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TC Council Packet 01-26-2010TOWN OF AVON, COLORADO a AVON REGULAR MEETING FOR TUESDAY, JANUARY 26, 2010 C U L 0 i A 6 0 MEETING BEGINS AT 5:30 PM AVON TOWN HALL, ONE LAKE STREET PRESIDING OFFICIALS MAYOR RON WOLFE MAYOR PRO TEM BRIAN SIPES COUNCILORS RICHARD CARROLL, DAVE DANTAS, KRISTI FERRARO AMY PHILLIPS, ALBERT "Buz" REYNOLDS, JR. TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: LARRY BROOKS TOWN CLERK: PATTY MCKENNY ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS COMMENTS FROM THE PUBLIC ARE WELCOME DURING CITIZEN AND COMMUNITY INPUT AND PUBLIC HEARINGS PLEASE VIEW AVON'S WEBSITE, HTTP: //WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH 1. CALL TO ORDER AND ROLL CALL 2. INQUIRY OF THE PUBLIC FOR COMMENT AND APPROVAL OF AGENDA 3. DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST 4. COMMUNITY & CITIZEN INPUT 5. CONSENT AGENDA a. Minutes from January 12, 2010 b. 2009 Audit Engagement Letter (Scott Wright, Asst. Town Manager Finance) Contract with McMahan and Associates for auditing services c. Engagement Proposal from Heizer Paul LLP (Eric Heil, Town Attorney) d. Revised Engagement Letter from Heil Law and Planning LLC (Eric Heil, Town Attorney) e. Resolution No. 10 -02, Series of 2010, Resolution authorizing a contract with the Colorado Department of Natural Resources, Division of Wildlife related to Project FIF- 1659 -10, Harry A. Nottingham Lake fishing pier, for construction of a fishing pier and access path (Shane Pegram, Engineer II f. Wiss, Janey, Elstner Associates, Inc. (Shane Pegram, Engineer II) Proposal to complete construction documents for the Recreation Center Roof Replacement and CMU Block Repair 6. RESOLUTION a. Resolution No. 10 -03, Series of 2010, Resolution Readopting a temporary Fee Reduction and Waiver Program for Zoning, Design Review and Building Permit Applications Collected by The Town of Avon (Sally Vecchio, Asst. Town Manager Community Development) Resolution to extend the fee waiver program b. Resolution No. 09 -29, Series of 2009, Resolution Approving the Final Plat, Eagle River at Avon, A Resubdivision of Lots 1 and 2, Exemption Plat, Red House, Section 12, Township 5 South, Range 82 West of the Sixth Principal Meridian, Town of Avon, Eagle County, Colorado (Sally Vecchio, Assistant Town Manager Community Development) / Resolution tabled at November 10, 2009 Meeting c. Resolution No. 09 -30, Series of 2009, Resolution Approving a Second Supplemental Water Lease Agreement With The Upper Eagle River Water Authority (Shane Pegram, Engineer II) This agreement increases the total SFE's that the Authority will service to the Town by 15 SFE's to account for the Red House development / Resolution Tabled at November 10, 2009 Meeting Avon Council Meeting. 10.01.26 Page 3 of 4 TOWN OF AVON, COLORADO o AVON REGULAR MEETING FOR TUESDAY, JANUARY 26, 2010 C U l 9 ■ A D O MEETING BEGINS AT 5:30 PM AVON TOWN HALL, ONE LAKE STREET 7. ORDINANCES a. Public Hearing on Ordinance No. 09 -19, Series of 2009, Second Reading, An Ordinance Approving a Landscape Construction and Maintenance Easement Agreement between the Town and Vail Associates, Inc. (Shane Pegram, Engineer II) This easement agreement is part of the Development Agreement with Vail Associates, Inc. for the Red House Property 8. UNFINISHED BUSINESS 9. TOWN MANAGER REPORT 10. TOWN ATTORNEY REPORT 11. MAYOR REPORT 12. ADJOURNMENT FUTURE AGENDA DATES & PROPOSED Topics: 2/9/10: Final Deed Restricted Housing Document for Gandorf PUD, Resolution Traer Creek Final Plat, Ordinance Adopting 2009 International Building Codes, Avon Police Awards Presentation Avon Council Meeting. 10.01.26 Page 4 of 4 MINUTES OF THE REGULAR MEETING OF THE AVON TOWN COUNCIL HELD JANUARY 12, 2010 A regular meeting of the Town of Avon, Colorado was held at the Avon Municipal Building, One Lake Street, Avon, Colorado in the Council Chambers. Mayor Ron Wolfe called the meeting to order at 5:30 PM. A roll call was taken and Council members present were Rich Carroll, Dave Dantas, Amy Phillips, Buz Reynolds and Brian Sipes. Kristi Ferraro was absent. Also present were Town Attorney Eric Heil, Town Manager Larry Brooks, Assistant Town Manager Management Services Patty McKenny, Town Engineer Justin Hildreth, Assistant Town Manager Finance Scott Wright, Police Chief Brian Kozak, Assistant Town Manager Community Development Sally Vecchio and Public Works and Transportation Director Jenny Strehler as well as members of the public. DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST Mayor Wolfe noted that he would recuse himself from discussion on Ordinance No. 09 -20, Approving the Mountain Star Conservation Easement. CONSENT AGENDA Mayor Wolfe asked for a motion on the consent agenda. Mayor Pro Tem Sipes moved to approve the consent agenda; Councilor Phillips seconded the motion and it passed unanimously; Councilor Ferraro abstained on voting on the minutes due to her absence from the meeting. a. Minutes from December 8, 2009 b. Resolution No. 10 -01, Series of 2010, Resolution approving the locations for posting the notices of public meetings (Patty McKenny, Town Clerk) c. Monroe & Newell Engineers, Inc. — Nottingham Lake Fishing Pier Design Proposal (Shane Pegram, Engineer II) Approval of MNE's proposal to provide construction documents and construction observation for the Nottingham Lake Fishing Pier ORDINANCES Mayor Wolfe stepped down at this time due to a conflict of interest. Eric Heil, Town Attorney, presented Ordinance No. 09 -20, Series of 2009, Second Reading, Ordinance Approving and Accepting Mountain Star Conservation Easement. It was noted the modifications of the existing conservation easement is applied to open space areas but not to Tract AA which was dedicated to the Town for municipal purposes. He also noted that the Mountain Star homeowners have approved this easement. Mayor Pro Tem Sipes opened the public hearing, no comments were made, the hearing was closed. Councilor Dantas moved to approve Ordinance No. 09 -20, Series of 2009, Second Reading, Ordinance Approving and Accepting Mountain Star Conservation Easement; Councilor Ferraro seconded the motion and it passed unanimously. Eric Heil, Town Attorney, presented Ordinance No. 10 -01, Series of 2010, Ordinance Declaring a Moratorium on Medical Marijuana Dispensaries for 180 days and Declaring an Emergency. He explained the reason behind the emergency legislation and noted that he would ask for 200 days timeframe in order to better coincide with the council meeting dates. He noted that the proposed emergency moratorium ordinance addresses the issuance of business licenses for medical marijuana dispensaries until some regulations can be drafted and reviewed by the council. It was noted that the effective date of the legislation was eight days after adoption; Mr. Heil noted that the town does not need to approve an application if submitted prior to the effective date. TOWN MANAGER REPORT Larry Brooks, Town Manager, presented updates to the work being done by the Rocky Mountain Rail group and the 1 -70 Coalition. There would be an update on the odor problem occurring in Avon at a future meeting as well. TOWN ATTORNEY REPORT Eric Heil, Town Attorney, noted that there will be an update at the next meeting on proposed URA legislation. There being no further business to come before the Council, the executive session and the regular meeting adjourned at 6:20 PM. RESPECTFULLY SUBMITTED: Patty McKenny, Town Clerk APPROVED: Rich Carroll Dave Dantas Kristi Ferraro Amy Phillips Albert "Buz" Reynolds Brian Sipes Ron Wolfe Regular Council Meeting Page 2 of 2 10.01.12.doc Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager Initials Legal: Eric Heil, Town Attorney From: Scott Wright, Asst. Town Manager — Finance Date: January 21, 2010 Re: 2009 Audit Engagement Letter Summary: An engagement letter with McMahan and Associates for the 2009 calendar year audit is included in the Town's consent agenda. The engagement letter is in the standard form recommended by the AICPA for local government engagements. The 2009 audit will take place the week of April 12. 2010 and will be billed to the Town based on actual hours spent at standard rates with a not -to- exceed cost of their original proposed fee of $29,850 + 3 %. Page 1 IVI MCMAHAN AND ASSOCIATES, L.L.C. Certified Public Accountants and Consultants WEB SITE: WWW.MCMAHANCPA. COM & CHAPEL SQUARE, BLDG C MAIN OFFICE: (970) 845-8800 A 245 CHAPEL PLACE, SUITE 300 FACSIMILE: (970) 845-8 108 P 0 BOX 5850, AVON, CO 8 1 620 E -MAIL: MCMAHAN @MCMAHANCPA COM January 4, 2010 Town of Avon, Colorado P.O. Box 975P.O. Box 975 Avon, CO 81620 We are pleased to confirm our understanding of the services we are to provide Town of Avon, Colorado for the period or year ended December 31, 2009. We will audit the financial statements of the governmental activities, the business -type activities, the aggregate discretely presented component units, each major fund, and the aggregate remaining fund information, which collectively comprise the basic financial statements of Town of Avon, Colorado as of and for the period or year ended December 31, 2009. Accounting standards generally accepted in the United States provide for certain required supplementary information (RSI), such as management's discussion and analysis (MD&A), to accompany Town of Avon, Colorado's basic financial statements. As part of our engagement, we will apply certain limited procedures to your RSI. These limited procedures will consist principally of inquiries of management regarding the methods of measurement and presentation, which management is responsible for affirming to us in its representation letter. Unless we encounter problems with the presentation of the RSI or with procedures relating to it, we will disclaim an opinion on it. The following RSI is required by generally accepted accounting principles and will be subjected to certain limited procedures, but will not be audited: 1) Management's Discussion and Analysis. Supplementary information other than RSI, such as combining and individual fund financial statements, also accompanies Town of Avon, Colorado's basic financial statements. We will subject the following supplementary information to the auditing procedures applied in our audit of the basic financial statements and will provide an opinion on it in relation to the basic financial statements: 1) Local Highway Finance Report The following additional information accompanying the basic financial statements will not be subjected to the auditing procedures applied in our audit of the financial statements, and for which our auditor's report will disclaim an opinion. 1) Introductory information 2) Statistical information Audit Objective The objective of our audit is the expression of opinions as to whether your basic financial statements are fairly presented, in all material respects, in conformity with U.S. generally accepted accounting principles and to report on the fairness of the additional information referred to in the first paragraph when considered in relation to the basic financial statements taken as a whole. Our audit will be conducted in accordance with U.S. generally accepted auditing standards and will include tests of the accounting records and other procedures we consider necessary to enable us to express such opinions. If our opinions on the financial statements are other than unqualified, we will fully discuss the reasons with you in advance. If, for any reason, we are unable to complete the audit or are unable to form or have not formed opinions, we may decline to express opinions or to issue a report as a result of this engagement. Member: American Institute of Certified public Accountants D. JERRY MCMAHAN, C.P.A. DANIEL R. CUDAHY, C.P A. PAUL J. BACKES, C.P.A. MICHAEL N. JENKINS, C.A., C P A AVON ASPEN FRISCO (970) 845-8800 (970) 544 -3996 (970) 668 -3481 Town of Avon, Colorado Page 2 of 3 Management Responsibilities Management is responsible for establishing and maintaining internal controls, including monitoring ongoing activities; for the selection and application of accounting principles; and for the fair presentation in the financial statements of the respective financial position of the governmental activities, the business -type activities, the aggregate discretely presented component units, each major fund, and the aggregate remaining fund information of the Town of Avon, Colorado and the respective changes in financial position and where applicable, cash flows, in conformity with U.S. generally accepted accounting principles. Management is responsible for the basic financial statements and all accompanying information as well as all representations contained therein. You are also responsible for management decisions and functions; for designating an individual with suitable skill, knowledge, or experience to oversee our financial statement preparation services and any other nonattest services we provide; and for evaluating the adequacy and results of those services and accepting responsibility for them. Management is responsible for making all financial records and related information available to us and for the accuracy and completeness of that information. Management is responsible for adjusting the financial statements to correct material misstatements and for confirming to us in the representation letter that the effects of any uncorrected misstatements aggregated by us during the current engagement and pertaining to the latest period presented are immaterial, both individually and in the aggregate, to the financial statements taken as a whole. You are responsible for the design and implementation of programs and controls to prevent and detect fraud, and for informing us about all known or suspected fraud or illegal acts affecting the government involving (1) management, (2) employees who have significant roles in internal control, and (3) others where the fraud or illegal acts could have a material effect on the financial statements. Your responsibilities include informing us of your knowledge of any allegations of fraud or suspected fraud affecting the government received in communications from employees, former employees, regulators, or others. In addition, you are responsible for identifying and ensuring that the entity complies with applicable laws and regulations. Audit Procedures — General An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements; therefore, our audit will involve judgment about the number of transactions to be examined and the areas to be tested. We will plan and perform the audit to obtain reasonable rather than absolute assurance about whether the financial statements are free of material misstatement, whether from (1) errors, (2) fraudulent financial reporting, (3) misappropriation of assets, or (4) violations of laws or governmental regulations that are attributable to the entity or to acts by management or employees acting on behalf of the entity. Because an audit is designed to provide reasonable, but not absolute, assurance and because we will not perform a detailed examination of all transactions, there is a risk that material misstatements may exist and not be detected by us. In addition, an audit is not designed to detect immaterial misstatements, or violations of laws or governmental regulations that do not have a direct and material effect on the financial statements. However, we will inform you of any material errors and any fraudulent financial reporting or misappropriation of assets that come to our attention. We will also inform you of any violations of laws or governmental regulations that come to our attention, unless clearly inconsequential. Our responsibility as auditors is limited to the period covered by our audit and does not extend to any later periods for which we are not engaged as auditors. Our procedures will include tests of documentary evidence supporting the transactions recorded in the accounts, and may include tests of the physical existence of inventories, and direct confirmation of receivables and certain other assets and liabilities by correspondence with selected individuals, creditors, and financial institutions. We will request written representations from your attorneys as part of the engagement, and they may bill you for responding to this inquiry. At the conclusion of our audit, we will also require certain written representations from you about the financial statements and related matters. Town of Avon, Colorado Page 3 of 3 Audit Procedures — Internal Control Our audit will include obtaining an understanding of the entity and its environment, including internal control, sufficient to assess the risks of material misstatement of the financial statements and to design the nature, timing, and extent of further audit procedures. An audit is not designed to provide assurance on internal control or to identify deficiencies in internal control. However, during the audit, we will communicate to management and those charged with governance internal control related matters that are required to be communicated under professional standards. Audit Procedures — Compliance As part of obtaining reasonable assurance about whether the financial statements are free of material misstatement, we will perform tests of Town of Avon, Colorado's compliance with applicable laws and regulations and the provisions of contracts and agreements. However, the objective of our audit will not be to provide an opinion on overall compliance and we will not express such an opinion. Audit Administration, Fees, and Other We understand that your employees will prepare all cash or other confirmations we request and will locate any documents selected by us for testing. Our fee for these services will be at our standard hourly rates plus out -of- pocket costs (such as report reproduction, word processing, postage, copies, telephone, etc.) except that we agree that our gross fee, including expenses will not increase by more that 3 %. Our standard hourly rates vary according to the degree of responsibility involved and the experience level of the personnel assigned to your audit. Our invoices for these fees will be rendered each month as work progresses and are payable on presentation. In accordance with our firm policies, work may be suspended if your account becomes overdue and may not be resumed until your account is paid in full. If we elect to terminate our services for nonpayment, our engagement will be deemed to have been completed upon written notification of termination, even if we have not completed our report. You will be obligated to compensate us for all time expended and to reimburse us for all out -of- pocket costs through the date of termination. The above fee is based on anticipated cooperation from your personnel and the assumption that unexpected circumstances will not be encountered during the audit. If significant additional time is necessary, we will discuss it with you and arrive at a new fee estimate before we incur the additional costs. We appreciate the opportunity to be of service to Town of Avon, Colorado and believe this letter accurately summarizes the significant terms of our engagement. If you have any questions, please let us know. If you agree with the terms of our engagement as described in this letter, please sign the enclosed copy and return it to us. This letter will remain in force until updated or cancelled by either party. Very truly yours, 4�-aa ,O.PA. McMahan and Associates, L.L.C. RESPONSE: This letter correctly sets forth the understanding of Town of Avon, Colorado. Signature Title Date Memo To: Thru: Legal Review: From: Date: Re: Honorable Mayor and Town Council Larry Brooks, Town Manager Eric Heil, Town Attorney Patty McKenny, Assistant Town Manager Mgmt Services January 21, 2010 Heizer Paul LLP Engagement Proposal for Legal Services Initials Summary: Please find attached an "Engagement Proposal' from Heizer Paul, LLP out of Denver, Colorado. The firm specializes in the following areas: Human Resources, Litigation & Dispute Resolution, Executive Compensation, Local Government, and Real Estate and Construction. Discussion: The Town of Avon has obtained legal input from Kevin Paul, with Heizer Paul, LLC, on business related to certain human resources matters. Mr. Paul background is in assisting employers with many human resources related topics. Town Attorney Eric Heil has worked with this group on other legal matters and recommended the firm. The request for services has been on an occasional basis, however it was suggested the town enter into a more formal arrangement with the law firm. Financial Implications: As noted in the proposal, the firm has reduced their standard professional fee for the partners from $295 per hour to $185 per hour. The Professional Fee Schedule is outlined in Exhibit A. Town Manager Comments: • HEIZER • PAUL ALP Kevin C. Paul Direct Dial: 303.376.3704 kpaul @hpfirm.com Via electronic mail January 18, 2010 Eric J. Heil, Esq. Avon Town Attorney ericheillawna,gmail.com Patty McKenny Director of Administrative Services Town of Avon pmckenny(i�avon.org Re: Engagement Proposal Dear Eric & Patty: As you requested, we have prepared the following engagement agreement between our law firm and the Town of Avon for the Town Council's consideration. We have enjoyed assisting Eric on behalf of the Town and would be privileged to have the opportunity to continue doing so. In recognition of the substantial economic demands placed on public entities, and to help ensure that you feel comfortable calling upon us whenever we can be of service, we will reduce our standard professional fees set forth in Exhibit A to the following: TOWN OF AVON Engagement Agreement January 18, 2010 Page 2 of 9 Dean C. Heizer $185.00 per hour Kevin C. Paul $185.00 per hour Cindy Coleman $135.00 per hour Saskia Dehring $135.00 per hour Michaun Donner $110.00 per hour We will provide the Town with at least 90 days to consider any request from our firm to increase these fees. The additional terms upon which our firm can agree to assist the Town are as follow: Introduction. This is a contract for legal services between the law firm of Heizer I Paul LLP, a Colorado limited liability partnership (HP LLP) and the undersigned client (the "Client "). Legal Services. HP LLP agrees to represent the Client with regard to the scope of services described above and in this engagement letter. HP LLP agrees to exert its best effort on behalf of the Client and to handle the services described in this letter with due diligence. HP LLP cannot and does not guarantee or agree that a result favorable to or satisfactory to the Client will be achieved. If HP LLP is retained to represent the Client in contested proceedings (such as arbitration, litigation or other proceedings in which a third party is vested with binding authority over the participants), no settlement or compromise will be made without the Client's consent. Fee. The Client shall pay HP LLP a fee for services rendered. The fee will be based upon the Law Firm's standard hourly rates, except as expressly stated above. The rates presently range from $125 per hour for technical staff, clerks and paralegals to $295 per hour for partners. A copy of HP LLP's current Fee Schedule is attached as Exhibit A. Costs. Except as provided otherwise herein, the Client, in addition to the fee, shall pay all costs incurred by HP LLP in providing the services described in this letter. Examples of such costs include, if applicable, court or agency filing fees, administrative costs, customized computer applications, depositions, expert witnesses, consultants, travel, long distance telephone, computer research, photocopies, and messenger service. HP LLP may require an advance to be applied to such costs. A copy of the Schedule of Costs is attached hereto as Exhibit B. Billing; Payment, Late Payment Charge. Bills normally will be sent to the Client on a monthly basis and are due upon receipt. Any amounts not paid within 30 days of the date of the bill shall be subject to a late payment charge of 1 -1/2% per month (18% per year). If the Client fails to pay any charges within 30 days of the date of the bill, HP LLP may elect to stop all work for the Client. The Client's obligation to make prompt payment of all charges does not depend upon achievement of any specific result or HP LLP's decision to cease representation. TOWN OF AVON Engagement Agreement January 18, 2010 Page 3 of 9 Municipality as Client: The Client agrees that HP LLP shall provide legal services as counsel to the Town of Avon, Colorado, as and when such services are directed by the Town Council, the Town Manager, or the Town Attorney. The Town shall be the client of the Law Firm. This representation does not give rise to an attorney - client relationship between HP LLP, or any of its lawyers, and individual Trustees, employees, contractors, or agents of the Client. Accordingly, HP LLP, when otherwise permitted by the Rules of Professional Conduct, may continue, or may accept, representation adverse to a Trustee, employee, contractor, or agent of the Client. Although HP LLP will take direction from the Town Manager and the Town Attorney, HP LLP and the Town recognize that the Town Council of the Town is the authorizing entity for purposes of compensation increases or other amendments to this Agreement. The Town grants to HP LLP the power to execute documents connected with the representation of the Town, including pleadings, applications, protests, contracts, commercial papers, settlement agreements and releases, dismissals, orders and all other documents necessary and proper for HP LLP to represent the Town in matters associated with providing legal services to the Town. The Client hereby represents and warrants that it has budgeted and appropriated, or will budget and appropriate in the ordinary course of Town business, sufficient funds to cover the fees and costs contemplated by this engagement. Licensure and Professional Liability Insurance. HP LLP agrees that each of its attorneys assigned to provide legal services to the Town shall maintain, at all times, a license to practice law in the State of Colorado. HP LLP shall promptly inform the Town of any change in the good standing status of the license of any such attorney to practice law in the State of Colorado. HP LLP shall maintain professional liability insurance in the minimum amount of one million dollars ($1,000,000.00) per occurrence in a form and with such terms as are reasonably acceptable to the Town. Miscellaneous. The Client or HP LLP may terminate this Agreement at any time, subject to any applicable ethical rules, judicial standards or other agreed upon terms set forth herein. If the Client discharges HP LLP, the Client agrees that the Client will immediately pay all fees and costs then due. If Client fails to do so, Client recognizes HP LLP's rights to assert a lien against client files and work product. This Agreement Controls Subsequent Engagements Absent Further Agreement. This Agreement shall apply to any matter that HP LLP handles for the Client if there is no separate agreement made for that matter. Mandatory Binding Arbitration. Neither party anticipates that any dispute between us will arise. However, in the event of any dispute under this Agreement, including a dispute regarding the amount of legal fees or costs owed to HP LLP or the quality of HP LLP's services, including any claim of malpractice against HP LLP or any of its lawyers or employees, such dispute shall be subject to binding arbitration. Both the Client and HP LLP agree that arbitration is their preferred method of dispute resolution, and that both the Client and HP LLP are waiving their right to seek remedies in court, including the right to a jury TOWN OF AVON Engagement Agreement January 18, 2010 Page 4 of 9 trial. (This clause does not prevent the Client and the Law Firm from trying to resolve any dispute through voluntary mediation, but there is no requirement to do so.) Any dispute concerning fees or costs shall be submitted to the Legal Fee Arbitration Committee of the Denver Bar Association and the decision of the Committee shall be final and binding on both parties. Any dispute concerning the quality of the Law Firm's services, including malpractice claims, shall be submitted to a single arbitrator and the decision of the arbitrator shall be final and binding on both parties. A court of competent jurisdiction can enter a final judgment on the arbitration award. The arbitrator shall be selected from the Judicial Arbiter Group, Denver, Colorado, unless the parties agree otherwise. If the parties do not agree on the selection of a single arbitrator within ten days after a demand for arbitration is made, then the arbitrator shall be selected by the Judicial Arbiter Group from among its available professionals. Unless we mutually agree to some other procedures: (a) all arbitrations shall be held in Denver, Colorado; (b) all arbitrations shall proceed under the Commercial Arbitration Rules of the American Arbitration Association (AAA), except that the Parties shall not be required to initiate the arbitration through the AAA nor pay any associated fees to the AAA; (c) the arbitrator shall have the discretion to order that the costs of arbitration, fees (including expert witness and reasonable attorney fees), and other costs shall be borne by the losing party. Any filing fees or other administrative costs of arbitration shall be divided equally between the Client and HP LLP. Arbitration of all disputes, and the outcome of the arbitration, shall remain confidential between the parties. Document Retention. The Client acknowledges that the file we create and compile for work on the Client's matter, including notes, correspondence, pleadings, research, and documents which we prepare, will not be kept indefinitely. It is our policy to destroy or delete all files (including all documents and materials therein), seven (7) years after we (or any predecessor firm) sends such files to remote storage upon completion of each matter. However, if some legal restriction on destruction is imposed or some new development occurs, the retention period may be modified. This file destruction process is automatic and you will not receive further notice prior to the destruction of these files. Accordingly, if you wish to maintain a record of this matter beyond our retention period, you should consider maintaining your own files relating to the matters that we are handling. TOWN OF AVON Engagement Agreement January 18, 2010 Page 5 of 9 Special Provisions. Description of Matter: General legal advice to the Town of Avon regarding human resources and related issues; representation of the Town, as requested, in matters of litigation and arbitration. Retainer: None required. Attorneys and Rates Professional fees for those attorneys assigned to matters for the Town of Avon will be billed at the reduced rates appearing on page 2, above BOTH THE CLIENT AND HP LLP HAVE READ THIS DOCUMENT, UNDERSTAND IT, AND AGREE TO IT. Signature page follows TOWN OF AVON Engagement Agreement January 18, 2010 Page 6 of 9 HEIZER I PAUL LLP I CLIENT By: 5;!�CU4t 6 Pad Kevin C. Paul 2401 15th Street Suite 300 Denver, CO 80202 (303) 376 -3704 January 18, 2010 THE TOWN OF AVON Signature Printed name Title Date Billing Address: Telephone: Fax: E -mail: TOWN OF AVON Engagement Agreement January 18, 2010 Page 7 of 9 PRIVACY POLICY NOTICE FOR OUR CLIENTS: Attorneys who advise on certain personal matters are required by federal law to inform their clients of their policies regarding privacy of client information. Attorneys have been and continue to be bound by professional standards of confidentiality that are even more stringent than those required by federal law. Therefore, please understand that your privacy is important to us and we will act diligently to protect your right to privacy. Maintaining your trust and confidence is a high priority to us. This notice is a technical requirement under federal law. INFORMATION WE COLLECT: In the course of providing our clients with advice, we may collect personal and financial information about our clients that is not available to the public and which is provided to us by our clients or obtained by us with their authorization or consent. PRIVACY POLICY: As a current or former client of Heizer Paul, LLP, we will exercise due diligence to ensure that all nonpublic personal information that we receive from you is held in confidence, and is not released to people outside the firm, except as agreed to by you, or as is permitted or required by law and applicable ethics rules. CONFIDENTIALITY AND SECURITY: We retain records relating to professional services that we provide so that we are better able to assist you with your professional needs and, in some cases, to comply with professional guidelines. We restrict access to nonpublic, personal information about you to those people in the firm who need to know that information to provide services to you (and their support personnel). In order to guard your nonpublic personal information, we maintain physical, electronic, and procedural safeguards that comply with our professional standards as well as federal regulations. Please call the attorney you work with if you have any questions. Your privacy, our professional ethics, and the ability to provide you with quality service are very important to us. TOWN OF AVON Engagement Agreement January 18, 2010 Page 8 of 9 EXHIBIT A Professional Fee Schedule* Billing Professional's Name Standard Hourly Rates" Dean C. Heizer (Partner) $295 Kevin C. Paul (Partner) $295 Cynthia Coleman (Associate) $195 Saskia Dehrin (Associate) $195 Research and Collections Paralegals $195 Michaun N. Donner (Paralegal) $125 Priscilla R. Walsen (Paralegal /Applications Specialist) $125 * HP LLP will afford the Town no less than 90 days within which to consider any request for an increase in its professional fees. ** These standard rates shall be reduced as set forth on page 2 of this Agreement. TOWN OF AVON Engagement Agreement January 18, 2010 Page 9 of 9 EXHIBIT B SCHEDULE OF CHARGEABLE COSTS Long Distance Telephone Charges: These charges include the actual per minute charge billed to us by our long distance carrier and an additional amount to cover our call accounting system and miscellaneous costs. Faxes: Unlike a lot of firms, we do not charge for outgoing local faxes or for items faxed directly to our desktops. We do charge for incoming paper faxes at $1.00 per page. We do charge long distance and an applicable administrative charge for long distance faxes. We do not charge for receiving or sending e-mail messages, whether local or long distance. Digitizing, Copying and Printing Charges: Internal document digitizing, copying and printing are charged at $.20 per page. Digitizing, copying, printing, collating, binding and other document services performed by outside vendors are charged at actual cost. We decide whether to use outside vendors on a case -by -case basis as the circumstances require. We typically use outside vendors to keep costs low and/or for large projects. Document Storage: In order to keep our hourly rates low, many client documents in inactive files are kept off site. We will charge you an allocable percentage of our off site storage charges. If you would like to avoid these charges for inactive matters, let us know and we can arrange to transfer your files back to your facilities. Deliveries: We do not charge you a delivery fee for items we deliver ourselves. Items delivered by commercial messenger service are billed at the actual rate charged by the service, plus a small administrative charge to cover our associated costs. Computer Calendaring, Digital Filing, Digital Document Presentation and Other Computer Services: We will assess costs and administrative fees related to digital calendaring from outside services, digital filing fees, document digitizing and other related services. In many circumstances, the monetary and environmental costs of these services are substantially lower than if we used paper or internal resources. Computer Research (Westlaw, Lexis/Nexis, Findlaw, Similar Services): The charge to the Client includes the usage amount billed to HP LLP for on -line computer services plus an additional amount to cover equipment, telephone, basic subscription costs, taxes, and other overhead costs. Mileage and Parking: Mileage is charged at the allowable IRS rate unless otherwise agreed upon in writing. Parking is charged at actual cost. Other Costs: Other third party costs will be billed to clients at the same rate the Firm is billed for the third party services. HEIL LAW & PLANNING, LLC MEMORANDUM TO: Honorable Mayor Wolfe and Town Council members CC: Larry Brooks, Town Manager FROM: Eric Heil, Town Attorney DATE: Legal Services Fee Agreement SUBJECT: January 21, 2010 Summary: Council approved a legal services fee agreement with Heil Law & Planning, LLC which included the requirement to provide professional liability insurance in the amount of $2,000,000.00. This amount of professional liability insurance is not available and a revised agreement which states the required amount of professional liability insurance as $1,000,000.00. Also attached is the insurance commitment. Heil Law & Planning, LLC Eric Heil, Esq., A.I.C.P. 1499 Blake Street, Unit 1 -G Tel: 303.975.6120 Denver, CO 80202 eheil@avon.org AGREEMENT FOR LEGAL SERVICES OF TOWN ATTORNEY Parties. This is a contract for legal services between the law firm of Heil Law and Planning, LLC, a limited liability company, (the "Law Firm ") and the Town of Avon, Colorado ( "Town "). 2. Scope of Legal Services. As directed by the Town, the Law Firm shall provide legal services as Town Attorney to the Town of Avon, Colorado, as such duties are defined in the Avon Home Rule Charter and the Avon Municipal Code and as such services are directed by the Town Council and the Town Manager. The Town Council shall be the client of the Law Firm. 3. License and Malpractice Insurance. The Law Firm agrees to maintain at all times its license to practice law in the State of Colorado. Law Firm shall promptly inform Town if there is any change in the good standing status of the license to practice law in the State of Colorado. Law Firm shall maintain professional malpractice insurance in the minimum amount of one million dollars ($1,000,000.00) per occurrence in a form and with such terms as are acceptable to the Town. 4. Compensation. The Town shall pay the Law Firm compensation for services rendered. Unless otherwise provided below, compensation will be based upon a standard local government hourly rate of one hundred and seventy five dollars ($175.00). The standard local government rate shall be reduced by 3% [reduced rate of one hundred sixty nine dollars and seventy five cents ($169.75) per hour] during the period which the Town imposes the 3% salary reduction for all Town employees. The reduced rate shall be automatically increased to the standard local government rate if the Town repeals the 3% salary reduction for Town employees. The Law Firm agrees to charge for one half actual time for travel. The hourly rate for review of development applications which are paid by application fees, pass through accounts, or cost recovery agreements shall be two hundred and forty dollars ($240.00). The Law Firm agrees that it shall not increase its standard hourly rate prior to January 1, 2011. A. Costs. The Town shall compensate the Law Firm for out -of- pocket fees and costs incurred on the Town's behalf, including but not limited to filing fees, service of process, expert witness fees, court reporter fees, transcript fees, messenger fees, computer research, recording fees, title company fees. Such fees will be billed to the Town at the Law Firm's cost without mark -up. The Town shall compensate the Law Firm for mileage expenses for personal use of private vehicles used by the Law Firm's attorneys incurred in the direct and exclusive performance of services for the Town. Mileage shall be charged at the reimbursement rate set by the Internal Revenue Service. B. Estimated Charges. The Law Firm may give the Town an estimate of the anticipated total cost of a particular matter. The actual charges may vary from the estimate due to unforeseen complexities or difficulties. The estimate is not firm and is not binding on either the Town or the Law Firm. C. Billing; Payment; Late Payment Charge. The Law Firm shall provide to the Town a detailed invoice for all legal services on a monthly basis. Such billings shall separate work and fees associated with specific projects for which the Town accounts separately. The Town shall pay all billings from the Law Firm within thirty (30) days of receipt of invoice. Any amounts not paid within thirty (30) days of the date of the bill shall be subject to interest at the rate of 1 -1/2% per month (18% per year, compounded monthly). If the Town fails to pay any charges within 30 days of the date of the bill the Law Firm may elect to stop all work for the Town. The Town's obligation to make prompt payment of all charges does not depend upon achievement of any specific result. 5. Town. It is understood that the Town, for purposes of this representation, is the Town of Avon, Colorado and not any of its individual officers, directors, employees, agents, or partners unless expressly stated in this Agreement. Although the Law Firm will take direction from the Town Manager of the Town, the Law Firm and Town recognize that the Town Council of the Town is the authorizing entity for purposes of compensation increases or other amendments to this Agreement. The Town grants to the Law Firm the power to execute documents connected with the representation of the Town, including pleadings, applications, protests, contracts, commercial papers, settlement agreements and releases, dismissals, orders and all other documents and to represent the Town in matters associated with providing legal services to the Town. 6. Term and Termination. This Agreement shall be effective upon approval by the Town and Law Firm and shall terminate upon written notice by either party. Termination by either party may occur at any time without cause or reason. The Law Firm shall use best efforts to provide a minimum of ninety (90) days notice of termination of representation of the Town. If the Town discharges the Law Firm, the Town shall pay all fees and costs incurred to the date of termination, and the Law Firm shall promptly deliver all files and documents of the Town to the Town. 7. Arbitration. Although the parties do not expect that any dispute between them will arise, in the unlikely event of any dispute under this Agreement, including a dispute regarding the amount of legal fees or costs owed to the Law Firm or the quality of the Law Firm's services, including any claim of malpractice, such dispute shall be subject to binding arbitration. The Town and Law Firm acknowledge that they are waiving their right to seek remedies in court, including the right to a jury trial. (This clause does not prevent the Town and the Law Firm from trying to resolve any dispute through voluntary mediation, but there is no requirement to do so.) Any dispute concerning fees or costs shall be submitted to the Legal Fee Arbitration Committee of the Denver Bar Association and the decision of the Committee shall be final and binding on both parties. Any dispute concerning the quality of the Law Firm's services, including malpractice claims, shall be submitted to a single arbitrator and the decision of the arbitrator shall be final and binding on both parties. A final judgment can be entered on the arbitration award by a court of competent jurisdiction. The arbitrator shall be selected from the Judicial Arbiter Group, Denver, Colorado unless the parties agree otherwise. If the parties do not agree on the selection of a single arbitrator within ten days after a demand for arbitration is made, then the arbitrator shall be selected by the Judicial Arbiter Group from among its available professionals. All arbitrations shall be held in Denver, Colorado unless the parties mutually agree on some other location. All arbitrations shall proceed under the Commercial Arbitration Rules of the American Arbitration Association, except as modified in this Agreement, unless otherwise agreed by the parties. The arbitrator shall have the discretion to order that the costs of arbitration, fees (including expert witness and reasonable attorney fees), and other costs shall be borne by the losing party. Any filing fees or other administrative costs of arbitration shall be divided equally between the Town and the Law Firm. Arbitration of all disputes, and the outcome of the arbitration, shall remain confidential between the parties. 8. Document Retention. Files maintained by the Law Firm as the result of performance of services for the Town pursuant to this Agreement shall be the property of the Town, and upon termination of this Agreement, shall be delivered to the Town. THE LAW FIRM AND THE TOWN HAVE READ THIS DOCUMENT, UNDERSTAND IT, AND AGREE TO IT. HEIL LAW AND PLANNING, LLC. By: Eric James Heil Date: TOWN OF AVON, COLORADO By: Ronald C. Wolfe, Mayor P. O. Box 975 One Lake Street Avon, CO 81620 Tel: 970 - 748 -4000 Date: ATTEST: By: Patty McKenny, Town Clerk ATTACHMENT A PRIVACY POLICY NOTICE Attorneys, like other professionals, who advise on certain personal matters, are now required by a new federal law to inform their clients of their policies regarding privacy of client information. Attorneys have been and continue to be bound by professional standards of confidentiality that are even more stringent than those required by this new law. Therefore, please understand that your privacy is important to us and we have always protected your right to privacy. Maintaining your trust and confidence is a high priority to this law firm. The purpose of this notice is to comply with the new law by explaining our longstanding privacy policy with respect to your personal information. NONPUBLIC PERSONAL INFORMATION WE COLLECT: In the course of providing our clients with financial advisory activities, including estate planning, tax planning and tax preparation services (including income tax, estate tax, and gift tax advice), collecting overdue accounts receivable, and providing real estate settlement services, we collect personal and financial information about our clients that is not available to the public and which is provided to us by our clients or obtained by us with their authorization or consent. PRIVACY POLICY: As a current or former client of Heil Law and Planning, LLC, rest assured that all nonpublic personal information that we receive from you is held in confidence, and is not released to people outside the firm, except as agreed to by you, or as is permitted or required by law and applicable ethics rules. CONFIDENTIALITY AND SECURITY: We retain records relating to professional services that we provide so that we are better able to assist you with your professional needs and, in some cases, to comply with professional guidelines. We restrict access to nonpublic, personal information about you to those people in the firm who need to know that information to provide services to you (and their support personnel). In order to guard your nonpublic personal information, we maintain physical, electronic, and procedural safeguards that comply with our professional standards as well as federal regulations. Please call the attorney you work with if you have any questions. Your privacy, our professional ethics, and the ability to provide you with quality service are very important to us. �=i LAWYERS PROFESSIONAL LIABILITY POLICY DECLARATIONS Aaency: Branch: Policy Number: 737217 912 287461961 1A. NAMED INSURED AND ADDRESS: Heil Law and Planning, LLC 3445 South Clermont Street Denver. CO 80222 III. PREDECESSOR FIRM(S): See Declarations Addendum 2. POLICY PERIOD: Insurance is provided by Continental Casualty Company, 333 S. Wabash Ave. Chicago IL 60604 A Stock Insurance Company. NOTICE TO POLICYHOLDERS: This is a Claims Made and Reported policy. It applies only to those claims that are both first made against the insured and reported in writing to the Company during the policy period. Please review the policy carefully and discuss this coverage with your insurance agent or broker. Inception: 11/18/2009 Expiration: 11/18/2010 at 12:01 A.M. Standard Time at the address shown above 3. LIMITS OF LIABILITY: Inclusive of Claims Expenses Each Claim: 51,000,000 Aggregate: $1,000,000 Death or Disability and Non - Practicing Each Claim: $1,000,000 Extended Reporting Period Limit of Liability: Aggregate: $1,000,000 4. DEDUCTIBLES: Aggregate: 51,000 Inclusive of Claims Expenses 5. POLICY PREMIUM: CO Bar Membership Credit Annual Premium: Total Amount: $ 113.00 $2,149.00 $2,149.00 Includes CNA Risk Management Seminar Credit of $ 0.00 6. FORMS AND ENDORSEMENTS ATTACHED AT INCEPTION: G- 118011 -A (Ed. 04/2008), G- 1 18012 -A (Ed. 03/1999), G- 1 18016 -A (Ed. 04 /2008), G- 1 18029 -A (Ed. 04/2008), G- 118039 -A05 (Ed. 05/2008), G- 118040 -A05 (Ed. 09/1996), G- 118041 -A05 (Ed. 09/1996), G- 145184 -A (Ed. 06/2003), GSL- 11512 -XX (Ed. 10/2008), GSL - 12439 -XX (Ed. 03/2009) 7. WHO TO CONTACT: To report a claim: CNA Insurance Companies 333 S. Wabash, 39 South Chicago, IL 60685 Attn: RegionalDircctor, GSL Lawyers Claims Phone 312 - 822 -1707 Fax 312- 817 -0528 www.cna.com/claims r. Authorized Representative G- 118012 -A (Ed. 03/99) Page I 11/20/2009 Date Memo To: Honorable Mayor and Town Council Initials Thru: Larry Brooks, Town Manager Legal Review: Eric Heil, Town Attorney Q Approved by: Sally Vecchio, Assistant Town Mgr /Director of Comm. Dev. From: Justin Hildreth, P.E., Town Engineer Shane Pegram, P.E., Engineer II Date: January 19, 2010 Re: Resolution No. 10-02 — Colorado Department of Natural Resources, Division of Wildlife Subgrant Agreement for funding the Nottingham Lake Fishing Pier Summary: In 2008 and 2009 the Colorado Department of Natural Resources, Division of Wildlife (DOW) approved the Town of Avon's (TOA) application for grant funding through the DOW's "Fishing is Fun" program. The DOW grant will reimburse TOA up to $101,700, but reimbursements will not exceed 64% of total project costs. The DOW has received approval from the United States Fish and Wildlife Service and TOA is required to enter into a contract with the DOW for those funds. Discussion: The DOW has approved the Town's Fishing is Fun Grant Funds application pursuant to the provisions contained in the attached contract. The contract stipulates the amount of the grant, the conditions TOA must comply with, and how TOA can use the funds. The contract restricts the use of the funds to a fishing pier and an asphalt access path in Nottingham Park. Funding provisions are based on: Federal Participating Funds (64 %) $ 101,700.00 Local Agency Matching Funds (36 %) $ 58.300.00 Total Project Funds (minimum) $ 160,000.00 Other provisions in the contract include State and Federal regulations that must be complied with for selection of consultants, monitoring construction quality, awarding the construction contract, and implementing the construction contract. With few exceptions, these provisions will not have an impact on the project as current TOA practices generally follow these requirements. Attached Resolution No. 10 -02, Series of 2010, authorizes the Contract with the Colorado Department of Natural Resources, Division of Wildlife related to Project No. FIF- 1659 -10 for construction of a fishing pier and access path in Nottingham Park and is recommended for approval. Resolution No. 10 -02 - Agreement for funding the Nottingham Lake Fishing Pier January 19, 2010 2of2 Financial Implications: The Town of Avon 2010 CIP Budget includes $180,000 for design and construction of the Nottingham Lake Fishing Pier. The DOW grant will reimburse TOA a maximum of $101,700 or 64% of total project costs. Table 1 shows the proposed Nottingham Lake Fishing Pier budget. Table 1 Budget Item Proposed Budget Pier Design $ 12,000 Pier Construction $150,000 Pier Access Trail $ 15,000 Soil Investigation $ 3,000 Total $180,000 Recommendation: Approve Resolution No. 10 -02, Series of 2010, A Resolution Authorizing a Contract with the Colorado Department of Natural Resources, Division of Wildlife Related to Project FIF- 1659 -10, Nottingham Lake Fishing Pier, for construction of a fishing pier and access path in the Town of Avon, Eagle County, Colorado. Proposed Motion: I move to approve Resolution No. 10 -02, Series of 2010, A Resolution Authorizing a Contract with the Colorado Department of Natural Resources, Division of Wildlife Related to Project FIF- 1659 -10, Nottingham Lake Fishing Pier, for construction of a fishing pier and access path in the Town of Avon, Eagle County, Colorado. Town Manager Comments: Attachments. Attachment A — Resolution No. 10 -02, Series of 2010 • Page 2 ATTACHMENT A TOWN OF AVON RESOLUTION NO. 10 — 02 Series of 2010 A RESOLUTION AUTHORIZING A CONTRACT WITH THE COLORADO DEPARTMENT OF NATURAL RESOURCES, DIVISION OF WILDLIFE RELATED TO PROJECT FIF- 1659 -10, NOTTINGHAM LAKE FISHING PIER, FOR CONSTRUCTION OF A FISHING PIER AND ACCESS PATH WHEREAS, Avon Town Council has authorized the construction of the Nottingham Lake Fishing Pier Project within the Town of Avon including fishing pier and access path on the north side of Nottingham Lake; and WHEREAS, the Colorado Department of Natural Resources, Division of Wildlife has made federal -aid funds available for the project based on matching ratio of 64% federal -aid funds to 36% Town of Avon funds with total eligible project costs up to $160,000.00 pursuant to contract; NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, AS FOLLOWS: 1. The Town of Avon hereby approves and authorizes executing and entering into the attached contract with the Colorado Department of Natural Resources, Division of Wildlife ( "Exhibit 1: FIF Contract ") to provide Federal -Aid Funds for FIF - 1659 -10 for construction of a fishing pier and access path in the Town of Avon pursuant to Colorado Revised Statutes § §29 -1- 203, 43 -1 -110, 43 -1 -116, 43- 2- 101(4)(c) and 43 -2 -144, as amended. 2. The Avon Town Council hereby affirms that the Town's share of the project costs is specifically authorized in connection with the FIF Contract and the required funds have been appropriated in the Town Budget. PASSED AND ADOPTED AT A REGULAR MEETING OF THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, ON THE 26TH DAY OF JANUARY, 2010. AVON TOWN COUNCIL ATTEST: [Seal] By: Ronald C. Wolfe, Mayor By: Patty McKenny, Town Clerk DOW File No. FIF- 1659 -10 STATE OF COLORADO Department of Natural Resources, Division of Wildlife Subgrant Agreement with Town of Avon EXHIBIT 1 Routing No. 9931 1. PARTIES This Subgrant Agreement is entered into by and between the Town of Avon, a Home Rule Municipality, PO Box 975, Avon, CO 81620 (hereinafter called "Subgrantee "), and the STATE OF COLORADO, acting by and through the Department of Natural Resources, Division of Wildlife, 6060 Broadway, Denver, CO 80216 (hereinafter called the "State" or "DOW "). 2. EFFECTIVE DATE AND NOTICE OF NONLIABILITY. This Subgrant Agreement shall not be effective or enforceable until it is approved and signed by the Colorado State Controller or designee (hereinafter called the "Effective Date ") but shall be effective and enforceable thereafter in accordance with its provisions. The State shall not be liable to pay or reimburse Subgrantee for any performance hereunder, including, but not limited to costs or expenses incurred, or be bound by any provision hereof prior to the Effective Date, except as otherwise stated in §5(A). 3. RECITALS A. Authority exists in the Law and Funds have been budgeted, appropriated and otherwise made available and a sufficient uncommitted balance thereof remains available for encumbering and subsequent payment under under Contract Encumbrance No. C108744 in the amount of $101,700.00; and B. The Fish and Wildlife Service of the U.S. Department of Interior ( "the Service ") has made federal grant funds available to the State pursuant to the Federal Aid in Sport Fish Restoration Act of 1950, (64 Stat. 430, as amended 16 USC 777- 777m), for fish restoration and management projects which improve fisheries and recreational fishing opportunities in Colorado ( "Sportfishing Funds "); and C. The Fish and Wildlife Service of the U.S. Department of Interior obligate these Sportfishing Funds to be reimbursable from the date the grant award is approved by the Service, (43 CFR 12.63 and 522 FW 25.7); and D. The State desires to make the Sportfishing Funds available to the Subgrantee on a reimbursable match basis for the purpose of improving fisheries and otherwise increasing recreational fishing opportunities in Colorado as part of its "Fishing is Fun in Colorado Program "; and E. The State makes the Sportfishing Funds available to Subgrantee in reliance on the representation by the Subgrantee that neither Subgrantee, nor any person or entity acting on its behalf, shall conduct activities with the Sportfishing Funds for purposes or uses prohibited or otherwise restricted under 50 CFR 80; and F. Required approval, clearance and coordination have been accomplished from and with appropriate agencies. 4. DEFINITIONS The following terms as used herein shall be construed and interpreted as follows: A. Budget "Budget" means the budget for the Work described in Exhibit B. B. Evaluation "Evaluation" means the process of examining Subgrantee's Work and rating it based on criteria established in §6 and Exhibit A. C. Exhibits and other Attachments The following are attached hereto and incorporated by reference herein: Exhibit A (Project Narrative), Exhibit B (Budget), Exhibit C -1 (Project Documentation Report), Exhibit C -2 (Itemized Work Sheet), Exhibit C -3 (Request for Reimbursement), Exhibit C -4 (Performance Report), Exhibit D (Annual Report), and Exhibit E (Volunteer Time Tracking Sheet). D. Goods "Goods" means tangible material acquired, produced, or delivered by Subgrantee either separately or in conjunction with the Services Subgrantee renders hereunder. E. Subgrant Agreement "Subgrant Agreement" means this Subgrant, its terms and conditions, attached exhibits, documents incorporated by reference under the terms of this Subgrant, and any future modifying agreements, exhibits, Page 1 of 18 attachments or references incorporated herein pursuant to Colorado State law, Fiscal Rules, and State Controller Policies. F. Grant Funds "Grant Funds" means available funds payable by the State to Subgrantee pursuant to this Subgrant Agreement. G. Party or Parties "Party" means the State or Subgrantee and "Parties" means both the State and Subgrantee. The Subgrantee's officers, agents, and assigns shall not include Subgrantee's contractors. H. Program "Program" means the Fishing is Fun in Colorado grant program that provides the funding for this Subgrant Agreement. I. Review "Review" means examining Subgrantee's Work to ensure that it is adequate, accurate, correct and in accordance with the criteria established in §6 and Exhibit A. J. Services "Services" means the required services to be performed by SubgranteeSubgrantee pursuant to this Subgrant Agreement. K. Subcontractor "Subcontractor" means third - parties, if any, engaged by Subgrantee to aid in performance of its obligations. L. Work "Work" means the tasks and activities Subgrantee is required to perform to fulfill its obligations under this Subgrant Agreement and Exhibit A, including the performance of the Services and delivery of the Goods. M. Work Product "Work Product" means the tangible or intangible results of Subgrantee's Work, including, but not limited to, software, research, reports, studies, data, photographs, negatives or other finished or unfinished documents, drawings, models, surveys, maps, materials, or work product of any type, including drafts. 5. TERM and EARLY TERMINATION A. Grant Performance Period The term of this Subgrant Agreement shall commence on December 10, 2009 and shall continue through December 31, 2011 (the "Grant Performance Period "). However, payment for performance shall not begin until this Subgrant Agreement is approved by the State Controller, or designee (the "Effective Date "). The grant may be charged only for obligations incurred during the Grant Performance Period established upon grant award approval by the federal awarding agency (522 FW 25). This is the period of time during which federal funds are available for expenditure by the recipient (43 CFR 12.63). B. Early Termination This Subgrant Agreement is subject to early termination in accordance with the provisions of §15 and other specific provisions below herein. 6. STATEMENT OF WORK A. Completion L Subgrantee shall complete the Work and its other obligations as described herein and in Exhibit A during the Grant Performance Period. Subgrantee shall undertake the Scope of Work (the "Project ") described in this Subgrant Agreement and Exhibit A. Prosecution of the Project shall be under the general supervision of the Subgrantee. The State may, at its discretion, require that a representative of the State be present at the Project location while work is being conducted. For construction projects costing more than $100,000, the Subgrantee shall retain a registered professional engineer who shall approve Project engineering plans and specifications, approve the feasibility determination, supervise construction, and furnish a report of final inspection to the State. ii. The Subgrantee shall provide and maintain permanent signs on or near the Project site for the life of a Project indicating that the Project is funded in part by the Sport Fish Restoration Act (50 CFR 80.26 (a), (g), and (h); 041 FW 3 Signs) iii. If the Project includes dam construction: a. Construction, enlargement, or rehabilitation of a dam is subject to the Federal standards for dam design. If the Project involves the construction, enlargement, or rehabilitation of dams subject to Federal design requirements, the Subgrantee shall provide evidence that an Page 2 of 18 engineer has reviewed the design and specifications. For dam construction, the review must be by an engineer qualified in the design and construction of dams. b. The proposed project shall be designed to meet Federal Standards for darn design, construction and rehabilitation including, but not limited to, the Federal Guidelines for Dam Safety (June 25, 1979), Recommended Guidelines for Dam Safety- Inspection of Dam (Corps of Engineers, 1974), and any other technical requirements which may be identified in Colorado Rules and Regulations for Dam Safety and Dam Construction (2CCR 402 -1). B. Project Useful Life i. As per United States Department of Interior 522 FW 18.5A. Useful Life of Capital Improvements Funded by Federal Assistance Grants, the State has determined that the useful life for capital improvements is 20 years. The "useful life" of the Project shall extend 20 years beyond the Project final inspection acceptance date. Grantee shall operate and maintain the Project, or cause the Project to be operated and maintained, for public recreational fishing use during the "useful life" period. The "Real Property" to be operated and maintained shall include land, land improvements, structures, and appurtenances thereto, acquired or developed under this Project, excluding movable machinery and equipment. The Real Property shall be maintained by Grantee in a reasonable state of repair and shall be open for use by the public at all reasonable hours of the day and time of the year as required by its intended purpose. ii. Subgrantee shall not at anytime convert any Real Property acquired or developed pursuant to this Subgrant Agreement to other than public recreational fishing use without the prior written approval of the State. In the event the Real Property is converted (Loss of Control), Subgrantee will replace or reimburse the State the current fair market value of the Real Property. Replacement Real Property must be of equal value at current market prices and have equal benefits as the original Real Property. Non - public recreational fishing uses of the said facilities which do not materially interfere with the public recreational fishing uses shall not be deemed a conversion of such facilities within the meaning of this paragraph. iii. Loss of Control is when such Real Property passes from management control of the Subgrantee. The control must be fully restored to the Subgrantee or the Real Property must be replaced using non - Federal Assistance funds. Final resolution for loss of control will require approval by the Federal awarding agency. C. Employees All persons employed by Subgrantee or Subcontractors shall be considered Subgrantee's or Subcontractors' employee(s) for all purposes hereunder and shall not be employees of the State for any purpose as a result of this Subgrant Agreement. 7. PAYMENTS TO SUBGRANTEE The State shall, in accordance with the provisons of this §7, pay Subgrantee in the following amounts and using the methods set forth below: A. Maximum Amount The State shall reimburse Grantee up to a maximum amount of $101,700.00, which shall be from available Sportfishing Funds for the completion of the Project described in Exhibit A during the Grant Performance Period. B. Payment I. Advance, Interim and Final Payments Any advance payment allowed under this Subgrant Agreement or in Exhibit B shall comply with State Fiscal Rules and be made in accordance with the provisions of this Subgrant Agreement or such Exhibit. Subgrantee shall initiate any payment requests by submitting invoices to the State in the form and manner set forth in approved by the State.Payments shall be made on a reimbursement basis, based upon the Subgrantee's submittal of receipts to the State evidencing allowable expenditures by the Subgrantee for services and materials used in prosecution of the Project, as determined by the State, with submittal of receipts and canceled checks evidencing allowable expenditures, Subgrantee may request payments monthly; however, the reimbursement amount for each request shall be no less than $1,000 unless it is a request for final payment. The State shall in all cases retain ten percent (10 %) of the total available Sportfishing Funds until final inspection and approval of the completed project by authorized representatives of the State. Such payments shall also be subject to inspection and approval of the completed work by authorized representatives of the State. Page 3 of 18 fl. Preliminary or Pre - Agreement Costs Certain preliminary costs for services, incurred by Subgrantee prior to the execution of the grant award, may be reimbursable or included as part of allowable in -kind contributions. Acceptable services may include, but are not limited to, preliminary design, feasibility surveys (both engineering and biological) and land appraisals. To be eligible, such costs shall be disclosed to the State as preliminary or pre- agreement costs in Exhibit B, and shall be subject to federal approval pursuant to 522 FW 1.11 B (2), and shall also be subject to the following cost principles: 2 CFR 225 Appendix B sections 31 and 32 (formally Office of Management and Budget (OMB) Circular No. A -87, attachment B sections 31 and 32). iii. Interest The State shall fully pay each invoice within 45 days of receipt thereof if the amount invoiced represents peformance by Subgrantee previously accepted by the State. Uncontested amounts not paid by the State within 45 days may, if Subgrantee so requests, bear interest on the unpaid balance beginning on the 46th day at a rate not to exceed one percent per month until paid in full; provided, however, that interest shall not accrue on unpaid amounts that are subject to a good faith dispute. Subgrantee shall invoice the State separately for accrued interest on delinquent amounts. The billing shall reference the delinquent payment, the number of day's interest to be paid and the interest rate. iv. Available Funds - Contingency- Termination The State is prohibited by law from making fiscal commitments beyond the term of the State's current fiscal year. Therefore, Subgrantee's compensation is contingent upon the continuing availability of State appropriations as provided in the Colorado Special Provisions, set forth below. If federal funds are used with this Subgrant Agreement in whole or in part, the State's performance hereunder is contingent upon the continuing availability of such funds. Payments pursuant to this Subgrant Agreement shall be made only from available funds encumbered for this Subgrant Agreement and the State's liability for such payments shall be limited to the amount remaining of such encumbered funds. If State or federal funds are not appropriated, or otherwise become unavailable to fund this Subgrant Agreement, the State may immediately terminate this Subgrant Agreement in whole or in part without further liability in accordance with the provisions herein. v. Erroneous Payments At the State's sole discretion, payments made to Subgrantee in error for any reason, including, but not limited to overpayments or improper payments, and unexpended or excess funds received by Subgrantee, may be recovered from Subgrantee by deduction from subsequent payments under this Subgrant Agreement or other Grants, grants or agreements between the State and Subgrantee or by other appropriate methods and collected as a debt due to the State. Such funds shall not be paid to any party other than the State. C. Use of Funds Grant Funds shall be used only for eligible costs identified herein and /or in the Budget. Subgrantee may adjust budgeted expenditure amounts up to 10% within each line item of said Budget without approval of the State. Adjustments in excess of 10% shall be authorized by the State in an amendment to this Subgrant Agreement. The State's total consideration shall not exceed the maximum amount shown herein. D. Matching Funds i. Subgrantee shall provide matching funds as provided in Exhibit B. Subgrantee's share of the cost of the subject Project shall be 36 %, representing a dollar value of $58,300.00, all of which shall be the sole responsibility of the Subgrantee and shall not be reimbursable by the State or the Federal Government, and shall consist, at a minimum, of funds, allowable costs, and the value of third party in -kind contributions as set forth in Exhibit B. Third party in -kind contributions shall mean property or services which benefit a federally assisted project or program and which are contributed by non - Federal third parties without charge to the Subgrantee. Cost sharing or matching shall mean the value of the third party in -kind contributions and the portion of the costs of a federally assisted grant project or program not borne by the Federal Government. fl. Subgrantee shall comply with all applicable federal statutes, regulations, policies, guidelines and requirements regarding all contributions, matching and cost - sharing, including, but not necessarily limited to 43 CFR Part 12, 50 CFR Part 80, and 2 CFR 225 (formally OMB Circular No. A -87); and OMB Circulars Nos. A -102 and A -133 as they relate to the application, acceptance, and use of federal funds for this federally assisted Project. W. Subgrantee shall include in any contract, subcontract, subgrant, or agreement entered into in performance of the Project, the provisions required by 43 CFR 12.76(i). Subgrantee certifies that it has read and shall comply with all of the provisions of 43 CFR 12, as applicable. Subgrantee "will use Page 4 of 18 their own procurement procedures which reflect applicable State and local laws and regulations, provided that procurements conform to applicable Federal law and the standards in this section" as required by 43 CFR- 12.76 (b). Subgrantee shall not make any award or permit any award (subgrant or contract) at any tier to any party, which is debarred or suspended under 43 CFR 12.75. 8. REPORTING - NOTIFICATION Reports, Evaluations, and Reviews required under this §8 shall be in accordance with the procedures of and in such form as prescribed by the State and in accordance with §19, if applicable. A. Performance, Progress, Personnel, and Funds i. Subgrantee shall utilize and comply with the following: Exhibit C -1, Exhibit C -2, and Exhibit C -3. ii. If volunteer labor is part of Subgrantee's match, Subgrantee will collect and file with DOW the appropriate documentation using Exhibit E. This documentation must accompany Subgrantee's requests for reimbursement (Exhibit C -3). iii. Using Exhibit C -4, Subgrantee shall file quarterly progress reports with the State detailing the status of the Project and extent to which it has been completed. The first such quarterly report shall be due three (3) months after Subgrantee receives the notice to proceed, and every three (3) months thereafter until final approval of the completed Project is performed by the State. Subgrantee shall notify the State's Fishing is Fun Coordinator ( "State Coordinator") in writing at least ten (10) days prior to actual completion of the Project to arrange for final inspection of the Project. Subgrantee shall submit all required final documents along with the final payment request to the State Coordinator no later than 45 days after completion of the Project or within the timeframe allowed by the Federal awarding agency. iv. Subgrantee shall provide to the State Coordinator color photo slides, digital photos, or color prints of the work site: 1) prior to commencement of work, 2) during construction, and 3) upon completion of the Project. v. After the Project is completed, Subgrantee shall file an annual report with the State on the form provided as Exhibit D. The first annual report shall be due one year following final inspection of the Project and shall be due annually thereafter during the Project Useful Life. vi. The State Coordinator may waive in writing any quarterly or annual performance report if deemed unnecessary, provided the State will still be able to meet its performance reporting obligations to the Federal agency. B. Litigation Reporting Within 10 days after being served with any pleading in a legal action filed with a court or administrative agency, related to this Subgrant Agreement or which may affect Subgrantee's ability to perform its obligations hereunder, Subgrantee shall notify the State of such action and deliver copies of such pleadings to the State's principal representative as identified herein. If the State's principal representative is not then serving, such notice and copies shall be delivered to the Executive Director of the Department of Natural Resources. C. Noncompliance Subgrantee's failure to provide reports and notify the State in a timely manner in accordance with this §8 may result in the delay of payment of funds and /or termination as provided under this Subgrant Agreement. 9. SUBGRANTEE RECORDS Subgrantee shall make, keep, maintain and allow inspection and monitoring of the following records: A. Maintenance Subgrantee shall make, keep, maintain, and allow inspection and monitoring by the State of a complete file of all records, documents, communications, notes and other written materials, electronic media files, and communications, pertaining in any manner to the Work or the delivery of Services (including, but not limited to the operation of programs) or Goods hereunder. Subgrantee shall maintain such records (the Record Retention Period) until the last to occur of the following: (1) a period of three years after the date this Subgrant Agreement is completed or terminated, or (ii) final payment is made hereunder, whichever is later, or (iii) for such further period as may be necessary to resolve any pending matters, or (iv) if an audit is occurring, or Subgrantee has received notice that an audit is pending, then until such audit has been completed and its findings have been resolved (the "Record Retention Period "). B. Inspection Subgrantee shall permit the State, the federal government and any other duly authorized agent of a governmental agency to audit, inspect, examine, excerpt, copy and /or transcribe Subgrantee's records related to this Subgrant Agreement during the Record Retention Period for a period of three years following Page 5 of 18 termination of this Subgrant Agreement or final payment hereunder, whichever is later, to assure compliance with the terms hereof or to evaluate Subgrantee's performance hereunder. The State reserves the right to inspect the Work at all reasonable times and places during the term of this Subgrant Agreement, including any extension. If the Work fails to conform to the requirements of this Subgrant Agreement, the State may require Subgrantee promptly to bring the Work into conformity with Subgrant Agreement requirements, at Subgrantee's sole expense. If the Work cannot be brought into conformance by re- performance or other corrective measures, the State may require Subgrantee to take necessary action to ensure that future performance conforms to Subgrant Agreement requirements and exercise the remedies available under this Subgrant Agreement, at law or inequity in lieu of or in conjunction with such corrective measures. C. Monitoring Subgrantee shall permit the State, the federal government, and other governmental agencies having jurisdiction, in their sole discretion, to monitor all activities conducted by Subgrantee pursuant to the terms of this Subgrant Agreement using any reasonable procedure, including, but not limited to: internal evaluation procedures, examination of program data, special analyses, on -site checking, formal audit examinations, or any other procedures. All monitoring controlled by the State shall be performed in a manner that shall not unduly interfere with Subgrantee's performance hereunder. D. Final Audit Report If an audit is performed on Subgrantee's records for any fiscal year covering a portion of the term of this Subgrant Agreement, Subgrantee shall submit a copy of the final audit report to the State or its principal representative at the address specified herein. 10. CONFIDENTIAL INFORMATION -STATE RECORDS Subgrantee shall comply with the provisions on this §10 if it becomes privy to confidential information in connection with its performance hereunder. Confidential information, includes, but is not necessarily limited to, state records, personnel records, and information concerning individuals. A. Confidentiality Subgrantee shall keep all State records and information confidential at all times and to comply with all laws and regulations concerning confidentiality of information. Any request or demand by a third party for State records and information in the possession of Subgrantee shall be immediately forwarded to the State's principal representative. B. Notification Subgrantee shall notify its agent, employees, Subcontractors, and assigns who may come into contact with State records and confidential information that each is subject to the confidentiality requirements set forth herein, and shall provide each with a written explanation of such requirements before they are permitted to access such records and information. C. Use, Security, and Retention Confidential information of any kind shall not be distributed or sold to any third party or used by Subgrantee or its agents in any way, except as authorized by this Subgrant Agreement or approved in writing by the State. Subgrantee shall provide and maintain a secure environment that ensures confidentiality of all State records and other confidential information wherever located. Confidential information shall not be retained in any files or otherwise by Subgrantee or its agents, except as permitted in this Subgrant Agreement or approved in writing by the State. D. Disclosure - Liability Disclosure of State records or other confidential information by Subgrantee for any reason may be cause for legal action by third parties against Subgrantee, the State or their respective agents. Subgrantee shall indemnify, save, and hold harmless the State, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by Subgrantee, or its employees, agents, Subcontractors, or assignees pursuant to this §10. 11. CONFLICTS OF INTEREST A. Definition and Appearance Subgrantee shall not engage in any business or personal activities or practices or maintain any relationships which conflict in any way with the full performance of Subgrantee's obligations hereunder. Subgrantee acknowledges that with respect to this Subgrant, even the appearance of a conflict of interest is harmful to the State's interests. Absent the State's prior written approval, Subgrantee shall refrain from any practices, activities Page 6 of 18 or relationships that reasonably appear to be in conflict with the full performance of Grantee's obligations to the State hereunder. Subgrantee shall comply with the provisions of CRS §18 -8 -308 and § §24 -18- 101 -109. B. Specific Prohibitions Subgrantee and its respective officers, employees, or agents shall neither solicit nor accept gratuities, favors, or anything of monetary value from Subgrantee's potential subgrantees, or parties to sub - contracts. Subgrantee's employees, officers, agents or any permitted sub - grantees shall not participate in the selection, award, or administration of this Subgrant Agreement or any sub -grant or sub - contract, if an actual or apparent conflict of interest would occur. Such a conflict would arise when any of the following has a financial or other interest in the firm selected for award: i. An employee, officer, agent, or board member; ii. Any member of the employee's immediate family; ill. An employee's partner; or iv. An organization, which employes, or is about to employ, any of the aforementioned. C. Disclosure Statement Subgrantee shall submit to the State a disclosure statement setting forth the relevant details for the State's consideration. Failure to promptly submit a disclosure statement or to follow the State's direction in regard to the apparent conflict shall be considered a material default of this Subgrant Agreement and grounds for termination under the Termination for Default/Cause in Section 20 of this Subgrant Agreement. D. Code of Performance Subgrantee, and sub - grantees and subcontractors, if any, shall maintain a written code of standards governing the performance of their respective employees, agents, and contractors engaged in the award and administration of this Subgrant Agreement, or subcontract or subgrant, if any. Subgrantee shall provide a copy of such code to the State within 10 days of the State's written request therefore. 12. REPRESENTATIONS AND WARRANTIES Subgrantee makes the following specific representations and warranties, each of which was relied on by the State in entering into this Subgrant Agreement. A. Standard and Manner of Performance Subgrantee shall perform its obligations hereunder in accordance with the highest standards of care, skill and diligence in the industry, trades or profession and in the sequence and manner set forth in this Subgrant Agreement. B. Legal Authority — Subgrantee and Subgrantee's Signatory Subgrantee warrants that it possesses the legal authority to enter into this Subgrant Agreement and that it has taken all actions required by its procedures, by -laws, and /or applicable laws to exercise that authority, and to lawfully authorize its undersigned signatory to execute this Subgrant Agreement, or any part thereof, and to bind Subgrantee to its terms. If requested by the State, Subgrantee shall provide the State with proof of Subgrantee's authority to enter into this Subgrant Agreement within 15 days of receiving such request. C. Licenses, Permits, Etc. Subgrantee represents and warrants that as of the Effective Date it has, and that at all times during the term hereof it shall have, at its sole expense, all licenses, certifications, approvals, insurance, permits, and other authorization required by law to perform its obligations hereunder. Subgrantee warrants that it shall maintain all necessary licenses, certifications, approvals, insurance, permits, and other authorizations required to properly perform this Subgrant Agreement, without reimbursement by the State or other adjustment in Subgrant Agreement Funds. Additionally, all employees and agents of Subgrantee performing Services under this Subgrant Agreement shall hold all required licenses or certifications, if any, to perform their responsibilities. Subgrantee, if a foreign corporation or other foreign entity transacting business in the State of Colorado, further warrants that it currently has obtained and shall maintain any applicable certificate of authority to transact business in the State of Colorado and has designated a registered agent in Colorado to accept service of process. Any revocation, withdrawal or non - renewal of licenses, certifications, approvals, insurance, permits or any such similar requirements necessary for Subgrantee to properly perform the terms of this Subgrant Agreement shall be deemed to be a material breach by Subgrantee and constitute grounds for termination of this Subgrant Agreement. 13. INSURANCE Subgrantee and its Subcontractors shall obtain and maintain insurance as specified in this section at all times during the term of this Subgrant Agreement: All policies evidencing the insurance coverage required hereunder shall be issued by insurance companies satisfactory to Subgrantee and the State. Page 7 of 18 A. Subgrantee I. Public Entities If Subgrantee is a "public entity" within the meaning of the Colorado Governmental Immunity Act, CRS §24 -10 -101, et seq., as amended (the "GIA "), then Subgrantee shall maintain at all times during the term of this Subgrant Agreement such liability insurance, by commercial policy or self- insurance, as is necessary to meet its liabilities under the GIA. Subgrantee shall show proof of such insurance satisfactory to the State, if requested by the State. Subgrantee shall require each Subgrant Agreement with Subcontractors that are public entities, providing Goods or Services hereunder, to include the insurance requirements necessary to meet Subcontractor's liabilities under the GIA. ii. Non - Public Entities If Subgrantee is not a "public entity" within the meaning of the GIA, Subgrantee shall obtain and maintain during the term of this Subgrant Agreement insurance coverage and policies meeting the same requirements set forth in §13(B) with respect to Subcontractors that are not "public entities ". B. Subcontractors Subgrantee shall require each Subgrant Agreement with Subcontractors, other than those that are public entities, providing Goods or Services in connection with this Subgrant Agreement, to include insurance requirements substantially similar to the following: I. Worker's Compensation Worker's Compensation Insurance as required by State statute, and Employer's Liability Insurance covering all of Subgrantee and Subcontractor employees acting within the course and scope of their employment. fl. General Liability Commercial General Liability Insurance written on ISO occurrence form CG 00 01 10/93 or equivalent, covering premises operations, fire damage, independent Subgrantees, products and completed operations, blanket Grantual liability, personal injury, and advertising liability with minimum limits as follows: (a)$1,000,000 each occurrence; (b) $1,000,000 general aggregate; (c) $1,000,000 products and completed operations aggregate; and (d) $50,000 any one fire. If any aggregate limit is reduced below $1,000,000 because of claims made or paid, Subcontractor shall immediately obtain additional insurance to restore the full aggregate limit and furnish to Subgrantee a certificate or other document satisfactory to Subgrantee showing compliance with this provision. iii. Automobile Liability Automobile Liability Insurance covering any auto (including owned, hired and non -owned autos) with a minimum limit of $1,000,000 each accident combined single limit. iv. Additional Insured Subgrantee and the State shall be named as additional insured on the Commercial General Liability policy (leases and construction Grants require additional insured coverage for completed operations on endorsements CG 2010 11/85, CG 2037, or equivalent). v. Primacy of Coverage Coverage required of Subgrantee and Subcontractors shall be primary over any insurance or self - insurance program carried by Subgrantee or the State. vi. Cancellation The above insurance policies shall include provisions preventing cancellation or non - renewal without at least 45 days prior notice to the Subgrantee and the State by certified mail. vii. Subrogation Waiver All insurance policies in any way related to this Subgrant Agreement and secured and maintained by Subgrantee or its Subcontractors as required herein shall include clauses stating that each carrier shall waive all rights of recovery, under subrogation or otherwise, against Subgrantee or the State, its agencies, institutions, organizations, officers, agents, employees, and volunteers. C. Certificates Subgrantee and all Subcontractors shall provide certificates showing insurance coverage required hereunder to the State within seven business days of the Effective Date of this Subgrant Agreement. No later than 15 days prior to the expiration date of any such coverage, Subgrantee and each Subcontractor shall deliver to the State or Subgrantee certificates of insurance evidencing renewals thereof. In addition, upon request by the State at any other time during the term of this Subgrant Agreement or any sub - grant, Subgrantee and each Subcontractor shall, within 10 days of such request, supply to the State evidence satisfactory to the State of compliance with the provisions of this §13. Page 8 of 18 14. BREACH A. Defined In addition to any breaches specified in other sections of this Subgrant Agreement, the failure of either Party to perform any of its material obligations hereunder in whole or in part or in a timely or satisfactory manner, constitutes a breach. The institution of proceedings under any bankruptcy, insolvency, reorganization or similar law, by or against Subgrantee, or the appointment of a receiver or similar officer for Subgrantee or any of its property, which is not vacated or fully stayed within 20 days after the institution or occurrence thereof, shall also constitute a breach. B. Notice and Cure Period In the event of a breach, notice of such shall be given in writing by the aggrieved Party to the other Party in the manner provided in §16. If such breach is not cured within 30 days of receipt of written notice, or if a cure cannot be completed within 30 days, or if cure of the breach has not begun within 30 days and pursued with due diligence, the State may exercise any of the remedies set forth in §15. Notwithstanding anything to the contrary herein, the State, in its sole discretion, need not provide advance notice or a cure period and may immediately terminate this Subgrant Agreement in whole or in part if reasonably necessary to preserve public safety or to prevent immediate public crisis. 15. REMEDIES If Subgrantee is in breach under any provision of this Subgrant Agreement, the State shall have all of the remedies listed in this §15 in addition to all other remedies set forth in other sections of this Subgrant Agreement following the notice and cure period set forth in §14(B). The State may exercise any or all of the remedies available to it, in its sole discretion, concurrently or consecutively. A. Termination for Cause and /or Breach If Subgrantee fails to perform any of its obligations hereunder with such diligence as is required to ensure its completion in accordance with the provisions of this Subgrant Agreement and in a timely manner, the State may notify Subgrantee of such non - performance in accordance with the provisions herein. If Subgrantee thereafter fails to promptly cure such non - performance within the cure period, the State, at its option, may terminate this entire Subgrant Agreement or such part of this Subgrant Agreement as to which there has been delay or a failure to properly perform. Exercise by the State of this right shall not be deemed a breach of its obligations hereunder. Subgrantee shall continue performance of this Subgrant Agreement to the extent not terminated, if any. i. Obligations and Rights To the extent specified in any termination notice, Subgrantee shall not incur further obligations or render further performance hereunder past the effective date of such notice, and shall terminate outstanding orders and sub - Grants with third parties. However, Subgrantee shall complete and deliver to the State all Work, Services and Goods not cancelled by the termination notice and may incur obligations as are necessary to do so within this Subgrant Agreement's terms. At the sole discretion of the State, Subgrantee shall assign to the State all of Subgrantee's right, title, and interest under such terminated orders or sub - Grants. Upon termination, Subgrantee shall take timely, reasonable and necessary action to protect and preserve property in the possession of Subgrantee in which the State has an interest. All materials owned by the State in the possession of Subgrantee shall be immediately returned to the State. All Work Product, at the option of the State, shall be delivered by Subgrantee to the State and shall become the State's property. ii. Payments The State shall reimburse Subgrantee only for accepted performance up to the date of termination. If, after termination by the State, it is determined that Subgrantee was not in breach or that Subgrantee's action or inaction was excusable, such termination shall be treated as a termination in the public interest and the rights and obligations of the Parties shall be the same as if this Subgrant Agreement had been terminated in the public interest, as described herein. iii. Damages and Withholding Notwithstanding any other remedial action by the State, Subgrantee also shall remain liable to the State for any damages sustained by the State by virtue of any breach under this Subgrant Agreement by Subgrantee and the State may withhold any payment to Subgrantee for the purpose of mitigating the State's damages, until such time as the exact amount of damages due to the State from Subgrantee is determined. The State may withhold any amount that may be due to Subgrantee as the State deems necessary to protect the State, including loss as a result of outstanding liens or claims of former lien holders, or to reimburse the State for the excess costs incurred in procuring similar goods Page 9 of 18 or services. Subgrantee shall be liable for excess costs incurred by the State in procuring from third parties replacement Work, Services or substitute Goods as cover. B. Early Termination in the Public Interest The State is entering into this Subgrant Agreement for the purpose of carrying out the public policy of the State of Colorado, as determined by its Governor, General Assembly, and /or Courts. If this Subgrant Agreement ceases to further the public policy of the State, the State, in its sole discretion, may terminate this Subgrant Agreement in whole or in part. Exercise by the State of this right shall not constitute a breach of the State's obligations hereunder. This subsection shall not apply to a termination of this Subgrant Agreement by the State for cause or breach by Subgrantee, which shall be governed by §15(A) or as otherwise specifically provided for herein. I. Method and Content The State shall notify Subgrantee of such termination in accordance with §16. The notice shall specify the effective date of the termination and whether it affects all or a portion of this Subgrant Agreement. ii. Obligations and Rights Upon receipt of a termination notice, Subgrantee shall be subject to and comply with the same obligations and rights set forth in §1 5(A)(1). iii. Payments If this Subgrant Agreement is terminated by the State pursuant to this §15(B), Subgrantee shall be paid an amount which bears the same ratio to the total reimbursement under this Subgrant Agreement as the Services satisfactorily performed bear to the total Services covered by this Subgrant Agreement, less payments previously made. Additionally, if this Subgrant Agreement is less than 60% completed, the State may reimburse Subgrantee for a portion of actual out -of- pocket expenses (not otherwise reimbursed under this Subgrant Agreement) incurred by Subgrantee which are directly attributable to the uncompleted portion of Subgrantee's obligations hereunder; provided that the sum of any and all reimbursement shall not exceed the maximum amount payable to Subgrantee hereunder. C. Remedies Not Involving Termination The State, its sole discretion, may exercise one or more of the following remedies in addition to other remedies available to it: I. Suspend Performance Suspend Subgrantee's performance with respect to all or any portion of this Subgrant Agreement pending necessary corrective action as specified by the State without entitling Subgrantee to an adjustment in price /cost or performance schedule. Subgrantee shall promptly cease performance and incurring costs in accordance with the State's directive and the State shall not be liable for costs incurred by Subgrantee after the suspension of performance under this provision. ii. Withold Payment Withhold payment to Subgrantee until corrections in until corrections in Subgrantee's performance are satisfactorily made and completed. iii. Deny Payment Deny payment for those obligations not performed, that due to Subgrantee's actions or inactions, cannot be performed or, if performed, would be of no value to the State; provided, that any denial of payment shall be reasonably related to the value to the State of the obligations not performed. iv. Removal Demand removal of any of Subgrantee's employees, agents, or Subcontractors whom the State deems incompetent, careless, insubordinate, unsuitable, or otherwise unacceptable, or whose continued relation to this Subgrant Agreement is deemed to be contrary to the public interest or not in the State's best interest. v. Intellectual Property If Subgrantee infringes on a patent, copyright, trademark, trade secret or other intellectual property right while performing its obligations under this Subgrant Agreement, Subgrantee shall, at the State's option (a) obtain for the State or Subgrantee the right to use such products and services; (b) replace any Goods, Services, or other product involved with non - infringing products or modify them so that they become non - infringing; or, (c) if neither of the forgegoing alternatives are reasonably available, remove any infringing Goods, Services, or products and refund the price paid therefore to the State. 16. NOTICES and REPRESENTATIVES Each individual identified below is the principal representative of the designating Party. All notices required to be given hereunder shall be hand delivered with receipt required or sent by certified or registered mail to such Page 10 of 18 Party's principal representative at the address set forth below. In addition to, but not in lieu of a hard -copy notice, notice also may be sent by e-mail to the e-mail addresses, if any, set forth below. Either Party may from time to time designate by written notice substitute addresses or persons to whom such notices shall be sent. Unless otherwise provided herein, all notices shall be effective upon receipt. A. State Coordinator: Jim Guthrie Colorado Division of Wildlife 6060 Broadway Denver, CO 80216 Phone: 303 - 291 -7563 Email: iim. uthrie state.co.us With respect to the representative of the State, the State Coordinator shall have the authority to assure compliance with the terms of this Subgrant Agreement, inspect and reject services, approve invoices for payment, and act otherwise for the State. B. Subgrantee: Rob Janusz Parks Superintendent Town of Avon PO Box 975 Avon, CO 81620 Phone: 970 - 748 -4105 17. RIGHTS IN DATA, DOCUMENTS, AND COMPUTER SOFTWARE Any software, research, reports, studies, data, photographs, negatives or other documents, drawings, models, materials, or Work Product of any type, including drafts, prepared by Subgrantee in the performance of its obligations under this Subgrant Agreement shall be the exclusive property of the State and, all Work Product shall be delivered to the State by Subgrantee upon completion or termination hereof. The State's exclusive rights in such Work Product shall include, but not be limited to, the right to copy, publish, display, transfer, and prepare derivative works. Subgrantee shall not use, willingly allow, cause or permit such Work Product to be used for any purpose other than the performance of Subgrantees's obligations hereunder without the prior written consent of the State. 18. GOVERNMENTAL IMMUNITY Notwithstanding any other provision to the contrary, nothing herein shall constitute a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions of the Colorado Governmental Immunity Act, CRS §24 -10 -101, et seq., as amended. Liability for claims for injuries to persons or property arising from the negligence of the State of Colorado, its departments, institutions, agencies, boards, officials, and employees is controlled and limited by the provisions of the Governmental Immunity Act and the risk management statutes, CRS §24 -30 -1501, et seq., as amended. 19. STATEWIDE GRANT MANAGEMENT SYSTEM If the maximum amount payable to Subgrantee under this Subgrant Agreement is $100,000 or greater, either on the Effective Date or at anytime thereafter, this §19 applies. Subgrantee agrees to be governed, and to abide, by the provisions of CRS §24- 102 -205, §24- 102 -206, §24- 103 -601, §24- 103.5 -101 and §24- 105 -102 concerning the monitoring of vendor performance on state Grants and inclusion of Grant performance information in a statewide Grant management system. Subgrantee's performance shall be subject to Evaluation and Review in accordance with the terms and conditions of this Subgrant Agreement, State law, including CRS §24- 103.5 -101, and State Fiscal Rules, Policies and Guidance. Evaluation and Review of Subgrantee's performance shall be part of the normal Grant administration process and Subgrantee's performance will be systematically recorded in the statewide Grant Management System. Areas of Evaluation and Review shall include, but shall not be limited to quality, cost and timeliness. Collection of information relevant to the performance of Subgrantee's obligations under this Subgrant Agreement shall be determined by the specific requirements of such obligations and shall include factors tailored to match the requirements of Subgrantee's obligations. Such performance information shall be entered into the statewide Grant Management System at intervals established herein and a final Evaluation, Review and Rating shall be rendered within 30 days of the end of the Subgrant Agreement term. Subgrantee shall be Page 11 of 18 notified following each performance Evaluation and Review, and shall address or correct any identified problem in a timely manner and maintain work progress. Should the final performance Evaluation and Review determine that Subgrantee demonstrated a gross failure to meet the performance measures established hereunder, the Executive Director of the Colorado Department of Personnel and Administration (Executive Director), upon request by the DOW, and showing of good cause, may debar Subgrantee and prohibit Subgrantee from bidding on future Grants. Subgrantee may contest the final Evaluation, Review and Rating by: (a) filing rebuttal statements, which may result in either removal or correction of the evaluation (CRS §24- 105 - 102(6)), or (b) under CRS §24- 105 - 102(6), exercising the debarment protest and appeal rights provided in CRS § §24- 109 -106, 107, 201 or 202, which may result in the reversal of the debarment and reinstatement of Subgrantee, by the Executive Director, upon showing of good cause. 20. GENERAL PROVISIONS A. Assignment and SubGrants Subgrantee's rights and obligations hereunder are personal and may not be transferred, assigned or subGranted without the prior, written consent of the State. Any attempt at assignment, transfer, subGranting without such consent shall be void. All assignments, subGrants, or Subcontractors approved by Subgrantee or the State are subject to all of the provisions hereof. Subgrantee shall be solely responsible for all aspects of subGranting arrangements and performance. B. Binding Effect Except as otherwise provided in §20(A), all provisions herein contained, including the benefits and burdens, shall extend to and be binding upon the Parties' respective heirs, legal representatives, successors, and assigns. C. Captions The captions and headings in this Subgrant Agreement are for convenience of reference only, and shall not be used to interpret, define, or limit its provisions. D. Counterparts This Subgrant Agreement may be executed in multiple identical original counterparts, all of which shall constitute one agreement. E. Entire Understanding This Subgrant Agreement represents the complete integration of all understandings between the Parties and all prior representations and understandings, oral or written, are merged herein. Prior or contemporaneous additions, deletions, or other changes hereto shall not have any force or affect whatsoever, unless embodied herein. F. Indemnification-General Subgrantee shall indemnify, save, and hold harmless the State, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees and related costs, incurred as a result of any act or omission by Subgrantee, or its employees, agents, Subcontractors, or assignees pursuant to the terms of this Subgrant Agreement; however, the provions hereof shall not be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protection, or other provisions, of the Colorado Governmental Immunity Act, CRS §24 -10 -101 et seq., or the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., as applicable, as now or hereafter amended. G. Jurisdiction and Venue All suits, actions, or proceedings related to this Subgrant Agreement shall be held in the State of Colorado and exclusive venue shall be in the City and County of Denver. H. Modification, Amendment, and Budget Changes L Modifications This Subgrant Agreement is subject to such modifications as may be required by changes in Federal or State law, or their implementing regulations. Any such required modification shall automatically be incorporated into and be part of this Subgrant Agreement on the effective date of such change as if fully set forth herein. Except as provided above, no modification of this Subgrant Agreement shall be effective unless agreed to in writing by both parties in an amendment to this Subgrant Agreement that is properly executed and approved in accordance with applicable law. ii. Subgrantee Requests for Project Modifications The Subgrantee shall notify the State Coordinator, in writing, of any proposed Project modifications or budget changes in the project as soon as possible, but at least 45 days prior to the expiration of the Grant Performance Period. The State's Coordinator shall determine if it is necessary to submit a Page 12 of 18 request for a grant amendment with the Federal awarding agency. An amendment must be submitted to obtain the Federal awarding agency's prior approval for: a) Adding or deleting a project from the list; b) Increasing or decreasing the Federal funds obligated on the Federal Grant Agreement; c) Revising the rate of Federal participation shown on the Federal Grant Agreement; d) Modifying the Federal Grant Agreement period; or e) Any change to the Federal Grant or Subgrant Agreements. Any such amendment shall also be processed as an amendment to the Subgrant Agreement, pursuant to State Fiscal Rules and Policies. iii. Budget Changes Budget Changes. Unless waived by the Federal awarding agency, certain types of post -award changes in budgets and projects shall require the prior written approval of the Federal awarding agency. Changes shall also be governed, as applicable, by the federal regulations in 43 CFR 12.70, as well as the State Fiscal Rules and Policies. I. Order of Precedence The provisions of this Subgrant Agreement shall govern the relationship of the State and Subgrantee. In the event of conflicts or inconsistencies between this Subgrant Agreement and its exhibits and attachments including, but not limbed to, those provided by Subgrantee, such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: i. Colorado Special Provisions, ii. The provisions of the main body of this Subgrant Agreement, iii. Exhibit A, iv. Exhibit B, v. Exhibits C -1 through C -4, vi. Exhibit E, vii. Exhibit D. J. Severability Provided this Subgrant Agreement can be executed and performance of the obligations of the Parties accomplished within its intent, the provisions hereof are severable and any provision that is declared invalid or becomes inoperable for any reason shall not affect the validity of any other provision hereof. K. Survival of Certain Grant Terms Notwithstanding anything herein to the contrary, provisions of this Subgrant Agreement requiring continued performance, compliance, or effect after termination hereof, shall survive such termination and shall be enforceable by the State if Subgrantee fails to perform or comply as required. L. Taxes The State is exempt from all federal excise taxes under IRC Chapter 32 (No. 84- 730123K) and from all State and local government sales and use taxes under CRS § §39 -26 -101 and 201 et seq. Such exemptions apply when materials are purchased or services rendered to benefit the State; provided however, that certain political subdivisions (e.g., City of Denver) may require payment of sales or use taxes even though the product or service is provided to the State. Subgrantee shall be solely liable for paying such taxes as the State is prohibited from paying for or reimbursing Subgrantee for them. M. Third Party Beneficiaries Enforcement of this Subgrant Agreement and all rights and obligations hereunder are reserved solely to the Parties, and not to any third party. Any services or benefits which third parties receive as a result of this Subgrant Agreement are incidental to the Subgrant Agreement, and do not create any rights for such third parties. N. Waiver Waiver of any breach of a term, provision, or requirement of this Subgrant Agreement, or any right or remedy hereunder, whether explicitly or by lack of enforcement, shall not be construed or deemed as a waiver of any subsequent breach of such term, provision or requirement, or of any other term, provision, or requirement. 21. FEDERAL AUDIT PROVISIONS A. Grantee shall comply with the Office of Management and Budgets (OMB) Circular No. A -133 Audits of States, Local Governments, and Non - Profit Organizations which defines audit requirements under the Single Audit Act of 1996 (Public Law 104 -156). Page 13 of 18 B. All state and local governments and non - profit organizations expending $500,000 or more from all sources (direct or from pass- through entities) are required to comply with the provisions of OMB Circular No. A -133. This Circular also requires pass- through entities to monitor the activities of subrecipients and ensure that subrecipients meet the audit requirements. To identify its pass- through responsibilities, the State of Colorado requires all subrecipients to notify the State when expected or actual expenditures of federal assistance from all sources equal or exceed $500,000. 22. GRANT ASSURANCES This Subgrant Agreement involves the expenditure of federal funds. Therefore, Grantee shall at all times during the execution of this Subgrant Agreement strictly adhere to and comply with all applicable federal laws and regulations, as they currently exist and may hereafter be amended, which are subject to the terms and conditions incorporated either directly or by reference in this Subgrant Agreement. Grantee shall also require compliance with these statutes and regulations in subcontractor grant agreements permitted under this Subgrant Agreement. The federal laws and regulations are accessible on the internet at: htto: / /training.fws.gov /fedaid /toolkit/toolkit.odf and include but are not limited to: • Program Legislation /regulation. • Code of Federal Regulation /Regulatory Requirements of 43 CFR 12, as applicable. • Special terms and provisions specified in the Notice of Federal Financial Assistance Grant Award. • Executive Order 11246 of September 24, 1965 entitled "Equal Employment Opportunity," as amended by Executive Order 11375 of October 13, 1967 and as supplemented in Department of Labor regulations (41 CFR Chapter 60). [All construction contracts awarded in excess of $10,000 by grantees and their contractors or subgrantees] • The Copeland "Anti- Kickback" Act (18 USC 874) as supplemented in Department of Labor regulations (29 CFR Part 3). [All contracts and subgrants for construction or repair in excess of $2,000] • Sections 103 and 107 of the Contract Work Hours and Safety Standards Act (40 USC 327 -330) as supplemented by Department of Labor regulations (29 CFR Part 5). [Construction contracts awarded by grantees and subgrantees in excess of $2,000, and in excess of $2,500 for other contracts which involve the employment of mechanics or laborers] • Standards, orders, or requirements issued under Section 306 of the Clean Air Act (42 USC 1857(h), Section 508 of the Clean Water Act (33 USC 1368). Executive Order 11738, and Environmental Protection Agency regulations (40 CFR Part 15). [contracts, subcontracts, and subgrants of amounts in excess of $100,000] • Mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act (Pub. L. 94 -163). • Office of Management and Budget Circulars 2 CFR Parts 215 and 220 (formally A -21), 2 CFR 225 (formally A -87), 2 CFR 215 (formally A -110), 2 CFR 230 (formally A -122) and A -133, as applicable. • The Hatch Act (5 USC 1501 -1508) and Public Law 95 -454, Section 4728. These statutes state that federal funds cannot be used for partisan political purposes of any kind by any person or organization involved in the administration of federally- assisted programs. • USC 6101 et seq., 42 USC 2000d, 29 USC 794, and implementing regulation, 45 CFR Part 80 et seq. These acts require that no person shall, on the grounds of race, color, national origin, age, or handicap, be excluded from participation in or be subjected to discrimination in any program or activity funded, in whole or part, by federal funds. • The Americans with Disabilities Act (Public Law 101 -336; 42 USC 12101, 12102, 12111 - 12117, 12131- 12134,12141-12150,12161-12165,12181-12189,12201-12213, 47 USC 225 and 47 USC 611. • The Uniform Relocation Assistance and Real Property Acquisition Policies Act, as amended (Public Law 91- 646, as amended and Public Law 100 -17, 101 Stat. 246 -256). [If the Subgrantee is acquiring real property and displacing households or businesses in the performance of this contract] • The Drug -Free Workplace Act (Public Law 100 -690 Title V, subtitle D, 41 USC 701 et seq.). • The Age Discrimination Act of 1975, 42 USC Sections 6101 et seq. and its implementing regulation, 45 CFR Part 91. • Section 504 of the Rehabilitation Act of 1973, 29 USC 794, as amended, and implementing regulation 45 CFR Part 84. • Title IX of the Education Amendments of 1972 • Executive Order 11987, Exotic Organisms Page 14 of 18 • Endangered Species Act of 1973 • National Environmental Policy Act of 1969 (NEPA) • Floodplains and Wetlands Protection • Animal Welfare Act of 1985 • National Historic Preservation Act of 1966 • Debarment and Suspension: (1) Executive Order 12549, Debarment and Suspension, Feb. 18, 1986; and (2) Department of Interior Rules, Government wide Debarment and Suspension (Nonprocurement), 43 CFR 42 • Restrictions on Lobbying (1) (P.L. 101 -121), (2) 43 CFR 18 • Flood insurance purchase requirements of Section 102(a) of the Flood Disaster Protection Act of 1973 (P.L. 93 -234) which requires recipients in a special flood hazard area to participate in the program and to purchase flood insurance if the total cost of insurable construction and acquisition is $10,000 or more. • Civil Rights Assurance. The undersigned is subject to Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act of 1990, the Age Discrimination Act of 1975, Title IX of the Education Amendments of 1972, and offers all persons the opportunity to participate in programs or activities regardless of race, color, national origin, age, sex, or disability. Further, it is agreed that no individual will be turned away from or otherwise denied access to or benefit from any program or activity that is directly associated with a program of the RECIPIENT on the basis of race, color, national origin, age, sex (in education activities) or disability. THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Page 15 of 18 23. COLORADO SPECIAL PROVISIONS The Special Provisions apply to all Grants except where noted in italics. A. 1. CONTROLLER'S APPROVAL. CRS §24-30 -202 (1). This Subgrant Agreement shall not be deemed valid until it has been approved by the Colorado State Controller or designee. B. 2. FUND AVAILABILITY. CRS §24 -30- 202(5.5). Financial obligations of the State payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available. C. 3. GOVERNMENTAL IMMUNITY. No term or condition of this Subgrant Agreement shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections, or other provisions, of the Colorado Governmental Immunity Act, CRS §24 -10 -101 et seq., or the Federal Tort Claims Act, 28 U.S.C. § §1346(b) and 2671 et seq., as applicable now or hereafter amended. D. 4. INDEPENDENT CONTRACTOR Subgrantee shall perform its duties hereunder as an independent Subgrantee and not as an employee. Neither Subgrantee nor any agent or employee of Subgrantee shall be deemed to be an agent or employee of the State. Subgrantee and its employees and agents are not entitled to unemployment insurance or workers compensation benefits through the State and the State shall not pay for or otherwise provide such coverage for Subgrantee or any of its agents or employees. Unemployment insurance benefits shall be available to Subgrantee and its employees and agents only if such coverage is made available by Subgrantee or a third party. Subgrantee shall pay when due all applicable employment taxes and income taxes and local head taxes incurred pursuant to this Subgrant Agreement. Subgrantee shall not have authorization, express or implied, to bind the State to any Grant, liability or understanding, except as expressly set forth herein. Subgrantee shall (a) provide and keep in force workers' compensation and unemployment compensation insurance in the amounts required by law, (b) provide proof thereof when requested by the State, and (c) be solely responsible for its acts and those of its employees and agents. E. 5. COMPLIANCE WITH LAW. Subgrantee shall strictly comply with all applicable federal and State laws, rules, and regulations in effect or hereafter established, including, without limitation, laws applicable to discrimination and unfair employment practices. F. 6. CHOICE OF LAW. Colorado law, and rules and regulations issued pursuant thereto, shall be applied in the interpretation, execution, and enforcement of this Subgrant Agreement. Any provision included or incorporated herein by reference which conflicts with said laws, rules, and regulations shall be null and void. Any provision incorporated herein by reference which purports to negate this or any other Special Provision in whole or in part shall not be valid or enforceable or available in any action at law, whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision shall not invalidate the remainder of this Subgrant Agreement, to the extent capable of execution. G. 7. BINDING ARBITRATION PROHIBITED. The State of Colorado does not agree to binding arbitration by any extra judicial body or person. Any provision to the contrary in this contact or incorporated herein by reference shall be null and void. H. 8. SOFTWARE PIRACY PROHIBITION. Governor's Executive Order D 002 00. State or other public funds payable under this Subgrant Agreement shall not be used for the acquisition, operation, or maintenance of computer software in violation of federal copyright laws or applicable licensing restrictions. Subgrantee hereby certifies and warrants that, during the term of this Subgrant Agreement and any extensions, Subgrantee has and shall maintain in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that Subgrantee is in violation of this provision, the State may exercise any remedy available at law or in equity or under this Subgrant Agreement, including, without limitation, immediate termination of this Subgrant Agreement and any remedy consistent with federal copyright laws or applicable licensing restrictions. I. 9. EMPLOYEE FINANCIAL INTEREST. CRS § §24-18 -201 and 24-50 -507. The signatories aver that to their knowledge, no employee of the State has any personal or beneficial interest whatsoever in the service or property described in this Subgrant Agreement. Subgrantee has no interest and shall not acquire any interest, direct or indirect, that would conflict in any manner or degree with the performance of Subgrantee's services and Subgrantee shall not employ any person having such known interests. Page 16 of 18 J. 10. VENDOR OFFSET. CRS § §24 -30 -202 (1) and 24-30- 202.4. [Not Applicable to intergovernmental agreements] Subject to CRS §24 -30 -202.4 (3.5), the State Controller may withhold payment under the State's vendor offset intercept system for debts owed to State agencies for: (a) unpaid child support debts or child support arrearages; (b) unpaid balances of tax, accrued interest, or other charges specified in CRS §39 -21 -101, et seq.; (c) unpaid loans due to the Student Loan Division of the Department of Higher Education; (d) amounts required to be paid to the Unemployment Compensation Fund; and (e) other unpaid debts owing to the State as a result of final agency determination or judicial action. K. 11. PUBLIC GRANTS FOR SERVICES. CRS §8- 17.5 -101. [Not Applicable to Agreements relating to the offer, issuance, or sale of securities, investment advisory services or fund management services, sponsored projects, intergovernmental Agreements, or information technology services or products and services] Subgrantee certifies, warrants, and agrees that it does not knowingly employ or Grant with an illegal alien who shall perform work under this Subgrant Agreement and shall confirm the employment eligibility of all employees who are newly hired for employment in the United States to perform work under this Subgrant Agreement, through participation in the E- Verify Program or the State program established pursuant to CRS §8- 17.5- 102(5)(c), Subgrantee shall not knowingly employ or Grant with an illegal alien to perform work under this Subgrant Agreement or enter into a Grant with a Subcontractor that fails to certify to Subgrantee that the Subcontractor shall not knowingly employ or Grant with an illegal alien to perform work under this Subgrant Agreement. Subgrantee (a) shall not use E- Verify Program or State program procedures to undertake pre - employment screening of job applicants while this Subgrant Agreement is being performed, (b) shall notify the Subcontractor and the Granting State agency within three days if Subgrantee has actual knowledge that a Subcontractor is employing or Granting with an illegal alien for work under this Subgrant Agreement, (c) shall terminate the subGrant if a Subcontractor does not stop employing or Granting with the illegal alien within three days of receiving the notice, and (d) shall comply with reasonable requests made in the course of an investigation, undertaken pursuant to CRS §8- 17.5- 102(5), by the Colorado Department of Labor and Employment. If Subgrantee participates in the State program, Subgrantee shall deliver to the Granting State agency, Institution of Higher Education or political subdivision, a written, notarized affirmation, affirming that Subgrantee has examined the legal work status of such employee, and shall comply with all of the other requirements of the State program. If Subgrantee fails to comply with any requirement of this provision or CRS §8- 17.5 -101 et seq., the Granting State agency, institution of higher education or political subdivision may terminate this Subgrant Agreement for breach and, if so terminated, Subgrantee shall be liable for damages. L. 12. PUBLIC GRANTS WITH NATURAL PERSONS. CRS §24- 76.5 -101. Subgrantee, if a natural person eighteen (18) years of age or older, hereby swears and affirms under penalty of perjury that he or she (a) is a citizen or otherwise lawfully present in the United States pursuant to federal law, (b) shall comply with the provisions of CRS §24- 76.5 -101 et seq., and (c) has produced one form of identification required by CRS §24- 76.5 -103 prior to the effective date of this Subgrant Agreement. SPs Effective 111109 THE REST OF THIS PAGE INTENTIONALLY LEFT BLANK Page 17 of 18 DOW File No. FIF- 1659 -10 Routing No. 9931 THE PARTIES HERETO HAVE EXECUTED THIS SUBGRANT AGREEMENT * Persons signing for Subgrantee hereby swear and affirm that they are authorized to act on Subgrantee's behalf and acknowledge that the State is relying on their representations to that effect. SUBGRANTEE STATE OF COLORADO Town of Avon Bill Ritter, Jr. GOVERNOR Department of Natural Resources By: Ron Wolfe Division of Wildlife Title: Mayor Date * Signature (for) James B. Martin, Executive Director Date By Date LEGAL REVIEW John W. Suthers, Attorney General Signature — Assistant Attorney General ALL SUBGRANT AGREEMENTS REQUIRE APPROVAL BY THE STATE CONTROLLER CRS 2430 -202 requires the State Controller to approve all State Grants. This Subgrant Agreement is not valid until signed and dated below by the State Controller or delegate. Subgrantee is not authorized to begin performance until such time. If Subgrantee begins performing prior thereto, the State of Colorado is not obligated to pay Subgrantee for such performance or for any goods and /or services provided hereunder. By STATE CONTROLLER David J. McDermott, CPA Dianne Stump, DNR Controller Date Page 18 of 18 EXHIBIT A Project Narrative STATE: Colorado PROJECT: F -555 -D PROJECT TITLE: Nottingham Lake Pier — Avon NEED: Nottingham Lake is a popular 17 -acre man -made lake located in the heart of Avon. The Division of Wildlife currently stocks Nottingham Lake with rainbow, brook and cutthroat trout. Fishing takes place year -round on the lake, including ice fishing. Warmer weather access includes shoreline fishing and non - motorized boat fishing. A small fishing pier exists on the lake presently, but it extends only a small amount into the lake. The lake hosts angler education classes and other fishing events. The proposed project will install an ADA- compliant fishing pier on the lake, significantly increasing angler access to deeper waters in the lake. This will increase angling recreation opportunities on the lake and angler satisfaction. OBJECTIVES: The following improvements will be completed no later than the Project Completion end date of December 31, 2011: • Install a new 60 -foot long fishing pier, with a 40 -foot wide T- section, on Nottingham Lake. EXPECTED BENEFITS: Installation of a new fishing pier will expand angling opportunities for many anglers who previously only had shoreline access to the lake. The pier will extend 60 feet into the lake, opening up fishing to deeper waters. The pier will also be a noticeable structure at a popular and heavily -used lake close to the center of town and surrounded by residential areas. The Town currently runs an angler education program, and plans to expand it with the completion of the new fishing pier. APPROACH: Design work for the fishing pier has largely been completed. The expectation on the part of the town is that a private contractor will be hired to install the pier pilings and the fishing pier. The pier will be ADA- compliant. The pier will be built on pilings, which will require a drop in the water level for the lake. The timing of the work may depend in part on additional work to be done on the lake (spillway and shoreline repairs), but which is outside the scope of this project. When completed, the fishing pier will extend 60 feet into the lake, and have a 40 -foot T- section to allow more angling usage. LOCATION: Nottingham Lake is located in the town of Avon. A map showing the lake's location is attached. PROJECT COSTS: Total project costs are estimated to be $160,000. Of this amount, the Town of Avon will provide $58,300 (36% of project costs). The remaining $101,700 (64% of project costs) is requested in Sport Fish Restoration Program funds. A more detailed budget is attached. Pre - Agreement Costs: The project sponsor may request up to $15,000 in pre- agreement costs related to design and engineering work. The project sponsor understands that all such costs are subject to review and approval by the USFWS, must be properly documented, and must be consistent with the project as described in the application. PERSONNEL: Jim Guthrie Colorado Division of Wildlife 303 - 291 -7563 Bill Andree Colorado Division of Wildlife 970 - 947 -2932 Rob Janusz Avon Parks Superintendent 970 - 748 -4105 MAINTENANCE: Future maintenance costs associated with the pier will be budgeted for and covered by the Town of Avon's Parks Department. LAND CONTROL: No land control issues are associated with this project. The property is owned in fee title by the project sponsor. M • IN RRTLY REM TO: FWS/R6/WSFR *w��wnwrss United States Department of the Interior FISH AND WILDLIFE SERVICE Mountain - Prairie Region MAILING ADDRESS: STREET LOCATION: Post Office Box 25486 134 Union Blvd. Denver Federal Center Lakewood, Colorado 80228 -1OBEC 2 Denver, Colorado 80225 -0486 Paula Nicholas, Federal Assistance Coordinator Colorado Division of Wildlife 6060 Broadway Denver, Colorado 80216 Dear Ms. Nicholas: The enclosed Application for Federal Assistance for Grant Agreement #F- 558 -D -1, Amendment #0 titled Nottingham Lake Pier - Avon is approved effective December 10, 2009, with a total Federal share in the amount of $101,700.00. The performance period of this grant award is December 10, 2009, through December 31, 2011. Please note that acceptance of a Federal Financial grant award from the Department of the Interior carries with it the responsibility to be aware of and comply with the standard and special terms and conditions in Enclosure 1 to this letter. If you have any questions regarding this grant award, please contact Otto Jose or me at (303) 236 -8156. Sincerely, C David McGillivary Chief, Division of Wildlife and Sport Fish Restoration Enclosure(s) cc: Jim Guthrie, Program Administrator Enclosure 1 Colorado F- 558 -D -1 Amd. 0 Standard Terms and Conditions Acceptance of a Federal Financial Assistance award from the Department of the Interior (DOI) carries with it the responsibility to be aware of and comply with the terms and conditions of the award. Acceptance is defined as the start of work, drawing down funds, or accepting the award via electronic means. Grant awards are based on the grant application submitted to, and as approved by the DOI and are subject to the terms and conditions incorporated either directly or by reference in the following: • Program legislationVegulation. • Special terms and provisions specified in the Notice of Federal Financial Assistance Grant Award. • Code of Federal Regulations/Regulatory Requirements below, as applicable: 43 CFR 12(A) Administrative and Audit Requirements and Cost Principles for Assistance Programs 43 CFR 12(E) Buy American Requirements for Assistance Programs 43 CFR 12(C) Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments 43 CFR 12(F) Uniform Administrative Requirements for Grants and Cooperative Agreements with Institutions of Higher Education, Hospitals, other Non - Profit and Commercial Organizations 43 CFR 43 Government wide Requirements for a Drug -Free Workplace 43 CFR 42 Government wide Debarment and Suspension (Non- procurement) 43 CFR 18 New Restrictions on Lobbying These Codes of Federal Regulation (CFR) are accessible on the internet at: http: / /www.doi .gov /pam/TermsandConditions.hbnl • Interim Guidance for Financial Status and Performance Reporting at: http: / /wsfTprograms.fws. gov /subpages /toolkitfiles/intgdrpt.pdf Enclosure 1 (continued) Colorado F- 558 -D -1 Amd. 0 Special Terms and Conditions EFFECTIVE DATE AND PRE -AWARD COSTS All costs for work herein incurred by the grantee prior to the effective date are not eligible for reimbursement except for these pre -award costs: Design and Engineering work: $15,000.00. COST ACCOUNTING Cost accounting for this grant award shall be at the grant award level. REPORTS The U.S. Fish and Wildlife Service must receive: (a) annual interim Federal Financial Reports (SF -425) and annual interim Performance Reports in accordance with Region 6, "Guidance for Implementation of New Interim Report End and Due Dates" dated October 6, 2009; and (b) a final Performance Report and final Federal Financial Report (SF -425) no later than 90 days after the end date of the grant award or termination of grant support. APPLICATION FOR STATE COPY Vantim M1 FEDERAL ASSISTANCE 2. DATE SUBMITTED Applicant Identifier 1. TYPE OF SUBMISSION: I 3. DATE RECEIVED BY STATE State Application Identifier Application Preapplication ® ❑ orletruction 4. DATE RECEIVED BY� FEDERAL AGENCY Federal Identifier Construction N (r �9 *O 5. APPLICANT INFORMATION Legal Name' Colorado Division of Wildlife Organizatimall Unit Department Natural Resources Organizational DUNS: 879015899 Divis1on. Wildlife Address: Name and telephone number of person to be contacted on matters Involving this application hre area code Street 6060 Broadway Prelbc: Mr. First Nance: James City: Denver Middle Name M, County: Adams Last Name Guthrie State: CO Zip Code 80216 Sullbc: Country. Eman' )im.guthrieCstate.00.us 6. EMPLOYER IDENTIFICATION NUMBER (EIN): Phone Number (on area code) Fax Number (give are" code) ©21—BOOMBE ✓ (303) 291 -7563 (303) 291 -7106 8. TYPE OF APPLICATION: T. TYPE OF APPLICANT: (See back of form for Application Types) ® New ❑ Continuation ❑ Revision A. State Revision. enter appropriate letter(s) in box(es) See back of form for description of letters.) ❑ ❑ (specify) Other (may) 8. NAME OF FEDERAL AGENCY: U.S. Department of interior, Fish and Wildlife Service 10. CATALOG OF FEDERAL DOMESTIC ASSISTANCE NUMBER: 11. DESCRIPTIVE TITLE OF APPLICANT'S PROJECT. Nottingham Lake Pier — Avon TITLE (Name of Program): Sport Fish Restoration Program 12. AREAS AFFECTED BY PROJECT (06e4 Counties States efc.): Avon, CO Eagle County 13. PROPOSED PROJECT 14. CONGRESSIONAL DISTRICTS OF: Start Date' 12/10/2009 Ending Date: 12/31/2011 a. Applicant First b. Project Second 15. ESTIMATED FUNDING: 18. IS APPLICATION SUBJECT TO REVIEW BY STATE EXECUTIVE RDER 12372 PROCESS? a. Federal 101,700.00 a. Yes. ❑ THIS PREAPPLICATION/APPLICATION WAS MADE AVAILABLE TO THE STATE EXECUTIVE ORDER 12372 b. Applicant PROCESS FOR REVIEW ON DATE: b. No. ❑ PROGRAM IS NOT COVERED BY E. O. 12372 OR PROGRAM HAS NOT BEEN SELECTED BY STATE c. State 58,300.00 d. Local e. Other FOR REVIEW I. Program Income jOWLEDGE 17. IS THE APPLICANT DELINQUENT ON ANY FEDERAL DEBT? ❑ Yes If "Yes' attach an explanation. ® No g. TOTAL 160,000.00 18. TO THE BEST OF AND BELIEF, ALL DATA IN THIS APPLICATIONIPREAPPLICATION ARE TRUE AND CORRECT. THE DOCUMENT HAS BEEN DULY AUTHORIZED BY THE GOVERNING BODY OF THE APPLICANT AND THE APPLICANT WILL COMPLY WITH THE ATTACHED ASSURANCES IF THE ASSISTANCE IS AWARDED. a.-Audwized Representative Prefix Mr. First Name James addle Name M Last Name Guthrie uffix Title Financial Initiatives Program Manager - Telephone Number (give area code) 303 291 -7563 Signature of Authorized Re Representative Date Signed 11/141,0 9 sttandaks Form 424 (Rev.9.2003) Authorized for Local Reproduction Prescribed by OMB Circular A -102 APPMMEN8*9 DEC 10 2009 IT= v_ In z C� C O N O co CO I `a i cts t. fir° z N a LL Z d m J t .1 . U Lp x .. � � � t tE, Z E p .,,, Y CL J E E rn� c t N O W ' U) NI �� Z r 3 C } O �I t d 010. a - o U w Q oc Li I- o� r - <I LL N� yco N i Q Q F O y O Y O2cE N 1° �Q �a Cr ' O V v Z m U cot Q .. C =3 as 3 LL A ° ' E co � d � � _. a `i �, l � , f ��� *.* 4,� fir•' �!4 EXHIBIT B Budget Nottingham Lake Pier— Avon Item Matching Funds (36 %) Federal Share (64 %) Total Cost (100 %) Fishing pier $43,300 $101,700 $145,000 Design and engineering $15,000 -0- $15,000 TOTAL $58,300 $101,700 $160,000 Pre - Agreement Costs: The project sponsor may request up to $15,000 in pre- agreement costs related to design and engineering work. The project sponsor understands that all such costs are subject to review and approval by the USFWS, must be properly documented, and must be consistent with the project as described in the application. Exhibit B — Page 1 of 1 Memo To: Honorable Mayor and Town Council Initials Thru: Larry Brooks, Town Manager Legal Review: Eric Heil, Town Attorney Approved by: Sally Vecchio, Assistant Town Mgr /Director of Comm. Dev. From: Justin Hildreth, P.E., Town Engineer�f Shane Pegram, P.E., Engineer II Date: January 19, 2010 Re: Town of Avon Recreation Center - Wiss, Janey, Elstner Associates, Inc. Proposal to complete construction documents for the Recreation Center Roof Replacement and CMU Block Repair Summary: Wiss, Janey, Elstner Associates, Inc. (WJE) has provided a proposal (Exhibit A) to provide contract documents and construction observation for the Avon Recreation Center metal roof replacement and CMU block repairs. Previous investigations found that the CMU block was failing in isolated areas due to improper detailing of the vapor barrier to prevent moisture from leaving the pool area. The investigations also found that the metal roof was failing due to failed moisture barrier sheeting allowing pool moisture to come in contact with the underside of the metal roof. Staff recommends approving the January 14, 2010 proposal in the amount of $25,700. Discussion: Deterioration of the existing masonry fagade and metal roof on the Town of Avon Recreation Center was noticed during the spring of 2008. Inspections were conducted by WJE and Engineering staff during July of 2008 and June of 2009. The subsequent reports document the findings. The reports document the moisture that was being introduced to both the CMU and the roof from the high humidity in the pool area. The recently completed Recreation Center Vapor Barrier Project has prevented most of the moisture from escaping the pool area. Modification to the HVAC system will ensure the system is running optimally. The roof replacement will replace a failed moisture barrier system and the rusting metal roof with a more suitable roof system. The westward facing arched roof will be replaced with a membrane roof and the eastward facing sloped roof will remain a metal roof system. Financial Implications: The 2010 Capital Improvements budget includes $400,000 for roof replacement and $125,000 for CMU block repair, for a combined budget of $525,000. The proposed design service fees fit within the project budget. As part of the contract approval the Town Manager will be authorized to sign amendments to the contract within the approved $28,000 design budget (Table 1). Table 1 Budget Item Proposed Budget Design Fees $ 28,000 Roof Replacement $ 350,000 CMU Repair $ 100,000 Administration $ 10,000 Contingencies $ 37,000 Total $ 525,000 Recommendation: Approve the January 14, 2010 Consulting Service Proposal from Wiss, Janey, Elstner Associates, Inc. in the amount of $25,700 for preparation of construction documents and construction observation for the Avon Recreation Center Roof Replacement and CMU Repair project. Proposed Motion: I move to approve the January 14, 2010 Consulting Service Proposal from Wiss, Janey, Elstner Associates, Inc. in the amount of $25,700 for preparation of construction documents and construction observation for the Avon Recreation Center Roof Replacement and CMU Repair project. Town Manager Comments: NOTES: Exhibit A — WJE Consulting Services Proposal, dated January 14, 2010 • Page 2 W January 14, 2010 INGINELRS ARCH IILCIS MAI ERIALS SCIENI ISIS Mr. Shane Pegram Engineer Town of Avon P.O. Box 975 Avon, Colorado 81620 Re: Roofing Consulting Services Town of Avon Recreation Center WJE No. 2010.0043 Dear Mr. Pegram: EXHIBIT A Wiss, Janney, Elstner Associates, Inc. 3609 South Wadsworth Blvd., Suite 400 Lakewood, Colorado 80235 303.914.4300 tel 1 303.914.3000 fax www.wje.com We are pleased to present our proposal for consulting work at the Avon Recreation Center located in Avon, Colorado. Based on our recent discussion and the Town's expressed needs, we recommend the following consulting program: PHASE I — PREPARATION OF CONTRACT DOCUMENTS AND CONTRACTOR SELECTION FOR PARTIAL ROOFING REPLACEMENT We will prepare specifications and drawings necessary for a contractor to perform the roof replacement work on selected roof areas of the Avon Recreation Center building. The roof replacement work will be for the two roof sections that currently have a standing seam metal roofing system (approximately 16,000 sf). All work, including site visits and meetings with the owner or the owner's representative and a 90% submittal set of construction documents for the owner's review, shall be provided. Upon completion of the construction documents, Wiss, Janney, Elstner Associates, Inc. will assist the owner in the contractor selection process. WJE will provide construction documents for all contractors chosen to bid the project, and WJE shall conduct a pre -bid project walk- through with the selected contractors at the job site. WJE proposes to perform these services for $9,500.00. PHASE II — PERIODIC CONSTRUCTION OBSERVATION SERVICES FOR PARTIAL ROOFING REPLACMENT During the reroofing, we will provide periodic construction observation services intended to determine if the work we observed is in conformance with the contract documents. We will make one visit per week to the construction site during the roofing replacement operations to observe the quality of the contractor's work visible to us at the time of our observation visits and to note Headquarters & Laboratories - Northbrook, Illinois Atlanta I Austin I Boston I Chicago I Cleveland ( Dallas I Denver I Detroit I Honolulu I Houston I Memphis Minneapolis I New Haven I New York I Princeton I San Francisco I Seattle I Washington, DC LNGI cc ARCH 11 1 LC I'S )w/ MAIERIALS SCIEN I ISIS Mr. Shane Pegram Town of Avon January 14, 2010 Page 2 the progress of construction. During these visits, and on the basis of these periodic observations, we will use our professional judgment and skill to determine whether the contractor's completed work visible to us is generally in conformance with the design and whether there are defects or deficiencies in the work of the Contractor. Recommendations may be made to rejecting work for non - compliance with the drawings or specifications. We will make suggestions to the contractor as the work progresses in an effort to have the work completed in an acceptable manner. Our services will also include review of contractor submittals, coordination and design of changes required by field conditions and recommendations related to contractor request for payment. Because of the size of this project, and how contractor crew size and weather will effect production, we are uncertain how long the roof replacement might take. However, we estimate that a maximum 5 visits over 5 weeks will be necessary (including pre- construction conference, punch list, and final inspection visits). We propose to perform these services for $8,000.00. If additional visits are requested, each additional visit can be provided for $1,600. PHASE III — MECHANICAL INSPECTION SERVICES Following the first Phase of the Avon renovation work there were a couple of areas where the existing conditions turned out to be different than anticipated. During the Roofing project we propose to reexamine these areas when the existing standing seam roof is removed to determine what work if any should be completed to address the need for a continuous air barrier. The two areas of concern are the wall between the pool and the aerobics room where the vapor retarder changes from inside surface of the wall to the outside. And at the south end of the pool the masonry wall has a vapor retarder which may not be continuous due to the masonry ties. We propose to perform this work on an hour basis, plus expenses not to exceed $2,600.00. This work is being proposed as time and expense since we don't know the extent of work needed until after the roof is off and we can make our observations. PHASE IV — PERIODIC MASONRY CONSTRUCTION OBSERVATION SERVICES During the masonry repairs, we will provide periodic construction observation services intended to determine if the work we observed is in conformance with the contract documents. We will make four visits to the construction site during the masonry repair operations to observe the quality of the contractor's work visible to us at the time of our observation visits and to note the progress of construction. During these visits, and on the basis of these periodic observations, we will use our professional judgment and skill to determine whether the contractor's completed work visible to us is generally in conformance with the design and whether there are defects or deficiencies in the work of the Contractor. Recommendations may be made to rejecting work for non - compliance with the drawings or specifications. We will make suggestions to the contractor as the work progresses in an effort to have the work completed in an acceptable manner. Our services will also include coordination and design of changes required by field conditions. Because of the nature of this project, and how contractor crew size and weather will effect production, we are uncertain how long the masonry repairs might take. However, we estimate that a maximum 4 visits over the length of the project will be necessary (including pre- construction conference). We propose to ENGINEERS Mr. Shane Pegrarn WE ARCH 11 EC IS Town of Avon Avon MA I E RIALS SCI EN1 ISIS January 14, 2010 Page 3 perform these services for $5,600.00. If additional visits are requested, each additional visit can be provided for $1,400. Our Standard Terms and Conditions dated October 1, 2009 are a part of this proposal and are enclosed for your review. We will be happy to discuss this proposal with you in more detail if you desire. If you concur with this proposal, sign on the space provided below and return one copy for our authorization to proceed. Thank you for the opportunity to submit this proposal. Sincerely, WISS, JANNEY, ELSTNER ASSOCIATES, INC. Mike Groditski RRC, RRO Associate Principal Name: Signature: Title: As Agent or Principal for: P:\2010.0043 \pro Memo To: Thru: Legal Review: Approved by: From: Date: Re: Honorable Mayor and Town Council Initials Larry Brooks, Town Manager Eric Heil, Town Attorney 'll Sally Vecchio, Asst Town Manager, Com Dev Matt Genneft, AICP, Planning Manager January 21, 2010 Resolution No. 10 -03, Series of 2010 Summary: Staff recommends the Council DENY Resolution No. 10 -03, Series of 2010, citing the findings contained herein which indicate the fee waiver program adopted by Resolution No. 09 -25, Series of 2009, did not produce the stated, intended results. Previous Council Action: On January 12, 2010, the Town Council directed staff to bring forward a Resolution to effectively extend the fee waiver program citing that the reduction and waiving of fees normally collected by the Community Development Department achieved the intended effect of stimulating development activity in the Town of Avon; and, that doing so would constitute a symbolic gesture to the citizenry. On July 2e, 2009 the Town Council approved Resolution No. 09 -25, establishing a temporary fee reduction and waiver program as follows: 1. 100% of all Zoning fees 2. 100% of all Design Review fees 3. 100% of all Building Permit fees for interior remodels, replacement of exterior stucco and /or siding, and roof covering repair and replacement 4. 10% for all other Building Permit fees Background: The waiver program was intended to jump start a lagging local construction industry and related businesses. The fee waiver program was initiated via Resolution No. 09 -25 on August 1, 2009 and is set to expire on February 12, 2010. Discussion: After reviewing the construction activity indicators for 2009 (Tables 1.1, 1.2 and 1.3, below), it is apparent that the fee waiver program did not encourage new construction activity that would have otherwise not occurred without the program. Overall revenues from permit fees fell 24% between 2008 and 2009; and building permits were down 58% during the same period. Building additions and remodels represent the majority of building permits issued in 2009. Only four permits were issued for new residential construction, and no new commercial construction occurred in 2009. Financial Implications: Thus far in January 2010, $2,100 in fees has been waived. Between January 1, 2009 and May 1, 2009, our fees totaled over $15,000, which suggests that even if local development activity remains flat, the Community Development Department will be unable to collect a substantial amount of revenue we would otherwise provide to the Town of Avon. Permit Revenues 2006 —2009 Table 1.1 2009 Building Permit Revenue By Type Table 1.2 Building Addition /Remodel 2006 2007 2008 Revenues Received Waived Revenues Percent Change $600 New Residential Construction Valuation $11,165,780 $3,521,000 (Jan -Au 2009 ) ((Aug-Dec 2009 2008 -09 4 (73.7 %) Total Permits Issued 143 60 (58 %) Contractor's License $17,605.00 $18,478.00 $15,109.00 $5,205.00 0 (65.5 %) Fees Building Permit Fees $587,775.61 $282,928.52 $181.467.35 $43,097.62 $25,849.37 (62 %) Plan Check Fees $598,828.91 $231,438.38 $88,966.81 $12,609.79 0 85% ( ) Subdivision Review Fees $111,750.74 $48,347.51 $9,874.39 $4,627.50 $877.50 44% ( ) Reviewi Fees $48,965.00 $40,400.65 $34,585.00 $12,925.00 $7,886.17 (39 %) Totals 1 $1,366,931.26 $623,600.06 $150,725.017 $78,464.91 $34,613.04 24% 2009 Building Permit Revenue By Type Table 1.2 Building Addition /Remodel $25,803 New Building $14,418 Mechanical $1,430 Plumbing $600 Building Permits Processed 2008-2009 Table 1.3 • Page 2 2008 2009 Percent Change New Commercial Construction Valuation $2,525,749 $0 (100%) New Residential Construction Valuation $11,165,780 $3,521,000 (68.4 %) New Residential Permits Issued 15 4 (73.7 %) Total Permits Issued 143 60 (58 %) • Page 2 Recommendation: Citing the findings detailed above, which indicate the fee waiver program did not produce the intended result of stimulating or incentivizing development activity in the Town of Avon, staff recommends the Council DENY Resolution 10 -03, Series of 2010, as written and attached hereto. Alternatives: Council may also APPROVE Resolution No. 10 -03, Series of 2010; TABLE the subject item with further direction to staff; or, take no action on the subject item. Proposed Motion: "I move to DENY Resolution No. 10 -03, Series of 2010, with the findings provided by staff in their memorandum to council dated January 21, 2010." Town Manager Comments: /yrt.oti"G • Page 3 TOWN OF AVON RESOLUTION NO. 10 -03 SERIES OF 2010 A RESOLUTION READOPTING A TEMPORARY FEE REDUCTION AND WAIVER PROGRAM FOR ZONING, DESIGN REVIEW AND BUILDING PERMIT APPLICATIONS COLLECTED BY THE TOWN OF AVON WHEREAS, the Town of Avon experienced a significant reduction in development activity and related fees collected by the Community Development Department in the 2009 calendar year; WHEREAS, the Avon Town Council held a public meeting on July 28, 2009 to discuss the merits of a permit fee reduction or waiver policy in an effort to stimulate development and building activity and found that the temporary waiver of zoning and design review fees and certain building permit fees would encourage development and building activities and will thereby promote the economic recovery and health of the Avon community; WHEREAS, the Avon Town Council held a public meeting on January 12, 2010 to consider the results of the fee reduction and waiver program initiated via Resolution No. 09 -25 on August 11, 2009; and, after said consideration directed staff to bring forward this Resolution to officially readopt the fee reduction and waiver program discussed herein, and; WHEREAS, the Town Council may enact and update fee schedules by resolution to respond to changing market conditions for application processes as set forth in the Avon Municipal Code Section 15.08.050(a) (Building), Title 17 (Zoning) of the Avon Municipal Code and in the Town of Avon Residential, Commercial, and Industrial Design Review Guidelines. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO: The Town Council hereby adopts the following Temporary Fee Reduction and Fee Waiver Schedule as set forth and incorporated herein as "Exhibit A to Resolution 10 -03" reducing or waiving fees related to the processing of zoning, design review and building permit applications. ACCEPTED, APPROVED AND ADOPTED ON JANUARY 26, 2010. TOWN COUNCIL ATTEST: By: Ronald C. Wolfe, Mayor By: Patty McKenny, Town Clerk EXHIBIT A to RESOLUTION 10 -03 Town of Avon Community Development Department Temporary Fee Reduction and Fee Waiver Schedule Adopted January 26, 2010 The following fees shall be temporarily eliminated or reduced until May 12, 2010, as described below and subject to the conditions and exclusions stated in this Temporary Fee Reduction and Fee Waiver Schedule. The fees established by Resolution No. 06 -01 for Zoning review, Design review and Building Permit review shall be automatically reinstated and effective on May 12, 2010, and thereafter, unless and until further modified by resolution of the Avon Town Council. Temporarily Reduced or Waived fees: (1) 100% of all Zoning fees are waived until May 12, 2010. (2) 100% of all Design Review fees are waived until May 12, 2010. (3) 100% of all Building Permit fees for interior remodels, replacement of exterior stucco and/or siding, and roof covering repair and replacement are waived until May 12, 2010. (4) 10% for all other Building Permit fee are waived until May 12, 2010. Conditions and Exclusions: (a) All plan submittals must be deemed complete by the Community Development Department on or prior to 5:00 p.m. May 12, 2010 in order to qualify for any fee reduction or fee waiver. Plan submittals which are complete, eligible and received timely by the Town of Avon shall be eligible for the fee waiver or fee reduction throughout the zoning and /or design review process or throughout the period of the issued building permit in accordance with procedures and regulations adopted by the Town of Avon and as may be amended from time to time by the Town of Avon. (b) The temporary fee reduction or fee waiver shall not apply to any outsourced plan check fees, water tap fees, the Eagle County Fire Protection District Impact Fee, legal fees, any other impact fees imposed by the Town of Avon, and any other direct costs borne by the Town of Avon in reviewing applications for Zoning, Design Review and Building Permits. (c) In all instances, the fee waiver must be approved by both the Chief Building Official and the Community Development Director. Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager Legal Review: Eric Heil, Town Attorney Approved by: Sally Vecchio, Assistant Town Manager /Director of Community Development From: Justin Hildreth, P.E., Town Engineer; Shane Pegram, P.E., Engineer II Date: January 14, 2010 Re: Resolution No. 09-29, Approving the Final Plat, Eagle River at Avon, A Resubdivision of Lots 1 and 2, Exemption Plat, Red House, Section 12, Township 5 South, Range 82 West of the Sixth Principal Meridian, Town of Avon, Eagle County, Colorado (38359 US HWY 6) tabled from 1111012009 and December 8, 2009 Summary: The Applicant, Pylman and Associates ( "Applicant ") has submitted a Final Plat for Eagle River at Avon located at 38359 US HWY 6, on behalf of the property owner, Vail Corporation ( "Owner"). This Final Plat re- subdivides the existing Exemption Plat into Lot 1 and Tract A with required easements. Pursuant to Sec. 4.6 of the Annexation and Development Agreement for this property, Tract A is intended to be conveyed to the Town of Avon ( "Town ") for the purpose of a drainage easement in gross; and in exchange for that conveyance the Town shall vacate Parcel PE -04 and terminate the River Improvement Easement Agreement with the Owner. The Annexation and Development Agreement that was approved concurrent with the PUD and required that Tract A be dedicated to the Town subject to mutually agreeable language that will restrict the uses on the Tract A. The Final Plat was tabled on November 10, 2009 and December 8, 2009 because the Applicant, Town Council, and Town Staff could not agree on aforementioned restricted use language for Lot A. Town Staff and the Applicant have met several times since the December 8, 2009 Town Council hearing and have agreed on language that restricts the use of Tract A. In summary, the language restricts the developed uses on Tract A but will allow the construction of a pedestrian path along the south bank of the Eagle River, a small kayak park viewing area on the southwest corner of Tract A and a bridge across the Eagle River that will land west of Beaver Creek. The Final Plat is in conformance with AMC Title 16, Subdivisions, section (ii) and Staff recommends approval of Final Plat. Resolution No. 09 -29 is attached as Exhibit A and a copy of the Final Plat is attached as Exhibit B. Resolution 09 -29, Approving the Eagle River at Avon Final Plat (Red House) January 15, 2009 Page 2 of 4 Previous Council Action: • June 2009 - Town Council approved Ordinance No. 09 -07, Red House Property Planned Unit Development and Development Standards; Approving a Preliminary Subdivision Plan; and Approving an Annexation and Development Agreement. • November 10, 2009 — Town Council tabled the Final Plat and requested changes to the language that conveys Tract A to the Town of Avon. • December 8, 2009 — Town Council tabled the Final Plat and requested changes to the language that conveys Tract A to the Town of Avon again. Discussion: At the November 10 and December 8, 2009 meetings, Town Council reviewed the Final Plat and found that the Owner's restrictions on Tract A were inconsistent with the nature and purpose of the Town's adjacent whitewater kayak park (Water Park). Town Council tabled its consideration of the Final Plat and directed the Staff and Applicant to modify the dedication language so that it conformed to the current and intended use of the Water Park. Staff met with the Owner's representatives several times since the December 8, 2009 meeting and has come to agreement on the dedication language for Tract A. The Owner wants to ensure that the uses on Tract A do not interfere with the privacy and enjoyment of the future townhome owners. The Town wants to ensure that future enhancements of the river corridor, such as improved water park access or the extension of the river trail, are not reasonably prohibited. Both parties agree that the protection of the natural environment and existing topography in the area will restrict future uses on Tract A and therefore have agreed to the following enhancements: 1. An extension of the river trail to the east; 2. A connection of the river trail to the south side of the water park; and 3. A water viewing area on the south side of the Eagle River. Given the close proximity of the approved residential units on Lot 1 to Tract A, the following restrictions are on Tract A have also been established: 1. Camping 2. Picnic facilities 3. Consumption of alcohol 4. Littering 5. Amplified music or sound • Page 2 Resolution 09 -29, Approving the Eagle River at Avon Final Plat (Red House) January 15, 2009 Page 3 of 4 In previous submittals the restrictive covenant was included in the certificated and dedication statement but for clarity has been moved to General Note 14 on the Final Plat. Therefore, the following language in the certificate and dedication statement is recommended: (ii) conveys to the Town of Avon Tract A with all its appurtenances and warrants title to the same against all persons claiming under The Vail Corporation, a Colorado corporation, d /b /a Vail Associates, Inc., subject to all matters of record and subject to the restrictive covenant set forth herein in General Note 14 hereby encumbering Tract A for the benefit of Lot 1 (as shown and legally described herein) and the owners thereof and owner's association thereof as constituted from time to time 14. Restrictive Covenant: Tract A is restricted to the following allowed uses and improvements: a) a water park for kayaking, rafting, fishing and other similar water sports (including without limitation, spectator and participant viewing of water park activities and events); b) landscaping; c) a maximum three -foot wide unpaved pedestrian path along the south bank of the Eagle River (including without limitation, the minimum height of retaining walls required for such path); d) a platform for viewing of water park activities and events, which platform shall be constructed, if at all, within the location depicted as 14d on sheet 2 hereof and at a grade similar to the pedestrian path connection adjacent thereto; e) an abutment, located on the west side of Beaver Creek, for a pedestrian foot bridge and lateral and sub - adjacent support therefor, which bridge may be constructed, if at all, over and across Beaver Creek connecting to that portion of Tract A located east of Beaver Creek, provided that the soffit of the bridge shall be at a maximum height of one foot above the 100 -year floodplain of Eagle River in the immediate location of the bridge and the abutment and all bridge improvements shall not exceed a maximum height greater than six feet above the 100 -year floodplain of Eagle River in the immediate location of the bridge; and f) any other improvements associated with the uses permitted hereunder, including without limitation, an abutment for a pedestrian bridge over and across Eagle River and lateral and sub - adjacent support therefor, provided that such improvements shall be constructed, if at all, within the location depicted as 14f on sheet 2 hereof; provided however, no camping, picnic facilities, consumption of alcohol, littering, amplified music or sound or other uses or activities inconsistent with the residential nature of Lot 1 is permitted. Any improvements permitted on Tract A hereunder and constructed and installed shall: i) be located entirely within Tract A; ii) include all rights and obligations of maintenance, repair, removal and replacement; • Page 3 Resolution 09 -29, Approving the Eagle River at Avon Final Plat (Red House) January 15, 2009 Page 4 of 4 iii) not impair the lateral or sub - adjacent support of Lot 1; iv) be constructed and installed in compliance with all applicable laws, rules, regulations and requirements; v) include the restoration of the surface of Tract A to as near as possible condition as that existing prior to such construction (excepting the installation of the improvements); and vi) not be at the cost and expense of the owners of Lot 1 or the owner's association thereof as constituted from time to time, except as otherwise provided in the Annexation and Development Agreement for Red House recorded at Reception No. Recommendation: Based on the provisions of Chapter 16.24.30 and other applicable sections of Title 16, of the Avon Municipal Code, Staff recommends approval of Resolution No. 09 -29, Series of 2009, A Resolution Approving the Final Plat, Eagle River at Avon, A Resubdivision of Lots 1 and 2, Exemption Plat, Red House, Section 12, Township 5 South, Range 82 West of Sixth Principal Meridian, Town of Avon, Eagle County, Colorado. Proposed Motion: I move to approve Resolution No. 09 -29, Series of 2009, A Resolution Approving the Final Plat, Eagle River at Avon, A Resubdivision of Lots 1 and 2, Exemption Plat, Red House, Section 12, Township 5 South, Range 82 West of Sixth Principal Meridian, Town of Avon, Eagle County, Colorado. Town Manager Comments: Attachments: Exhibit A Resolution 09 -29, Series of 2009 Exhibit B Final Plat, Eagle River at Avon, A Resubdivision of Lots 1 and 2, Exemption Plat, Red House, Section 12, Township 5 South, Range 82 West of Sixth Principal Meridian, Town of Avon, Eagle County, Colorado • Page 4 EXHIBIT A TOWN OF AVON RESOLUTION NO. 09-29 Series of 2009 A RESOLUTION APPROVING THE FINAL PLAT, EAGLE RIVER AT AVON, A RESUBDIVISION OF LOTS 1 AND 2, EXEMPTION PLAT, RED HOUSE, SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF SIXTH PRINCIPAL MERIDAIAN, TOWN OF AVON, EAGLE COUNTY, COLORADO. WHEREAS, The Vail Corporation, A Colorado Company d/b /a Vail Resorts, Inc. submitted a Final Plat for Eagle River at Avon, A Resubdivision of Lots 1 and 2, Exemption Plat, Red House, Section 12, Township 5 South, Range 82 West of Sixth Principal Meridian, Town of Avon, Eagle County, Colorado, located at 38359 US HWY 6; and WHEREAS, the Final Plat has been reviewed by the Town Staff; and WHEREAS, the Final Plat was found to be in conformance with all applicable sections of Title 16, Subdivision, of the Avon Municipal Code; and WHEREAS, the proposed resubdivision complies with the requirements for consideration as a Final Plat. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that the Final Plat, Eagle River at Avon, A Resubdivision of Lots 1 and 2, Exemption Plat, Red House, Section 12, Township 5 South, Range 82 West of Sixth Principal Meridian, Town of Avon, Eagle County, Colorado, is hereby approved by the Town of Avon subject to the completion of technical corrections as identified by Town Staff. ADOPTED THIS DAY OF ATTEST: Patty Bierle- McKenny Town Clerk , 2010. TOWN COUNCIL TOWN OF AVON, COLORADO Ronald C. Wolfe, Mayor 1. The purpose of this plot Is to (1) vocots the existing lot line and a..acblsd setbacks .s depicted heron, (H) create Lot 1 and Trod A. as shown an Shoot 2. pursuant to Town of Awn Lord Use Reguolions and Cdwode RoKSed Statutes concerning the subdiwislan of Land to lbe worded with the Eagle County Clerk and Recorder purwont to C.R.S. 38- 35 -tD9 such Not such at and frost may be uniquely described with reference to this Find Plat, (III) dedicate and rs n -Ir a -to iw the purposes described hereon and (iv) wcale "no.. easements as shown heron. 2. Basis of Bearing: NOO'26'37'E. 2603.41' between the Center 1/4 Comer of Section 12, Township S South, R.ngs 82 West of the Sixth principal Meridian (found }t/2' aluminum cW, LS 026626 In plastic monument veli) and in. South 1/4 Comer of sub Section 12 (faurd 3 -1/2' Z brow cap). 3. Dale of Survey. May 2008 4. No streets, rights -of -way, owe a. drives. boulevards. lanes. court, or alloys or, being dedicated Ix N public use by tu, of this Final Rbl. 5. The Vol Corporation. d \b \o Val Assocbl.s, Inc., is Kish, its wcc ... ar. and ..signs hssoy, re srw. the following pepetud and n -lusiw eassmenls: o) Sewer Easement: on easement an, ow, above. across and through the areas designated hereon as 'Sewer E.. --t" Ix the Purposes of dkposd and transmission of domestic soups, the Installation. ..nhdeskp mace all Impnmem.nt and Wclurex, together of swil hl otruc structures Inducing but not limited to age o perpetual rig grass and ogress tharcl.. b) DroInOgs Easement: an ammI on ow, ab... ac ' and through the we.. designated he- .s 'Drainage Easement' far the purposes of the following. and without Iknitalbn: using, installing. maintaining. Waking and replacing drainage foclilics of any kind x nature. Including but not limited to. storm drainage, and the droinog. of •.lsrs Rowing from other Ionds, together with o perpetual right of Ingress and press to and from such Drains . Easement. 6. All recarded Instruments nfwwced an this Mal plot we recorded In the office of the Eagle County. Celwed. Clerk and Rscandx. 7. Refer to Loud Title Guarantee Company Order No. V50020999 -2 doled Januwy D7, 2009 for di title information 8. The 100 year good pion for the Eplo Riw shown hereon as derived from the Eagle County Flood Hazard MW 9. The 24' Wick Pedestrian and Vehicular Acccss Easement and Right -of -Way, w recorded at Book 535, Ppc 134 d shown on Exemption Plat, Red thous., Reception No. 743459, has been terminated by Instrument recorded at Reception No. 200824806. 10. By Its execution of this plot below, the Town of Avon hereby terminates the River improwemenls E..em.nt Agreement recorded at Reception No. 200622401 and terminate. and wcal.. the sasemsnl described in such agreement. 11. No building Permits will be issued for the property described heron until o Subdivision Improvements Agreement (S1A) has been opp,wd and excculsd by the Town. 12. The property described hwen is w ^tt to that chain Annexation d IkIne, most A9--t rK n the of6cc o/ the E j County Clerk a d Recarder at Reception No. 200921817, .. No some may b. amended from lime to line In accordance vIU its lmma. 13. NDTICE: According to Colorado law you must consmorc, any legal action based upon any defect In this survey within three years offer you first discover such defect. In no vent may any action based upon any defect in this survey be commenced more than ten years from the dote of the cstlkdlon shown hereon. K Resirklive Covenont: Tract A is restricted to the following plowed uses and improvements: a) o valor park for k.yoking, ratting. fishing and on. similar water ports (ndudhq without limitation, pedals, and pwlkiponl dowinq of wats park octivilies and events): b) Iondscpinq; C) o maxknum thus -fact wide unpaved pedestrian path along the south bank of the Eagle Riw.r (nciuding without Iknllation, tha minimum height of retaining wells re.uked far such path), d) o Wotfmm Ix wi.wnq of water park mtMliss and events, which platform shall be constructed. R at .9, within the location depicted as 14d on sheet 2 h.rsof and at o grade aims, to the p.dnlrian Path connection adjact thxsto; s) aen abutment. located on the vest side of Bever Creak, tar o pedestrim fact bridge and lot" l and sub -'s support therefor, which bridge may be con.truled, If at all, vex and acre . Ik- Cr.. canneclnq to that portion of Tract A located east of Beow Crssk. provided not the ..ifil of the brbq. shall b. of o maximum height of ane foot obove th. 100 year floodplon of the Eagle River In the Immediate location of the br" and the abutment and all brbq. inprov.mmis shall not Icrewed o maximum height grs.for than six feel aacw the 100 year goodplon of the Eagle River In the mmediate location of the bridge: and f) any other knpr.vsmsnts associated with the uses permuted hseonds. Including without Iknil.11an. on hutment for o pedestrian bridge ow and oars» Eagle Riw and lateral d sub -ad o-t wpW therefor, pr..idsd that such inprovsmsnis shall be constructed. if of di, within the location dpicted as 14f an shed 2 hseoe, provided howew, no camping, picnic facilities. consumption f alcohol, littering. amplified musk x wand or other actlAiss n onsistent with the rssidenlbl ..lure of Lot 1 b permitted. My knproxemsnts Permitted on Tract A hereunder and constructed and Installed shall: I) be located entirely within Trod A; li) include all rights and obligations of maintenance, repair, removal and r.Wacsmenl; Iii) not ksp.k the lateral w sub- od)ocenl support of Lot 1; iv) be constructed area In.taled in compliance with all WWkdNS lows, rules. rsqulolions and rpulremme; v) include the restoration of the surface of Tract A to as new as possible condition as that existing prier to such construction (.xcWtnq the Installation of the knvovsment.); and M) not be at the cost and expense of th e owners of Lot 1 x the own dislocation thereof as constituted from time to line. except as otherwise P-Adled in the Annexation and Development Agreement for Red House recorded at Reception No. 200921817. TITLE CERTIFICATE noes hereby certify that It has eromined the Title to all lands shown pan this Plat and that Title to such land. 1. voted In free and dew of all INns. loxes and encumbrances. except those matters set forth In Schedule B -2 of the commitment for tin, insurance Issued by Land Title Guarantee Company, Order No. V50020999 -2 dated January 7, 2009. Dated this _ day of A.D., 2009. AGENT FINAL PLAT EAGLE RNER AT AVON A RESUBDMSION OF LOTS I AND 2, EXEMPTION PLAT, RED HOUSE SEC11ON 12, TOWNSHP 5 SOUTH, RANGE 82 WEST OF THE SIXTH PRM PAL MERIDIAN �L /�� �TO�W�N�O}�F/ ACOLORADO V ON EAGLE OOUN 1 , Avon HWY 6 TOWN CERTIFICATE This plot, standards, dcMItlons and termination of the Riw Improvements Eoecm71 Agreement recorded at Reception No. 200622401 o e opprowd by the Town Council of the Town of Awn, Caunty o/ Es91c, Slate of Colorado this _day of 2009. A.D. and the plot le hereby Wpr-d far (ling with the Clerk and Recorder of the Caunly of Ea91c and fw eanwymce to the Town of Awn of the public dedications shown hereon sub).t 1. the ­Ion that app r._, n no way obligates the Town of Avon W fnancing s on.t ol'i; of kmprovsmolts an Ionds, streets. or smml. dedicated sxepl as specifically .greed to by the Town Council and further that sad "s"" l shall Inn woY aiylgala the Town of Awn for manlononW of shpts until construction of Improvements the- shall hove been completed to the satisfaction of the Town C."". Approwl of this Plot by the Town Is not and shall not be constmed to be on oppraval at the technical correctness of this Plot ar of an y documentation. plans. reports ar studies wbmittcd by Oencr in necllon 0ereith. WITNESS MY HAND AND SEAL OF THE TOM OF AVON ATTEST: Town Clark Maya. Torn Council Town of Awn, Colweda Town of Avon. Colorado CLERK AND RECORDER'S CERTIFICATE This Plot was filed far record in the Office of the ask and Rewarder at _o'clock_ on this day of 2009 and I. duly recareed at Reception No. Clark and Recorder By. Deputy CERTIFICATE OF TAXES PAID 1, the undss". do hereby certify that the entire amount of loxes and assessment, due and payable as of upon all parcels of real Mot, described on this Wal we paid in fun. Doled this _ day of A.D., 2009. Treasurer of faille County TE 1 "_1000' SEC .7 ATTACHMENT B CERTIFICATE OF DEDICATION AND OWNERSHIP Know all persons by theac P•ea -to that The VW Corporation, a Colorado corporation, d \b \o Vol Associates. Inc.. being We Cols In fee sknpla. bjKl to molten of record, i that red propMy situated n the Town of Avon, Eogls County, Stole of orado described as /dbws: We I and 2 Exemption Plat, Red House. Town of Awn, CountyY of Eagle. Stole or CoIWo. according to the .x ption plot thereof recorded December 7, 2000 at RecsPtIw No. 743459 in lh. records of Epi. County, GPW.da Clerk and Records, contain 1.441 oerea. mare a less: has by these "..to laid out, platted orb wbdMdsd the soma Into o Id and . tract a. shown her and des �ignees the o. Eagle River at Avon, o RewbdiAsiw of Lots I and 2. Exemption Plot. Rcd House. Town of Awn, County of Eagle, St.l. f Cdorodo: and hereby (I) dedicates and gronls to the Town of Awn a perpetual. non- s¢lu.ivs drainage .-.nl a. drawn hereon for draimgo purP.. s. Including. without limitation, the Installation maintenance, repair. ni owl and nplacamani of Wpurtmonces thereto: and (11) conveys to the Town of Avon Tract A with di Its Wpurtenonces and warrants title to the same 0 abet all persons daiminq under The Val Corporation.. Colorado corporation. d/b /o Vol A.sodot . Inc.. wbject to all molters of record and subject to the re,blebw c ant act faith hsch in General Note 14 hereby mcumbodnq Trott A for tho benefit of Lot I (.s shown and legally described heroin) and the ems. thereof and owns. association thereof as constituted ham t'vns to tune. EXECUTED this _ day of - A.D.. 2009 Owner: The Val Corporation. o Cdw.d. corporation d \b \. Vol Assacrda., Inc. ey drams: Keith Fsmond.x Title: President R COO - VRDC STATE OF COLORADO ) COUNTY OF EAGLE 3S5 The tarp.Inq Certificate of Dedication and Ownership was ackn.eled9ed before me this _ day of- A.D. 2009. by My Commisabn expire. Whose my nand and oft ial sea. Notary Public SURVEYOR'S CERTIFICATE I, Robert S. Lee. do hereby certify that I own a Registered Land Surveyor licensed under the we of the Slate of Colxade, that this plot is a true. correct and -plot. Plot of Es 4. Riw at Awn, A RewbdMSbn of Lots 1 and 2. Exemption PIOL Redhouse, Town of Avon, Eagle County, Calared, os laid WL plotted, dedicated and shown hcrson, that such Plot was made from on accurate survey of said Property by me ond /w under my wp.rvhbn and correctly show the location and dlmen Ion a of the lots. sasements and streets if sold svadiNSbn oa the same ore staked upon the ground in compliance with appli.abl. regulations gowning 1M subdivision of land. As man imenl. we set as rpuked by the Subdivision Regulations of the Town of Avon. in WRness Whereof, i how wl my hand and seal this _ day of A.D.. 2009. Robert S. Lee PLS/23048 TOWN RESPONSE SUBMfTTAL JANUARY 14, 2010 I SHADED AREA W�CAIES PEDESTRIAN MSWC PLAiFDRM ` AREA PER GENERAL NOTE Na I i WE17 I 1 I I �� ' 29.68: PARCEL TK — '' RECEPTON No 435`:15 ' N ., OWNER: TOWN OF AVON ?� _ I - L PLAT FINAL TRACT A EAGLE WER AT AVON t'n I NOTTINGHAM STATION A R DM ESUBSION OF LOTS 1 AND 2, EXElff ON PLAT, RED HOUSE eI RECEPTION No. 389902 ( SECTION 12, TOWNSHIP 5 SOUTH, RANGE 82 WEST OF THE SKM PR NCPAL MEFEXAN 58210'14'E 2D.b• �� _ 12a67' TOWN OF AVON / / EaF RICENIE -E _ _ EAGLE COUNTY, COLORADO 0C1 43'W j 4 84 ? PARCEL PE-04 1� RIMER N E EASEMENT AGREEMENT CIEPROW N 20062240 (VA CA BED TERLONATED r THIS PLAT) \ `\ / F TEAR Ws 1rAN Ii 257// 168 37046 APPROXAA 0 LAIR FLOO D P 6'm 6 \ WC \ \N \4p \ N2955'57W 4!� I \ NOD'00'00'E \ 14.29'�\����YlJ�\y\,y, EAGLE RIVER AT AVON R H LOT 1 Im 1 313 ACRES EAOEE RIVER AT AVON TRACT A `>• 0.310Y ACRES W FOUND 5 REBAR / M7M W CAP PLS 022103 (0.13' 1 NORTH 6: 0.24• WEST) I N7�7]'S`•Y, —ar / / / 1 $ NOTTINGHAM STATION PLO AMENDMENT No. 2 1 '1 i N Jq 16.70' 1 °"e• I= �G. I .LF / 1 PAY"" I I V :/ I HOLY CROSS ELECTRIC \ N \ I. R- 3670.00' 4 alra I Ig OQa (I 21 n` D_ > SE. Na 74J459. \ \ Zj a CD t Io I / QOOY I ( / 0 c� I DO ? i••yf�9 o h RECEPTION No. 408979 .4 _ ;!fr -,f" RECEPTION No 568147 OWNER: TOWN OF AVON LEEEK \\ PER RIVERSIDE. OWNER: TOWN OF AVON RECEPnON No. p e:ri < WI II Si172'04'W Try POINT OF BECINNING-\ I - S7 ^• LOT LWE VACATED BY nW5 P(AT 4.55'(11E) N6919'10'W ' ASSOCIATED 20' SETBACKS ALSO VACATED _ •Ql iQ1��un.w..,....... 50' WITNESS CORNER \ C.S. HIGHWAY 6 P C W VARIES r ''r -- CENTER 1/4 CORNER. SECTION 12. TSS, R82W, 616 P.Y. FOUND 3 1(/.��� ALUMWUM CAP (LS #26626) = N7�7]'S`•Y, —ar W •LI16DG MONUMENT WEIl p 1QJ u NOTTINGHAM STATION PLO AMENDMENT No. 2 '1 i N Jq 16.70' 1 °"e• I= �G. I .LF if" PAY"" APPROMMATE 100 YEAR FLOOD PLAIN V \\ \\ \� HOLY CROSS ELECTRIC \ EASEMENT 110011 K 407 407 PAGE 13] \ R- 3670.00' 4 L- 160.19' \ E Tan - 90.11' SE. Na 74J459. \ \ A.2'40'04' t 04DBEAR- N72'40'26'W CHD-1 80.17' ^• LOT LWE VACATED BY nW5 P(AT 4.55'(11E) N6919'10'W ' ASSOCIATED 20' SETBACKS ALSO VACATED _ •Ql iQ1��un.w..,....... 50' WITNESS CORNER \ C.S. HIGHWAY 6 P C W VARIES r ez9Q. NORTH LINE NW 1/4, SE 1/4 OF SECTION 12_ (N8a79'10 "W 87.88') PER EXCUP77ON PLAT DETAIL A \ \ NOTTINGHAM STATION PLO AMENDMENT No. 2 '1 I• SEWER EASEMENT if" PAY"" APPROMMATE 100 YEAR FLOOD PLAIN � ' b•� \\ \\ \� 4 CENTERCWE OF BEATER \ CREEK PER EAELPnCW PLAT, \ RED H RECEPTKYY \ E SE. Na 74J459. \ \ ,per/ TRACT C NOTTINGHAM STATION PUO AMENDMENT No. 2 + ? i••yf�9 A RESUBDIVISION OF LOT 3, NOTTINGHAM STATION RECEPTION No. 408979 .4 _ ;!fr -,f" RECEPTION No 568147 OWNER: TOWN OF AVON LEEEK \\ PER RIVERSIDE. OWNER: TOWN OF AVON RECEPnON No. All 408979 ,►� \ \` ` LOT 2 RIVERSIDE \ (TIE) RECEPTION No. 408979 R- 31170.00' . Pt L-97.88' Tan \ L v\ -4694' 6.1.26'57' CHDBEAR- N73'19'04'W CHD -97.56' R- 3570.0"' L -4516' R- L- 349.41' Ton - 22.56' Tan- 174.62' a0.40.0� Er510'23' SHADED AREA WpCA7F5 CHDBEAR.N7215'32'W CHDBEAR- N71'27121'W PEDESTRIAN BR/OGE LANDWG CHD- 45.15' CND- 349.29' ZLVAE PER GENERAL N07E Na 14T, SHEET 1 ez9Q. NORTH LINE NW 1/4, SE 1/4 OF SECTION 12_ •• OWNER: THE VAIL CORPORATION \ mg's \\ FOUND 3 1/2' BLM BRASS CAP SOUTH 1/4 CORNER OF SECTION 12 ATTACHMENT B LEGEND 0 FOUND 5/8' RE -BAR AND 1 1/2- ALUMINUM CAP. LS #33655 ® FOUND MONUMENT AS INDICATED. LOT UNE 38759 ADDRESS .3DISTANCE AND BEARING PER EXEMPTION PLAT, RED HOUSE GRAPHIC SCALE ( IN I= ) 1 inch - 20 It TOWN RESPONSE SUBMITTAL JANUARY 14, 2010 (N8a79'10 "W 87.88') PER EXCUP77ON PLAT LOT 3 \ \ NOTTINGHAM STATION PLO AMENDMENT No. 2 '1 A RESUBDIVISION OF LOT 3, NOTTINGHAM STATION RECEPTION No. 568147 \ OWNER: TOWN OF AVON APPROMMATE 100 YEAR FLOOD PLAIN � ' b•� \\ \\ \� 4 CENTERCWE OF BEATER \ CREEK PER EAELPnCW PLAT, \ RED H RECEPTKYY \ E SE. Na 74J459. \ \ ,per/ \ TRACT A - \\ RIVERSIDE RECEPTION No. 408979 .4 _ ;!fr -,f" ��,a �� ANAL PLAT, LEEEK \\ PER RIVERSIDE. OWNER: TOWN OF AVON RECEPnON No. All 408979 ,►� \ \` ` LOT 2 RIVERSIDE \ RECEPTION No. 408979 •• OWNER: THE VAIL CORPORATION \ mg's \\ FOUND 3 1/2' BLM BRASS CAP SOUTH 1/4 CORNER OF SECTION 12 ATTACHMENT B LEGEND 0 FOUND 5/8' RE -BAR AND 1 1/2- ALUMINUM CAP. LS #33655 ® FOUND MONUMENT AS INDICATED. LOT UNE 38759 ADDRESS .3DISTANCE AND BEARING PER EXEMPTION PLAT, RED HOUSE GRAPHIC SCALE ( IN I= ) 1 inch - 20 It TOWN RESPONSE SUBMITTAL JANUARY 14, 2010 Memo To: Honorable Mayor and Town Council Initials Thru: Larry Brooks, Town Manager Legal Review: Eric Heil, Town Attorney Approved by: Sally Vecchio, Assistant Town Manager /Director of Community Development From: Justin Hildreth, P.E., Town Engineer a Shane Pegram, P.E., Engineer II _ Date: January 13, 2010 Re: Resolution 09-30 Second Supplemental Water Lease Agreement with the Upper Eagle River Water Authority to Include the Red House Development (tabled from 1218/2009) Summary: In 2005, the Town of Avon (TOA) and the Upper Eagle River Water Authority (UERWA) updated the water lease agreement in which TOA leases its water rights to UERWA in exchange for the UERWA providing water service to TOA. In June 2009, the Town entered into an Annexation and Development Agreement with The Vail Corporation (Owner) for the Red House Development. The Development Agreement obligated the Owner to dedicate water rights to the UERWA to account for the development's water service needs. The Town was obligated by the Development Agreement to enter into an agreement with UERWA that caused said water service to be provided to the Owner (Water Lease Agreement). The Second Supplemental Water Lease Agreement will update the Water Lease Agreement to include the Red House Development. Previous Council Action: • January 1, 1998: The Avon Town Council and UERWA entered in to an Amended and Restated Water Lease. • July 15, 2005: The Avon Town Council approved the Supplemental Water Lease with the Upper Eagle Regional Water Authority. • June 25, 2009: A Supplemental Water Service Agreement was entered into with UEWRA to service an additional 255.55 SFEs to the Town. The additional SFEs accounted for water requirements of the Confluence Project (Riverfront PUD) and increased our total SFE count from 4,984 to 5,239.55. • June 23, 2009: An Annexation and Development Agreement was entered into by the Town and The Vail Corporation for the Red House Development. • November 10, 2009: Town Council tabled the resolution for requested Final Plat revisions. • December 8, 2009: Town Council tabled the resolution for requested Final Plat revisions. Background: In 2005, the TOA renegotiated the Water Lease Agreement for the administration of all Avon water rights with UERWA. The scope of the Water Lease Agreement includes all areas previously served by Avon Metropolitan District water service, generally consisting of the TOA boundaries and excluding the Eaglebend Subdivision, Gates and Folson parcels, and the Village at Avon. During the negotiation process, Town Staff completed an analysis of water consumption, existing zoning, and future water demand. During this analysis, TOA reached an agreement with UERWA resulting in the total water available for TOA to total 386.03 consumptive acre -feet. This volume of water will serve up to 4,984 SFEs (Single Family Equivalents) of domestic water service, of which 4,793 SFEs are allocated to existing subdivided lots and 191 reserved for future municipal services. At the time, Town Staff determined that the Town could supply water to new developments up to the maximum underlying zoning, as well as redevelopment up to existing zoning. Since then, Town Staff has required all large developments involving upzoning to provide additional water rights above those provided by TOA under existing zoning. Providing adequate and acceptable water rights is a condition of final plat approval per Avon Municipal Code Section 16.24.140 (7). On June 25, 2009, TOA and UERWA entered into a Supplemental Water Service Resolution 09 -30: Second Supplemental Water Service Agreement with UERWA Page 2of2 January 13, 2010 Agreement to provide 255.55 additional SFEs for the water service required by the development of the Riverfront Subdivision. This supplemental agreement increased the total SFE count from 4,984 to 5,239.55. Discussion: The Red House property was not a part of the Town when the Water Lease Agreement was signed in 2005. Therefore, the water rights required to serve the recently annexed Red House property are neither a part of the original 4,984 SFEs nor the additional 255.55 SFEs agreed upon in 2009 with the Riverfront Subdivision. Upon annexation into TOA, water rights for the proposed Red House Development were provided by the Owner pursuant to Avon Municipal Code, Title 16, Subdivision, which requires that development provide adequate water rights. The Annexation and Development Agreement that was approved for the Red House Development obligated the Owner to dedicate water rights to the UERWA that would account for the development's required 15 SFEs, and required TOA to enter into a water service agreement with the UERWA that assured they would service 15 SFEs to the development. This Second Supplemental Water Service Agreement will increase the water service the UERWA will provide within the Town from 5,239.55 SFEs to 5,254.55 SFEs, and insure that the dedicated water rights for the Red House Development are assigned to TOA in the event the UERWA (or any successor entity) fails to provide water service to the Red House Development. Financial Implications: There are no financial implications associated with approval of this resolution. Recommendation: Approve Resolution 09-30, A Resolution Approving the Second Supplemental Water Service Agreement between the Town of Avon and the Upper Eagle River Water Authority. Proposed Motion: I Move to Approve Resolution 09 -30, Series 2009, A Resolution Approving the Second Supplemental Water Service Agreement between the Town of Avon and the Upper Eagle River Water Authority. Town Manager Comments: 6;� Attachments: Attachment A Resolution 09 -30 Exhibit A to Resolution 09 -30 - 2009 Second Supplemental Water Service Agreement • Page 2 TOWN OF AVON RESOLUTION NO. 09-30 Series of 2009 A RESOLUTION APPROVING A SECOND SUPPLEMENTAL WATER LEASE AGREEMENT WITH THE UPPER EAGLE RIVER WATER AUTHORITY WHEREAS, the Upper Eagle River Water Authority ( "Authority ") is a quasi - municipal corporation established pursuant to an Intergovernmental Agreement dated September 18, 1984, among the Arrowhead Metropolitan District, the Town of Avon as successor to the Avon Metropolitan District ( "Avon "), the Beaver Creek Metropolitan District, the Berry Creek Metropolitan District, the Eagle -Vail Metropolitan District, and the Edwards Metropolitan District (collectively the "Member Districts "), and the Authority is the owner or lessee of the water rights and facilities that provide water service by contract to existing and projected developments within the service area of its Member Districts; and WHEREAS, pursuant to the Amended and Restated Water Lease dated effective as of January 1, 1998, between the Authority and the Town, the Town leased to the Authority certain water and water rights, ditches and ditch rights, wells and groundwater rights, springs and spring rights, and reservoirs and storage rights described as an undivided 77.7% interest in the water rights described on Exhibit A attached to the Restated Water Lease; and WHEREAS, pursuant to the Supplemental Water Lease dated July 14, 2005, the Town leased to the Authority the remaining 22.3% undivided interest in and to the subject water rights and the Supplemental Water Lease states that the entire interest in the subject water rights leased to the Authority by virtue of the Restated Water Lease and the Supplemental Water Lease are adequate to replace depletions associated with lake evaporation (42.30 acre feet), non - potable irrigation in the amount of 19.58 acre feet, and potable water service for up to 4,984 equivalent residential units single family equivalents (SFE); and WHEREAS, pursuant to the Supplemental Water Lease dated June 25, 2009, the Authority agreed to increase the number of SFE's that it will serve within the town by 255.55 to account for additional water requirements of the Confluence Project, increasing the total service from 4,984 SFE's to 5,239.55 SFE's; and WHEREAS, subsequent to the Supplemental Water Lease, the Authority and Vail Associates, INC. (the "Company ") entered into that certain Water Service Agreement dated September 24, 2009, whereby the Company sought water service for property annexed into the Town known as the Red House development which at full build out will consist of 15 SFE; and therefore the Authority agreed to service these 15 SFEs at the Red House development provided certain contingencies were met, including the dedication of certain water rights to the Authority; and Res. No. 09 -30 Town of Avon Pagel of 2 WHEREAS, the contingencies contemplated in the Water Service Agreement have been satisfied, and as a result, the Authority and the Town desire to enter into this Agreement whereby the Authority agrees to increase the number of SFEs that it will serve in the Town by 15, to a total of 5,254.55 SFEs; and WHEREAS, the Town and the Company entered into an Annexation and Development Agreement dated June 23, 2009, under which the Company was obligated to dedicate and convey to the Authority certain water rights, and said agreement contemplated that should the Authority fail to provide water service to the Red House development for any reason, the water rights dedicated to the Authority shall be assigned by the Authority to the Town; and WHEREAS, it is the intent and purpose of this Second Supplemental Water Service Agreement to increase the maximum number of SFEs to which the Authority will provide water service within the Town from 5,239.55 SFEs to 5,254.55 SFEs, and insure that the dedicated water rights for the Red House development are assigned to the Town in the event the Authority (or any successor entity) fails to provide water service to the Red House development. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that the SUPPLEMENTAL WATER LEASE AGREEMENT WITH THE UPPER EAGLE RIVER WATER AUTHORITY as hereto attached as Exhibit A is hereby approved by the Town of Avon. ADOPTED THIS ATTEST: Patty McKenny Town Clerk Res. No. 09 -30 Town of Avon Page 2 of 2 DAY OF , 2010. TOWN COUNCIL TOWN OF AVON, COLORADO Ronald C. Wolfe, Mayor EXHIBIT A SECOND SUPPLEMENTAL WATER SERVICE AGREEMENT This Agreement dated this 24th day of September, 2009, is between the Upper Eagle Regional Water Authority, a quasi - municipal corporation and political subdivision of the State of Colorado (the "Authority "), and the Town of Avon (the "Town "), a municipal corporation. RECITALS A. The Authority is a quasi - municipal corporation established pursuant to an Intergovernmental Agreement dated September 18, 1984, among the Arrowhead Metropolitan District, the Town of Avon as successor to the Avon Metropolitan District ( "Avon "), the Beaver Creek Metropolitan District, the Berry Creek Metropolitan District, the Eagle -Vail Metropolitan District, and the Edwards Metropolitan District (collectively the "Member Districts "). The Authority is the owner or lessee of the water rights and facilities that provide water service by contract to existing and projected developments within the service area of its Member Districts. B. Pursuant to the Supplemental Water Service Agreement dated June 25, 2009, between the Authority and the Town, the Authority committed to provide water service to a total of 5,239.55 single family equivalent residential units ( "SFEs ") in the Town. C. Subsequent to the Supplemental Water Service Agreement, the Authority and The Vail Corporation (the "Company ") entered into that certain Water Service Agreement dated September , 2009. Pursuant to the Water Service Agreement, the Company sought water service for redeveloped property annexed into the Town known as the Red House development, more particularly described in the attached Exhibit A. The proposed Red House development at full build out will consist of 15 SFEs, which 15 SFEs were not contemplated by the Supplemental Water Service Agreement. The Authority agreed to service these additional 15 SFEs at the Red House development provided certain contingencies were met, including the dedication of additional water rights. D. The contingencies contemplated in the Water Service Agreement have been satisfied. As a result, the Authority and the Town desire to enter into this Agreement whereby the Authority agrees to increase the number of SFEs that it will serve in the Town by 15, to a total of 5,254.55 SFEs. E. The Town and the Company entered into an Annexation and Development Agreement for the Red House development dated June 23, 2009, under which the Company was obligated to dedicate and convey to the Authority certain water rights. Said agreement contemplated that, should the Authority fail to provide water service to the Red House development for any reason, the water rights dedicated to the Authority shall be assigned by the Authority to the Town. F. It is the intent and purpose of this Second Supplemental Water Service Agreement to increase the maximum number of SFEs to which the Authority will provide water service within the Town from 5,239.55 SFEs to 5254.55 SFEs, and insure that the dedicated water rights for the Red House development are assigned to the Town in the event the Authority (or any successor entity) fails to provide water service to the Red House development. 32515 NOW, THEREFORE, in consideration of the premises contained herein and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Authority and the Town agree as follows: 1. Additional Water Service Commitment. The Authority agrees that it will serve an additional 15 SFEs in the Town in addition to the 5239.55 SFEs that were specified in the Supplemental Water Service Agreement. These additional 15 SFEs will be available to the Red House development on the same basis as other users within the Authority's service area to meet the construction, residential, municipal, irrigation, recreation and other incidental water demands of the Red House development. The total number of SFEs in the Town that the Authority agrees to serve now totals 5,254.55 SFEs. The parties' Supplemental Water Service Agreement, the January 1, 1998 Amended and Restated Water Lease and the July 14, 2005 Supplemental Water Lease remain in full force and effect as supplemented by this Agreement. 2. Customer Charges. Currently all customers within the Town pay directly to the Authority plant investment fees and finished water storage fees at the time of hook up, and the monthly service charges of the Authority. Nothing contained in this Agreement shall modify this arrangement and all customers within the Town shall continue to be directly responsible for the payment of such fees and charges. 3. Conveyance Upon Dissolution. As a condition of water service, the developer of the Red House development dedicated certain water rights to the Authority. Should the Authority fail to provide water service to the Red House development or should the Authority cease to exist as a water service entity whether by reason of dissolution, termination or other reason and there is no successor entity, the Authority shall convey to Avon the following water rights that were dedicated to the Authority by the developer of the Red House development: two and one -half shares of Class B Series 2 stock in Eagle Park Reservoir Company amounting to 2.5 acre -feet of water from Homestake Reservoir. 4. Miscellaneous: (a) This Agreement may not be amended nor any rights hereunder waived except by an instrument in writing signed by the parties sought to be charged with such amendment or waiver. (b) This Agreement shall be interpreted in accordance with and governed by the laws of the State of Colorado. The forum for resolution of any and all disputes arising hereunder shall be the District Court in and for Eagle County, State of Colorado. (c) The paragraph headings herein are inserted for convenience of reference only and do not define, limit or prescribe the scope of this Agreement. (d) The parties agree to execute such additional documents as may be reasonably required to implement the terms of this Agreement. 32515 (e) The terms of this Agreement shall be binding on the parties' successors and assigns. (f) Notwithstanding any interpretation of any term or condition to the contrary, water service to any customer or property within Avon shall be subject to all other rules, regulations, fees and requirements of the Authority. EXECUTED as of the date first set forth above. UPPER EAGLE REGIONAL WATER AUTHORITY, a quasi - municipal corporation of the State of Colorado By: Name: Title: TOWN OF AVON By: Name: Title: 32515 STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 2009, by as of the Upper Eagle Regional Water Authority, a quasi- municipal corporation and political subdivision of the State of Colorado . Witness my hand and official seal. My commission expires Notary STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this , 2009, by as of Avon Witness my hand and official seal. My commission expires Notary Public 32515 4 day of of the Town Memo To: Honorable Mayor and Town Council Initials Thru: Larry Brooks, Town Manager Legal Review: Eric Heil, Town Attorney Approved by: Sally Vecchio, Assistant Town Manager /Director of Community Development From: Justin Hildreth, P.E., Town Engineer Shane Pegram, P.E., Engineer II Date: January 13, 2010 Re: Ordinance No. 09-19, Approving the Landscape Construction and Maintenance Easement Agreement with The Vail Corporation for the Red House Development Summary: Attached to this Memorandum is Ordinance No. 09 -19, Approving the Landscape Construction and Maintenance Easement Agreement, Red House Development (Attachment A). The easement agreement requires The Vail Corporation ( "Owner') to fulfill obligations to construct, install and maintain certain landscape and irrigation improvements on the property. These improvements will be included in a future Subdivision Improvements Agreement that is required prior to issuance of a building permit or construction of any improvements on the site. Discussion: The Town of Avon (TOA) approved Ordinance No. 09 -07, Red House Property Planned Unit Development and Development Standards; Approving a Preliminary Subdivision Plan; and Approving an Annexation and Development Agreement in June of this year. The Annexation and Development Agreement obligated the Town to grant a Landscape Construction and Maintenance Easement to the Owner concurrently with the recording of a minor subdivision plat and Owner's dedication of the River Tract. Ordinance No. 09-19 was approved on first reading at the November 10, 2009 Town Council meeting and tabled on second reading during the December 8, 2009 meeting to address River Tract restrictive language to be included on the Final Plat. The Council comments received during the first reading have not been included in the Easement Agreement because the agreement language was previously approved as an exhibit to the Annexation and Development Agreement. Approval of the Final Plat at the January 26, 2010 meeting satisfies the Owner's obligation for the Town's granting of said easement. Financial Implications: There are no financial implications in granting this easement. Recommendation: Staff recommends approval of Ordinance No 09 -19, Approving the Landscape Construction and Maintenance Easement Agreement, Red House Development on second reading. Proposed Motion: I move to approve Ordinance No 09 -19, Approving the Landscape Construction and Maintenance Easement Agreement, Red House Development. Town Manager Comments: Attachments: �;— Attachment A: Ordinance 09 -19, Series of 2009 Exhibit A to Ordinance 09 -19: Landscape Construction and Maintenance Easement Agreement TOWN OF AVON ORDINANCE NO. 09-19 SERIES OF 2009 AN ORDINANCE APPROVING THE LANDSCAPE CONSTRUCTION AND MAINTENANCE EASEMENT AGREEMENT, RED HOUSE DEVELOPMENT WHEREAS, the Town of Avon ( "Town ") approved Ordinance 09 -07, Red House Property Planned Unit Development and Development Standards; Approving a Preliminary Subdivision Plan; and Approving an Annexation and Development Agreement, Town of Avon, Eagle County, Colorado, dated June 23, 2009 and recorded in the Office of the Eagle County Clerk and Recorder, Colorado, Reception No. 200921815; and WHEREAS, the Annexation and Development Agreement dated June 23, 2009, obligated the Town to grant a Landscape Construction and Maintenance Easement Agreement (Easement) to The Vail Corporation (Owner) contemporaneously with the recording of the Minor Subdivision Plat and Owner's dedication of the River Tract to the Town, and WHEREAS, the Town Council approved Resolution No. 09 -31, the Final Plat, Eagle River At Avon, A Resubdivision of Lots 1 and 2, Expemption Plat, Red House, Section 12, Township 5 South, Range 82 West of the Sixth Principal Meridian, Town of Avon, Eagle County, Colorado, and will be recorded in the Office of the Eagle County Clerk and Recorder, Colorado; and WHEREAS, the contingencies required by the Annexation and Development Agreement have been met, and as a result, the Owner and the Town desire to enter into this Easement Agreement whereby the Town grants to Owner a temporary landscape construction easement and permanent landscape maintenance easement over the River Tract; and WHEREAS, the Town Council finds that granting of the Easement attached hereto shall promote the health, safety and general welfare of the Avon community by allowing improvements to be properly operated and maintained; and WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this ordinance; Ord. No. 09 -19 Town of Avon Page 1 of 3 NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF AVON HEREBY ORDAINS: SECTION 1. LANDSCAPE CONSTRUCTION AND MAINTENANCE EASEMENT ACCEPTED. The Town Council hereby authorizes and approves execution and dedication of the Easement. SECTION 2. MAYOR AND TOWN CLERK AUTHORIZATION. The Mayor and Town Clerk are hereby authorized to execute and sign the landscape construction and maintenance easement in the form attached hereto as Exhibit A: Landscape Construction and Maintenance Easement and take such other actions as may be necessary or implied to implement the provisions of this Ordinance. SECTION 3. SEVERABILITY. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term "provision" means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term "application" means and 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 seven days after public notice following 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. PUBLICATION BY POSTING. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on final reading by title in at least three public places within the Town and posting at the office of the Town Clerk, which notice shall contain a statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours. [remainder of page intentional left blank — signature page follows] Ord. No. 09 -19 Town of Avon Page 2 of 3 INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for 5:30 p.m. on the 26th day of January, 2010, at the Council Chambers of the Avon Municipal Building, located at One Benchmark Road, Avon, Colorado, on the 10th day of November, 2009. Ronald C. Wolfe, Mayor Published by posting in at least three public places in Town and posting at the office of the Town Clerk at least seven days prior to final action by the Town Council. ATTEST: APPROVED AS TO FORM: Patty McKenny, Town Clerk Eric Heil, Town Attorney INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on the 26th day of January, 2010. Ronald C. Wolfe, Mayor Published by posting by title in at least three public places in Town and posting by title at the office of the Town Clerk. ATTEST: Patty McKenny, Town Clerk Ord. No. 09 -19 Town of Avon Page 3 of 3 After recording return to: The Vail Corporation P. O. Box 959 137 Benchmark Road Avon, CO 81620 Attn: Assistant General Counsel LANDSCAPE CONSTRUCTION AND MAINTENANCE EASEMENT AGREEMENT THIS LANDSCAPE CONSTRUCTION AND MAINTENANCE EASEMENT AGREEMENT (this "Agreement ") is made and entered into as of this _ day of , 2009 ( "Effective Date ") by and between The Vail Corporation, a Colorado corporation, d/b /a Vail Associates, Inc. ( "Grantee "), and the Town of Avon, a home rule municipal corporation of the State of Colorado ( "Town "). RECITALS A. Grantee is the owner of certain real property located in the Town, as more particularly described in Exhibit A attached hereto and incorporated herein by this reference (the "Grantee Property "), upon which Grantee intends to develop a residential project (the "Project "). B. To provide public benefit to the Town in connection with Grantee's development of the Project, Grantee conveyed to the Town certain real property located in the Town, as more particularly described in Exhibit B attached hereto and incorporated herein by this reference (the "River Tract "), which abuts the Grantee Property. C. Contemporaneously with Grantee's conveyance of the River Tract to the Town, the Town has vacated, via the final plat for the Property, that certain kayak park pedestrian easement encumbering a portion of the Property and recorded at Reception No. 200622401. D. In connection with Grantee's development of the Project, the Town and Grantee will enter into a subdivision improvements agreement ( "SIA "), which sets forth, among other matters, Grantee's obligations with respect to the construction, installation and maintenance of certain landscape and landscape irrigation improvements (collectively, the "Improvements ") upon the River Tract, which Improvements are subject to the approval of the Town Design Review Board. E. After the applicable maintenance warranty period as set forth in the SIA, the Town will maintain the Improvements and Grantee will have no further maintenance obligation therefor, provided that Grantee desires the right to perform future maintenance with respect to the Improvements in connection with the on -going operation of the Project. F. In order to facilitate Grantee's performance of its obligations under the SIA with respect to the Improvements and Grantee's desire to have the right, but not the obligation, to maintain the Improvements after the expiration of the maintenance warranty period under the 918743.1 SIA, the Town desires to grant to Grantee a temporary landscape construction easement and a permanent landscape maintenance easement over the River Tract and Grantee desires to accept such grant pursuant to the terms and conditions set forth herein. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Grantee and the Town (each a "Party" and collectively, the "Parties ") hereby agree as follows: 1. Grant of Easements. The Town hereby grants the following easements, provided however that nothing contained in this Agreement shall restrict, impair or otherwise limit the ability of the Town to adopt, revise, amend, and apply landscape regulations to the River Tract nor impair or restrict the reasonable use of the River Tract for pedestrian access to the kayak park located on the River Tract: (a) The Town hereby grants to Grantee upon, in, over, through, under and across the River Tract for the use and benefit of Grantee and its agents, contractors, subcontractors and employees (collectively, "Permittees "), a temporary non - exclusive landscape construction easement ( "Construction Easement ") during the Term (defined in Section 3) for the purposes of installation, construction, maintenance, repair, removal and replacement of the Improvements, together with all rights of reasonable access to the River Tract as are reasonably necessary to accomplish such purposes. (b) The Town hereby grants to Grantee upon, in, over, through, under and across the River Tract for the use and benefit of Grantee and its Permittees, a permanent non - exclusive landscape maintenance easement ( "Landscape Easement ") for the purposes of maintenance, repair, removal and replacement of the Improvements, removal of weeds, cleanup of fallen limbs and vegetation mitigation for wildfire defensible space, together with all rights of reasonable access to the River Tract as are reasonably necessary to accomplish such purposes. The Construction Easement and the Landscape Easement are referred to herein collectively as the "Easements." 2. Reservation by the Town. The Town hereby reserves for itself and its successors and assigns the right to use the River Tract for any and all purposes that are not inconsistent with and do not unreasonably interfere with the Easements hereby granted. The Town reserves the right to grant such additional non - exclusive easements or other interests in the River Tract as may be determined necessary or desirable by the Town; provided, however, such grants will not unreasonably interfere with the Easements hereby granted. Grantee will have the right of subjacent and lateral support for the Improvements and other improvements situated on the abutting portions of the Property, and the Town will not take any action which would impair the lateral or subjacent support for the foregoing or modify the earth cover over any installed irrigation lines in such a manner that would adversely impact the Improvements. 918743.1 2 3. Term. (a) The term of the Construction Easement will commence on the Effective Date and will terminate upon the date of the Town's final acceptance of the Improvements as set forth in the SIA. Upon the expiration of the term of the Construction Easement, the Construction Easement will automatically terminate and be of no further force or effect. (b) The term of the Landscape Easement will commence on the Effective Date and will continue in perpetuity; provided, however, from and after the date that is twenty -five (25) years from the Effective Date, the Town may, upon ninety (90) days' prior written notice to Grantee, terminate the Landscape Easement for any reason or no reason at all. Upon the Town's termination the Landscape Easement as provided in this subsection (b), the Landscape Easement shall automatically terminate and be of no further force or effect. 4. Restoration of Propert y. Except as permanently modified by Grantee's installation and construction of the Improvements, after completion thereof, Grantee promptly will restore the surface of the River Tract as near as reasonably possible to its condition existing prior to the Effective Date, and Grantee will repair any damage to the River Tract. 5. Safety Measures; Workmanship. All construction, maintenance and repair activities on the Easement Area and in connection with the Improvements carried on by Grantee or its Permittees will be conducted in material accordance with all applicable laws, rules and regulations, and will be done in a manner and with such safeguards as are reasonably necessary to try to avoid any personal injury or property damage in connection therewith. 6. Mechanic's Liens. Grantee will pay or cause to be paid all costs for construction work done by or on behalf of Grantee or any of its Permittees or any other person occupying the River Tract by, through or under Grantee, or caused to be done by any such parties on the River Tract. Grantee will keep the River Tract free and clear of all mechanic's liens and other liens on account of construction work done or performed on behalf of Grantee or any of its Permittees, or persons claiming by, through or under Grantee. Should any liens be filed or recorded against the River Tract or any action affecting title thereto be commenced as a result of such construction work (which term includes the supply of materials), Grantee will cause such liens to be removed of record within sixty (60) days after receiving notice thereof. The foregoing sixty (60) day cure period will be in lieu of the notice and cure provisions of Section 7 (which provisions will not apply with respect to the matters addressed in this Section 6). If Grantee desires to contest any such claim or lien, Grantee will file a bond with the appropriate court and obtain a release of such lien pursuant to C.R.S. § 38 -22 -132, as amended. If a final judgment establishing the validity or existence of any lien for any amount is entered, Grantee will promptly pay and satisfy or cause to be paid and satisfied the same. If Grantee will be in default in paying any construction charge for which a mechanic's lien or suit to foreclose such lien has been recorded or filed and Grantee will not have bonded over such lien as provided above, the Town may (but without being required to do so) pay such lien or claim and any costs and amounts so paid, together with reasonable attorneys' fees incurred in connection therewith, will be promptly due and payable from Grantee to the Town. 918743.1 3 7. Notice and Cure. In the event of a default by any Party under this Agreement, the non - defaulting Party shall deliver written notice to the defaulting Party of such default, at the address specified in Section 11, and the defaulting Party shall have thirty (30) days from and after receipt of such notice to cure such default. With respect to non - monetary obligations, if such default is not of a type that can be cured within such thirty (30) day period and the defaulting Party gives written notice to the non - defaulting Party within such thirty (30) day period that it is actively and diligently pursuing such cure, the defaulting Party shall have a reasonable period of time up to one hundred eighty (180) days given the nature of the default to cure such default, provided that such defaulting Party is at all times within such additional time period actively and diligently pursuing such cure. Such remedies will be cumulative of one another and the exercise of any one of such remedies will not preclude the exercise of any other remedy provided herein or otherwise provided by applicable law. 8. Indemnification. Grantee shall indemnify, defend and hold harmless the Town (and its officials, agents, representatives, employees, contractors, and successors and assigns) from all claims, demands, damages (including, without limitation, consequential damages), causes of action, fines, penalties, losses, liability, judgments, costs or expenses (including reasonable attorneys' fees) resulting from claims for bodily injury (including death) to any person or damage to any property, caused by or arising from the conduct or activities of Grantee or its Permittees in the exercise of its rights under the Easement hereby granted (including, without limitation, maintenance, repair and replacement activities); provided, however, such indemnification shall not extend to any claims caused by or arising from the Town's negligence or willful misconduct.. 9. Governmental Immunity. Nothing in this Agreement shall be construed to waive, limit, or otherwise modify any governmental immunity that may be available by law to the Town, its officials, employees, contractors, or agents, or any other person acting on behalf of the Town and, in particular, governmental immunity afforded or available pursuant to the Colorado Governmental Immunity Act, Title 24, Article 10, Part 1 of the Colorado Revised Statutes. 10. Attorneys' Fees. In the event any action is brought to enforce any provision of this Agreement or as a consequence of any breach or threatened breach of any provision hereof, the prevailing Party in such action or dispute will be awarded its court costs and attorneys' fees from the other Party. 11. Assign. Grantee will assign all rights and obligations of this Agreement to an owner's association formed for the Red House Planned Unit Development prior to the Town's issuance of the first temporary certificate of occupancy for any improvements constructed on the Grantee Property. From and after the date of such assignment, Grantee will have no further obligations or liabilities under this Agreement, provided that any outstanding obligations or liabilities of Grantee under this Agreement arising prior to the date of such assignment will be a joint and several obligation of Grantee and such owner's association. 12. Notices. Any notice or communication required or permitted under the terms of this Agreement will be in writing, may be given by the Parties hereto or such Parties' respective legal counsel, and will be deemed given and received (i) when hand delivered to the intended recipient(s), by whatever means; (ii) three (3) business days after the same is deposited in the United States Mail, with adequate postage prepaid, and sent by registered or certified mail, with 918743.1 4 return receipt requested; (iii) one (1) business day after the same is deposited with an overnight courier service of national reputation having a delivery area encompassing the address of the intended recipient, with the delivery charges prepaid; or (iv) when received via facsimile on the intended recipient's facsimile facilities accessed by the applicable telephone number set forth below (provided such facsimile delivery and receipt is confirmed on the facsimile facilities of the noticing party). Any notice will be delivered, mailed, or sent, as the case may be, to the appropriate address set forth below: If to Town: Town of Avon P.O. Box 975 Avon, Colorado 81620 Attention: Town Manager Telephone: 970 - 748 -4005 Facsimile: 970-748-4078 And: Eric Heil, Esq. Heil Law & Planning, LLC 1499 Blake Street, Unit 1 -G Denver, CO 80202 Telephone: 303 - 975 -6120 Facsimile: 970-836-3337 If to Grantee: The Vail Corporation P. O. Box 959 137 Benchmark Road Avon, CO 81620 Attn: Keith Fernandez Telephone: 970 - 754 -2524 Facsimile: 970-754-2555 And: The Vail Corporation P. O. Box 959 137 Benchmark Road Avon, CO 81620 Attn: Assistant General Counsel Telephone: 970 - 754 -2534 Facsimile: 970 - 754 -2555 And: Otten Johnson Robinson Neff + Ragonetti PC 95017 1h Street, Suite 1600 Denver, Colorado 80202 Attn: Kimberly Martin Telephone: 303 - 825 -8400 Facsimile: 303 - 825 -6525 918743.1 5 Each Party may change its addresses and/or fax numbers for notices pursuant to a written notice which is given in accordance with the terms hereof. As used herein, the term "business day" will mean any day other than a Saturday, a Sunday or a legal holiday for which U.S. Mail service is not provided. Whenever any date or the expiration of any period specified under this Agreement falls on a day other than a business day, then such date or period will be deemed extended to the next succeeding business day thereafter. 13. Binding Effect: Recording. The terms, benefits, conditions and obligations of this Agreement will be appurtenant to, a burden upon, a benefit to and run with title to the Grantee Property and the River Tract and will be binding upon and inure to the benefit of the Parties to this Agreement and their respective successors and assigns. This Agreement will be recorded by the Town in the real property records of the office of the Clerk and Recorder of Eagle County at Grantee's expense. From and after the date of any conveyance of the Property or assignment of Grantee's rights and obligations hereunder, Grantee will have no further obligations or liabilities under this Agreement, provided that any outstanding obligations or liabilities of Grantee under this Agreement arising prior to the date of such conveyance or assignment, as applicable, will be a joint and several obligation of Grantee and such successor or assign. 14. Governing. This Agreement will be governed by and construed in accordance with the laws of the State of Colorado. 15. Entire Agreement; Modifications. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, and no modification or amendment of this Agreement will be effective unless made by written instrument executed by the Parties or their respective successors in interest. 16. Severability. If any term, provision, covenant or condition of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions of this Agreement will continue in full force and effect. 17. Captions. The captions in this Agreement have been inserted solely for convenience of reference, are not a part of this Agreement, and will have no effect upon construction or interpretation. 18. Counterparts. This Agreement may be executed in multiple counterparts, each of which will be deemed to be an original and all of which taken together will constitute one and the same agreement. [Signature Pages Follow This Page] 918743.1 6 IN WITNESS WHEREOF, Grantee and the Town have executed this Agreement as of the Effective Date. TOWN: TOWN OF AVON By: Ronald C. Wolfe, Mayor ATTEST Patty McKenny, Town Clerk STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Subscribed before me this _ day of , 2009, by Ronald C. Wolfe, as Mayor, and Patty McKenny, as Town Clerk of Town of Avon, a Colorado municipal corporation. My commission expires: Notary Public 918743.1 7 GRANTEE: THE VAIL CORPORATION, a Colorado corporation, d/b /a Vail Associates, Inc. By: Keith Fernandez, President & COO - VRDC STATE OF COLORADO ) ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of , 2009, by Keith Fernandez, as President & COO - VRDC of THE VAIL CORPORATION, a Colorado corporation, d/b /a Vail Associates, Inc. My commission expires: Notary Public 918743.1 EXHIBIT A LEGAL DESCRIPTION OF THE GRANTEE PROPERTY Lot 1, Eagle River at Avon Final Plat, County of Eagle, State of Colorado, according to the plat thereof recorded on , 2009 at Reception No. 918743.1 A -1 EXHIBIT B LEGAL DESCRIPTION OF THE RIVER TRACT Tract A, Eagle River at Avon Final Plat, County of Eagle, State of Colorado, according to the plat thereof recorded on , 2009 at Reception No. 918743.3 B -1 9 p, TOWN OF AVON, COLORADO V AVON WORK SESSION MEETING FOR TUESDAY, JANUARY 26, 2010 C U , O D0 MEETING BEGINS AT 2 PM AVON TOWN HALL, ONE LAKE STREET PRESIDING OFFICIALS MAYOR RON WOLFE MAYOR PRO TEM BRIAN SIPES COUNCILORS RICHARD CARROLL, DAVE DANTAS, KRISTI FERRARO AMY PHILLIPS, ALBERT "Buz" REYNOLDS, JR. TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: LARRY BROOKS TOWN CLERK: PATTY MCKENNY ALL WORK SESSION MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS COMMENTS FROM THE PUBLIC ARE WELCOME; PLEASE TELL THE MAYOR YOU WOULD LIKE TO SPEAK UNDER No. 2 BELOW ESTIMATED TIMES ARE SHOWN FOR INFORMATIONAL PURPOSES ONLY, SUBJECT TO CHANGE WITHOUT NOTICE PLEASE VIEW AVON'S WEBSITE, HTTP: / /WWW."ON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, ALPINE BANK, AND AVON LIBRARY THE AVON TOWN COUNCIL MEETS ON THE SECOND AND FOURTH TUESDAYS OF EVERY MONTH 2:00 PM — 2:30 PM 1. EXECUTIVE SESSION a. For the purpose of receiving legal advice pursuant to Colorado Revised Statute §24- 6- 402(4)(b) regarding the eligibility requirements and nomination procedures for candidates for the board of directors of the Village Metropolitan District and the contractual relationship between Village Metropolitan District and Traer Creek Metropolitan District 2. INQUIRY OF THE PUBLIC FOR COMMENT AND APPROVAL OF AGENDA 2:30 PM — 3:00 PM 3. COUNCIL COMMITTEE AND STAFF UPDATES a. H.A. Nottingham Park Pavilion — Update of Project schedule and budget (Justin Hildreth, Town Manager) Review design progress and construction cost estimates on park pavilion b. Council Committee Appointments (Ron Wolfe, Mayor) c. Parking Signage Change on Riverfront Drive (Jenny Strehler, Director PW &T) Memo only / Public Works plans to re -sign two stalls by the gondola for use as passenger drop off during ski season; these stalls will revert to 2 -hour parking during the rest of the year 3:00 PM — 3:30 PM 4. TOWN OF AVON FUND BALANCE PRESENTATION (Scott Wright, Asst. Town Manager) Review financial condition of the town 3:30 PM —4:00 PM 5. "CONNECT AVON NOW" UPDATE (Jenny Strehler, Director Public Works & Transportation, Scott Wright, Asst. Town Manager Finance) Review timeline and action plan for proposed transportation ballot question 4:00 PM — 4:45 PM 6. UPDATE ON UNIFIED LAND USE CODE REVISIONS (Sally Vecchio, Asst. Town Manager Community Development) Review timeline and action plan of the project 4:45 PM — 5:15 PM 7. "ODOR COMPLAINTS" AND WASTEWATER PLANT CAPITAL PLAN UPDATES FROM EAGLE RIVER WATER AND SANITATION DISTRICT (Linn Brooks, Chris Maines, ERWSD) Review reoccurring odor problems and review capital project plan for water and sewer treatment plant in Avon 5:15 PM 8. ADJOURNMENT Avon Council Meeting. 10.01.26 Page 1 of 4 Memo Indis To: Honorable Mayor and Town Council lhnc Larry Brooks, Town Manager Approved by: Sally Vecchio, Assistant Town Mgr /Director of Comm. Dev. From: Justin Hildreth P.E., Town Engineer - SMH Shane Pegram P.E., Engineer II Date: January 20, 2010 Re: H.A. Nottingham Park Pavilion — Update of project schedule and budget. Summary: The H.A. Nottingham Park Master Plan, which was approved in December 2008, recommends the construction of a pavilion immediately north of the Engineering wing of Town Hall. Town Council recently gave direction that the Pavilion be constructed in spring 2010. On November 10, 2009, Vail Architecture Group, Inc. (VAg) was retained to design the pavilion for $32,210 with a total project budget of $200,000. The Pavilion is proposed to be constructed in two phases because of the limited budget. The first phase will be a simplified design that can accommodate the July 3`d Salute to the USA festival. The second phase will include enhanced finishes and expand the facility to accommodate other types of events such as plays. The current total project budget cost estimate for the first phase is $250,000. The budget estimate for all phases is $460,000. The first phase estimate is $50,000 over the current budget. Staff recommends that VAg complete the design of the project and partner with a contractor to assist in finding cost savings. Staff also recommends that construction of the project be delayed until additional funding is made available. The project shortfall can be overcome with a Town Council -led capital fund raising campaign with Staff assistance. Another option is to delay the project until there are adequate funds in the Capital Projects Fund, which receives its revenue from the real estate transfer tax. A third funding option is to pursue grants through the Great Outdoors Colorado (GOCO) program, and other unidentified grant funding sources. Background: The H. A. Nottingham Park Master Plan proposes that the Town Hall area, also referred to as Zone H, the Public Redevelopment Site, be redeveloped once Town Hall relocates to the current fire station property along Main Street. After Town Hall is relocated, Zone H is intended for structured parking, additional park support facilities and the performing arts pavilion. The Master Plan also contemplates an immediate phase of development before Town Hall is relocated; including the Main Street Extension Promenade, the performing arts pavilion, and several lake shore pavilions. The performing arts pavilion will be a permanent structure integrated with the redevelopment of Zone H. Discussion: In order to assist in the design process, a Pavilion Programming Committee has been formed to give direction to Council regarding the future programming needs for the park and stage and then integrate those needs into the design process. The programming of the stage directly affects the design including stage dimensions, height and electric service. The Pavilion Programming Committee consists of Dave Dantas (Avon Town Council), Amy Phillips (Avon Town Council), Michael Bennett (Beaver Creek West), and relevant Staff members. Topics that have been discussed during the meetings include: • Programming • Stage floor dimensions Harry A. Nottingham Park Performing Art Pavilion January 20, 2010 Page 2 of 3 • Roof height • "Back of house" needs • Electrical requirements • Sound and lighting • Construction materials • Budget VAg compiled the programming information and has prepared a preliminary design of the pavilion, which is included as Exhibit A. The design was divided into two construction phases. Phase 1, which includes only the basic elements but is adequate to serve Avon's Salute to the USA event, and Phase 2, which includes additional facilities that can accommodate other types of events such as theater performances and most of the aesthetic treatments. Staff developed an Enhanced Phase 1, which includes some aesthetic treatments since the pavilion will have such a prominent location in H.A. Nottingham Park. The three design options are included as Exhibit B and are summarized below: Phase 1— Pavilion Structure Only Phase One (Option One, Exhibit B) is the simplest solution calling for construction of only the minimum and most basic elements needed for a covered stage for performances. The stage will be a 30' x 45' concrete slab with a simple steel structure and metal roof. The underside of the roof will receive an acoustic treatment to enhance sound quality and projection. The stage will have a rear wing wall to improve stage function and also allow the pavilion structure to be separated from the Engineering wing of the Town Hall building. The 45' long framed wall will be finished in smooth stucco. The stage will be raised 4' above the adjacent sidewalk. The front wall of the stage will receive a stone veneer treatment to match the aesthetics of other town improvements. There will be a curved "sitting" wall that acts as a buffer to the stage and provides seating for events out on the playing fields. Enhanced Phase 1— Pavilion Structure plus Minor Aesthetic Improvements Enhanced Phase One (Option Two, Exhibit B) is intended to be an improvement to Phase One. This option includes some additional architectural elements that will enhance the function of the stage while improving the visual connection of the pavilion to the site and park context with some basic landscaping. Side wing walls are added to allow for a greater variety of performances. The wing walls create a more significant structure and make a more prominent design statement in the park, tying the pavilion to other town improvements. The ceiling of the structure will receive a more decorative acoustic treatment with wood panels or other similar material. Landscaping improvements would be added and the seating wall would be upgraded to a boulder wall. Phase 2 — Fully Developed Pavilion Phase Two (Option Three, Exhibit B) is the fully developed and refined solution to create a high quality stage and park amenity as envisioned in the H.A. Nottingham Park Master Plan. The front wing walls receive a stone veneer treatment and are extended into the adjoining landscape. The side wing walls are more flexible in operation being able to both rotate and slide in and out of the stage area. This allows for maximum flexibility in stage performances. The roof is made of tempered glass creating a livelier, translucent open feeling on the stage. The side wings are also paved and create an ease of access for performances and serve as true wings to the stage. The Harry A. Nottingham Park Performing Art Pavilion January 20, 2010 Page 3 of 3 enhanced structure creates more opportunities for signage and banners that can be rotated depending on programming and events. The result is a pavilion that has a high performance quality and serves as a true 'stand alone' focal feature for the town and park. Financial Implications: The total project budget for the H.A. Nottingham Park Pavilion is $200,000 (Table 1). The current budget includes approximately $32,000 for design and $168,000 for construction. The Phase 1 construction cost estimate is $200,000 and the Phase 1 Enhanced construction cost estimate is $250,000. Over $200,000 in additional funds will be required to construct the second phase of the project. Depending on the level of improvements included in Phase 1, the project is currently between $50,000 and $100,000 over budget. Table 1: H.A. Nottingham Park Pavilion Budget Line Item Current Budget Phase 1 Phase 1 Enhanced (Recommended) Design Budget $32,210 $32,210 $32,210 Construction Budget $155,000 $200,000 $250,000 Testing and Special Inspections $2,790 $2,790 $2,790 $10,000 $15,0001 $15,000 Total $200,000 $250,0001 $300,000 Recommendation: Staff believes that spring 2010 construction is unlikely due to budgetary constraints. Staff does not recommend that the Capital Projects Fund balance be lowered to fund this project because of the existing nondiscretionary projects scheduled for 2010 and the highly unpredictable nature of real estate transfer tax revenue in this difficult economic climate. Staff has the following recommendations: 1. Complete design of the Enhanced Phase I option and partner with a contractor to assist in finding construction cost savings. Initiate a capital fund raising campaign, and begin construction when sufficient additional funds have been raised, likely in the fall of 2010 or spring 2011. or; 2. Complete design of the Enhanced Phase I option and partner with a contractor to assist in finding construction cost savings, and delay construction until additional monies are available in the Capital Project Fund in 2011. Town Ma a=omments: � Of- Exhibi Exhibit A —VAg Preliminary Design for H.A. Nottingham Park Pavillion, dated December 28, 2009 Exhibit B —VAg Design Options, dated January 14, 2010 H.A. NOTTINGHAM PARK PAVILION AVON, COLORADO December ?92().00 EXHIBIT A -�.rNi ANS AA /dtVON icNS� S� W/ toss i We' YV►�NKW►r,�q -r- 'Nvi -�✓ 5'}�t c hwwL� . 5► h9 LoVIG1^eiG 'AlttmirluwldrMYle�+ t uw✓e vG � s�r-kt n eh l�< c S�wc ;A oe' i niI �► 4c f6OV1N4. is Site Plan r--j L-A �iN Ate/ V —• �cM'fw Wi'+'�1 NCM1 Wies 1�r",44ovd6 N Waztr��N� 1.4 A, w.l lwol Vl4w t (�h�s h �GI •�� tea. W/ wtinu a � I wt h � �J S ' @w � wI Il 44*W- ✓%4 i hs e-06v rwk�i) . ;�4*A DK 4.lane. jroK �K �.r�r�rsH�'r wt.►� �axb ?) • H.A. NOTTINGHAM PART PAVILION AVON, CO � 4` �. Decemb r 28 Site . 2100 SCALE 1/4" — Y -0" 2920.00 U.. +IY J. A INA i I' A ' III ��•• �.. 0 Schematic Stage Section GHAM PARK PAVILION, AVON, CO 01 IT 4' SCALE 1 /4" - V -0" 8 Schematic December 28, 2920.00 -u OPTION ONE OPTION THREE OPTION TWO GHAM PARK PAVILION, AVON, Co mo'wr IT,- Am—pt.), � EXHIBIT B Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager cc: Eric Heil, Town Attorney From: Patty McKenny, Assistant Town Manager - Management Services Date: January 21, 2010 Re: Council Committee Appointments Update Summary: There was some discussion at the last work session about "committee member makeup" in light of the upcoming November candidate election. Specifically this discussion was raised with regard to Mayor Pro Tern Sipes' appointment to the Upper Eagle Regional Water Authority and whether or not another council member would be interested in serving along with Mr. Sipes. It was thought this may make that future transition more seamless. Please find attached a list of the committee appointments for 2009 with highlights to those that will see a vacancy at the end of the year. Discussion may focus on whether or not Council wants to appoint members to these committees at an earlier timeframe than 2010 in order to provide for a smoother transition on these committees. Town of Avon 2009 Council Assignments - revised October 2009 SUBJECT COUNCIL /STAFF ASSIGNMENT Other Governments & Multi- Jurisdictional Organizations, i.e. Other Towns, Cast, I -70 Groups, etc. Town Manager, Mayor and Mayor Pro Tern Traer Creek Metro & Village At Avon Town Manager Larry Brooks, Rich Carroll, Buz Reynolds Eagle County School District Rich Carroll Beaver Creek Resort Bus & Operations Liaison Town Manager Larry Brooks, Buz Reynolds, Kristi Ferraro NWCCOG Amy Phillips UERWA Brian Sipes, Alt: Kristi Ferraro, Justin Hildreth QQ Water Committee Brian Sipes Open Space Committee (OSAC) Ron Wolfe, (alternates not permitted) Singletree / Avon Trail Project Rich Carroll ECO Board Ron Wolfe, Alt: Kristi Ferraro Home Buyer's Assistance Committee (° H BAC ") Community Development Director Channel 5 Amy Phillips, Alt. Dave Dantas Avon Arts Council Ron Wolfe, Larry Brooks, Town Manager Town Housing Town Council (Housing Authority) Community Development Subcommittee Brian Sipes, Dave Dantas, Todd Goulding, Chris Green Legal Subcommittee Town Manager Larry Brooks, Kristi Ferraro, Eric Heil Sales & Marketing: ABA, VVCTB, VVF, Air Alliance, BC Resort Marketing, Others Amy Phillips Rocky Mtn. Rail Authority Town Manager Larry Brooks (Exec. Com. member), Brian Sipes (may attend all meetings) Revised 10/13/09 Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager Legal Review: Eric Heil, Town Attorney Approved By: Scott Wright, Assistant Town Manager /Finance From: Jennifer Strehler, Director of Public Works and Transportation Date: January 26, 2010 Re: Parking Signage Change on Riverfront Drive IIr: Town staff have noted increased public usage of the gondola and repeated travel lane blockages on Riverfront Drive. A signage change is planned to offer improved access to the gondola for passenger drop off and to mitigate illegal parking /stopping problems. Discussion In response to increasing gondola usage and citizen complaints about lack of passenger drop off space, the Public Works Department intends to change parking signage of Riverfront Drive. Two of the on- street parking stalls located in front of the Westin will be re- signed to "Skier Drop Off Only, 10 Minute Limit" during ski season. The east -most two stalls were selected because they are closest to the plaza. Two stalls are needed to increase the likelihood of at least one stall being available for use at any time. Parking restriction on these stalls will return to a "2 -hour Limit" during the rest of the year. I discussed this planned change with Westin / Riverfront Operations Director Jeff Burrell on 1/14/2010. He is supportive of the plan and stated "We've been getting complaints too. I think this change will help everyone." He said he would communicate this planned signage change to other Westin and Riverfront staff. Public works will fabricate the new signage and install them as soon as possible. Financial Implications: No direct cost or savings. Hopefully police parking enforcement duties will decrease on Riverfront and then can be deployed elsewhere. Town Manager Com7;q!�, 00f, Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town Manager Legal: Eric Heil, Town Attorney From: Scott Wright, Asst. Town Manager - Finance Date: January 21, 2010 Re: Fund Balance Presentation Summary: Initials Staff will present to Council during the next worksession a PowerPoint presentation concerning the Town's fund balance reserve policy and the impacts of the Traer Creek litigation on such policy. Town Mangger Comments: Page 1 Memo To: Honorable Mayor and Town Council Thru: Lang Brooks, Town Manager Legal Review: Eric Heil, Town Attorney Approved By: Scott Wright, Assistant Town Manager /Finance From: Jennifer Strehler, Director of Public Works and Transportation Date: January 26, 2010 Re: Connect Avon Now Update r tli�mo 1i% , In response to the expressed wishes of our community as evidenced in surveys, open houses, phone calls, and meetings, the Town is proceeding with further development of a project called Connect Avon Now. This project involves improving multi -modal transportation connectivity within and through Avon consistent with the vision and goals established in the Avon Comprehensive Plan. Specific improvements planned include: extensions of transit service, construction of pedestrian sidewalks, construction of bicycle lanes and trails, and the addition of public parking in the town core. New sources of funding and financing are needed to implement this project. Today's work session involves discussing the Connect Avon Now project timeline and actions needed prior to consideration of possible November ballot questions. Previous Council Actions: The Town Council has been involved in strategic long -term planning for transit, trails, and parking in Avon for over one year. August 2007- Town Council adopted the Avon West Town Center Plan (Design Workshop, 2007). This plan includes provision of a 300 -350 stall parking garage located on or near Main Street. 3uly 2008 - Community survey results were presented to Town Council which showed strong public support for transit and trails. Page Iof5 Marchl0, 2009 - The concepts which were later embedded in the Strategic Transit Plan portion of the Transportation Comprehensive Plan were presented to Town Council. This presentation described historic financial performance of the Avon Transit enterprise fund and offered a long -term vision for transit which included the new routes and services. Funding options were also discussed, including sales tax increase, hotel /motel tax increase, property tax increase, and formation of a general improvement district (GID). June 23, 2009 - Transit survey results were presented to Town Council which showed strong public support for expansion of transit and trails and creation of a new funding mechanism to pay for the added services /facilities. July 14, 2009 - Staff highlighted the specific transit services and a sample list of trail /pedestrian project components that could be funded under a new project initiative. Note that this meeting initially introduced this project as the "Avon Walkable Community Project" but, after some discussion, Council expressed a preference for re- naming the project to Connect Avon Now. Town Council directed staff to 1) notify the County Clerk of Avon's intent to have a ballot question in November 2009 and 2) provide more information about options for funding the project. July 28, 2009 - Presentation of Preliminary Financial Modeling for Sales Tax increase to fund transit and trails. Discussion of possible use of hotel /motel tax and /or GID was explored further. August 11, 2009 -Town Council decided to delay plans to place a transit /trails question on the November 2009 ballot in order to allow more time to carefully study the issues. Preference for a November 2010 ballot date was expressed. August 28, 2009 - The 2010 Transit Division Budget was proposed. September 22, 2009 -The Transportation Comprehensive Plan (FHU, 2009) was adopted by Town Council on this date. This document describes a near -term plan to expand transit bus service to connect the Village at Avon and Beaver Creek Ski Area by modifying routes and frequency to add another 6,000 service hours. The plan includes a list of over $7,000,000 worth of recommended pedestrian, bicycle, and recreational trail capital improvements. Associated transit capital improvements and fleet replacement needs are also identified in that document. October 20, 2009 - 2010 Budget Retreat, Final Transit Division budget for 2010, focus Transit and Trails funding strategy. Town Council requested addition of public parking into the shared vision for the project. November 10, 2009 - Town Council developed a consensus about the shared vision for Connect Avon Now. This vision included the scope, schedule, and budget implications of transit, trails, and parking project components included in the project. December 8, 2009 - Public finance experts described their experience on similar ballot questions. They emphasized the important role of Town Council with respect to public outreach. Page 2of5 Discussion Staff will briefly review the shared vision of the project, discuss specific planned capital and operational elements, and review the proposed funding mechanism (i.e., a short repeat from November 10, 2009 work session). However, the focus of this work session will be on "next steps ". Town staff have received some consulting advice from Jonathan Heroux (Piper Jaffray & Co.) and Steve Welchert ( Welchert & Britz) about Connect Avon Now. These gentlemen are professionals in public finance and public relations that have considerable experience on similar initiatives. Their input regarding schedule, assembling factual information, and community outreach has been summarized below. Schedule It is important that Avon describes the project to a sufficient degree of detail so that meaningful public outreach can occur. Town staff can assemble the available information and make this information readily accessible and easy to understand. As policy makers, Town Council can and should then help communicate this information to the community and seek feedback. The Town will remain open to receive suggestions and better understand the priorities of the public. From this public input, the final project definition and associated ballot question language can be developed. All of this should happen reasonably close to the ballot timing so that the public is engaged and informed to make a voting decision in November. The planned near -term steps below are recommended consistent with this approach: February 1. Staff to prepare a series of public communiques about the state and future of Avon's Transportation and parking system, as learned from the findings of the Comprehensive Transportation Plan (FHU, 2009) and other published documents and public processes. a. Communique regarding the overall system i. Existing transit service deficiencies ii. Existing parking deficiencies iii. Existing lack of connectivity iv. Existing transportation system inconsistent with key land -use goals (e.g., affordable housing and transit oriented development) v. Long -term implications of population growth and development if "no change" vi. Cost implications (bracket range of best and worst case scenarios) b. Communique regarding public parking c. Communique regarding public transit d. Communique regarding trails, bicycle, and pedestrian connectivity 2. Staff to develop descriptive draft project information into printable format for public review a. Text, Tables, Graphics b. Frequently asked questions list c. Web site links to information 3. Staff to develop a list of influential local leaders 1 Each communique should explain the specific immediate and long -term needs, alternatives considered, costs, and recommended solutions; identify public input comments; explain how the recommended solution is consistent with the Avon Comprehensive Plan goals; and how the solution is fiscally responsible. Page 3of5 4. Town Manager to discuss possibility of getting a "loaned executive" from Beaver Creek to assist with meeting facilitation in the summer and fall. March 5. Initiate public outreach activities by Town Council 6. Town staff to provide information and answer questions about Connect Avon Now April 7. Continued community outreach by Town Council Factual Information As soon as possible, Town staff will assemble factual information about Connect Avon Now and get it to Town Council. The plan is to prepare a list of responses to "Frequently Asked Questions ". Each of the following questions will be addressed: 1. What is "Connect Avon Now "? 2. What, specifically, will this project accomplish? 3. How will I benefit from this project? 4. How will other Avon residents benefit from this project? 5. How will the local economy benefit from this project? 6. Why do we need to do this now? Should we wait? 7. How much will this project cost? 8. How can we pay for this? 9. Will the taxing mechanism apply in the Village at Avon? 10.Will the taxing mechanism apply in Beaver Creek Metro District? 11.How will our resulting tax structure compare to other Colorado Mountain areas? 12.What happens if this ballot measure doesn't pass? 13.What if Eagle County (ECO Transit) forms an RTD? 14.Who supports this project? 15.Who is opposed to this project? A draft of this information has already been prepared and is currently under review. Community Outreach Town Council members act as ambassadors when conducting community outreach. The goal is to engage in a community- centered discussion about transportation needs and potential solutions. This is best done in one -on -one or small group meetings with individuals that are plugged into the community and may be influential. It will be necessary to succinctly describe what Connect Avon Now is, what it accomplishes, how much it costs, why it is needed now, and how the community is expected to benefit. Town staff will make fact sheets available on the initial proposal to provide supporting details. It is very important to listen for suggestions and remain open to new ideas. Public feedback can be provided back to staff and other Town Council members, and also summarized for the public, at Town Council meetings during the spring and summer. Some basic tips: Remember that Avon is in a great position to make positive change. We've done our homework and have facts (not guesses) about our local transportation problems, possible solutions, and the costs. Page 4of5 Divest to Invest. Remain flexible with how the final project and revenue streams may evolve as a result of public input. Letting the community's voice influence the final project description will increase the potential for any ballot question to receive support. • Early work reduces November anxiety. In small communities, personal relationships and friendly encounters at the Post Office are often more important than any brochure of facts. Getting people "up -to- speed" lays a foundation and opens communication up now so that they are more engaged and likely to make an informed vote later. • Council participation is key. Unanimity among Council on final action is important. All communications should include both a response and an input piece. We want to acknowledge what we are hearing and learning from our citizens. We want to reflect that back to the community to be sure we are getting it right and to stimulate discussion on the key topics. We should solicit input from community leaders, businesses, residents, guests, system users, and other regular people so that we can learn the perspectives of these different voices. Financial Implications: No financial expenditure decisions are involved in this work session. Town Manager Comments Page 5of5 Memo To: Honorable Mayor and Town Council Initials Thru: Larry Brooks, Town Manager From: Sally Vecchio Date: January 21, 2010 Re: Amendment to the 2009 Town of Avon Transportation Comprehensive Plan — Vision Statements Summary: As part of the Connect Avon Now project, the Town Council has requested that the Avon Transportation Plan be amended to include key vision statements which relate to the overarching goals of the transportation plan and expand on the general vision of Plan. Previous Council Action: Resolution 29 -04. A RESOLUTION ADOPTING WITH CONDITIONS THE TOWN OF AVON COMPREHENSIVE TRANSPORTATION PLAN, DATED SEPTEMBER 4, 2009, TOWN OF AVON, COUNTY OF EAGLE, STATE OF COLORADO Background: Last year, the Town Council adopted the Town of Avon Comprehensive Transportation Plan dated September 4, 2009 (the Transportations Plan). The purpose of the Transportation Plan was to provide a clear foundation and framework that would support an integrated multi -modal transportation system with planning for future roadway improvements, transit service enhancements and bicycle /pedestrian facilities. The Transportation Plan also serves as a Strategic Transit Plan, that can assist the Town in pursuing funding options for transportation improvements and includes guidelines for addressing the impact new development. The framework for the goals and policies of the Transportation Plan was based on the Core Values and Vision Statements set forth in the Town's 2006 Comprehensive Plan. Specifically: `Avon will support a multi -modal transportation network that provides convenient, efficient, clean links throughout the town, to ski area base facilities and the entire Eagle Valley region." The goals and policies of the Transportation Plan are the foundation of the Connect Avon Now project. Therefore, Council has requested that the transportation vision statement be expanded to reflect a more detailed vision of the future and that answers the question: "What will success look like in the effective implementation of the Avon Comprehensive Transportation Plan ?" Discussion: Including additional vision statements in the Transportation Plan will require review and recommendation by the Planning and Zoning Committee followed by review and adoption by the Town Council. The additional statements will be based on the existing values and vision statements that were previously approved in the Comprehensive Plan. The vision statement will summarize the ideal future for the Town's transportation system and will relate to the goals and policies already identified in the Transportation Plan. The vision statements will enforce the strategic direction of Transportation Plan and will give the Town a yardstick that it can always use to measure present performance and plans against its aspirations. Staff can begin the process of developing the vision statements with the Planning and Zoning Commission in mid - February with the expectation of bringing the recommended vision statements to Town Council in April. Recommendation: Approval from Town Council to begin the visioning process for the Transportation Plan as described herein. Town Manager Comme • Page 2 Memo To: Honorable Mayor and Town Council Initials Thnu: Larry Brooks, Town Manager Legal Review: Eric Heil, Town Attorney From: Sally Vecchio, Town Manager /Comm Deve Date: January 21, 2010 Re: Update on Unified Land Use Code revisions Summary The first draft of the revised and consolidated land use code (the Revised Code) is nearly complete and the Zoning Advisory Committee (ZAC) will resume its review of the document beginning in February. This memorandum summarizes the progress of the revisions and highlights some of the more significant changes to the regulations that are being proposed. Background Last year the Town Council hired Clarion Associates, a planning consultant firm with offices in Denver, to assist the Town in preparing a comprehensive revision to Sections 16 (Subdivisions) and 17 (Zoning) of the Avon Municipal Code (AMC). The focus of the unified land use code update has been: Raising the standards for development quality as directed in the Comprehensive Plan and identified through public participation in the code update process; Introducing more efficiency, predictability, and transparency into the development review process; and Making the regulations more user - friendly. The first draft of the Revised Code will be complete by January 30, 2010. ZAC will resume its review of the document in February. The review will include a discussion of the guiding policies used in this process and "design testing" the regulations to ensure that they are effective in addressing their intended purposes. A ZAC report with findings and recommendations will be presented to the Planning & Zoning Commission in March. We expect to have a draft document for Council review by May. First Draft of LUC ZAC Review P &Z Review Council Review Begins Completed ECouncildoption January 30,2010 Feb March, 2010 March May, 2010 May, 2010 The proposed revisions are intended to reflect the numerous community goals stated in the Town's planning documents, as well as early input from the Town Council and other focus group members. The review process described above will provide the necessary public scrutiny of the document and will result in further refinement of these regulations. The Town's contract with Clarion Associates will be complete after the first draft of the Revised Code is complete. Staff will assume control over the process and revisions, without additional assistance from Clarion. Key Revisions 1. Formatting and Organizational Changes The Town's current zoning and subdivision regulations are contained primarily in Titles 16 (Subdivisions) and 17 (Zoning). In order make the land use code more user friendly the Revised Code is a unified code that combines and integrates subdivision regulations and procedures with zoning regulations and procedures. For example, one Chapter contains the procedures for subdivision plats as well as rezoning, and applies the same common procedural steps to both types of applications to the maximum extent possible. In addition, the code material has been organized into chapters by substantive topics. As a result of these simple formatting changes we have eliminated redundant provisions; corrected conflicting provisions and consolidated zoning district regulations into one section of the Revised Code. 2. Uniform Baseline Development Standards Currently, project design is negotiated with each development application, which has resulted in a somewhat uneven application of standards. The Town does employ design guidelines that address residential, commercial and industrial uses, but they seem to have fallen short of achieving town goals. In addition, key sustainability issues are not being addressed in current development process. In response to these issues, the Revised Code includes baseline development standards with mandatory applicability and enforcement provisions for a broad range of basis site design aspects (e.g. parking, landscaping, site layout, mobility, connectivity, and architectural design). Example of a Baseline Design Standard. Mixed -Use Buildings in Commercial Zone Districts Structures with a vertical mix of uses are required along major street frontages, as well as adjacent to major public spaces, where a high level of activity and visibility is desirable. If a limited portion of a structure's ground level will be devoted to retail or restaurant space, such space shall be located along those fagades adjacent to or most visible from primary street frontages or major pedestrian walkways. Sustainability concepts have been included in a separate section of the development standards, addressing topics such as alternative energy production, water quality and transportation. Under the new regulations, most new development will be required to achieve a certain sustainability score based on a point system that awards points for using sustainable site planning and development techniques. Example of Sustainability Point System Standard. Sustainability Type of Sustainability Feature Points for Classification Provision a. Construction Construction staging plan provides plan for recycling or Waste Reduction and salvaging at least 50 percent of non - hazardous 3 Recycling construction /demolition debris. 2 Maintenance requirements and enforcement measures have also added to ensure that both the baseline and negotiated design elements are maintained to standards expected at the time of approval. 3. Updated Public Benefit Process The Town has recognized that the current PUD process does not provide a predictable or consistent method for ensuring that community goals are being achieved by new development projects. The current process is ad hoc, with each zoning case taking on a life of its own. The developer navigates this system with little guidance and public benefits may or may not coincide with the town's most pressing community priorities. In contrast to this ad hoc approach, the Revised Code includes a development bonus program which creates baseline requirements for achieving increased entitlements. The baseline requirements (i.e., provision of attainable housing, public parking, or community recreation) are based on community priorities and goals as define in the Comprehensive Plan and other policy documents. Additional FAR or building height is only granted as a development incentive tied to an identified community goal. Example: At least 50% of a Development Bonus shall include for -sale residential units with a deed restriction limiting the use and ownership of the property to full -time residential use as the principal residence of the owner and without restriction on the price of the initial sale or subsequent resale. The development bonus program is intended to provide a more predictable and equitable process for developers and more direct and meaningful benefits to the town. The Town Council will continue to have the discretion to modify the proposal or negotiate additional public benefits on a project specific basis. In addition, development bonus will not be limited to PUD applications. Any commercial or mixed use project will be eligible to participate in the bonus density program. This change supports the Town's desire to limit PUD applications as discussed below. 4. Modernized PUD Process Currently, PUD approvals are used for the majority of development projects in the Town. While this approach has provided more flexibility in development design, it has also resulted in longer, more time consuming review processes, and multiple exceptions and variances to development standards such as building setbacks and building heights. The Revised Code limits the use of PUD development review to major (10 acres or more) and /or unique projects that have measurable impacts on the community or are located in especially important locations such as the Town Center. Projects that do not meet the size and impact criteria are processed through standard zone district approval, subject to the district use and dimensional standards and applicable development standards. The PUD will be established as an Overlay Zone, which will only be used to modify platting requirements such as streets standards, lot standards, building setbacks, etc. The underlying zoning will control permitted uses and densities. The intent of the revised PUD is to ensure that large tracts of land are master planned in a cohesive manner while encouraging innovative site planning concepts such as clustered development and open space preservation. 3 PUDs will be required to comply with the new design standards and sustainability requirements and additional entitlements or bonus densities will be subject to the previously discussed development density program. 5. Updated Zoning District Regulations The Town's ten basic zone districts and district - specific development standards such as setbacks, site coverage and density have been updated as part of the Revised Code. A number of changes — both major and minor — have been made to the district line -up and standards, including the addition of three new mixed -use districts. In response to recommendations in the East Town Center Plan, development in the commercial zone districts will be based on a Floor Area Ratio (FAR) measurement rather than by height, setbacks and lot coverage, as is currently the case. The FAR regulations are not intended to change the nature of development in the Town. Rather, they are intended to have a more qualitative impact on the form and location of new development on a lot and its appearance from the street. Example: Under the currently regulations, a project in the Town Center district is restricted by a 50% lot coverage requirement, 80 ft height limit and 25 ft setbacks. The result has been under - developed sites with surplus surface parking oriented to the street. The project is not required to provide a pedestrian- oriented site plan or address any particular community goal for the improving the Town Center's walkability and public accress. Under the new regulations a mixed use development in the Town Center district would have zero setbacks, an 80 ft height limit and up to 80% lot coverage if certain site and building design principles were met. The design standards would implement the mixed -use standards described in the Comprehensive Plan, including the location of parking areas, the use of pedestrian - scaled building features and a mix of land uses designed to ensure vibrancy at the ground level. Recommendation: Staff recommends continuing with the review process of the Revised Land Use Code as described herein. A public outreach program is also recommended to ensure that the proposed revisions have been afforded sufficient public scrutiny and the regulations are effective in addressing their intended purposes. Town Manager Comments: 2 FOP"' January 20, 2010 Mr. Larry Brooks Avon Town Manager P.O. Box 975 Avon, CO 81620 EAGLE RIVER WATER & SANITATION DISTRICT 846 Forest Road o Vail, Colorado 81657 (970) 476 -7480 Y FAX(970)476 -4089 www.erwsd.org RE: Odor Complaints and Wastewater Plant Capital Plan Dea r La rry, Thank you for the opportunity to attend the Avon Town Council's work session coming up on January 26th. Our staff will be prepared to address the following items with the Council: 1. Odor excursions from the Avon wastewater treatment plant during December and January; 2. Review of the odor complaint process and restatement of standard operating procedures; 3. The District's 5 -year capital plan for major projects at the Avon, Vail and Edwards wastewater treatment plants. Enclosed with this letter are the following documents, which will provide some background for the Council members; please include these in your Council packets for the meeting: 1. Copy of an email from me to Jenny Strehler, describing the cause of the recent odor excursions; 2. A graph showing the number of odor complaints documented over the last 5 years; 3. Our response to questions posed by Jenny concerning our strategy for solids treatment; 4. A table showing our current 5 -year plan for major capital improvements and project budgets for wastewater plant upgrades at the Vail, Avon and Edwards plants. I look forward to our meeting, Si cerely, p-o 0 Li n Brooks A istant General Manager Eagle River Water & Sanitation District C Dennis Gelvin Diane Johnson Chris Maines NVWATER, WASTEWATER, OPERATIONS & MANAGEMENT SERVICES F:' 15WSD \IADMIN ASSISTANT GENERAL MANAGER LETTERS\2010 LARRY BROOKS TOA WORK SESSON.DOC 4\\ Linn Brooks From: Linn Brooks Sent: Tuesday, January 12, 2010 10:42 AM To: Jennifer Strehler Cc: Diane Johnson; Dennis Gelvin; Chris Maines Subject: FW: Avon Odor Update Hl Jenny, Here is an update on the odor issues: Odors over the last two weeks were caused by two independent malfunctions in the plant that were occurring simultaneously during that time frame. The first was a leak in the chemical feed line to the outdoor air scrubber. The inefficient supply of the chemical caused pH and oxidation - reduction potential (ORP) to decrease, releasing odors from the scrubber. The leak has been repaired and the chemical balance in the scrubber system has been restored. The second malfunction was caused by the partial clogging of a drain line that resulted in a diminished vacuum on the line that pulls air from the equalization basins and the ATAD (solids handling) system to the indoor bio- tower, which strips ammonia from the foul air. Heavily fouled air accumulated in the EQ basins and was able to escape in high concentrations from the building whenever doors were opened or from other smaller openings in the building. Negative air pressure in areas of the plant that produce foul odors has been restored. The drain line has been cleaned and this system is now functioning properly. We are currently reviewing our internal communications plan for odor complaints. I believe at one time we had an SOP for working with the Town on notifications that we had developed jointly. We will also review this SOP to ensure that contacts and protocols are up -to -date and effective and will share that with you. It has been our practice to notify Larry whenever there is a potential for a release of odors from the plant that might be noticed by the public and we apologize that this did not happen in this case. Please communicate to the Avon staff and Council that an odor complaint should be reported to us by calling our main number: 476 -7480. This number will be effective both during business hours and after hours. Please let me know if you have additional questions. Linn Linn Brooks Eagle River Water & Sanitation District Assistant General Manager (970) 477- 5444t+Alork (970) 390 -1763 Mobile lbrooksCdernsd.org 846 Forest Road Vail, CO 81657 ERWSD Avon Wastewater Treatment Facility 5 Year Odor Complaints Year # of Complaints 2005 4 2006 2 2007 12 2008 14 2009 13 Number of Odor Complaints 14 12 - 10 - -- 8 -- ■ Number of Odor Complaints 6 4 2 0 2005 2006 2007 2008 2009 Avon Town Council January 26, 2010, Work Session Response to Questions Concerning Eagle River Water & Sanitation District Odor and Solids Treatment Systems The following questions were posed to District staff by Jenny Strehler, concerning the District's odor and solids treatment systems. The District was asked to provide an update on the District's plans for each of the following items. District staff response is provided for each question. 1) Evaluate /change odor scrubber design /size /operation at the Avon plant The current odor system in the Avon wastewater treatment plant is adequately sized for our operation and current peak loading levels. The capital upgrade to the Edwards wastewater treatment plant currently underway will allow us to send much of our secondary waste to Edwards through the existing sewer pipeline. Secondary waste, which produces more odors than primary waste during the treatment process, is more appropriately treated by the Second Generation ATAD system that is being installed in Edwards (see question two). Removing most of the secondary waste from the Avon plant's treatment process, a First Generation ATAD aerobic solids treatment system, will result in less odor loading to the Avon odor treatment system. 2) Evaluate expansion plans re: distribution of solids treatment capacity, digestion process, and associated odor control for all 3 plants We have recently completed a capacity evaluation for biosolids treatment for the Avon facility. Our engineers recommend a 5 -year plan to send a large portion of Avon's secondary waste to the Edwards "Second Generation ATAD" or "ThermAer Process System" (TPS). Because of the completely automated and proven Second Generation ATAD system, only a bio -media for odor control will be necessary to treat odors from the Edwards plant. The Avon plant will be upgraded to Second Generation ATAD in approximately 5 years. Below are benefits that our 5 year plan and the Edwards TPS biosolids expansion will bring to Avon: a. Avon's existing ATAD system will mostly digest primary sludge which is more appropriate for 'first generation ATAD" because primary sludge is more degradable. b. Treating mostly primary waste at Avon and sending the secondary waste to Edwards will effectively free up capacity in the existing Avon ATAD and odor systems. c. By sending secondary waste from Avon to Edwards, the amount of treated biosolids generated by the Avon plant will be reduced, which in turn will reduce the number of truck trips to transport biosolids through Avon to our Biosolids Containment Facility located in Wolcott. d. A current project underway at the Avon plant, the Chemically- Enhanced Primary Clarification Improvements, will allow plant operators to add chemicals to the primary clarifiers for optimal settling performance, thus increasing primary sludge production and reducing secondary sludge production. This operational change will reduce the plant's power requirements by reducing the need for aeration. The added chemicals will also provide some degree of additional odor control in the primary clarifiers. e. The District staff is currently in the process of renewing our wastewater discharge permits with the State health department for the Avon and Edwards plants. We expect that any changes to future permit limits have been anticipated by our capital plan. 3) Consider consolidating solids treatment at 1 plant and switch to anaerobic digestion and the associated higher level of gas containment and gas management that goes with it? Consolidating treatment into one plant (for both liquid and solid components of the waste) is not feasible as discharging the return flows to the river must conform to water rights decrees. Consolidating the solids treatment into one plant would require replacement of much, if not all, of the wastewater interceptor main between Avon and Edwards, and is not considered a cost effective alternative. First Generation and Second Generation ATAD, which are aerobic processes, were chosen as the solids treatment technology most efficient and appropriate for the unique treatment challenges of a Cold- water, resort community. Anaerobic digestion was not considered a viable alternative because efficient anaerobic digestion requires a steady supply of waste and is not well - suited to the extreme fluctuations in the waste production of our community. Eagle River Water & Sanitation District Waste Water Treatment Plants 5 year Capital Plan and Project Budget Avon 2010 2011 2012 2013 2014 Design for $13,800,000 Final $200,000 $200,000 Biosolids Completion Upgrade and (Started in 2009) February Expansion $580,000 Process $160,000 $450,000 $300,00 $4,000,000 $4,000,000 Treatment $370,000 Design and Expansion Primary $200,000 $325,000 Clarifier Improvements (Started in 2009) $100,000 $450,000 Vail 2010 2011 2012 2013 2014 New Service $13,800,000 Final $330,000 Entrance Completion Switch (Started in 2009) February Additional $580,000 Generator $160,000 $450,000 Remove and $370,000 Replace original Generator $50,000 $325,000 Edwards 2010 2011 2012 2013 2014 Conversion to $13,800,000 Final New Completion Generation (Started in 2009) February ATAD Add New Lift $160,000 $450,000 Station to Replace Screw Pumps Internal Flow $50,000 $325,000 Recycle Install $100,000 $450,000 Redundant Barscreen