Interface) and 2020 National Electric Code. In coordination with our neighboring entities, adoption of the updated 2021 International Building Codes is being pursued. Staff will bring this to the Town Council with adoption by Ordinance, with local exception considerations. This will take action by Ordinance with the Town Council. The regional building officials continue to meet and gather information on code changes and local exceptions. This will likely be brought to Council in the 4th Quarter. The Climate Action Collaborative has conducted a study to compare cost, operating cost, and GHG impacts for 3 different building types constructed to the new code (baseline 2015 IECC) in order to inform best practices of code implementation and community outreach. It is also worth noting that we are holding an electrification conference this fall, led by Building Official Derek Place. Energy Use Reporting: The State of Colorado passed House Bill 21-1286, “Energy Performance for Building” on June 8th, 2021. The bill requires that buildings over 50,000 square feet report their energy use at the end of each year, making the first benchmarking deadline for building owners December 1st, 2022. The Climate Action Plan advocates for a benchmarking policy requiring all buildings above 10,000 square feet in Eagle County to report their energy use. Staff is preparing to report about this topic in a future Council Meeting. For new and remodeled residential and commercial buildings, adopt 'above building code' standards and incentives, and implement net-zero or all- electric construction requirements by 2030. Work toward consistency across jurisdictional boundaries in Eagle County. Implement a benchmarking ordinance in Eagle County for all commercial buildings 10,000 square feet or larger. Page 4 of 13 Additional Staff comment on CAP Recommendations and Applicability in Avon: The Town has been working on developing more housing closer to Avon for employees. In relation to Climate Action goals, housing development closer to job locations directly reduces or eliminates the need to commute by single-occupancy vehicles and the GHG emissions associated with it. Transportation & Mobility 2% increase in electric vehicle penetration each year as a percentage of all registered vehicles in Eagle County. Create and roll out an E-Bike Incentive Program: Council approved an E-Bike Incentive Program in the fall of 2021. Staff is preparing a variety of promotional efforts to get the word out. The goal is to incentivize approximately 125-250 new or used e-bike purchases in the first year and then review performance, functionality and usage with Council in the fall of 2022. Eighteen (18) e-bikes will be stationed in Avon. The Program will operate from the end of May to October 2022. Transition Police Vehicles to Hybrid Vehicles: The Department currently has five hybrid Ford Police Interceptors in service with a further one Interceptor and two Hybrid Ford F-150’s (with the same fuel performance as the Interceptors) arriving in 2022. We will transition the remainder of the fleet as current fleet vehicles come up for scheduled replacement according to the Capital Equipment Replacement Schedule. There are huge delays on new vehicle orders; one of the new hybrids is getting its emergency equipment in Denver, while the other two have no production dates yet. Implement Electric Buses into the Avon Transit Fleet: Staff will continue to oversee the acquisition and establishment of two new electric buses into Avon’s Transit Fleet, including required electrical upgrades and determining appropriate routes and schedules for use of electric busses. Staff is anticipating the delivery of two E-buses at the end of the first week of May. The E-buses are scheduled to be launched on June 11th, 2022. Implement Vehicle Acquisition Procedure that Requires Consideration of Greenhouse Gas Generation: Fleet will implement vehicle purchasing procedures to require analysis of green house gas emissions and Town reduction goals for all vehicle Implement a behavior change campaign to reduce single-occupancy vehicle commute trips 2 days per week by encouraging local businesses to provide smart commuting incentives or establish policies to support multi- modal commuting, flexible work arrangements, and remote work. Strive for 50% of the workforce living within 5 miles of their employment center via mixed-use communities, affordable community housing near job centers, and intercommunity multi- modal transportation options. Create a community-wide interconnected mobility system to support multi- modal transportation including park-n-rides and pedestrian and bike infrastructure to support Page 5 of 13 transit ridership, complete and connected bike commuting paths and lanes, and safe and accessible sidewalks. purchases. 5 hybrid orders have been placed and are in the works. 5 electric SUV’s are pending but have been reserved. 4 hybrid/electric vehicles are in the budget, but there is no inventory available. Fleet is hopeful to place orders in the next couple of months. Prepare 5 Year Plan for Vehicle Replacement that Prioritizes Reduction of Greenhouse Gas Emissions: Fleet will also work with other Departments about their needs and accommodate this into the new vehicle acquisition procedure & Electric equipment transition: Research conversion of gas equipment and mowers with electric versions, including but not limited to blowers, weed-trimmers, and mowers. Both Fleet and Public Works commented on the challenges of replacing heavy-duty equipment and vehicles to electric; however, Staff continues to learn about this topic and will make transitions as soon as possible. Additional Staff comment on CAP Recommendations and Applicability in Avon: There is no current plan to discuss development of light rail or similar transportation, but it is something to look into as Net Zero communities worldwide tend to have them. In addition, it should be noted that in Eagle County, we have about twice the average commuter miles per day in of Colorado (40 miles per day on average). We have adopted the town policies to allow remote work and encourage it, but that only works for Staff with office jobs that can function remotely. There are many Staff who need to be present (i.e., front desk, lifeguards, public works, police) cannot practice remote work. Only about half of the Town can work remotely twice a week. A carpool policy is under development to address this issue. The goal is to reduce the number of times people have to travel per day, hence reducing vehicle miles traveled single occupancy vehicle miles traveled. As we promote the transition of EVs, we must also be mindful and aware of the current EV production methods, which have their own emission and sustainability problems. We should stay on top of the research about EV development as we carefully pursue any EV transition. Expand bus service across the county, specifically targeted at commuters. Pilot bike or electric bike sharing programs and determine the viability of County-wide program. Page 6 of 13 Energy Supply Support goal of 100% renewable energy supply for the electric sector by 2030. Overall, the Town is doing well with transitioning to renewable energy supply as well as helping our community transition to renewable energy under the PuRE program. Town also installs renewable energy, usually solar PV panels, in new facility construction. For instance, solar panels were installed as part of the Town Hall tenant finish, Public Safety Facility and ARTF. Solar panels are included as part of the East Nottingham Park Restroom project. There will be an analysis of transitioning facilities from Natural Gas to Electric when planning for future building remodels. For instance, the Rec Center HVAC upgrades project includes an assessment and plan for transition the building’s heating system from Natural Gas to Electric. There are multiple Department Goals associated with renewable energy and energy, which clearly indicates that a sound energy policy is crucial to our success in the Climate Action Plan. While the Town continues in renewable energy transition, there are areas of improvements and the next steps of helping the community transition is still a work in progress. The following points provide a brief summary and progress of our current energy-related Climate Action Strategies: Electric Provider Referral Checkbox: Land use applications that include new construction are forwarded to Mary Wiener at Holy Cross Electric (HCE). The intent of this referral is to connect landowners and developers early in their development process with our HCE partner. Making this connection early in design, prior to construction drawings, is intended to make efficiency decisions earlier (i.e., solar design, electric heating) and kick start rebate discussions. Heat Recovery System: We currently have more capacity than we are utilizing so have not explored additional heat sources. We have added uses though by using the system to heat Town Hall. Street Improvement projects with pedestrian emphasis include Lake Street, The Pedestrian Mall south and east of Town Hall, Beaver Creek Boulevard Streetscape Improvements Project, and the Eagle Valley Trail extension from Avon Road to Stonebridge Drive. Town Council has directed us to not snowmelt pedestrian facilities. Energy Assessment by Schneider Electric: Staff has gathered utility bills from AMGas, Xcel and Holy Cross Analyze and develop local renewable energy resources through waste- to-energy, methane capture, and anaerobic digestion. Consider heat waste utilization and renewable energy technology to power district scale snowmelt systems. Reduce methane leakage through natural gas system efficiency. Explore the use of microgrids in Eagle County, where solar can be paired with storage to provide resiliency benefits for local emergency response infrastructure. Incentivize or promote renewable electricity use through on-site solar or renewable energy offset programs offered through local utilities, particularly when renewable electricity is paired with all-electric building systems. Page 7 of 13 from the last 3 years (2019-2021) so that Schneider Electric can help conduct an energy assessment that will help us determine areas of energy use improvement. This assessment is currently in progress. Solarize Eagle County: This is a community program that offers special discount for Eagle County home and business owners who want to install solar energy and battery storage. The benefits include decreasing GHG emission, building energy resiliency, and saving money. Materials Management Divert 80% of organics currently landfilled by 2030. Promote Recycling for Multi-Family and Accommodations Buildings in the Town Core: The West Town Center area has the highest concentration of multi-family and accommodations buildings. Staff will develop a contact list, determine existing practices, organize open house meetings with the building managers, and identify opportunities to promote recycling for these properties. This will be discussed along with the Recycling Ordinance in a future Council Meeting. Analyze a Recycling Ordinance: Research recycling ordinances from other communities, prepare recycling ordinance with options, stakeholder involvement plan and implementation for Council consideration. An analysis of the most successful recycling ordinances from cities in Colorado will be presented in a future Council Meeting, along with recommendations for Multi-Family and Accommodation Buildings. In addition, the recycling report may include the following points: • Reduce all plastic use • Improve recycling and composting programs • Create a complete “waste journey” documenting all stops along the way • Develop a better routine for recycling sensitive paper documents • Improve recycling education • Improve Waste Wizard UX design so it’s more user friendly • Improve plastic recycle rate • Consider how to implement the Producer Responsibility Policy Divert 100% of all recoverable construction and demolition (C&D) waste from the landfill by 2030 (some organic material may exist in this waste stream). Divert yard waste from landfill by 2030 through implementation of county- wide collection sites. Divert cardboard from the landfill. Implement a pay as you throw model county-wide. Support and incentivize recycling and composting services for multi-family buildings which often face challenges, such as high resident turnovers and contamination of recycling containers. Page 8 of 13 Additional Staff comment on CAP Recommendations and Applicability in Avon: The new Eagle County Waste Diversion report was released on April 25th, 2022. The latest status of our Waste Diversion will also be discussed in depth in the Recycling Ordinance report. Carbon Sequestration Pilot projects on open space that use soil amendments to increase carbon sequestration. Conduct Small Scale Bio-Char Pilot Program: Research Bio-Char soil amendments this winter with high emphasis on safety measures, research bio-char production and application. Implement program mid to end of summer. Small scale bio-char experiments have been conducted. Staff felt the experiments have not been successful and are working to figure out the problems. As an initial step, Staff will reach out to the local permaculture organization New Roots Co for consultation. Implement Landscape Plan for Recreation Center: A landscape plan will be developed in-house with Public Operations for spring or summer implementation. Staff will work directly with the Town’s Arborist and Master Gardener to determine feasible and affordable improvements. Staff has attended sustainable landscaping workshop hosted by Walking Mountains, the Town of Vail, Qualified Water Efficient Landscaper (QWEL) and will carry out all landscaping activities with sustainability in mind. Additional Staff comment on CAP Recommendations and Applicability in Avon: With the top two areas of focus being Building Electrification and Transportation, the discussion of Carbon Sequestration is virtually non- existent in Town at the moment. Staff observes that more research and consultation is needed to understand what the best way is to conduct carbon sequestration in Eagle County’s particular alpine geography and ecosystem. Incorporate soil-health education to improve carbon sequestration and engage the community in stewardship. Promote regenerative agriculture to enhance soil- health and carbon sequestration. Determine natural climate solutions plan to protect and enhance existing carbon stocks in Eagle County. Education & Outreach Implement a behavior change campaign to reduce single-occupancy vehicle commute trips 2 days per week by encouraging local businesses to provide smart commuting incentives or establish Research Community Engagement Platforms: In 2022, Staff will research different platforms with a focus on ease of registration and formatting flexibility. Staff will work on determining potential platforms while exploring the potential of expanding current social media engagement on climate action. Implement High Quality Leadership Training: Identify and engage training sources to deliver impactful for all Page 9 of 13 policies to support multi- modal commuting, flexible work arrangements, and remote work. directors, managers, superintendents and supervisors. There is virtually no formal training for general Staff on sustainability at the moment. Some Staff members have expressed desire for sustainability training and have suggested climate action focus groups for the Leadership Team. An internal Sustainability Leadership Training should be developed. Additional Staff comment on CAP Recommendations and Applicability in Avon: More direct engagement and conversation about the climate crisis, by Staff trained to have such conversations with people, need to happen in order for behavior-change campaigns to go beyond the typical and ineffective methods of climate communication, such as making posters. There needs to be programs that focus on helping people develop strong critical thinking abilities so that they can overcome long- term cultural and media conditioning; for example, overcoming our “love” of cars or lawns. Finally, it is clear that our marketing effort is lacking to promote climate- related content. Grow capacity of Collaborative partners to submit public comment in support of local policy that will help achieve our Climate Action Plan goals. Support working groups in education and outreach efforts that are identified as critical to achievement of sector specific GHG reduction goals. Maintain climate messaging in the community through regular media presence, newsletters, and the CAC website. Promote and expand the Actively Green Business Certification program through participation in either the full certification program or the Green Business Trail Map. Establish a system of communication and outreach through Collaborative partners to push out county-wide climate messaging in an effective and consistent manner. Resiliency Resilience planning in Eagle County is separated into four different sectors: health and wellness; With the exception of work on flood interventions by Engineering, water efficiency practices for irrigation and wildfire prevention by Public Works, the Town does not currently have a comprehensive “climate resiliency plan”. Page 10 of 13 economy; infrastructure; and natural resources. The primary goals of resiliency planning are to 1) build community equity, trust, and civic engagement, 2) ensure the health, safety, and well- being of all community residents, visitors, and workers during and after a disaster and 3) support frontline communities in preparing for and recovering from extreme weather events. The Climate Action Plan further provides specific recommendations for Water, Wildfire and Energy. The development of a climate resiliency plan will be cross-departmental, with potentially external consulting from fields such as public health, permaculture, ecology, biology, forestry, hydrology, fire science, renewable energy and engineering, etc. In the face of rapid climate change, it is crucial that Town begins to formulate and implement a climate resiliency plan alongside the other Climate Action Strategies so that we are properly prepared for adverse effects already caused by current climate change. Resiliency planning is a good reminder to avoid carbon tunnel vision, as the climate crisis will affect our lives in many different ways. Staff plans to take the following steps to develop a climate resiliency plan in 2022: - Develop a resiliency plan structure according to the Eagle County Resiliency Plan. - Conduct more research to understand existing resiliency practices. - Identify potential resiliency-building partner organizations from the list of Climate Action Organizations. Research more organizations as needed. - Contact potential partners for advice and relationship building. - Instead of having resiliency as a separate plan, incorporating it into existing Department activities as much as possible. - Present the Climate Resiliency Plan in the 4th quarter. Town of Avon Internal Climate Action Strategies In addition to the Climate Action Plan priorities discussed above, additional sustainability planning with Staff was conducted to address the following items: 1. Understanding what specific assistance each Department needs to improve or achieve their sustainability goals. 2. Establishing effective communication between Departments to easily identify areas of collaboration for cross-departmental Climate Action Strategies. 3. Identifying new climate action strategies based on the IPCC mitigation report 2022, missing pieces in the current plan, and the level of unique and innovative contribution Avon stands to make by adoption of these strategies. A major purpose of the internal sustainability planning is to establish sound support for all Town Employees regarding sustainability goals, to make sure everyone’s concerns or questions about sustainability are heard, and to continue strengthening everyone’s sustainability ownership via continued education, training and leadership development. It is expected that while some of these strategies are more suitable to be implemented and developed in Town first, they will eventually be promoted to the Avon community. Page 11 of 13 All Climate Action Strategies Red – Climate Action Plan priorities already in progress / Green – Internal sustainability practice already in progress / Blue – New projects to be discussed. Departments Climate Action Strategies All departments • Develop educational programs o Strengthen communication about sustainability o Conduct climate action focus groups for Leadership o Improve onboarding and training options regarding climate action o Conservation psychology training o Avoid carbon tunnel-vision o Youth & student outreach o Latinx community education and outreach o Cultivate sustainable culture, behavior and wellness • Recycling ordinance o Reduce all plastic use o Improve recycling and composting programs o Create a complete “waste journey” documenting all stops along the way o Develop a better routine for recycling sensitive paper documents Improve recycling for multi-family and accommodation buildings o Improve recycling education o Improve Waste Wizard UX design so it’s more user friendly o Improve plastic recycle rate o Consider how to implement the Producer Responsibility Policy • Research our financial institute and divert away from banks that invest in the fossil fuel industry • Consider all 3 pillars of sustainability for policy consideration (fostering economic growth and development, while ensuring that natural assets continue to provide the resources and environmental services on which our well-being relies) • Affect policymaking at the State or Federal level • Develop environmental justice consideration guidelines • Research various aspects of resiliency and develop plans around them (including hazard mitigation and natural resources conservation) • Apply for environmental and climate action grants • Establish relationships with farmers and ranchers on environmental stewardship • Hydrogen fuel research Planning • EV infrastructure plan o Research ethical solutions for EV production and transition • Climate investment index • Building code 2021 adoption and amendments • Building electrification Page 12 of 13 • Getting other municipalities to adopt climate-friendly codes • Research carbon sequestration options on Town-owned open spaces. Engineering • Energy use benchmarking • Energy tracking • Heat recovery system and education • Bus barn energy conservation Police • Consider stained glass for PD windows for extra security and energy conservation • Awning for police vehicle parking • Prepare for an anti-idling education campaign in the fall • Research geothermal heating for PD building Special Events • Maintain the current waste diversion rate at Avon events (improve where possible) • Improve communication with sports events participant to reach waste diversion goals • Reduce existing plastic use further • Host sustainability specific events • Connect arts and culture to sustainability Marketing & Communications • Produce a recycling video • Design both summer and winter reusable bags to promote environmental awareness • Climate & sustainability specific social media posts • Climate copywriting according to different audiences • Promote behavior change programs targeting climate actions • Highlight and celebrate residences who contribute to climate action Public Works • Continue investigating bio-char production • Update contracts with custodial services so our trash and recycling get processed properly • Improve irrigation efficiency and save water • Practice responsible landscaping & compositing • Develop public education and outreach about water & irrigation • Finish Actively Green checklist Mobility & Fleet • E-bike share program • EV charging station management • E-bus implementation • Improve carpool system • Develop and improve public transit system Page 13 of 13 Rec Center • Strengthen compositing practice for food waste from staff and birthday parties • Upgrade to auto sinks • Upgrade to LED lights • Upgrade HVAC systems • Develop a better routine for recycling toxic chemical containers • Develop recycling education for kids & patrons. • Consider removing or composting paper towels at bathrooms • Add extra recycling bins next to all trash bins Overall, both CAP priority strategies and Town’s internal strategies are presented together as a visual, editable, interactive mind map so these strategies can be continued developed with greater transparency and efficiency. The map can also show the connections between many of the strategies. FINANCIAL CONSIDERATIONS: Each project will have different financial considerations. The overall cost may come from multiple departments depending on the project. Financial resources will prioritize CAP strategies. NEXT STEPS: The next steps in the Climate Action Strategies process are to (1) discuss with each Department Director to refine the strategies and define action plans so that we continue making progress in all Climate Action Strategies, (2) add various climate action organizations and grant sources that would be the most helpful in achieving these strategies, (3) create Gantt charts for all CAP priorities and (4) incorporate Town Council comments and suggestions. REQUESTED COUNCIL DIRECTION: Council direction or input is welcome on any of the Climate Actions strategies, goals or programs discussed in this Report. Thank you, Charlotte ATTACHMENTS: Attachment 1: Eagle County Climate Action Plan, Update 2020. Attachment 2: Town of Avon Climate Action Strategies Interactive Mindmap Link Attachment 3: IPCC Mitigation Report (Published April 2022; please consult p.51 for the list of mitigation options) 970-748-4045 jhildreth@avon.org TO: Honorable Mayor Smith Hymes and Council Members FROM: Justin Hildreth, Town Engineer RE: Notice of Award – Installation of six Electric Vehicle Charging Stations DATE: May 05, 2022 SUMMARY: This report presents a Notice of Award for six (6) Electric Vehicle Charging Stations to Tri- Phase Electric, LLC in the amount of $136,002. DISCUSSION: The 2022 Capital Projects Fund budget includes $220,000 for electric vehicle chargers at the following locations: • 3 stations with 6 ports at south end of Lake Street • 2 stations with 4 ports at Town Hall • 1 station with 2 ports at Public Works facility, 500 Swift Gulch Road The EV chargers on Lake Street and Town Hall will be open to the public. The chargers will be Level 2 and can charge a vehicle at approximately 25 miles/hour. The charger station installation will occur in June and the public chargers will be available free of charge in 2022. The project is partially funded with a $45,000 Charge Ahead Colorado Grant. We requested bids the for the installation of the electric vehicle chargers from 5 electrical contractors. We received 2 bids, one from Tri-Phase Electric in the amount of $136,002 and another from New Electric. in the amount of $170,000. CONSTRUCTION SCHEDULE: The installation of the chargers will occur in June and will be completed by July 1st, 2022. Page 2 of 2 FINANCIAL CONSIDERATIONS: The current Capital Projects Fund (“CPF”) budget includes $220,000 for installation of the six electric vehicle charging stations. Town Staff is procuring the electric vehicle charging stations from Holy Cross Energy for $70,799.52. RECOMMENDATION: I recommend Council authorization to award the installation of the electric vehicle charging stations contract to the low bidder, Tri-Phase Electric, in the amount of $136,002. PROPOSED MOTION: “I move to authorize issuance of the Notice of Award for the installation of the electric vehicle charging stations to the low bidder, Tri-Phase Electric, in the amount of $136,000.” Thank you, Justin AVON REGULAR MEETING MINUTES TUESDAY APRIL 26, 2022 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 Part One The meeting was hosted in a Hybrid format, in person at Avon Town Hall and using Zoom.us. Mayor Pro Tem Phillips called the Council regular meeting to order at 5:02 p.m. A roll call was taken, and Council members present in person were RJ Andrade, Lindsay Hardy, Chico Thuon, and Scott Prince. Councilor Tamra Underwood and Mayor Smith Hymes were virtually present via Zoom. Also present in person were Planning Director Matt Pielsticker, Marketing and Communications Manager Liz Wood, Chief of Police Greg Daly, Interim Town Attorney Karl Hanlon, Town Manager Eric Heil, and Deputy Town Clerk Brenda Torres. 2.APPROVAL OF AGENDA Video Start Time: 00:00:55 Part One Town Manager Eric Heil requested to remove agenda item 7.5 under written reports as it is not a completed document and bring it back in the next meeting. Councilor Andrade moved to approve the agenda as amended. Councilor Hardy seconded the motion and the motion passed with a vote of 7 to 0. 3.DISCLOSURE OF ANY CONFLICTS OF INTEREST RELATED TO AGENDA ITEMS Video Start Time: 00:02:10 Part One Councilor Underwood disclosed again that she holds a short-term rental license for a guest suite that she operates in her home, relevant to agenda item 5.3. She clarified it is not a conflict of interest, but she wanted to make this disclosure. 4.PUBLIC COMMENT Video Start Time: 00:03:00 Part One Mayor Pro Tem Phillips explained how to participate via video/audio, via telephone, or via email, and that this public comment section is intended for items not listed in the agenda and is limited to 3 minutes. No public comments were made. 5.BUSINESS ITEMS 5.1. PUBLIC HEARING: REGIONAL TRANSIT AUTHORITY (TOWN MANAGER ERIC HEIL AND CHIEF MOBILITY OFFICER EVA WILSON) Video Start Time: 00:03:41 Part One Town Manager Eric Heil presented an update on the Regional Transit Authority (RTA) formation effort . He explained that, as a statutory requirement, two public hearings must be held before it gets presented to the Colorado Department of Transportation , and that the proposal of the RTA agreement includes an IGA, a map that shows the boundaries, and the proposed funding. Councilor Underwood asked if the bus barn transit facility in Avon would be the only place that would be able to expand to accommodate for the RTA operations or if there are any other locations besides Avon. She propose d for the IGA that most actions , except for some of the major actions, for exam ple, budget approval or putting something in the ballot, should be ruled by a majority of member s who are in attendance at a quorum meeting . AVON REGULAR MEETING MINUTES TUESDAY APRIL 26, 2022 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Mayor Smith Hymes explained this has been discussed in the formation committee meetings, and the consensus of t he group was as it is drafted in the IGA at this moment. Councilor Underwood suggested that at least one sentence saying members are required to attend the meetings should be in the IGA then. Mayor Pro Tem Phillips called for public comments and Kathleen Walsh, Avon resident, commented in person. She mentioned that she would like to see the biggest employers benefiting from this like Vail Resorts or the hospital to kick in some funding. She talked about school buses for high school, smaller buses, bus stop shelters and the schedules. Charlie Sherwood, Avon resident, commented via Zoom. He asked if the bike share program is part of this multi-modal service. Town Manager Eric Heil reminded Council that this is the first hearing, and no action is required tonight, and that the second hearing for the approval of the IGA by resolution is scheduled for the May 10 th Council meeting. 5.2. APPOINTMENT OF PLANNING AND ZONING COMMISSION MEMBERS (PLANNING DIRECTOR MATT PIELSTICKER) Video Start Time: 01:00:04 Part One Planning Director Matt Pielsticker presented and clarified there are four open seats, three of those are for 2-year term and one for 1 -year term. He said that at the time he drafted the report, he recommended to downside the board from seven to five as they had only three applicants, but now that there are seven applicants, he requested to table that discussion and do four appointments tonight. Applicants interviewed via Zoom were Donna Lang and Tom Schaefer. Applicants interviewed in person were Kenneth Howell, Kevin Hyatt, and Bill Glaner. Applicants Olivia Cook and Jason DeKowzan were not present. Ballots were distrib uted to Councilors in the room and Councilors present virtually submitted their vote by texting Interim Town Attorney Karl Hanlon. Council members voted and Mayor Pro Tem Phillips thanked all the applicants and announced that the top three to get the 2 -year term seats were Glaner, Hyatt, and Schaefer and Lang got the 1- year term seat. 5.3. FIRST READING ORD 22-08 ADOPTING SHORT TERM RENTALS LICENSES (TOWN MANAGER ERIC HEIL) Video Start Time: 00:00:00 Part Two Town Manager Eric Heil introduced the topic and said staff would like to get Council's input, get some revisions, and present the first reading in the first or second meeting in May; then allow two meetings before the second reading to allow public input and mail notices to all STR license holders. He said November 1 st would be a good effective date. Town Planner Morgan presented a PPT presentation with a recap of the last meeting’s discussion, existing regulations, current licenses statistics, proposed revisions, process and schedules, fee structure, and other policy considerations that are not included in the ordinance. AVON REGULAR MEETING MINUTES TUESDAY APRIL 26, 2022 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Town Manager Eric Heil mentioned that staff needs more time to discuss how to address complaints with other departments involved as there are many layers to consider and to see what other communities are doing. Councilor Underwood said November 1 st is late as it is too close to the ski season, budget, and elections; she proposed implementation date of September 1 st. Councilor Prince wants notices to be sent out even before the first reading. Mayor Pro Tem Phillips wanted to add $500 to the fee structure for RO -STR and said the maximum occupancy should be as follows: 1 -bedroom: 4 people; 2 -bedroom: 6 people; 3 -bedroom: 10 people; and 4 -bedroom or larger: 2 people/bedroom +4. Mayor Pro Tem Phillips called for public comments and Jeff O'Brian, Eagle resident, commented in person. He agreed with Town Manager Eric Heil's comment that there are many layers of details as there are many different situations. He is in favor of the professional management as we all represent the community, and expressed it looks terrible when places are not well managed. He said paying business license per rental unit is fair. Graham Frank, Edwards resident, commented in person. He said that, as developer, he supports the comment above about having a license per unit. He recommended to continue the approach staff is getting such the great data that has been presented tonight. No virtual comments were made. This was handled as a work session, not as the first reading. No action was taken tonight. Council provided several suggestions and agreed with staff to present the first reading on the May 24th Council meeting. 5.4. FIRST READING ORD 22-09 AMENDING THE SHORT-TERM RENTAL OVERLAY DISTRICT AND CREATING A RESIDENT OCCUPIED SHORT TERM RENTAL OVERLAY DISTRICT (SENIOR PLANNER JENA SKINNER) Video Start Time: 01:21:21 Part Two Senior Planner Jena Skinner presented the zoning overlay district modifications. Councilor Thuon asked if existing licenses will be grandfathered. She confirmed and said it has been incorporated in the ordinance and clarified the ability of having a license is grandfathered but the rate will not, and licensees might fit better the new program and switch. Town Manager Eric Heil suggested Council to direct staff tonight to be the applicant and prepare the full application for the zoning changing code text amendment, present to the Planning and Zoning Commission, do the mail notices to all these property owners and to not have the first reading of the ordinance until PZC has done their hearings and provide their recommendations back to Council. Councilor Prince asked what would happen if for example a minority member of an LLC ownership transfers. Councilor Andrade said he would like to see an option at least without any zoning changes, just license changes and a certain number of each as he does not support the difference of the zoning. Mayor Pro Tem Phillips and Councilor Prince supported his comment. She said she is interested in learning about what would be the appropriate caps, but she wants to make sure that RO-STR do not have a cap as this probably is the best interest of the Town. She believes AVON REGULAR MEETING MINUTES TUESDAY APRIL 26, 2022 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM this map is not ready to be sent to the PZC and she is fine if the overlay takes a little longer a s the fee structure will be moving quicker. She is also in support of exploring the right starting date. Councilor Thuon suggested to pay locals to not do short-terms and do long-terms instead and let’s see how it works. Councilor Hardy does not agree as she thinks that paying people is putting the Town’s money in the wrong hands. She expressed that her concern with drawing a cap is that the number will have to go up and up every time a new development builds a short-term rental. She said she believes in a diverse community and that the Town is desperately in need of workers and professionals but there are no options for these people to where to live in the town they work, pushing them to live down valley, which is not good for the Town’s green initiative either. Councilor Underwood asked about The Aspens area and why it is not within the pink area in the overlay map. Mayor Smith Hymes said the point in not to capitalize the short-term rental but help people to afford their rent or mortgage. Mayor Pro Tem Phillips called for public comments and no public comments were made. Mayor Pro Tem Phillips said that the information coming from Ordinance 22-08 in four weeks will help to have a clear vision on how and what mitigate within the existing short-term rental overlay district and then perhaps have something to review and refer to the PZC for review. 5.5. PUBLIC HEARING: SECOND READING ORD 22-05 SPEED LIMIT FOR OFF HIGHWAY VEHICLES (OHV) IN THE WILDRIDGE SUBDIVISION (POLICE CHIEF GREG DALY) Video Start Time: 02:06:48 Part Two Chief Daly presented and said the 15 mph was adopted based on the Town of Eagle's ordinance and that per a discussion with Chief Staufer, Town of Eagle has experienced similar issues with their 15 mph limit and they are also reviewing their ordinance. He said that more radar signs will be installed. Councilor Prince is not in favor of adding more illuminated speed signs as he thinks they are not effective, and he supports the dark sky. Mayor Smith Hymes supported his comment. Councilor Thuon suggested to be turn-off at dusk. Chief Daly said he will do some research on this. Mayor Pro Tem Phillips called for public comments and no public comments were made. Councilor Thuon moved to approve Ordinance 22-05 Amending the Avon Municipal Code to Establish the Speed Limit for Off-Highway Vehicles on Wildridge Roads as 25 Miles Per Hour on second and final reading. Councilor Prince seconded that motion and the motion passed with a vote of 7 to 0. 5.6. P UBLIC HEARING: SECOND READING ORD 22-06 EXTENSION OF RENEWABLE ENERGY TAX CREDIT (TOWN MANAGER ERIC HEIL ) Video Start Time: 02:14:58 Part Two Town Manager Eric Heil presented and recognized that the third "whereas" had an incomplete thought, but it has been updated. Mayor Pro Tem Phillips called for public comments and no public comments were made. AVON REGULAR MEETING MINUTES TUESDAY APRIL 26, 2022 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM Councilor Thuon moved to approve Ord inance 22-06 Amending Section 3.08.037 to Extend a Temporary Sales Tax Credit for the Installation of Renewable Energy Production Components. Councilor Underwood seconded that motion and the motion passed with a vote of 7 to 0. 6. MINUTES 6.1. APPROVAL OF APRIL 12, 2022 REGULAR COUNCIL MEETING MINUTES (DEPUTY TOWN CLERK BRENDA TORRES) Video Start Time: 02:17:00 Part Two Councilor Underwood made an edit on the last paragraph of item 5.6. to read “Town Manager Eric Heil said the fee structure will be a separate ordinance from the zoning map.” Councilor Thuon moved to approve the April 12, 2022 as amended. Councilor Hardy seconded the motion and the motion passed with a vote of 6 to 0. Councilor Prince was absent that meeting and did not vote. 7. WRITTEN REPORTS 7.1. Monthly Financial Report (Finance Manager Joel McCracken) 7.2. 1st Quarter RETT Report (Finance Manager Joel McCracken) 7.3. E-Bike Share (Chief Mobility Officer Eva Wilson) 7.4. Colorado Child Care Stabilization Grant (Recreation Director Michael Labagh) 7.5. First Quarter Update on Department Goals (Town Manager Eric Heil) 7.6. ¡Mi Casa Avon! Update (Intern Emily Myler) 7.7. Quarterly Update on E-Bike Incentive Program (Communications Manager Liz Wood) 7.8. April 19, 2022 Planning and Zoning Commission Meeting Abstract (Planner 1+ Max Morgan) 8. MAYOR AND COUNCIL COMMENTS & MEETING UPDATES Video Start Time: 02:19:15 Part Two Councilor Thuon commented that he drives by the underpass of I-70 and the lights are always on and requested the Town consider how to limit the energy waste. 9. ADJOURN There being no further business before Council, Mayor Smith Hymes moved to adjourn the regular meeting. The time was 9:16 p.m. 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. AVON REGULAR MEETING MINUTES TUESDAY APRIL 26, 2022 HYBRID MEETING; IN-PERSON AT AVON TOWN HALL OR VIRTUALLY THROUGH ZOOM RESPECTFULLY SUBMITTED: Brenda Torres, Deputy Town Clerk APPROVED: Amy Phillips ___________________________________ Sarah Smith Hymes Chico Thuon Scott Prince Tamra Underwood Lindsay Hardy RJ Andrade 970-748-4061 emyler@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Emily Myler, General Government Intern RE: FSR 779 Heavy Maintenance Grant Update DATE: May 5, 2022 SUMMARY: This report is to update Council on progress of the application for a grant from Colorado Parks and Wildlife (CPW) for a heavy maintenance project on Forest Service Road (FSR) 779 in Wildridge, This is submitted as a written report and no action by Council is requested. BACKGROUND: In the fall of 2021, the Wildridge Trails Coalition approached the Town of Avon to help them with an application for grant funds to maintain FSR 779 for off-highway vehicle (OHV) use. The goal of the project is to “complete heavy maintenance work on Metcalf Road #779 to maintain t he current status of Road #779 as a Level II high-clearance OHV route that is open to the public.” Town Staff applied for the CPW OHV Program State Trail Grant on December 12, 2021, and then presented their application to the CPW State Trails Committee on March 17, 2022. On April 27, the Wildridge Trails Coalition received word that the State Trails Committee recommended the Town’s application for funding to the Parks and Wildlife Commissioners. There is a meeting set for June 2 nd where the application will receive final approval. The Town can expect to see a contract in September or October of this year and work can begin as scheduled in Spring of 2023. FINANCIAL CONSIDERATIONS: The Council has promised to support this project with $15,000 in matching funds. There is also financial support coming from the Wildridge Trails Coalition and the Singletree Homeowner’s Association. In-kind support will come from the Forest Service. The total budget for the project is below: Page 2 of 2 Thank you, Emily 970-748-4045 jhildreth@avon.org TO: Honorable Mayor Smith Hymes and Council members FROM: Justin Hildreth, Town Engineer RE: Update – East Beaver Creek Boulevard Repair Project DATE: May 4, 2022 SUMMARY: A 200 FT long section of East Beaver Creek Boulevard in The Village (at Avon) failed in late winter. The developer constructed East Beaver Creek Boulevard with an anticipated lifespan of 2 to 5 years and the roadway has now been in place for 19 years. DISCUSSION: Public Works made several temporary repairs throughout winter and spring. Asphalt production in the Eagle River Valley resumed May 2, 2022 and the failed portion of roadway can now undergo a more substantial repair. The roadway within the repair area will be completely removed and replaced. Staff solicited repair proposals from (3) local asphalt paving contractors and received only (1) from 360 Paving LLC, based in Gypsum, for $75,250. The Town has completed successful projects with 360 Paving LLC in the past, most recently the Eaglebend Drive and Mikaela Way Asphalt Overlay Projects in 2020 and 2021 respectively. Construction Schedule: The proposed work is tentatively scheduled to begin on May 25th and be completed in (3) days weather permitting. The work can be completed in (2) days at a cost savings with a full closure of the road between Chapel Place and the westerly Piedmont Apartments driveway and is being evaluated with stakeholders. FINANCIAL CONSIDERATIONS: The East Beaver Creek Boulevard Repair Project will be funded from the Village (at Avon) Asphalt Replacement Fund and included in the next CIP Budget Amendment. The Project cost estimate is shown in Table 1 below and includes 10 % contingency. Table 1: East Beaver Creek Boulevard Repair Project Cost Estimate Available Funds Budget $85,275 Construction Cost $75,250 Geotechnical Testing Services $2,500 Contingency (10 %) $7,525 Total $85,275 Thank you, Justin ATTACHMENT A: Site Map 7.3 - ATTACHMENT A SITE MAP