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TC Council Packet 08-10-2010TOWN OF AVON, COLORADO PAN AVON REGULAR MEETING FOR TUESDAY, AUGUST 10, 2010 VON MEETING BEGINS AT 5:30 PM u I li k 4 1 i AVON TOWN HALL, ONE LAKE STREET PRESIDING OFFICIALS MAYOR RON WOLFE MAYOR PRO TEM BRIAN SIPES COUNCILORS RICHARD CARROLL, DAVE QANTAS, 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."ON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, ALP #NE 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. APPROVAL OF AGENDA 3. DISCLOSURE OF POTENTIAL CONFLICT OF INTEREST 4. COMMUNITY & CITIZEN INPUT 5. CONSENT AGENDA a. Minutes from July 27, 2010 b. Intergovernmental Agreement with Eagle County Clerk & Recorder's Office for Coordinating the November 2, 2010 General Election (Patty McKenny, Assistant Town Manager / Management Services) IGA that addresses the administration and conduct of the November 2, 2010 election c. Construction Contract with GE Johnson (Shane Pegram, Project Engineer) Complete the Recreation Center CMU Block Deterioration Mitigation and Recreation Center Roof Repair Capital Improvement Projects d. Professional Service Agreement with Intermountain Engineering (Shane Pegram, Project Engineer) Complete the design of the Metcalf Gulch Drainage Improvements and Phase I of the Metcalf Road Bicycle Climbing Lane from Nottingham Rd to Wildwood Road e. Resolution 10 -19, Series of 2010, A Resolution Supporting the Grant Application for a Local Parks and Outdoor Recreation Special Opportunity Grant from the State Board of the Great Outdoors Colorado for the Eagle Valley Trail Bridge over the Eagle River at Avon Road (Jeff Schneider, Project Engineer. Justin Hildreth, Town Engineer) Action supporting the Grant Application for a Local Parks and Outdoor Recreation Special Opportunity Grant from the State Board of the Great Outdoors Colorado for the Eagle Valley Trail Bridge over the Eagle River at Avon Road f. Stipulation and Agreement for Water Court Case Nos. 06CW264 and 07CW225 (Town of Minturn and Ginn /Battle Mountain Applications for Conditional Surface and Water Storage Rights) (Justin Hildreth, Town Engineer) Proposed stipulation and agreement for the Water Court Case Nos. 06CW264 and 07CW225 6. NEW BUSINESS a. Intergovernmental Agreement with Eagle County for Building Inspection Services (Sally Vecchio, Asst, Town Manager Community Development) Review proposed agreement that arranges for building inspection services from Eagle County and vice versa 7. ORDINANCES a. Review and Approve Process for Adopting Ordinance No. 10 -14, Development Code (Ron Wolfe, Mayor) Discuss and approve process which includes the order of input as follows: 1) Staff reports 2) Council questions & comments Avon Council Meeting. 10.08.10 Page 4 of 5 TOWN OF AVON, COLORADO 0 u AVON REGULAR MEETING FOR TUESDAY, AUGUST 10, 2010 10 ra1naeon MEETING BEGINS AT 5:30 PM AVON TOWN HALL, ONE LAKE STREET 3) Public hearing on each section as presented by staff 4) Final council discussion & direction section by section 7. ORDINANCES -CONTINUED b. Public Hearing Continued From July 27. 2010 on Ordinance No. 10 -14, Series of 2010, First Reading, An Ordinance Amending the Avon Municipal Code by Enacting Title 7, The Avon Development Code; Repealing Title 16: Subdivisions; Repealing Title 17: Zoning; and Repealing Portions of Title 2: Administration and Personnel (Sally Vecchio, Asst Town Manager Community Development, Eric Heil, Town Attorney) Review proposed Development Code as adopted by the Planning & Zoning Commission / 8. RESOLUTIONS 9. TOWN MANAGER REPORT 10. TOWN ATTORNEY REPORT 11. MAYOR REPORT 12. ADJOURNMENT FUTURE COUNCIL AGENDA MATES & PROPOSED Topics: AUGUST 17T ": Special Town Council Meeting to review Development Code AUGUST 24r ": Public Hearing on Ordinance No. 10 -14 the Avon Development Code, Budget 2311: Review Revenue, Fleet and Transit Programs, Update an Monies due from Village at Avon Avon Council Meeting.1 D.U8.1 D Page 5 of 5 MEMO To: Mayor and Council Members Thrw Larry Brooks, Town Manager Eric Heil, Town Attorney iff�l From: Patty McKenny, Assistant Town Manager Management Services Date: August 5. 20110 Re: Intergovernmental Agreement between Town of Avon & Eagle County for November 2, 2010 Coordinated Election Summary: The November 2, 2010 general election will be administered as a coordinated election by the Eagle County Clerk (Teak Simonton). The attached Intergovernmental Agreement is presented by Eagle County in regards to the administration and conduct of the November 2, 2010 coordinated election. This agreement must be submitted to the County at least 60 days before the election, as required by § 1- 7- 116(2), August 24, 2010. Background: The Town of Avon has participated in this type of coordinated election for its municipal election in the past. Discussion: The Agreement addresses the role of the Election Officials, how costs are incurred, the Preparation & Verification of Petitions, Ballot Certification, Preparation of Voter Lists, and various other election topics. John Dunn has reviewed the agreement as well. Financial Implications: There are financial implications in administrating the election that have been budgeted in the 2010 budget ($5,000). Town Manager Comments: Eagle County Intergovernmental Agreement November 2, 2010 Coordinated Election This Agreement is made and entered into this day of , 2010, between Eagle County and Town of Avon (hereinafter referred to as 'Political Subdivision'), concerning the administration and the conduct of the November 2, 2010 General Election. Coordinated and Designated Election Officials Except as otherwise provided in this Section, the County Clerk shall act as the Coordinated Election Official for the conduct of the Election for the Political Subdivision for all matters in the Uniform Election Code which require action by the Coordinated Election Official. The Political Subdivision shall name a 'Designated Election Official' who shall act as the primary liaison between the Political Subdivision and the County Clerk and who will have responsibility for the conduct of the election procedures to be handled by the Political Subdivision. Nothing herein shall be deemed or construed to relieve the County Clerk or the Governing Body of the Political Subdivision from their official responsibilities for the conduct of the Election. Jurisdictional Limitation This Agreement shall apply only to the portion of the Political Subdivision within the boundaries of Eagle County. County Clerk Responsibilities The County Clerk shall perform the following services and activities for the Political Subdivision's Election: 1. Determine the 'least cost' method for mailing the Ballot Issue Notice (TABOR Notice) packet, and determine the portion of such cost to be applied to the Political Subdivision. 2. Combine the text of the TABOR Notices produced by the Political Subdivision with those of other political subdivisions to produce the TABOR Notice packet. 3. Include in the TABOR Notices mailed to each household where one or more eligible electors reside, voter notification information which will include household address, precinct number, the specific election being noticed and other applicable information. 4. Address the packet to 'All Registered Voters' at each address of one or more active registered electors within the Political Subdivision. Nothing herein shall preclude the County Clerk from sending the TABOR Notice to persons other than active electors of the Political Subdivision if such sending arises from the County Clerk's efforts to marl the TABOR Notice packet at'least cost'. [ATown CerklE1ectioasTag1e CuuntyWA 2010 -Town of Avun.doc 8. Provide the Political Subdivision's completed TABOR Notice to Teak J. Simonton, County Clerk in the format described in Appendix A, 9. The Political Subdivision shall provide mailing labels for eligible property owners to the County Clerk on or before September 21, 2010 for the mailing of TABOR Notices. (Appendix B) 10. This submission may not be changed by the Political Subdivision following submission to the County Clerk without written approval from the County Clerk (such approval may be withheld for any or no reason), and shall be provided to the County Clerk no later than the 42'6 day preceding the Election. (Appendix B) 11. Exercise all reasonable diligence, care and control in providing these services to the County Clerk, 12. Give assistance and information to the County Clerk on any matter to ensure the smooth and efficient operation of the Election (such information not to include legal advice). 13. Adhere to all applicable provision of the Colorado Revised Statutes which are necessary or appropriate to the performance of the above duties. Costs The County Clerk shall keep a careful and accurate accounting of all chargeable items to the Political Subdivision and shall submit to the Political Subdivision, a statement of charges (for costs incurred by the County and not billed directly to the Political Subdivision by an outside vendor) within sixty (60) work days following the date of the Election (Appendix B). Costs shall include but are not limited to: election judges and other associated personnel, ballots and related election forms, printing, election supplies, legal notices paid for the County, postage, rental charges, technical support, and TABOR Notice printing and mailing. The County Clerk shall charge each Political Subdivision taking part in the Coordinated Election on a prorated basis based primarily on the number of ballot issues, active voters, and/or items to be included on the ballot for each Political Subdivision. In the event that additional costs are incurred, the Political Subdivision promulgating such costs will be charged accordingly. The minimum charge for coordinating the election with the County Clerk shall be $300.00 The Political Subdivision shall remit all payments due to the County upon receipt of an itemized statement. Call and Notice The County Clerk will publish one notice required by 1.5.205 of the Uniform Election Code in the Eagle Valley Enterprise and the Aspen Times Weekly no later than 20 days prior to the Election (Appendix B), Petitions: Preparation and Verification ]:\T'own Clerk0ectinnsTagle CountyllGA 20 10 - 'Pawn of Avon.doc The County Clerk shall be responsible for mailing the notice required by Article X, Section 20(3) (b) in the most cost effective manner feasible to all Eagle County residents with targeted mailing to active registered voters in zip codes 81657 and 81658. The Political Subdivision is responsible for supplying mailing labels to the County Clerk for all eligible electors residing outside of Eagle County by September 21, 2010 (Appendix B). The County Clerk shall charge each Political Subdivision for costs relating to the TABOR Notice on a prorated basis based on the number of ballot issues and /or items to be included in said notice for each Political Subdivision. In the event that additional costs are incurred, the Political Subdivision promulgating such costs will be charged accordingly. Property Owner Lists (Applies Only to Political Subdivisions Whose Eligible Electors include Property Owners) The Political Subdivision shall acquire the property ownership list referred to in 1.5.304 C.R.S from the Assessor. The cost of the list is provided by statute and shall be paid directly to the Assessor by the Political Subdivision. The Political Subdivision's staff shall be solely responsible for any work required on the Assessor's list and may contact the County Clerk if access to voter registration records is required. Street Locator List Appendix C to this Agreement is a copy of the Street Locator List for the Political Subdivision. It is the responsibility of the Political Subdivision to review the list and correct any errors. A Statement of Certification, Appendix D, must be signed by the Designated Election Official for the Political Subdivision and returned to the County Clerk along with any changes to the Street Locator List, accompanied by the signed Intergovernmental Agreement 70 days prior to the Election, August 24, 2010 at 4:00 p.m. (Appendix B) Appointment and Training of Election Judges All Election Judges shall be appointed and trained by the County Clerk. In the event that additional Judges are needed, the Political Subdivision may be required to provide one individual to serve in that capacity. Testing and Tabulation Processes relating to the tabulation of ballots shall be the responsibility of the County Clerk. An unofficial abstract of votes will be provided to the Political Subdivision upon completion of the counting of all ballots. Canvass of Votes l:l "rown Clerk\[,,] cc0onsTTagle CountyllGA 2010 -Town car Avon.doc Any and all notices required to be given by this Agreement are deemed to have been received and to be effective: • three days after they have been mailed by certified mail, return receipt requested to the address as set forth below; • immediately upon hand delivery to Teak J. Simonton, County Clerk,; or • immediately upon receipt of confirmation that a fax was received; To County Clerk To Jurisdiction: Time is of the Essence Teak J. Simonton Eagle County Clerk and Recorder 500 Broadway P.O. Box 537 Eagle, CO 81631 Per C.R.S. 1- 7- 116(2) this Agreement must be signed and returned to Teak J. Simonton, Clerk and Recorder seventy (70) days prior to the Election, Tuesday August 24, 2010. The statutory time requirements of the Uniform Election Code and the time requirements set by the Secretary of State in the Rules and Regulations Governing Election Procedures shall apply to the completion of the tasks required by this Agreement. In witness whereof, the Parties hereto have executed this Agreement to be effective the day of 2010. Designated Election Official For Town of Avon Chairman Eagle County Board of Commissioners I:1Town ClerklElections\Eagle CountyllCA 2010 -Town ol'Avon,d oc Attest: Teak J. Simonton Clerk and Recorder Date Appendix A Requirements for Formatting Submissions November 2, 2010 General Election Intergovernmental Agreement I:1Town Cleak\Etectians\Eagle CoiA[itylIGA Appendix A 2010 Acceptable Texrt Fomiat Town or Avon. doe Text will be accepted via email Media Compact disk or via email attachment Software Word version 2000 or above Text Times New Roman Fonts 10 Margins I" top and bottom 1 % sides Spacing Single Do not use tables or columns in setting up files. These are difficult to reformat and Tables /Columns often require type size adjustments. Use tabs to put information in rows and/or columns. Printout A hard copy must be submitted with the electronic version with the file name clearly noted on the first page. Labeling Name of political subdivision and date of election I:1Town Cleak\Etectians\Eagle CoiA[itylIGA Appendix A 2010 Acceptable Texrt Fomiat Town or Avon. doe Appendix B Calendar NOVEMBER 2, 2010 General Election While this Calendar may not include all significant dates, some key dates are identified for your reference July 23, 2010 Notify County Clerk if action has been take to participate in the coordinated election C.R.S. 1- 7- 116(5) August 24, 2010 Intergovernmental Agreement due in County Clerk's office C.R.S. 1- 7- 116(2) September 3, 2010 Last day for Political Subdivision to submit certified ballot content to the County Clerk. 1 -5 -203 September 21, 2010 Deliver full text of ballot issue notices to County Clerk C.R.S. 1 -7 -904 September 21, 2010 Districts in which property owners are eligible to vote must deliver mailing labels and postage for eligible out of county voters to County Clerk October 1, 2010 Deadline for mailing Tabor Notice Article X, Section 20 (3) (b) October 4, 2010 Last day to register to vote for the General Election — CRS 1 -2 -201 November 2, 2010 Election Day —All ballots must be received by 7:00 p.m. November 19, 2010 Complete Canvass of Ballots C.R.S. 1 -10 -102 hTown Clerk1ElcctionslEacle CountyllGA Appendix B Calendar 2010 Town of Avon.doe U x c v C CL 4 T QS E a� n rw J d 4x U) C O Q d c 0 H C Q W� U a1 LIJ s= M 0 0 0 0 0 00 0 0 0 O O 00 0 0 0 0 0 0 0 00 00 O 00 0 000 0 0 N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N N cV N 0 0 1,0 m01,0 kO 0l0 0 0 0 CD 0 lD 0 l 0 i 0 lD 0 01,0 0 0 0 1.0lO lD D �,D 10 �.D LO Q ri —I r-4 z i .--i —1 Ti ri rl t i ri 7-1 , l , l --I �H Tl —1 —I —i —� .--I T--i —1 —1 r-I ri —1 ,--I ,--I s-4 T-i ri .--I �• n •a •« •a •r •• n • •• •r •r • n +r n •• +• n • ra +a r• n n n n •• •• n n •r +r Z Z Z Z Z Z z Z Z Z Z Z Z Z Z Z Z Z z Z z Z Z Z Z z Z z Z Z Z z Z Z ,,0000000000000000 0000000000000 0000 >>> > >3 >> > > >>> > > > > >> > > > > > > >>> > > > > >> C3 d d d d d d d d d d d d d d d d d d d d d d d d d d d d d d d d d d X_ 4- rr�� Ul 4� 00000000 0❑ ❑0❑ N 0 0 0 0 0❑❑ 0 0 0❑ 0 0 0❑❑ -j -i-j J J J-i J J J.31J cn 0rl nC aC tYocCr�c�QcCrl!lc!0c) mMMMM ommma-0-c- 0mMmmmm Edddddd�dddd lu ccck'cl oLCL,� ofCYcl�l' �OCc�o!Q� ct�1YrYC�CCQ� cu d d d d d d d d d d d wwwwwwwwwwww rnmmmmmmmmmmm L L w �z � �z �z �e se wwwwww wwwwww 0- ci0- a- m°�CIIc� CL, o%1Y ddddgUUUVUU L'o!0' lo' ln�0� LUWwwww coo %��o✓ >> > > >> d - Lddddddddd wwwwwwwwwww mmmmmmmmmmm YyYYY`e y �z`z�zy�e wwwwwwwwwwww wwwwwwwwwwww or�'[y_t�o' Elf o!cl�l'o!o!cl� U U U V u U U V U U U U rYQl-Cr0�o!o!o!o!rYo_o!o! 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Designated Election Official for Town of Avon Date I:1'T'own C1erk\E1ec1ionsll flee COLMMIGA Appendix D 2010 Affidavit of Streets'Pown of Avon.doc 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. , ^ 5d From: Justin Hildreth, P.E., Town Engineer Shane Regram, P.E., Engineer 11 Date: August 5, 2010 Re: Avon Recreation Center Roof and CMU Project Construction Contract Summary: The Avon Recreation Center Roof and CMU projects are proposed to be completed under one construction contract this fall. The work consists of repairing and replacing CMU block that has been damaged by moisture and replacing the existing standing seam metal roof with a thermoplastic single ply membrane roof system. Staff recommends awarding the construction contract to GE Johnson for the guaranteed maximum price (GMP) of $475,245. Discussion: GE Johnson is the General Contractor for 'Heat Recovery project that is under construction. Completion of that project requires GE Johnson to be staged on both sides of the Recreation Center. Staff requested GE Johnson to provide a bid for completing the roof and CMU projects in order to avoid the possibility of scheduling conflicts with two general contractors staging and working in and around the Recreation Center, and to take advantage of the reduced mobilization fees since the contractor is already on site. GE Johnson solicited three bids for each subcontract at Staff's request to ensure competitive pricing. The GMP agreement with GE Johnson, Exhibit A, includes repair and replacement of CMU block and caulk sealant in CMU expansion joints, and removal and replacement of the existing standing seam metal roof. The GMP contract is attached as Exhibit B. In addition to the CMU repairs, Wiss, Janney, Estner recommended sand blasting the existing block to remove the previously applied sealer. Staff requested the sand blasting be bid as an alternate. The additional cost of the alternate is $18,710. The sand blasting alternate would result in a total GMP of $493,955. Staff does not recommend completing the sand blasting and risk unnecessary damage to the CMU block at this time. Financial Implications: The Town of Avon 2010 CIP Budget includes two line items, Recreation Center CMU Block and Recreation Center Roof Repair, to fund this contract. Their respective budgets are $125,000 and $400,000. GE Johnson's guaranteed maximum price bid of $475,245 is within the total project budget of $525,000 (Table 1). Table 1 Project Item Estimated Budget Construction Contract $475,245 Design $27,500 Contingency $22,255 Total $525,000 Recommendation: Approve the guaranteed maximum price bid submitted by GE Johnson for the Recreation Center CMU and Roof Repair Project in the amount of $475,245. Town Manager Comments: 00. PJr Attachments: Exhibit A — Recreation Center CMU and Roof Repair Project GMP Contract Exhibit B — GE Johnson's Estimate Report, dated August 5, 2010 • Page 2 T ©A Recreation Center Repairs EST IMATE LEVEL 8/5/2010 Bid Item # Bid Description - Current Est Lvi Previous Est Lvl - Variance Subcontractor 1 Scaffold Tower $ 2,613 $ - $ 2,613 Midwest Scaffold 2 Landscape and Irrigation repair ALLOWANCE $ 5,000 $ $ 5,000 GF] Estimate 3 CMU Repair $ 54,263 $ $ 54,263 Berich Masonry 4 Sand Blasting (Alternate) $ - $ $ - Berich Masonry 5 Roofing $ 249,016 $ ¢ 249,016 Turner Morris 6 Caulking $ 26,680 $ $ 26,680 Summit 7 Awning Support $ 1,500 $ - $ 1,500 GE] Estimate it General Cori taons $ 50,686 $ $ 50,686 GEI Estimate 12 CMU repair allowance (not confirmed) $ - $ $ Berich 13 Soffit Repair ALLOWANCE $ 27,050 $ $ 27,050 Turner Morris 14 Substrate Repair ALLOWANCE $ 5,000 $ - $ 5,000 Turner Morris 15 Caulking ALLOWANCE $ 4,920 $ $ 4,920 Summit Bid Item Subtotal $ 426,728 $ - $ 426,728 Estimating Contingency ( 0:0 %) $ - $ - $ Constructton Contingency ( 3.0% $ 12,802 $ - $ 12,802 Escalation ( 10 %) $ - $ - $ Subtotal Direct Construction Casts $ 439,530 $ - 439,530 Indirect Costs Building Permit & Plan Review Fees $ - $ - $ - 0.03% IT Fee # 119 $ - $ 119 0.10% Accounting Fee $ 475 $ - $ 475 0,10 1A Warranty Reserves $ 475 $ - $ 475 1.40% Contractor's Insurance $ 6,653 $ - $ 6,653 $1 1 $1,000 Builder's Risk Insurance $ 475 $ $ 475 DIC Insurance $. - - Performance and Payment Bond $ 3,754 $ $ 3,754 5.00% CM /GC Fee. $ 23,762 $ - $ 23,762 Taxes (Gross Receipts Sales Use Country City, etc.) $ Subtotal Direct & Indirect Costs $ 475,245 $ $ 475,245 Site Impact Casts City Imposed Impact Fees $ - $ - $ - Slte Development Fees $ - $ $ - Water Cannection Fees $ - $ - $ - Electrical Primary Fee $ $ $ Construction Materials Testing & Inspections $ 475,245 $ - $ 475,245 Subtotal Project Costs TOTAL ESTIMATED COST $ $ 475,245 $ 475,245 S - $ 475,245 $ 475,245 Other Project Casts 0.00% Preconstruction Services $ - $ - $ - Preconstruchon Reimbursable $ - $ - $ - Design & Fngineenng Fees $ $ - $ - Owner's Project Contingency $ $ - $ - _ Total Project Costs $ 475,245 $ - $ 475,245 TOWN OF AVON CONSTRUCTION CONTRACT GUARANTEED MAXIMUM PRICE AGREEMENT Independent Contractor Fixed Price — Not to Exceed Town Council Approval Project Name: 2010 Avon Recreation Center Roof Repair Project THIS AGREEMENT ( "Guaranteed Maximum Price Agreement" or "Agreement ") is entered into by and between G.E. Johnson Construction Company, Inc., of the State of Colorado, whose business address is 25 North Cascade Avenue, Suite 400, Colorado Springs, CO 80903 ("Contractor") and the TOWN OF AVON, COLORADO ( "Owner" or "Town "), a Home Rule municipality of the State of Colorado. The Owner and the Contractor may be collectively referred to as the "Parties.' RECITALS AND REPRESENTATIONS WHEREAS, the Owner desires to retain Contractor to complete certain construction work as described in this Agreement; and WHEREAS, the Contractor represents that the Contractor has the skill, ability, and expertise to complete the construction work described in this Agreement and within the deadlines provided by the Agreement; and WHEREAS, the Owner desires to engage the Contractor to complete the construction work described in this Agreement subject to the terms and conditions of the Agreement. NOW, THEREFORE, in consideration of the benefits and obligations of this Agreement, the Parties mutually agree as follows; 1.0 Contract Documents. The Contract Documents consist of this Agreement, the Owner of Avon General Conditions, Drawings, Specifications, Addenda issued prior to execution of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement, all of which form the Contract Documents. The terms of this Agreement shall control any conflict term in other Contract Documents except a Modification. 2.0 Work. The Contractor shall fully execute the Work described in the Contract Documents, except to the extent of any Work which is expressly indicated in the Contract Documents to be the responsibility of others. 3.0 Relationship of Parties. The Contractor accepts the relationship of trust and confidence established by this Agreement and covenants with the Owner to cooperate with the Engineer and exercise the Contractor's skill and judgment in furthering the 2010 Guaranteed Maximum Price Agreement for Avon Recreation Center Roof Repair Project 2010 -08 -04 ejh Page 1 of 6 Town Council of the Town of Avon, and any written waiver of a right shall not be construed to be a waiver of any other right or to be a continuing waiver unless specifically stated. 6.2 No Waiver of 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. 6.3 Affirmative Action: Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. Contractor will take affirmative action to ensure applicants are employed, and employees are treated during employment without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. 6.4 Binding Effect: The Parties agree that this Agreement, by its terms, shall be binding upon the successors, heirs, legal representatives, and assigns; provided that this Section 9.4 shall not authorize assignment. 6.5 No Third Party Beneficiaries: Nothing contained in this Agreement is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief for, any third party, including any agent, sub - consultant or sub - contractor of Contractor. Absolutely no third party beneficiaries are intended by this Agreement. Any third -party receiving a benefit from this Agreement is an incidental and unintended beneficiary only, 6.6 _Article X, Section 20/TABOR: The Parties understand and acknowledge that the Town is subject to Article X, § 20 of the Colorado Constitution ( "TABOR "). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi - fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the Town are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the Town's current fiscal period ending upon the next succeeding December 31. Financial obligations of the Town payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of Town of Avon, and other applicable law. Upon the failure to appropriate such funds, this Agreement shall be terminated. 2010 Guaranteed Maximum Price Agreement for Avon Recreation Center Hoof Repair Project 2010 -08 -04 ejh Page 3 of 6 6.14 Non - Liability of Town for Indirect or Consequential Damages or Lost Profits: Parties agree that the Town shall not be liable for indirect or consequential damages, including lost profits that result from the Town's declaration that the Contractor is in default of the Agreement, so long as the Town acts in good faith. 6.15 Notices: Unless otherwise specifically required by a provision of this Agreement any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified mail or registered mail, postage and fees prepaid, addressed to the Party to whom such notice is to be given at the address set forth below or at such other address as has been previously furnished in writing, to the other Party. Such notice shall be deemed to have been given when deposited in the United States Mail properly addressed to the intended recipient. If to the Owner: If to the Contractor: Larry Brooks, Town Manager Attention: Town of Avon P.O. Box 975 , One Lake Street Avon, Colorado 80620 With Copy to: Eric Heil, Town Attorney Heil Law & Planning, LLC 1499 Blake Street, Unit 1 -G Denver, CO 80202 [REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK - SIGNATURE PAGE FOLLOWS] 2010 Guaranteed Maximum Price Agreement for Avon Recreation Center Roof Repair Project 2010 -08 -04 ejh Page 5 of 6 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. �JG s✓ From: Justin Hildreth, P.E., Town Engineer Shane Pegram, P.E., Engineer II Date: August 4, 2010 Re: Metcalf Gulch Drainage Improvements and Metcalf Road Bicycle Climbing Lane — Intermountain Engineering, Ltd. Proposal to complete final design and construction documents Summary: Intermountain Engineering, Ltd. (IME) has provided a proposal (Exhibit A) to complete final design and construction documents for the Metcalf Gulch Drainage Improvements Project and Phase I of the Metcalf Road Bicycle Climbing Lane Project. IME is recommended for this project because they completed 50% of the design in 2007 and 2008. Staff recommends approving the August 4, 2010 proposal in the amount of $66,490. Previous Council Action: • July 12, 2007 — Council approved Intermountain Engineering's design proposal for $92,605 • November 2007 — Council approved the 5 year Capital Improvement Program that moved construction to 2009. Intermountain Engineering was notified of the change in schedule. • July 2008 — Intermountain Engineering met with staff to review the conceptual /preliminary plans. The project was put on hold because construction was moved to 2011 in the Capital Projects 5 year plan. • September 11, 2008 — Council approved staff's plan to seek a jurisdictional determination by the Army Corps of Engineers (ACOE) for Metcalf Gulch and Swift Gulch. • November 2008 - Council approved the 5 year Capital Improvement Program that moved construction to 2011. • Spring 2009 — ACOE notified town that Metcalf Gulch did not qualify as a "non jurisdictional" water body. Discussion: The Metcalf Drainage Study report recommended improvements along Metcalf Road to maintain storm drainage capacity and reduce erosion. Phase 1 of the Metcalf Bicycle Climbing Lane project will be constructed concurrently with drainage improvements because of the extensive road reconstruction required as part of the drainage improvements. Phase 1 of the climbing lane project extends from Nottingham Road to Wildwood Road. Town staff requested that IME provide a proposal for completion of the design and construction documents for the Metcalf Gulch Drainage Improvements Project and Phase I of the Metcalf Road Bicycle Climbing Lane Project. Metcalf Gulch Drainage Improvements and Bicycle Climbing Lane August 4, 2010 IME was awarded the original design contract in 2007 and work was stopped in 2008. They had completed the survey work, hydraulic analysis, and preliminary design layout under the previous contract. Approximately $50,000 (54 %) of their previous contract was completed before they were directed to stop work. Staff believes that IME's previous work justifies IME completing the work because there will be a large cost savings over hiring a new firm to complete the design. This proposal, dated August 4, 2010, includes additional work that was not included in the 2007 contract. The additional work includes more surveying to extend the project limits to Wildwood Road for the climbing lane, structural design of drainage structures, and environmental permitting that is required to complete the project. Financial Implications: The 2010 Capital Improvements budget includes $75,000 for completion of the Metcalf Drainage Improvements and Metcalf Bicycle Climbing Lane design. The proposed construction budget for 2011 is $1,550,000. The proposed design service fees fit within the project's design budget and will not be exceeded without prior written approval. As part of the contract approval the Town Manager will be authorized to sign amendments to the contract within the approved $75,000 design budget. Recommendation: Approve the August 4, 2010 proposal from Intermountain Engineering, Ltd. in the amount of $66,490 for completion of design and construction documents for the Metcalf Gulch Drainage Improvements Project and Phase I of the Metcalf Road Bicycle Climbing Lane Project, Town Manager Comments: NOTES: Exhibit A — Intermountain Engineering, Ltd. proposal, dated August 4, 2010 • Page 2 A A.TENGINEERING int r ° ounta' Civil Engineers & Surveyors August 4, 2010 Justin Hildreth Town of Avon P.O. Box 975 Avon, CO 81620 EXHIBIT A Re: Metcalf Road Storm Drainage Improvements and Road Widening— Design Services Dear Justin, Inter- Mountain Engineering, Ltd. (IME) is pleased to present this revised proposal for preliminary and final design and construction document preparation for the Metcalf Gulch stone drainage improvements and road widening. We feel that we are uniquely qualified for this project due to the fact that IME completed the Town's Master Drainage Study (1994) and the Metcalf Gulch and Buck Creels Stonn Drainagc Improvements Conceptual Report (,Imniai)x 2001), and the Revised Concept for the Metcalf Gulch Drainage Improvements (July 2008), which will form the foundation for this work. Completing the required engineering services for construction of the drainage improvements is a logical extension of our previous work. The basis for the revised concept design has been completed in accordance with the recommendations in the Metcalf Gulch and Buck Creek Storm Drainage Improvements Conceptual Report (IME, ,ICTnuai)I 2001) and the Town of Avon Master Drainage Study (IME, September 1994). Over the years, IME has successfully completed many similar projects for the Town and other clients. We are familiar with Town expectations, which will help lead to a successful project team and a superior product. Plus, we feet that being local is a significant asset that will allow us to be more responsive to the Town's needs. Team Description and Profile Inter - Mountain Engineering is a Multi- disciplined civil engineering firm and an equal opportunity employer. IME will obtain a structural engineer and utilize the same geotechnical engineer that has started on the project to complete the work required for die project. DENVER OFFICE 6551 S. Revere Pkwy., Suite 165 1 Centennial, CC 80111 l Phone: 303.948.622D I Fax: 303.948.6526 VAIL VALLEY OFFICE 40801 U.S, Highway 6, Suite 203 1 PQ Box 978 1 Avon, CO 81620 1 Phone: 970.949.5072 1 Fax: 970.949.9339 Page 2 of 8 Siurm Drainage lrriprovr r3ieiits 1 Desgyi Services AL,igust4, 20'90 We will also continue to work with Western Bionomics to complete the environmental services. lister- Mountain Engineering will coordinate the work of the team. The key personnel that will participate in the project will include: • Duane "Duke" Fehringer, P.E. & P.L.S., Survey Manager • Bob Yost, P.E., Project Engineer/Manager • Sandra E. Mendonca, P.E., Engineering Consultant • Andy Herb, AlpineEco, Environmental Consultant • Haniles Spaeh, Monroe & Newell — Structural Engineer Mr. Yost, who will act as the Project Manager for this work, has more than six years experience with civil project planning, design and construction. He has worked with Town staff on the revised concept stage of the project and is able to provide the necessary project management and engineering services. AlpineEco is a small ecological consulting firm that specializes in wetland, wildlife and vegetation. AppineEco (www.alpine- eco.com) is owned and operated by Andy Herb, an ecologist with over 10 years of experience working in the western U.S. and internationally. Statement of Work: The scope of services includes: Preparation of preliminary and final /construction plans for drainage improvements to be installed from the existing improvements at the northeast corner of Lot 22 to 100 feet north of Lot 41 and the small drainages from Lot 22 to Nottingham Road including design of the following: • Erosion control fabric for areas of high velocity (the exact velocity range to be determined by EWE and the Town of Avon) and hydraulic jumps, • Replacement pipes for those existing pipes that are undersized (approximately 10 pipes have been identified as being undersized in the southern half of the project), • Headwalls to reduce the effect of hydraulic jumps at pipe inlets • Re- aligni-nent of roadside ditches, if necessary Road widening along the cast side of the Metcalf Road, including the following sections: o It will be ideal to have (2) 11' lanes with a 2' shoulder on the west side and a 6' climbing lane on the east side. o Jn areas where this cannot be achieved, (i.e. possibly in the commercial area in the southern part of the project), the Town would like a minimum Page 3 of 8 Slorm Drainage Improvements / Di- ,sign Services kigust4, 201tD of (2) 10' lanes with a 2' shoulder on the west side and a 4' climbing lane on the east side. The Town is open to realigning the centerline of the road where we need to minimize the affect on the roadside ditches, but would like to maintain the crown of the road as much as possible, ■ Additional topographic surveying up to Wildwood Road. This topography will be used to extend the bicycle climbing lane up to Wildwood Road. ■ Environmental consultant to provide wetland delineation, reporting, any US Army Corps 404 Permitting required, and a mitigation plan. if it is determined that the disturbance of wetlands is less the 0.5- acres, then the project could be completed under a Nationwide Permit. ■ Structural consultant to provide the design and construction documents for 9 headwalls and one intake structure. ■ Coordinate requirements for relocation and/or adjustment of existing utilities with utility service providers, as needed. ■ Completion of any additional soils testing as necessary if the proposed location of structures has changed. ■ The disturbance limit for the project is expected to encompass. more than 0.5 acre, thus preparation of a Stonvwater Management Plan and /or application for a State of Colorado Construction Stormwater Permit will be necessary. ■ Drainage report summarizing the chartnol analysis, pipe sizing and other design of drainage improvements. Debris flow assessment. This will include applying the bulking factor computed by IIP Geotech in their August 2007 report to the 24 -hr storm event and determining the effects on the Metcalf Gulch. We have assumed that we will not be designing any sediment ponds or assessing the effects of the debris flow upstream or downstream of the project area (including the effect of the debris flow on the I -70 berm). ■ Structural engineering as necessary for the concrete headwalls, intake structure (if necessary). W Prepare construction docruments, specifications and an engineer's opinion of construction cost for the work. The engineer's opinion will include a cost estimate for two different types of pipe: HDPE or reinforced concrete pipe. Nige -{ of 8 Storin Drainage Iniproverients 1 Design Services August 4. 2010 Phase 1: Preliminary Design IME will complete the debris flow assessment as described above. IME will then complete a preliminary design and preliminary engineer's opinion of construction cost of the design per the above scope of work- in this proposal. This will include preliminary grading plan at a 1 " -50' scale which will show the road widening and overall drainage improvements. We will also complete a preliminary drainage report including the design of the pipes that need to be replaced and design any roadside ditches that will need to be realigned. tME will meet and consult with Town staff upon completion of the preliminary design and provide recommendations. LME will produce and distribute minutes from these meetings to Town staff. Plinse II: Construction Documents IME will complete the final design for the storm drainage improvements and road widening. IME will specify the location, size and elevation of grading and drainage improvements, and minor structures. Existing utility relocations will also be identified. IME will meet and consult with Town staff a maximum of two times to ensure that the design is feasible and appropriately addresses identified issues. The construction plan set will include a title sheet with vicinity map and general notes, 1" = 20' horizontal and 1" = 2' vertical scale plan and profile sheets for the approximately proposed storm sewer and outlet structures (with associated gading and erosion controls). The construction plan set will also include plan sheets at a 1 " =50' scale for the rechannehzation if any roadside ditches need to be re- aligned, chanriel improvements and typical details. IME will also complete a final drainage report including the design of the pipes that need to be replaced and design any roadside ditches that will need to be realigned. IME will prepare a Stormwater Management Plan for a State of Colorado Construction Stormwater Permit. It is our understanding that the Town of Avon applied to have Metcalf Gulch changed to a non- jurisdictional waterway under the Army Corps of Engineers, and that this application was rejected. AlpineEco will complete a wetland delineation, prepare a report, and prepare the proper permits for construction of this project. page..:;, of 8 Sionii Grainagu Improvements ! Dosigii Services Aug usi l 4, 2010 WE will prepare a final engineer's opinion of construction cost for the Town's budget purposes. IME will compile a Project Manual with Technical Specifications, Bid Forms, and Town Standard Front End Contract Documents. IME will submit the final plans, project manual and cost opinion to Town of Avon staff for review and comnent. IME will make one set of revisions to address review comments under the basic service scope. IME will attend a pre -bid meeting, respond to written requests for information to bidders, prepare addenda to the contract documents necessary to clarify their intent for bidders, and attend the bid opening. Phase IV — Construction Contract Administration Although it is not part of the basic scope of services for the project at this time, Inter - Mountain Engineering would be pleased to provide construction assistance services to the Town for this work. Page 6 of 8 Slone Di- a+nape Improvements 1 Design Services August 4. 201 General Conditions and Fee The estimated Not to Exceed fee for the proposed basic services is $66,490.00, We will not exceed this fee without prior approval. Our fee is detailed as follows: 1. Additional Topographic Surveying $ 4,390.00 2. Preliminary Design $20,760.00 3. Construction Documents $25,840.00 A. Structural Design (Monroe & Newell)* $ 9,000.00 B. Enviroinnental Permitting (Alpine Eco) ** $ 6,000.00 4. Reimbursable Expenses $ 500.00 TOTAL $ 66,490.00 The fee frown Monroe & NeweIl includes shop drawing review and approximately four (4) site observations during construction. The fee from AlpineEco includes surveying (to be completed by UVIE) to locate the delineated wetlands. The services are inter - related. The total fee is broken down into tasks solely to facilitate conununication of the scope of work and the preparation and approval of progress billings. Hourly rates for all services are listed in the enclosed fee schedule. These fees are based on the assumption that the work will proceed in and orderly timeframe with no long gaps and work stoppages. Exclusions Services for which extra fees will be negotiated, if required, include: • Preparation of legal descriptions for permanent drainage easements and/or temporary construction easements if required for constructing the project. • Meetings, negotiations and discussions with property owners and /or attorneys relative to acquisition of required easements. • Construction Services, if desired. • Walls may be necessary as part of the design, but the type of wall or height of the walls have yet been determined. The design of boulder walls 4 feet or under is included, but WE does not believe this will be the most efficient wall to use for this project (since they require more horizontal space). IlVIE will include top of wall/bottom of wall elevations and anticipates to specifying design -build MSE walls. If a design -build MSE wall is not desirable to the Town, we will need to address the wall design under separate contract. These fees assume a sedimentation pond will not be required. IME's standard General Conditions (copy enclosed) apply. Revisions in the scope of services or extra engineering required by the Town of Avon (except for minor or Purge 7 of 8 Sturm Drainage Irniprovements I Design Services Hugusl. 4, 2010 insignificant changes) may necessitate changes to the design and an associated increase in the cost of the services. All work outside the described scope of work will be billed at the normal billing rates for the individuals assigned to the project, IIvIE will not perform out- of-scope work without authorization from the Town. P@OQ t of 8 Storm Drainage lmproversterits 1 Design Services August 4, 2010 Conclusion This proposal is written in response to your request and includes an overview of our approach to the project to demonstrate our understanding of the basic scope of services requested. As always, we look forward to working with the Town of Avon. Thank you for yoUr consideration. Z3:�16 - Bob Yost, .E. Project Engineer Enclosures Please acknowledge your consent to this proposal /agreement, including the enclosed General Conditions, by signing below and returning one copy to us. Enclosures Date To: Honorable Mayor and Town Council Initials Thru: Larry Brooks, Town Manager Legal Review: Eric Heil, Town Attorney Approved by: Sally Vecchio, Assistant Town ManagerG From: Justin Hildreth, P.E., Town Engineer G Jeffrey Schneider, P.E., Project Engineer Date: August 4, 2010 Re: Resolution No. 10 -19, Series of 2010, A Resolution Supporting the Grant Application for a Local Parks and Outdoor Recreation Special Opportunity Grant from the State Board of the Great Outdoors Colorado for the Eagle Valley Trail Bridge over the Eagle River at Avon Road Summary: This memorandum is to present Resolution No, 10 -19, Series of 2010, a Resolution Supporting the Grant Application for a Local Parks and Outdoor Recreation Special Opportunity Grant from the State Board of the Great Outdoors Colorado for the Eagle Valley Trail Bridge over the Eagle River at Avon Road. Town of Avon staff is preparing a Local Parks and Outdoor Recreation (LPOR) Special Opportunity Grant application from Great Outdoors Colorado (GOCO), with support from ECO Trails and Eagle County, to continue the Eagle Valley Core Trail along the US Highway 6 corridor via a bridge to be located immediately east of Bob the Bridge at Avon Road. Resolution No. 10 -19 is an official document showing that the Town is in support of the project and is a required element of the GOCO grant application. Staff recommends approval of Resolution No.10 -19, Series of 2010, attached as Exhibit A to this memorandum. Discussion: The Town of Avon values non - automobile transportation and the expansion of such infrastructure. This notion is reinforced in plans and documents such as the 2006 Comprehensive Plan, the 2009 Comprehensive Transportation Plan, and the 2001 Eagle Valley Regional Trails Plan. The latter document, the 2001 Eagle Valley Regional Trails Plan, portrayed extending the trail through the Village at Avon to Dowd Junction, but the lack of development has left Town and County staff seeking alternate alignments. Collaboratively, Town and County staff have partnered to find a creative solution for the residents and guests of Avon and the entire valley for transportation and recreation by targeting the US Highway 6 corridor. The Eagle Valley Trail continuation project was divided into three phases for the purposes of seeking grant funding: Phase 1 from Avon Road to Post Boulevard, Phase 2 from Post Boulevard to the Eagle Vail Interstate 70 interchange, and Phase 3, which is the bridge over the Eagle River. Phase 1 is located largely within the Town of Avon boundary and was the focal point of a successful CDOT Enhancement Grant application, awarding the Town approximately $360,000. Phase 2 is also eligible for additional CDOT grant funding but is currently funded by ECO Trails of Eagle County. Figure 1 below shows an overview of the proposed Core Trail project in its entirety. Resolution 10 -19 August 4, 2010 Wage 2 of 3 Figure 1 — Eagle Valley Trail Connection Phase 3 of the project is the proposed bridge over the Eagle River. The bridge is to be located immediately east of Bob the Bridge and Avon Road and will be designed so that users can avoid one of the tight, technical switchbacks currently located east of Avon Road. The bridge will be wider than the recreation trail, functioning as a kayak park viewing area as well as transportation infrastructure. The bridge project will also be partially funded by ECO Trails of Eagle County. Figure 2 below shows the conceptual bridge alignment (note that Option 2 is no longer being considered). Figure 2 — Bridge Area II I1 Pb7Y5! — �—Bridge opliomiC j e a r to anal Dgnnm � rrr • Page 2 Resolution 10 -19 August 4, 2010 Page 3 of 3 Financial Implications: Preliminary cost estimates for the bridge project total approximately $675,000. Table 1 below shows a conceptual cost breakdown of the bridge project pending receipt of GOCO grant funding. Table 1 — Cost Breakdown Project Phase Total Protect Avon Match ECO Match Grant Request Phase III $ 675,000 $ 55,000 $ 120,000 $ 500,000 The Draft 2011 Town of Avon Capital Improvements Program (CIP) Budget contains $30,000 in 2011 and $300,000 in 2012 for design and construction of the Eagle Valley Trail segment. Discussions with ECO staff led to $275,000 of the total $330,000 appropriation programmed for Phase I of the trail project. The remaining $55,000 would then be leveraged, along with $120,000 of county funds, to seek the LOCO grant. Staff believes that pursuing the grant with the proposed funding allocation to be the best use of limited funds to complete an important project with regional benefits. Recommendation: Staff recommends approval of Resolution No. 10 -19, Series of 2010, a Resolution Supporting the Grant Application for a Local Parks and Outdoor Recreation Special Opportunity Grant from the State Board of the Great Outdoors Colorado for the Eagle Valley Trail Bridge over the Eagle River at Avon Road. Proposed Motion: Move to approve Resolution No. 10 -19, Series of 2010, a Resolution Supporting the Grant Application for a Local Parks and Outdoor Recreation Special Opportunity Grant from the State Board of the Great Outdoors Colorado for the Eagle Valley Trail Bridge over the Eagle River at Avon Road. Attachments: Exhibit A - Resolution No. 10 -19, Series of 2010 Town Manager Comments: / /i11 G E 1© ^/ J! 0 Page 3 EXHIBIT A TOWN OF AVON RESOLUTION NO. 10 -19 Series of 2010 A RESOLUTION SUPPORTING THE GRANT APPLICATION FOR A LOCAL PARKS AND OUTDOOR RECREATION SPECIAL OPPORTUNITY GRANT FROM THE STATE BOARD OF THE GREAT OUTDOORS COLORADO FOR THE EAGLE VALLEY TRAIL BRIDGE OVER THE EAGLE RIVER AT AVON ROAD WHEREAS, the Town of Avon supports the Great Outdoors Colorado grant application for the Eagle Valley Trail Bridge over the Eagle River at Avon Road; and WHEREAS, the Town of Avon has requested five hundred thousand dollars {$500,000} from Great Outdoors Colorado to construct the bridge and connecting path which will become an important link in the Eagle Valley Trail, spanning throughout Eagle County; and WHEREAS, the 2006 Town of Avon Comprehensive Plan emphasizes non - automobile transportation alternatives; and WHEREAS, the 2009 Town of Avon Comprehensive Transportation Plan recommends that sidewalks or separate paved trails should be incorporated along US Highway 6. NOW, THEREFORE BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, that 1. The Town Council of the Town of Avon strongly supports the application and has appropriated matching funds for a grant with Great Outdoors Colorado. 2. The Town Council of the Town of Avon authorizes the expenditure of funds neecssary to meet the terms and obligations of any Grant awarded. 3. The project site is owned by the Town of Avon and will be owned by the Town of Avon for the next 25 years. 4. The Town Council of the Town of Avon will continue to maintain the Eagle Valley Trail Bridge in high quality condition and will appropriate funds for maintenance in its annual budget. 5. The Town of Avon has the ability to complete this project and has demonstrated this ability on an annual basis, completing, on average, between four and five million dollars of projects annually. 6. This resolution is to be in full force and effect from and after its passage and approval. EXHIBIT A ADOPTED August 10, 2010. TOWN COUNCIL TOWN OF AVON, COLORADO Donald C. Wolfe, Mayor ATTEST: Patty McKenny, Town Clerk Memo To: Honorable Mayor and Town Council Thru: Larry Brooks, Town ManagerS� Sally Vecchio, Asst. Town Manager, Director of Community Development _ From: Justin Hildreth, P.E., Town Engineer Date: August 5, 2010 Re: Proposed Stipulation and Agreement for Water Court Case Nos. 06CW264 and 07CW225 (Town of Minturn and Ginn /Battle Mountain Applications for Conditional Surface and Water Storage Rights) Summary: previously, the Town of Avon (TOA) entered the above mentioned water court cases as an opposer but later agreed to let the Eagle River Water and Sanitation District (ERWSD) and the Upper Eagle Regional Water Authority ( UERWA) take the lead in negotiating a settlement. The ERWSD and the UERWA settled their claims several months ago regarding these cases with the Town of Minturn and Battle Mountain entities. Since that time, Jay Montgomery, the Town's water attorney, has negotiated agreements for the cases on behalf of the TOA. Jay Montgomery is recommending that the TOA agree to the attached stipulation and agreements for water court case Nos. 06CW264 and 07CW225. Recommendation: Approve the Stipulation and Agreement, Town of Avon Opposition to Case No. 06CW264 and Case No. 07CW225 (Town of Minturn and Ginn /Battle Mountain Applications for Conditional Surface and Water Storage Rights). Proposed Motion: Move to Approve the Stipulation and Agreement, Town of Avon Opposition to Case No. 06CW264 and Case No. 07CW225 (Town of Minturn and Ginn /Battle Mountain Applications for Conditional Surface and Water Storage Rights). Town Manager Comments: Attachments.. Attachment A — Stipulation and Agreement, Town of Avon Opposition to Case No. 06CW264 (Town of Minturn and Ginn /Battle Mountain entities application for conditional surface rights and water storage rights) Attachment B — Stipulation and Agreement, Town of Avon Opposition to Case No. 07CW225 (Town of Minturn and Ginn /Battle Mountain entities application for conditional surface rights and water storage rights) ATTACHMENT A Provided for settlement negotiations Subject to Rule 408- Colorado Rules of Evidence DISTRICT COURT, GARFIELD COUNTY, COLORADO WATER DIVISION NO. 5 Garfield County Courthouse 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601 -3303 CONCERNING THE APPLICATION FOR WATER RIGHTS OF; Applicants: Ginn Battle South, LLC, Ginn Battle North, LLC, Ginn -LA Battle One, LTD., LLLP, Ginn -LA Battle One A, LLC and Ginn Development Company, LLC In Eagle County, Colorado ♦ COURT USE ONLY Attorneys for Applicants: Bennett W. Raley, 413429 Lisa M. Thompson, 9-36923 Case No.: 06CW264 Trout, Raley, Montano, Witwer & Freeman, P.C. 1 ] 20 Lincoln Street, Suite 1600 Denver, Colorado 80203 Telephone: (303) 861 -1963 Facsimile: (303) 832 -4466 Email: bwrale ci,mac.corn Ihompson&troutlaw.corn PROPOSED FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT AND DECREE IN CASE NO. 06CW264 This matter comes before the Court upon the Application by Ginn Battle South, LLC, Ginn Battle North, LLC; Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC ; and, Ginn Development Company, LLC (collectively "Applicants" or "Battle Mountain Entities ") for conditional surface water rights and water storage rights. Having considered the Application and other evidence, and being fully advised in this matter, the Court finds and rules as follows: I. FINDINGS OF FACT Name and address of the Applicants: Ginn Battle South, LLC, Ginn Battle North, LLC; Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC ; and, Ginn Development Company, LLC P.O Box 56 060'264 Ginn Proposed Decree Version: 7116120.10 Consolidated Case Nos. 06CW264 and 07CW225 Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC: Ginn -LA Battle One, LTD., LLLP; Gitul -LA Battle One A, LLC Findings of l7act, ConclusiOns of Law, Judgment and Decree of Water Court Page 2 (if 12 164 Railroad Ave., Suite 150 Minturn, CO 81645 2. The above captioned Application for Conditional Surface Rights and Water Storage Rights was filed on December 28, 2006, and amended on October 3, 2007 and December 19, 2007 (together, the "Application "). The Application was consolidated on September 28, 2009 with the Application for New Water Rights, for Approval of Plan for Augmentation Including Exchange, and for Conditional Appropriative Rights of Exchange filed by the Town of Minturn ( "Minturn") on December 20, 2007 in Case No. 07CW225. 3. The Application was properly published in the water resume for Water Division No. 5. Timely and adequate notice of the tiling of this Application was given as required by law. The Court has jurisdiction over the subject matter of this Application and over all of the parties in this case. 4. None of the water rights or sources thereof involved in this Application are located within a designated ground water basin. 5. The following Objectors filed timely Statements of Opposition or motions to intervene to the Application: Homestake Partners: the Cities of Aurora and Colorado Springs acting through the Homestake Steering Committee, Eagle River Water & Sanitation District, Upper Eagle Regional Water Authority, Eagle Park Reservoir Company, Vail Associates, Inc., Colorado Water Conservation Board, Town of Avon, Town of Minturn, Eagle County Board of County Commissioners, Town of Gypsum, Colorado River Water Conservation District, United States of America c/o U.S.D.A. Forest Service, Battle Mountain Corporation, Battle Mountain Limited Liability Company, Town of Red Cliff, and the Eagle County School District RE -50.1, Arrowhead Metropolitan District, Beaver Creek Metropolitan District, Berry Creek Metropolitan District, Colorado Division of Wildlife, Eagle -Vail Metropolitan District, Edwards Metropolitan District, Holland Creek Metropolitan District, Public Service of Colorado, Red Sky Metropolitan District, Sensible Housing Company, Inc., State and Division Engineers, and State Board of Land Commissioners. No other Statements of Opposition were filed, and the time for filing such statements has expired. 6. Battle Mountain Entities have reached stipulations with the following parties for entry of the decree herein: Town of Minturn, Arrowhead Metropolitan District, Beaver Creek Metropolitan District, Berry Creek Metropolitan District, Eagle Park Reservoir Company, Eagle River Water & Sanitation District, Eagle -Vail Metropolitan District, Edwards Metropolitan District, Holland Creek Metropolitan District, Red Sky Ranch Metropolitan District, Upper Eagle Regional Water Authority and Vail Associates, Inc. 7. General Description of Application; The Application in this matter sought confirmation of conditional surface and water storage water rights. Applicants purchased approximately 5,300 2 Consolidated Case Nos. 06CW264 and 07CW225 Applicants- in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC; Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC Findings of Fact. Conclusions of Law, Judgment and Decree of Water Court Page 3 of 12 acres in December 2004 ( "Battle Mountain Property "). Approximately 4,300 acres of the Battle Mountain Property was subsequently annexed into the Town ofMinturn. A. The conditional surface water rights and water storage rights listed below are each component parts of an integrated water supply system for the Battle Mountain Project. The place of use for the conditional water rights is the existing and future water service area of Minturn, which necessarily includes without limitation,. the existing or future annexed portion of the Battle Mountain Property. A map showing all points of diversion and places of storage is attached as Exhibit A hereto and is hereby incorporated. B. Applicants withdrew the application for conditional water rights for the following points of diversion: Ginn Eagle River Diversion No.I (near Red Cliff); Ginn Turkey Creek Diversion; Ginn Willow Creek Diversion No.l; Ginn Willow Creek Diversion No.2; Bolts Ditch Pumpstation; and Arminda Ditch. C. Applicants also withdrew the application for the following places of storage: Cross Creek Reservoir; Battle Mountain Reservoir No. 1; Battle Mountain Reservoir No.2; Battle Mountain Reservoir No.3; Willow Creek Reservoir No.]; Willow Creek Reservoir No.2; Turkey Creek Reservoir No.] (Off Channel); Turkey Creek Reservoir No.2 (On-Channel); and Highlands Reservoir. CONDITIONAL SURFACE WATER RIGHTS 8. Conditional water rights are confirmed for the following points of diversion: A. Name of Structure: Bolts Ditch Headgate: i) Legal Description: The decreed point of diversion is located at a point on Cross Creek from whence the SW corner of Section 35, Township 5 South, Range 81 West of the 6th P.M. bears North 28 degrees West 6,350 feet. The GPS coordinates for the point of diversion have been confirmed to be Lat 39.550483 N, Long 106.421317 W. In the future, reference to the GPS coordinates shall be the applicable legal description. ii) Source: Cross Creek, a tributary of the Eagle River. iii) Date of initiation of appropriation: December 28, 2006 iv) How appropriation was initiated: By formation of requisite intent to appropriate coupled with actions manifesting such an intent sufficient to put third parties on notice, including but not limited to: site investigations, engineering and other work related to the proposed diversions, posting of public notice of appropriation signs at or near the proposed diversion points, adoption of a resolution, and the filing of the Application. 3 Consolidated Case Nos, 06CW264 and 07CW225 Applicants in 06C=W264: Ginn Battle South, LLC, Ginn Battle North, LLC; Ginn -LA Battle One; LTD., LLLP; Ginn -LA Rattle One A, LLC Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 4of12 V) Date water applied to beneficial use: Not applicable, conditional water rights. vi) Amount: 30 cfs, conditional. B. Name of Structure: Minturn Water 'System Ditch: i) Legal Description: an existing intake located on the bank of Cross Creek from whence the section corner common to Sections 35 and 36 of Township 5 South, Range 81 West of the 6"' P.M. Eagle County, Colorado, bears North 38° 43' 20" East 2,531.38 feet. ii) Source: Cross Creek, a tributary of the Eagle River. Date of initiation of appropriation: December 28, 2006 iv) How appropriation was initiated: By formation of requisite intent to appropriate coupled with actions manifesting such an intent sufficient to put third parties on notice, including but not limited to: site investigations, engineering and other work related to the proposed diversions, posting of public notice of appropriation signs at or near the proposed diversion points, adoption of resolution, and the tiling of the Application. V) Date water applied to beneficial use: Not applicable, conditional water rights. vi) Amount: 30 cfs, conditional. C. Name of Structure: Ginn Eagle River Diversion No. 2 (near Bolts Lake): i) Legal Description: a proposed diversion to be located on or adjacent to the Eagle River in an unsurveyed portion of Eagle County that, when surveyed, will likely be in the NE 114 of NE 114 of Section 11 of Township 6 South, Range 81 West, of the 6"' P.M. Eagle County, Colorado, at a point 5465 feet West of the line common to Range 80 and 81 West, and 7265 feet South of the line common to Townships 5 and 6 South. ii) Source: Eagle River. iii) Date of initiation of appropriation: October 13, 2006 4 Consolidated Case Nos. 06CW264 and 07CW225 Applicants in 06CW264: Ginn Battle South, LLC, Ginn battle North, LLC, Ginn -1.A Battle one. LTD., LLLP. Ginn -LA Battle One A, LLC Findings (it' Pact. Conclusions of Law, Judgment and Decree of Water Court Page 5 oI' 12 iv) How appropriation was initiated: By formation of requisite intent to appropriate coupled with actions manifesting such an intent sufficient to put third parties on notice, including but not limited to: site investigations, engineering and other work related to the proposed diversions, posting of public notice of appropriation signs at or near the proposed diversion points, adoption of a resolution, and the filing of the Application. V) Date water applied to beneficial use: Not applicable, conditional water rights. vi) Amount: 50 cfs, conditional. D. Name of Structure: Ginn Eagle River Diversion No. 3 (near Bolts Lake): i) Legal Description: a proposed diversion to be located on or adjacent to the Eagle River in an unsurveyed portion of Eagle County that, when surveyed, will likely be in the NW 1/4 of SW 1/4 of Section 1 of Township 6 South, Range 81 West, of the 6"' F.M. Eagle County, Colorado, at a point 4000 feet from the North section line and 4465 feet from the East section line. ii) Source: Eagle River. iii) Date of initiation of appropriation: October 13, 2006. iv) How appropriation was initiated: By formation of requisite intent to appropriate coupled with actions manifesting such an intent sufficient to put third parties on notice, including but not lunited to: site investigations, engineering and other work related to the proposed diversions, posting of public notice of appropriation signs at or near the proposed diversion points, adoption of a resolution, and the filing of the Application. V) Date water applied to beneficial use: Not applicable, conditional water rights. vi) Amount: 50 efs, conditional. E. Name of Structure: Minturn Water System Ditch Diversion Structure No. 2: i) Legal Description: The Minturn Water System Ditch diverts water from the left (west) bank of Cross Creek at a point whence the section corner common to Sections 35 and 36, Township 5 South, Range 81 West, 6th P.M. bears North 38° 43' 20" East a distance of 2,531.38 feet. Applicants proposes to construct an additional diversion structure at this location on 5 Consolidated Case Nos. 06CW264 and 07CW225 Applicants in 06CW264. Ginn Battle South, LLC, Ginn Battle North, LLC; Ginn -LA Battle One., LTD., LLLP; Ginn -LA Battle One A, LLC Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 6 of 12 the right (east) bank of Cross Creek at a point approximately 9,748 feet west of the line common to Range 80 and 81 West and 1,967 feet South of the line common to Townships 5 and 6 South of the 6th P.M. ii) Source: Cross Creek, tributary to Eagle River. iii} Date of initiation of appropriation: December 19, 2007 iv) How appropriation was initiated: By formation of requisite intent to appropriate coupled with actions manifesting such an intent sufficient to put third parties on notice, including but not limited to: site investigations, engineering and other work related to the proposed diversions, posting of public notice of appropriation signs at or near the proposed diversion points, adoption of a resolution, and the filing of the Application. v) Date water applied to beneficial use: Not applicable, conditional water rights. vi) Amount: 30 cfs, conditional. F. Name of Structure: Maloit Park Diversion Structure: i) Legal Description: A diversion structure to be located within 500 feet Upstream or downstream of a point on the right bank of Cross Creek that is approximately 9,131 feet west of the line common to Range 80 and 81 West and 1,238 feet south of the line common to Townships 5 and 6 South of the 6th P.M in Eagle County. Source: Cross Creek, tributary to Eagle River. iii) Date of initiation of appropriation: December 19, 2007. iv) How appropriation was initiated: By formation of requisite intent to appropriate coupled with actions manifesting such an intent sufficient to put third parties on notice, including but not limited to: site investigations, engineering and other work related to the proposed diversions, posting of public notice of appropriation signs at or near the proposed diversion points, adoption of resolution, and the filing of the Application. V) Date water applied to beneficial use: Not applicable, conditional water rights. vi) Amount: 30 efs, conditional. 0 Consolidated Case Nos. 06CW264 and 07CW225 Applicants in 06CW264: Ginn Battle South.. LLC, Ginn Battle North, LLC; Ginn -LA Battle One, LTD., LLLP. Ginn -LA Battle One A, LLC Findings of Facl. Conclusions of Law, Judgment and Decree of Water Court Page 7 of 12 G. Name of Structure: Lower Cross Creek Diversion Structure: i) Legal Description: A diversion structure to be located within 500 feet Upstream or downstream of a point on the right bank of Cross Creek that is approximately 357 feet east of the west section line and 93 feet north of the south section line of Section 36, Township 5 South, Range 81 West of the 6th P.M in Eagle County. ii) Source: Cross Creek, tributary to Eagle River. iii) Date of initiation of appropriation: December 19, 2007 iv) How appropriation was made: By formation of requisite intent to appropriate coupled with actions manifesting such an intent sufficient to put third parties on notice, including but not limited to: site investigations, engineering and other work related to the proposed diversions, posting of public notice of appropriation signs at or near the proposed diversion points, adoption of a resolution, and the ding of the Application. V) Date water applied to beneficial use: Not applicable, conditional water rights. vi) Amount: 50 efs, conditional. CONDITIONAL WATER STORAGE RIGHTS 9. A conditional water storage right is confirmed for the following reservoir: A. Bolts Lake: i) Legal Description: the existing off- channol reservoir is located in Homestead Entry Survey No. 40, Homestead Entry No. 021, containing a portion of the W 12 of Section I and the E /2 of Section 2, Township 6 South, Range 81 West of the 6th P.M. Eagle County, Colorado, and in Homestead Entry Survey No. 41, Homestead Entry No. 022, containing a portion of the SW '/4 of Section 1, S '/2 of Section 2, N % of Section 11 and NW '/a of Section 12, Township 6 South, Range 81 West of the 6th P.M., Eagle County, Colorado. The enlarged Bolts Lake will be located in the E '/2 of Section 2, Township 6 South, Range 81 West and the W '/2 of Section 1, Township 6 South, Range 81 West of the 6th P.M., Eagle County, Colorado. All section and portions are projected, as this area is unsurveyed. Consolidated Case Nos. 06CW264 and 07CW225 Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North. LLC; Ginn -LA Battle One, LTD., LLLP, Ginn -LA Battle One A, LLC Findings of Fact, Conclusions of Law, Judgment and Decree of Water Cowl Page & of 12 ii) If off - channel reservoir, name and capacity of ditch or ditches used to fill reservoir and legal description: Water will be diverted at the following alternate points of diversion and rates of diversion to rill Bolts Lake: a. Bolts Ditch Headgate: surface water right decreed herein for 30 cfs, conditional. Source: Cross Creek tributary to Eagle River. b. Minturn Water System Ditch: surface water right decreed herein for 30 efs, conditional. Source: Cross Creek tributary to Eagle River. C. Ginn Eagle River Diversion No.2 (near Bolts Lake): surface water right decreed here for 50 cfs, conditional. Source: Eagle River tributary to Colorado River. d. Ginn Eagle River Diversion No.3 (near Bolts Lake): surface water right decreed herein for 50 cfs, conditional. Source: Eagle River tributary to Colorado River. C. Minturn Water System Ditch Diversion Structure No. 2: surface water right decreed herein for 30 cfs, conditional. Source: Cross Creek tributary to Eagle River. f. Maloit Park Diversion Structure: surface water right decreed herein for 30 cfs, conditional. Source: Cross Creek tributary to Eagle River. g. Lower Cross Creek Diversion Structure: surface water right decreed herein for 50 cfs, conditional. Source: Cross Creek tributary to Eagle River. iii) Date of Appropriation: December 28, 2006 for Applicants' original 100 acre -feet, conditional; December 19, 2007 for the Applicants' enlarged 740 acre -feet, which when combined with the previously decreed 320 acre -feet, conditional for the Town of Minturn (Case No. 96CW324) will result in a total reservoir capacity of 1,210 acre -feet. iv) flow appropriation was initiated: By formation of requisite intent to appropriate coupled with actions manifesting such an intent sufficient to put third parties on notice, including but not limited to: site investigations, engineering and other work related to the proposed reservoir, posting of public notice of appropriation signs at or near the proposed reservoir site, adoption of a resolution, and the filing of the Application. 8 Consolidated Case Nos, 06CW264 and 07CW225 Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC; Ginn -LA Battle One, LTD., LLLP. Ginn -LA Battle One A. LLC. i~'indings of Pact. Conclusions of Law, .ludgntent and Decree of Water Court Page 9 of 12 v) Date water applied to beneficial use; not applicable, conditional water right. vi) Amount: 890 acre -feet, conditional: (100 acre -feet, conditional with an appropriation date of December 28, 2006 for a right to fill and re -fill in priority; 790 acre -feet, conditional with an appropriation date of December 19, 2007 for a right to fill and re -fill in priority). The 890 acre -feet claimed herein combined with the previously decreed 320 acre -feet, conditional for the Town of Minturn (Case No. 96C.W324) will result in a total reservoir capacity of 1,210 acre -feet. 10. Decreed uses: Domestic, municipal, irrigation, snowmaking, storage, wetlands and habitat purposes, recreation, watering of lawns, parks and grounds, industrial, commercial, fire protection, construction, street sprinkling, piscatorial, aesthetic, augmentation, replacement, substitution and exchange, including use by storage for later release to meet return flow obligations and for all other beneficial uses including reuse and successive use to extinction. 11. integrated Water Supply: Bolts Lake and each of the points of diversion listed above are part of an integrated water supply project. Some or all of these water rights may be dedicated to the Town of Minturn and used in conjunction with, but not limited to, the plan for augmentation in Case No. 07CW225. 12. Water Service to Battle Mountain Project: All Battle Mountain Project water service will be provided by any of the water rights decreed in Case Nos. 05CW263, 06CW264, and 07CW225 or such other decreed water rights diverted either in priority or pursuant to a court - approved plan for augmentation and such water rights may be used as sources of supply for the water service for Battle Mountain Project, subject to the provisions herein and terms and conditions of the decrees set forth in the above referenced cases. 13. Bolts Lake: Upon construction, Bolts Lake shall be filled to 320 of under the decree in Case No. 96CW324 when in priority, and filled and refiiled when in priority under its decree in Case No. 06CW264 and unless otherwise specifically augmented, the reservoir levels shall be reduced to account for evaporation losses. The Bolts Lake water right decreed in Case No. 96CW324 may also be used to provide water service to the Battle Mountain Project. 14. Irrigation and Snowmaking: The Battle Mountain Project will be limited to no more than 50 acres of landscape irrigation demand, and water for snowmaking as available using the water rights decreed in 06CW264 and 07CW225 (snowmaking will be interruptible if and to the extent needed to provide water to remainder of development; current estimate is for approx 100 of per year of snowmaking capacity). No full scale golf (9 or 18 holes) or and any other golf will be included within 50 acres of landscaping (may be minor putting green etc), provided, however, that there shall be no irrigation over the CTP other than as required to establish and maintain native vegetation, and perform the CERCLA remedial actions. The functional integrity of the cap shall not be jeopardized by the establishment of native vegetation. E Consolidated Case Nos. 06CW264 and 07CW225 Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC; Ginn -LA Battle One, LTD., LLLP; Ginn -LA Bathe One A. LLC Findings of Fact, Conclusions orLaw, Judgment and Decree of Water Court Page 10 of 12 15. Bolts Ditch: Applicants and Minturn agrees that Bolts Lake cannot be filled under the priority of the Bolts Ditch decreed in Eagle County District Court in Civil Action No. 572, as amended in Civil Action Nos. 970 and 1344. Unless all depletions are frilly augmented, said Bolts Ditch water right may only be used to maintain adjacent historical wetlands if required by a federal regulatory agency. II. CONCLUSIONS OF LAW 16. The foregoing findings of fact are fully incorporated herein. 17. All notices required by law have been properly made, including as required under C.R.S. § 37 -92- 302(2) and (3). 18. The Court has jurisdiction over the Application and over all persons or entities who had standing to appear, even though they did not do so. 19. The Application is complete, in accordance with Colorado law; and covers all applicable matters required pursuant to the Water Right Determination and Administration Act of 1969, C.R.S. §§ 37 -92 -101 through -602. 20. Applicants have fulfilled all legal requirements for a decree for the subject conditional water rights, including but not limited to C.R.S. §§ 37 -92 -301, 37 -92 -302 and 37 -92 -305. 21. The Court has given due consideration to the Division Engineer's summary of consultation. See G.R.S. §37- 92- 302(4). A copy of the summary of consultation was properly served on all parties to the case. 22. The Court hereby concludes the Applicants have established that water can and will be diverted and bencficiaily used under the subject conditional water rights, and that the subject conditional water rights can and will be completed with diligence and within a reasonable time. 23. The subject conditional water rights are individual components of Applicants' integrated water supply system, thus in subsequent diligence proceedings work on any one feature of the conditional water rights shall be considered in finding that reasonable diligence has been shown in the development for all features of the water project, see C.R.S. § 37-92-30](4)(b). 24. The subject Application is in accordance with Colorado law. Applicants have fulfilled all legal requirements for entry of a decree in this case. JUDGMENT AND DECREE 25. The foregoing findings of fact and conclusions of law are fully incorporated herein by this reference. IlU Consolidated Case Nos. 06CW264 and 07CW225 Applicants in 06CW264: Ginn Battle South, LLC, Ginn Battle North, LLC; Ginn -LA Battle One. LTD., LLLP: Ginn -LA Battle One A. LLC Findings of Fact. Conctusions of Law, .ludgment and Decree of Water Court Page I I of 12 26. The conditional water rights described above are hereby confirmed. If the Battle Mountain Entities desire to maintain the conditional water rights decreed herein, it shall file an application for a finding of reasonable diligence or to make such rights absolute on or before the last day of the month and year specified below. 27. The priorities for the conditional water rights confirmed herein were filed in the Court in the year of 2006 and 2007 as noted above for each conditional water right. These priorities shall be administered as having been tiled in that year, and shall be junior to all priorities bled in previous years. As between all rights filed in the same calendar year, priorities shall be determined by historical dates of appropriation and not affected by the date of entry of decree. 28. Nothing in this decree shall be construed to create any right of the Battle Mountain Entities to utilize land or structures owned by parties other than Battle Mountain Entities For the diversion, storage, carriage or exchange of water. 29. In connection with the diversion of water under the junior priorities decreed herein, the following terms and conditions shall apply. In order to satisfy a senior call downstream on the Eagle River or to satisfy the Colorado Water Conservation Board's water rights on Cross Creek, decreed in Case No. W -3795, and on the Eagle River, decreed in Case Nos. W -3788, W -3796, 80CW 134, 80CW 126 and 80CW 124 as determined by the Water Commissioner or the Division Engineer, Applicants agrees to either curtail its diversions, or replace the depletions, in accord with a court approved plan for augmentation, in time and amount, upstream from the place where the depletions impact the river system. A. All references in this decree to "instream flow" shall be the instream flows that are decreed to and held by the CWCB. 30. Applicants shall install and maintain such water measuring devices, implement such accounting procedures, and provide such calculations as may be required by the State or Division Engineer to administer the terms of this decree. The CWCB shall have access to any such measuring device(s) at reasonable times in order to make readings therefrom. 31. Applicants shall provide monthly accounting to the Division Engineer on an accounting form approved by the Division Engineer, which shall include the name of the water right, the location of the water right, the amount of water diverted or stored, and if augmented pursuant to a court approved plan for augmentation, the source and location of water for augmentation or substitution by exchange. Accounting forms acceptable to the Division Engineer will be maintained and submitted on a monthly basis. Those forms will contain information required by the Division Engineer and shall be consistent with the accounting forms approved and maintained in Water Division No. 5 Case No. 07CW225. Consolidated Case Nos. 06CW264 and 07C:W225 Applicants in 06CW264: Ginn Battle South, LLC. Ginn Battle North LLC; Ginn -LA Battle One, LTD., LLLP; Ginn -LA Battle One A, LLC Findings of Pact. Conclusions of Law, Judgment and Decree or Water Court Page 12 of 12 32. Upon the sale or transfer of a conditional water right, the transferee shall file with the water court a notice of transfer pursuant to Rule 9 of the Uniform Local Rules for All State Water Court Divisions. 33. In the event groundwater is exposed, such ponds will be backfilled so as not to expose groundwater until such time as (1) a well permit has been obtained for the groundwater pond pursuant to C.R.S. § 37 -90 -137, or (2) the ponds are lined in accordance with the State Engineer's guidelines dated August 1999. Accordingly it is ordered that this judgment and decree shall be filed with the Water Clerk and shall become effective upon such filing, subject to judicial review pursuant to C.R.S. § 37 -92 -304, as amended. Further it is ordered that a copy of this judgment and decree shall be filed with the State Engineer and the Division Engineer for Water Division No. 5. Done at the City of Colorado, this day of 12010. THE MONTH FOR FILING AN APPLICATION FOR A FINDING OF REASONABLE DILIGENCE SHALL BE , 20 . BY THE COURT:. Thomas W. Ossola Water Judge Water Division No. 5 12 MINTURN - r: Eagle River , Pumpback 9065100 - CROSS CREEK NEAR MINTURN, CO. Lowed Cross Creek Diversion• ,. (50' cfs) oOVI-Creek Maloit Park Diversion (30 cfs) a - Minturn Water System Ditch Headgate (30 cfs) ----A rP Minturn Water System Ditch r Diversion Structure No. 2 (30 cfs) Bolts Lake (1,210 a1) . ®+ —Ginn Eagle River Diversion - 3 (50 cfs) F 0 li l' 9064600 - EAGLE RIVER NEAR MINTURN, CO --ha i Bolts Ditch Headgate (30 cfs) —oQ Als—Ginn Eagle River Diversion - 2 (50cfs) Date: July 16, 2010 Job No. 0703.00 _ BABA 4l'flC Cl' L,, "'.I Ca Rf . II i IIf,,r AA <)ti I11 N A N.e J f:r.t r f, .r fh'C' Legend 1 • Gaging Stations olvarsion Points 0 ExlslIng i Proposed In OBCW264 Pl pasad In 07CW22e Bolts Lave Bahl. MoUntm Prop -ty Fagla C-nly school pl:Inct Prnpedy (Aprmoxlmaia) N Overview Map Exhibit A W' E Battle Mountain Project Case No. 06CW264 4 Water Rights Appropriation Inch - Z333[Let n 1,000 2.000 V iL. N Overview Map Exhibit A W' E Battle Mountain Project Case No. 06CW264 4 Water Rights Appropriation Inch - Z333[Let n 1,000 2.000 ATTACHMENT B DISTRICT COURT, GARFIELD COUNTY, COLORADO WATER DIVISION NO. 5 Garfield County Courthouse 109 Eighth Street, Suite 104 Glenwood Springs, CO 81601 -3303 CONCERNING THE APPLICATION FOR WATER RIGHTS OF: Ginn Battle South, LLC, Ginn Battle North, LLC, Gina -LA Battle One, LTD., LLLP, Ginn -LA Battle One A, LLC and Gina Development Company, LLC ♦COURT USE ONLY Case No.: 06CW264 and In Eagle County, Colorado 07CW225 (Consolidated) CONCERNING THE APPLICATION FOR WATER RIGHTS OF: Town of Minturn In Eagle, Grand and Pitkin Counties, Colorado Name: Arthur B. Ferguson, Jr., #6041 Mark E. Hamilton #24585 Address: HOLLAND & HART LLP 600 Main Street, Ste. 104 Aspen, CO 81611 -1991 Telephone: (970) 925 -3476 Facsimile: (970) 925 -9367 E -mail: aferguson@hollandhart.com mehamilton @hollandhart.com Name: Meghan N. Winokur, #35973 Kylie J. Crandall #41159 Address: HOLLAND & HART LLP 555 Seventeenth Street, Suite 3200 Bost Office Box 8749 Denver, Colorado 80201 -8749 Telephone: (303) 295 -8000 Facsimile: (303) 295 -8261 Email: mwinokur @hollandhart.com k,jcrandall@hollandhart.com FINDINGS OF FACT, CONCLUSIONS OF LAW, JUDGMENT AND DECREE OF WA'T'ER COURT IN CASE NO. 07CW225 Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Pact, Conclusions of Law, Judgment and Decree of Water Court Page 2 This matter came before the Court upon the Application of the Town of Minturn ( "Applicant" or the "Town ") for new water rights, for approval of a plan for augmentation including exchange, and for conditional appropriative rights of exchange (hereinafter, the "Application. ") The Water Judge referred this Application to the Water Referee for Water Division No. 5, State of Colorado, in accordance with Article 92 of Chapter 37, Colorado Revised Statutes 1973, known as the Water Rights Determination and Administration Act of 1969. By Order entered December 31, 2008, this Application was rereferred from the Water Referee to the Water Judge. Having considered this Application and other evidence, and being fully advised in this matter, the Court finds and rules as follows: i. FINDINGS OF FACT Name and address of the Town: The Town of Minturn c/o General Counsel 302 Pine Street Minturn, CO 81645 2. The Town filed the Application on December 20, 2007. The Application was consolidated on September 28,, 2009 with the Application for Conditional Surface and Water Storage Rights filed by the. Ginn Battle South, LLC, Ginn Battle North, LLC, Ginn -LA Battle One, LTD., LLLP, Ginn -LA Battle One A, LLC and Ginn Battle Development Company ( "Battle Mountain Entities ") on December 28, 2006, and amended on October 3, 2007 and December 19, 2007 in Case No. 06CW264. 3. The Application was property published in the resume for Water Division No. 5. Timely and adequate notice of the filing of this Application was given as required by law. The Court has jurisdiction over the subject matter of this Application and over all of the parties in this case. 4. None of the water rights or sources thereof involved in this Application are located within a designated ground water basin. 5. The following parties filed Statements of Opposition to the Application either timely or in connection with a motion to intervener City of Aurora, Colorado Water Conservation Board ( "CWCB "), Battle Mountain Limited Liability Company, Sensible Housing Co., Inc., Battle Mountain Corporation, State Board of Land Consolidated Case Nos. 06CW264 and 07CW22.5 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Pate. 3 Commissioners, Eagle County Board of County Commissioners, Eagle County School District RE -50J, Colorado River Water Conservation District ( "River District "), Town of Red Cliff, Town of Avon, Town of Gypsum, Homestake Partners, Public Service Company of Colorado, Arrowhead Metropolitan District, Beaver Creek Metropolitan District, Berry Creek Metropolitan District, Colorado Division of Wildlife and the Wildlife Commission ( "DOW "), Eagle Park Reservoir Company, Eagle River Water & Sanitation District ( "ERWSD "), Eagle -Vail Metropolitan District, Edwards Metropolitan District, State and Division Engineers, Battle Mountain Entities, Holland Creek Metropolitan District, Red Sky Ranch Metropolitan District, United States Forest Service, Upper Eagle Regional Water Authority (the "Authority "), and Vail Associates, Inc. No other statements of opposition were filed, and the time for filing such statements has expired. 6. Stipulations: The Town has reached stipulations with the following parties for entry of the decree herein: Ginn Battle South, LLC, Ginn Battle North, LLC, Ginn -LA Battle One, LTD., LLLP, Ginn -LA Battle One A, LLC, Arrowhead Metropolitan District, Beaver Creek Metropolitan District, Berry Creek Metropolitan District, Eagle Park Reservoir Company, ERWSD, Eagle -Vail Metropolitan District, Edwards Metropolitan District, Holland Creek Metropolitan District, Red Sky Ranch Metropolitan District, the Authority and Vail Associates, Inc. FIRST CLAIM: SURFACE WATER RIGHT 7. Minturn Eagle River Pumpback ("Pumpback"): A. Legal description: The Pumpback may divert from any of the following alternate points of diversion: i. Eagle River Pumpback: Located within a reach of the Eagle River within 1000 feet downstream of a point described as located in the SE14 of the SW' /a of Section 36, Township 5 South, Range 81 West of the 6th P.M., at a point 1,328 feet from the South section line and 2,193 feet from the West section line. ii. Dowd Junction Pumpback: Located within a reach of the Eagle River within 1000 feet downstream or upstream of a point described as located in the NW1 /a of the NWi /a of Section 22, Township 5 South, Range 81 West of the 6th P.M., at a point 1,415 feet from the North section line and 2,011 feet from the West section line. B. Source: Eagle River, tributary to Colorado River. C. Appropriation Information: Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 4 i. Appropriation Date: December 19, 2007. ii. How Appropriation Was Initiated: By formation of requisite intent to appropriate coupled with actions manifesting such an intent sufficient to put third parties on notice, including but not limited to: site investigations and water supply planning by water resources consultants; development of a water supply master plan for the Town, based upon the projected future water requirements to serve the Town at full build -out; posting of appropriation; and filing of the Application. iii. Date Water Applied to Beneficial Use: NIA. D. Amount: 12 cubic feet per second ( "cfs "), conditional, from any one or combination of the Pumpback alternate points of diversion. E. Use: Aesthetics, piscatorial, recreational, augmentation and exchange, domestic, irrigation, commercial, industrial, and municipal. The place of use shall be within the Town's current and anticipated water service area including, without limitation, the Town's annexed areas and other lands within the Town's 2003 Three Mile Plan and including, without limitation, those lands that are the subject of the project known as the Battle Mountain Project. i. Nonconsumptive use: Diversions of the Pumpback may be delivered via a closed pipeline system to the Eagle River above the points of diversion of the Augmented Water Rights described herein and/or the Eagle River near the Cross Creek and Eagle River confluence. Such diversions may be used to enhance stream flows in the Eagle River, including. without limitation to ensure that minimum instream flows decreed by the CWCB on the Eagle River in the reaches where the Town may divert water are not injured. Augmentation of such nonconsumptive diversions by the Pumpback is not required. ii. Consumptive use: Diversions of the Pumpback may also be placed to beneficial, consumptive use directly, or stored in priority or by exchange in Bolts Lake from Case No. 96CW324 or Case No. 06CW264 described herein for subsequent release for beneficial consumptive use (including without limitation domestic, irrigation, commercial, industrial, municipal, augmentation and exchange uses). To the extent that the depletions from any such consumptive use are out of priority, then such depletions will be accounted for and augmented under the plan for augmentation described herein. iii. Fully consumable return flows: The Pumpback may also divert any decreed fully consumable (reusable) water, including; without limitation any such water made available under contract with the River District or ERWSD. Such Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Pact, Conclusions of Law, Judgment and Decree of Water Court Page 5 diversions of fully consumable water may be released for re- diversion by the Augmented Water Rights, and /or may be diverted into storage directly or by exchange in any of the storage facilities described herein. F. DOW Property. The parties acknowledge that one possible alignment for the Dowd Junction Pumpback may be across DOW property located on the east side of the Eagle River. Applicant does not have any current authorization from the DOW to cross such property. Accordingly, in the event that Applicant determines that the most appropriate alignment for the Pumpback is across the DOW property, it will consult with and seek appropriate authorization from the DOW which the DOW will process in accordance with applicable laws, rules, and regulations. SECOND CLAIM: SURFACE WATER RIGHT 8. Minturn Cross Creek Diversion ( "CC Diversion "): A. Legal description: The CC Diversion may divert from any of the following alternate points of diversion: i. Minturn Water System Ditch: The existing point of diversion for the Minturn Water System Ditch is decreed at a point on the Westerly bank of Cross Creek from whence the section corner common to Sections 35 and 36 of Township 5 South, Range 81 West of the 6th P.M. bears North 3843'20" East a distance of 2531.38 feet ii. Minturn Water System Ditch Diversion Structure No. 2: Located on the right (east) bank of Cross Creek at a point approximately 9,748 feet west of the line common to Range 80 and 81 West and 1,967 feet South of the Line common to Townships 5 and 6 South of the 6th P.M. iii. Bolts Ditch Headgate: The decreed point of diversion is located at a point on Cross Creek from whence the SW corner of Section 35, Township 5 South, Range 81 West of the 6th P.M. bears North 28 degrees West 6,350 feet. The GPS coordinates for the point of diversion have been confirmed to be Lat 39.550483 N, Long 146.421317 W. In the future, reference to the GPS coordinates shall be the applicable legal description. iv. Maloit Park Diversion Structure: Located within 500 feet upstream or downstream of a point on the right bank of Cross Creek that is approximately 9,131 feet west of the line common to Range 80 and 81 West and 1,238 feet south of the line common to Townships 5 and 6 South of the 6th P.M. Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 6 v. Lower Cross Creek Diversion Structure: Located within 500 feet upstream or downstream of a point on the right bank of Crass Creek that is approximately 357 feet east of the West section line and 93 feet north of the South section line, Township 5 South, Range 81 West of the 6th P.M. River. B. Source: Cross Creek, tributary to Eagle River, tributary to Colorado C. Appropriation information: i. Appropriation Date: December 19, 2007. ii. How Appropriation Was Initiated: By formation of requisite intent to appropriate coupled with actions manifesting such an intent sufficient to put third parties on notice, including but not limited to: site investigations and water supply planning by water resources consultants; development of a water supply master plan for the Town, based upon the projected future water requirements to serve the Town at full build -out; posting of appropriation; and filing of the Application, iii. Date Water Applied to Beneficial Use: NIA. D. Amount: 12 cfs, conditional, at any one or combination of the alternate points described above. E. Use: Aesthetics, piscatorial, recreational, augmentation and exchange, domestic, irrigation, commercial, industrial, and municipal. Diversions of the CC Diversion may be placed to beneficial consumptive use directly, or stored in priority or by exchange in any of the storage facilities described herein for subsequent release for beneficial consumptive use (including without limitation domestic, irrigation, commercial, industrial, municipal, augmentation and exchange uses). To the extent that the depletions from any such consumptive use are out of priority, then such depletions will be accounted for and augmented under the plan for augmentation described herein. The place of use shall be within the Town's current and anticipated water service area including, without limitation, the Town's annexed areas and other lands within the Town's 2003 Three Mile Plan and including, without limitation, those lands that are the subject of the project known as the Battle Mountain Project. THIRD CLAIM: GROUND WATER RIGHT 9. Minturn Well No. 3 Enlargement and Minturn Well No. 4 Enlargement (collectively, "Minturn Well Nos. 3 and 4 Enlargements "): Consolidated Case Nos, 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of :Fact, Conclusions of Law, Judgment and Decree of Water Court Page 7 A. Minturn Well No. 3 Enlargement Legal Description: Located in the NW 1/4 of the NW 114, Section 2, Township 6 South, Range 81 West of the 6th P.M., at a point 950 feet from the North line and 1200 feet from the West line. Well No. 3 is currently in existence and permitted as Well Permit No. 47794 -F. B. Minturn Well No. 4 Enlargement Legal Description: Located in the SEl /4 of the SE1. /4, Section 35, Township 5 South, Range 81 West of the 6th P,M., at a point 66 feet from the South line and 430 feet from the East line. Well No. 4 is currently in existence and permitted as Well Permit No. 13700 -F -R. River. C. Source: Cross Creek, tributary to Eagle River, tributary to Colorado D. Appropriation information: i. Appropriation Date: December 19, 2007. ii. How Appropriation Was Initiated: By formation of requisite intent to appropriate coupled with actions manifesting such an intent sufficient to put third parties on notice, including but not limited to: site investigations and water supply planning by water resources consultants; development of a water supply master plan for the Town, based upon the projected future water requirements to serve the Town at full build -out; posting of appropriation; and filing of the Application. iii. Date Water Applied to Beneficial Use: N /A. E. Amount: 225 gpm, conditional, for each of the Minturn Well Nos. 3 and 4 Enlargements. F. Use: Aesthetics, piscatorial, recreational, augmentation and exchange, domestic, irrigation, commercial, industrial, and municipal. Diversions of the Minturn Well Nos. 3 and 4 Enlargements may be placed to beneficial consumptive use directly, or stored in priority or by exchange in any of the storage facilities described herein for subsequent release for beneficial consumptive use (including without limitation domestic, irrigation, commercial, industrial, municipal, augmentation and exchange uses). To the extent that the depletions from any such consumptive use are out of priority, then such depletions will be accounted for and augmented under the plan for augmentation described herein. The place of use shall be within the Town's current and anticipated water service area including, without limitation, the Town's annexed areas and other lands within the Town's 2003 Three Mile Plan and including, without limitation, those lands that are the subject of the project known as the Battle Mountain Project, Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225; Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 8 G. Map: A map generally depicting the locations of the water rights described in the First, Second and Third Claims above is attached as Exhibit A hereto and is hereby incorporated. FOURTH CLAIM: FOR APPROVAL OF PLAN FOR AUGMENTATION, INCLUDING EXCHANGE 10. Introduction: The subject plan for augmentation, including exchange, is to provide for a long term reliable and dependable source of supply of municipal water for the Town in addition to the water provided by the Town's senior water rights. The Minturn Water System Ditch water right decreed in CA 671 on June 5, 1916, at its original and relocated point of diversion decreed in CA 1137 and CA 1333 and alternate point of diversion decreed in Case No. 94CW355 (the "Minturn Ditch Water Right ") together with the Minturn Well Nos. I and 2 water rights decreed in W -1100 and W- 1101, with alternate points of diversion decreed in Case No. 05CW262 at Minturn Well Nos. 3 and 4 and Well Field No. 1 (the "Minturn Well Nos. 1 and 2 Water Rights ") will be used for the continued municipal service needs of the Town up to an annual consumptive use of 38 acre feet as provided herein. This plan for augmentation is to provide the necessary municipal water supplies for a reasonable expectancy of expanded municipal water service over time. All out of priority depletions of the Augmented Water Rights as described below will be augmented in time, place and amount as provided herein in order to prevent injury to vested water rights. 11. Name of structures to be augmented (collectively referred to herein as "Augmented Water Rights "): A. Minturn Eagle River Pumpback ( "Pumpback ") described above, augmentation for consumptive purposes only. B. Minturn Cross Creek Diversion ( "CC Diversion ") described above. C. Minturn Well Nos. 3 and 4 Enlargements described above. D. Minturn Well Field Nos. 1 and 2 decreed in Case No. 05CW263, Water Division 5 (collectively, "Minturn Well Fields "). Division 5): E. The following water rights decreed in Case No. 06CW264 (Water i. Bolts Ditch Headgate. ii. Minturn Water System Ditch (06CW264). Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 9 iii. Minturn Water System Ditch Diversion Structure No. 2. iv. Maloit Park Diversion Structure. v. Lower Cross Creek. Diversion Structure. vi. Ginn Eagle River Diversion Nos. 2 and 3. These water rights from Case No. 06CW264 are generally depicted on Exhibit A hereto and incorporated herein. 12. Description of Augmented Water Rights: A. The descriptions for the Pumpback, CC Diversion, and Minturn Well Nos. 3 and 4 Enlargements water rights are set forth above. B. Minturn Well Fields are described and decreed in Case No. 05CW263: i. Legal description: The Minturn Well Fields are depicted generally on Exhibit B hereto and incorporated herein. Portions of the Minturn Well Fields are in areas where the section lines, township and range have not been mapped by the United States Geological Survey. Any new wells in the Minturn Well Fields will be constructed in the alluvium within 100 feet of Cross Creek (Minturn Well Field No. 1) or the Eagle River (Minturn Well Field No. 2) within the following stream reaches, which are described using the Universal Transverse Mercator ( "UTM ") coordinate system, NAD83 datum. (1) Location of Minturn Well Field No. 1: in the alluvium within 100 feet on either side of a reach of Crass Creek commencing at a point described as 1,177 feet south and 1,440 feet west of the southwest corner of Section 36, Township 5 South, Ranch 81 West and continuing downstream along Cross Creek (100 feet on either side), to a point near the confluence of Cross Creek and the Eagle River described as 1,174 feet north and 1,965 feet east of the southwest corner of Section 36, Township 5 South, Range 81 West. Minturn Well Field No. l is located in areas where the Section lines, Township and Range have not been snapped by the United States Geological Service ( "USGS "). Thus, the location of Well Field No. 1 is described above in terms of distances from the nearest mapped Section lines on the USGS Minturn Quadrangle map dated 1987. The Well Field No. 1 may also be described as beginning at a point with UTM coordinates approximately 378118 Easting and 4380283 Northing, and continuing downstream along Cross Creek to the confluence with the Eagle River with UTM coordinates approximately 379172 Easting and 4381014 Northing. Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07C1W225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 10 (2) Location of Minturn Well Field No. 2: in the alluvium within 100 feet on either side of a reach of the Eagle River commencing at a point described as 1,580 feet south and 1,727 feet west of the southeast corner of Section 36, Township 5 South, Range 81 West and continuing downstream along the Eagle River (100 feet on either side), to a point 7,325 feet south and 2,677 feet west of the southeast corner of Section 36, Township 5 South, Range 81 West. Minturn Well Field No. 2 is located in areas where the Section lines, Township and Range have not been mapped by the USGS. Thus, the location of Well Field No. 2 is described above in terms of distances from the nearest mapped Section lines on the USGS Minturn Quadrangle map dated 1987. The Well Field No. 2 may also be described as beginning at a point with UTM coordinates approximately 379329 Easting and 4378407 Northing, and continuing downstream along the Eagle River to a point with UTM coordinates approximately 379652 Easting and 4380103 Northing. . River. ii. Source: Ground water tributary to Cross Creek and /or the Eagle iii. Appropriation date: December 20, 2005. iv. Amount: 2.5 cfs, conditional. The Town proposes to develop only as many wells as are necessary in the Minturn Well Fields for cumulative maximum diversions of 2.5 cfs under the 2005 priority decreed in Case No. 05CW263. So long as the Town complies with the terms and conditions of the decree in Case No. 05CW263 and obtains a well permit, amendment of the decree in Case No. 05CW263 will not be required each time a new well location is determined. The Town is entitled to have as many wells as are necessary to divert a cumulative maximum diversion of 2.5 cfs under the 2005 priority of the underground water right for the Minturn Well Fields, and to be issued well permits by the State Engineer to construct and use ground water under the priority of the Minturn Well Fields, so long. as the well permit applications confirm that operation of the wells will be subject to the terms and conditions of the decree in Case No. 05CW263. V. Use: Municipal, The Minturn Well Fields may be used for municipal purposes consistent with these terms and conditions, including the irrigation of plants, parks, cemeteries and gardens; provided, however, such water rights may not be used for snowmaking. Diversions may be used directly or stored within municipal system storage tanks for subsequent release and use. C. Bolts Ditch Headpate; described and decreed in Case No. 06CW264: Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 11 i. Legal description: See Paragraph 8.A.iii. above. ii. Source: Cross Creek. iii. Appropriation date: December 28, 2006. iv. Amount: 30 cfs, conditional. v. Uses: Domestic, municipal, irrigation, snowmaking, storage, wetlands and habitat purposes, recreation, watering of lawns, parks and grounds, industrial, commercial, fire protection, construction, street sprinkling, piscatorial, aesthetic, augmentation, replacement, substitution and exchange, including use by storage for later release to meet return flow obligations and for all other beneficial uses including reuse and successive use to extinction. D. Minturn Water System Ditch (06CW264); described and decreed in Case No. 06CW264: i. Legal description: See Paragraph 8.A.i. above. The Minturn Water System Ditch is an alternate point of diversion to the Bolts Ditch Headgate under the priority to be decreed in Case No. 06CW264; H. Source: Cross Creek. iii. Appropriation date: December 28, 2006. iv. Amount: 30 cfs, conditional. v. Uses: Domestic, municipal, irrigation, snowmaking, storage, wetlands and habitat purposes, recreation, watering of lawns, parks and grounds, fl- industrial, commercial, fire protection, construction, street sprinkling, piscatorial, aesthetic, augmentation, replacement, substitution and exchange, including use by storage for later release to meet return flow obligations and for all other beneficial uses including reuse and successive use to extinction. E. Minturn Water System Ditch Diversion Structure No. 2 described and decreed in Case No. 06CW264: i. Legal description: See Paragraph &A.ii. above. ii. Source: Cross Creek. iii.. Appropriation date: December 19, 2007. Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225; 'Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 12 iv. Amount: 30 efs, conditional. v. Uses: Domestic, municipal, irrigation, snowmaking, storage, wetlands and habitat purposes, recreation, watering of Iawns, parks and grounds, industrial, commercial, Fire protection, construction, street sprinkling, piscatorial, aesthetic, augmentation, replacement, substitution and exchange, including use by storage for later release to meet return flow obligations and for all other beneficial uses including reuse and successive use to extinction. 06CW264: F. Maloit Park Diversion Structure described and decreed in Case No. i. Legal description: See Paragraph 8.A.iv. above. ii. Source: Cross Creek. iii. Appropriation date: December 19, 2007. iv. Amount: 30 efs, conditional. v. Uses: Domestic, municipal, irrigation, snowmaking, storage, wetlands and habitat purposes, recreation, watering of lawns, parks and grounds, industrial, commercial, fire protection, construction, street sprinkling, piscatorial, aesthetic, augmentation, replacement, substitution and exchange, including use by storage for later release to meet return flow obligations and for all other beneficial uses including reuse and successive use to extinction. G. Lower Cross Creek Diversion Structure described and decreed Case No. 06CW264: i. Legal description: See Paragraph 8.A. v. above. ii. Source: Cross Creek. iii. Appropriation date: December 19, 2007. iv. Amount: SO cfs, conditional. v. Uses: Domestic, municipal, irrigation, snowmaking, storage, wetlands and habitat purposes, recreation, watering of lawns, parks and grounds, industrial, commercial, fire protection, construction, street sprinkling, piscatorial, aesthetic, augmentation, replacement, substitution and exchange, including use by Consolidated Case Pros. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 13 storage for later release to meet return flow obligations and for all other beneficial uses including reuse and successive use to extinction. H. Ginn Eagle River Diversion No. 2 (near Bolts Lake) described and decreed in Case No. 06CW264: i. Legal. description: A diversion to be located on or adjacent to the Eagle River in an unsurveyed portion of Eagle County that, when surveyed, will likely be in the NEI /4 of NEt /4 of Section 11 of Township 6 South, Range 81 West, of the 6th P.M., at a point 5465 West of the line common to Range 80 and 81 West, and 7,265 feet South of the line common to Townships 5 and 6 South. ii. Source: Eagle River. iii. Appropriation date: October 13, 2006. iv. Amount: 50 cfs, conditional. v. Uses: Domestic, municipal, irrigation, snowmaking, storage, wetlands and habitat purposes, recreation, watering of lawns, parks and grounds, industrial, commercial, fire protection, construction, street sprinkling, piscatorial, aesthetic, augmentation, replacement, substitution and exchange, including use by storage for later release to meet return flow obligations and for all other beneficial uses including reuse and successive use to extinction. I. Ginn Eagle River Diversion No. 3 (near Bolts Lake) described and decreed in Case No. 06CW264: i. Legal description: Located on or adjacent to the Eagle River in an unsurveyed portion of Eagle County that, when surveyed, will likely be in the NWt /4 of SW1 /4 of Section 1 of Township 6 South, Range 81 West, of the 6th P.M., at a point 4,000 feet from the North section line and 4,465 feet from the East section line. ii. Source: Eagle River. iii. Appropriation date: October 13, 2006. iv. Amount: 50 cfs, conditional v. Uses: Domestic, municipal, irrigation, snowmaking, storage, wetlands and habitat purposes, recreation, watering of lawns, parks and grounds, industrial, commercial, fire protection, construction, street sprinkling, piscatorial, aesthetic, augmentation, replacement, substitution and exchange, including use by Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 14 storage for later release to meet return flow obligations and for all other beneficial uses including reuse and successive use to extinction. J. The Augmented Water Rights may also divert, by exchange, releases from storage of the Augmented Water Rights described herein. 13. Names of structures to be used for augmentation (collectively referred to herein as "Augmentation Water Rights "): A. Bolts Lake, decreed in Case No. 96CW324, Water Division No. 5. B. Bolts Lake, decreed in Case No. 06CW264, Water Division No. 5. The location of the Augmentation Water Rights from the decree in Case No. 96CW324 and Case No. 06CW264 are generally depicted on Exhibit C hereto and incorporated herein. C. Fully consumable water from the Colorado River supply sources (Wolford Mountain Reservoir and Ruedi Reservoir) that may be made available pursuant to a contract with the River District. The Town will enter into an appropriate agreement with the River District before such water rights may be utilized under any decree entered herein. D. Water from the Eagle Park Reservoir Project or other fully consumable water rights located in the headwaters of the Eagle River that can be delivered to the Eagle River at or upstream of the point of any valid senior call against the affected Augmented Water Rights. The Town has agreed to enter into a lease with ERWSD for the use of 50 acre feet per year from Eagle Park Reservoir or Homestake Reservoir or both under terms and conditions set forth therein. The Town's ability to use additional water from the Eagle Park Reservoir Project has been or will be derived from an appropriate agreement with an owner of such water rights, including without limitation the River District or ERWSD. Any water that may be delivered from the Eagle Park Reservoir Project pursuant to a lease with ERWSD is derived from the Eagle Park Reservoir or Homestakc Reservoir as specifically described below. Any water that may be delivered from the Eagle Park Reservoir Project pursuant to a contract with the River District is derived from the River District's Eagle River supply sources as specifically described below. 14. Description of Augmentation Water Rights: A. Bolts Lake (decreed in Case No. 96CW324): Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 15 i. Legal description: (1) Location of darn: Bolts Lake is located in Homestead Entry Survey No. 40, Homestead Entry No. 021, containing a portion of the W1 /2 of Section 1, and the EI /2 of Section 2, Township 6 South, Range 81 West of the 6th P.M., and in Homestead Entry Survey No. 41, Homestead Entry No. 022, containing a portion of the SWI /4 of Section 1, SI /z of Section 2, Nr /2 of Section 11, and NWt /a of Section 12, Township 6 South, Range 81 West of the 6th P.M. All sections and portions of sections are projected, as this area is unsurveyed. (2) Legal description of point of diversion: Two alternate points of diversion decreed for filling of Bolts Lake are as follows: (a) Bolts Ditch Headgate: See above. (b) Minturn Water System Ditch (96CW324): See above. ii. Source: Cross Creek. iii. Appropriation date: September 14, 1995. iv. Date of original decree: July 28, 1999 (Case No. 96CW324 (Water Division 5)), v. Amount: (1) Capacity of Reservoir: 320 acre feet ( "af°), conditional. (2) Rate of diversion for filling of Reservoir: 30.0 efs, conditional. vi. Decreed use: Domestic, irrigation, fire protection, stock watering, commercial, industrial, municipal, power, recreation, fish and wildlife, and all other purposes related to the provision of a water supply within the now existing and future service area of the Town, for all beneficial uses by and for the benefit of the Town, and for reuse, successive use, right of disposition, substitution, exchange and augmentation purposes. vii.Physical description of Reservoir: (1) Surface area of high water line: 22 acres. Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court. Page 16 (2) Maximum height of dam in feet: 30 feet. (3) Length of dam in feet: 485 feet. viii. Reservoir capacity: (1) Total capacity: 320 af. (2) Active capacity: 316 af. (3) Dead storage: 4 af. B. Bol ke (see Case 06CW264): i. Legal description: The existing off- channel reservoir is located in Homestead Entry Survey No. 40, Homestead Entry No. 021, containing Ran l /a of Section 2, Township 6 So S o 81 West of the the WI/2 of Section I and the E 6th P.M., and in Homestead Entry Survey No. 41, Homestead Entry No. 022, containing a portion of the SW,/4 of Section 1, S' /2 of Section 2, NI of Section 11 and NW' /a of Section 12, Township 6 South, Range 81 West of the 6th P.M. The enlarged Bolts Lake will be located in the E' /2 of Section 2, Township 6 South, Range 81 West and the W' /2 of Section 1, Township 6 South, Range 81 West of the 6th P.M. All section and portions are projected, as this area is unsurveyed. ii. Legal description of points of diversion: Alternate points of diversion to fill Bolts Lake under the priorities decreed herein for the Eagle River Pumpback and CC Diversion described above and under the priorities to be decreed in Case No. 06CW264 are as follows: above. above. See above. (1) Bolts Ditch Headgate: See above. (2) Minturn Water System Ditch (06CW264): See above. (3) Ginn Eagle River Diversion No. 2 (near Bolts Lake): See (4) Ginn Eagle River Diversion No. 3 (near Bolts Lake): See (5) Minturn Water System Ditch Diversion Structure No. 2: (6) Maloit Park Diversion Structure: See above. Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 17 (7) Lower Cross Creek Diversion Structure: See above. iii. Appropriation date: December 28, 2006 for Battle Mountain Entities' original 100 acre -feet, conditional; December 19, 2007 for Battle Mountain Entities' enlarged 790 acre -feet, which when combined with the previously decreed 320 acre -feet, conditional for the Town (Case No. 96CW324) will result in a total reservoir capacity of 1,210 acre -feet. iv. Amount: 890 total af, conditional: 100 of conditional under original appropriation, and 790 af, conditional, under enlarged appropriation, both with the right to fill and re -fill when in priority. v. Use: Domestic, municipal, irrigation, snowmaking, storage, wetlands and habitat purposes, recreation, watering of lawns, parks and grounds, industrial, commercial, fire protection, construction, street sprinkling, piscatorial, aesthetic, augmentation, replacement, substitution and exchange, including use by storage for later release to meet return flow obligations and for all other beneficial uses including reuse and successive use to extinction. vi. Physical description of reservoir (when enlarged): (1) Surface area of high water line: 55 acres. (2) Maximum height of dam in feet: 40 feet. (3) Length of dam in feet: 1,000 feet. (4) Reservoir capacity: (a) Total capacity: 1,210 of (including the 320 of decreed in Case No. 96CW324, and the 890 of claimed in. Case No. 06CW264). C. Wolford Mountain Reservoir: The River District owns and operates Wolford Mountain Reservoir (f /kla Gunsight Pass Reservoir) which has the following water right: i. Legal description of place of storage: The darn is located in Grand County in the SW '/4 of the NE ' /4 of Section 25, T. 2 N., R. 81 W., 6th P.M. The intersection of the dam. axis (Sta. D19 +35.61) with the West Access Road (Sta. WR50 +55.05) occurs at a point which bears S. 53 °24'56" E. a distance of 3,395.51 feet from the NW corner of said Section 25; the bearing of said dam axis from Sta. 19 +35.61 to Sta. 0 +00 being S. 75° 28' 29" E. Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 18 ii. Source: Muddy Creek and its tributaries. iii. Previous storage decrees: Case No. 87CW283: Decree Date: November 20, 1989. Court: District Court, Water Div. No. 5. Amount: 59,993 acre feet Appropriation Date: December 14, 1987 Use: All beneficial uses, including but not limited to domestic, municipal, agricultural and recreational uses. Case No. 95CW281: Decree Date: August 26, 1997. Court: District Court, Water Div. No. 5, Amount: 6,000 acre feet (enlargement). Appropriation Date: Jan. 16, 1995. Use: All beneficial uses by and for the benefit of the inhabitants of the River District, including but not limited to domestic, municipal, industrial, irrigation, agricultural, piscatorial, recreational and environmental mitigation, Case No. 98CW237: Decree Date: July 6, 2000. Court: District Court, Water Div. No. 5. Amount: 30,000 a.f, (refill), Appropriation Date: Nov. 17, 1998. Use: Certain of the beneficial uses previously adjudicated for WoUord Mountain Reservoir in Cases No. 87CW283 and 95CW281. D, Ruedi Reservoir: The River District is entitled to deliveries of water from Ruedi Reservoir pursuant to contract with the U.S. Bureau of Reclamation: i. Legal description of place of storage: Ruedi Reservoir is located in Sections 7, 8, 9, 11 and 14 through 18, T. 8 S., R. 84 W., 6th P.M., in Eagle and Pitkin Counties. The dam axis intersects the right abutment at a point whence the SW corner of Section 7, T. 8 S., R. 84 W. of the 6th P.M., bears N. 82° 10'W. a distance of 1,285 feet. ii. Source: Frying Pan River Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions. of Law, Judgment and Decree of Water Court Page 19 iii. previous storage decrees: Civil Action No. 4613: Decree Date: June 20, 1958. Court: Garfield County District Court. Amount: 140,697.3 acre feet, reduced to 102,369 acre feet pursuant to order of the District Court, Water Div. No. 5 in Case No. W- 7139 -76. Appropriation Date: July 29, L957. Use: Domestic, municipal, irrigation, industrial, generation of electrical energy, stock watering and piscatorial. Case No. 81CW34: Decree Date: April 8, 1985. Court: District Court, Water Div. No. 5. Amount: 101,280 acre feet (refill). Appropriation Date: Jan. 22, 1981. Use: Irrigation, domestic, municipal, generation of electrical energy, stock watering, industrial, piscatorial, recreation and maintenance of sufficient storage reserves to fulfill contractual obligations and provide stored water for recreation in times of drought. E. Eagle Park Reservoir Project. The Town has entered into a lease with ERWSD for the use of 50 acre feet per year from Eagle Park Reservoir or Homestake Reservoir or both under terms and conditions set forth therein. The Town's ability to use additional water from the Eagle Park Reservoir Project will be derived from an appropriate agreement with an owner of such water right, including without limitation the River District. Eagle Park Reservoir Project water is more particularly described as follows: i. Eagle Park Reservoir is decreed by the District Court in and for Water Division No.5 in Case Nos. 92CW340 and 93CW301, for a combined total capacity of 27,600 acre feet, with an appropriation date of March 16, 1991, for 5300 acre feet, and May 18, 1993, for 22,300 acre feet, together with the right to divert at the rate of 80 efs under the August 10, 1956 appropriation date of the Pando Feeder Canal pursuant to the decree of the Water Court in Case No. 97CW288, for mining, milling, industrial, snowmaking, municipal, domestic, stock watering, recreation, fish and wildlife, irrigation, agricultural, exchange, replacement, augmentation and all other beneficial purposes. The north abutment of the dam crest is located approximately 160 feet north of the south section line and 650 feet east of the west section line of Section 28, T. 7 S., R. 79 W., 6th P.M., Eagle County, Colorado. The source of Eagle Park Reservoir is the East Fork of the Eagle River including runoff, surface flow and Consolidated Case Nos. 06CW264 and OICW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 20 seepage from the area above the reservoir and tributary thereto, and water tributary to Tenmile Creek a tributary of the Blue River. In addition to the tributary area upstream of the reservoir, the specific points of diversion into storage for Eagle Park Reservoir are as follows; (1) The East Fork Interceptor Ditch, which has a capacity of 48 cfs and diverts from unnamed tributaries of the East Fork of the Eagle River at the following points, all of which are located in Eagle County, Colorado: (a) 900 feet south of the north section line and 1 100 feet west of the east section line of Section 5, T. 8 S., R. 79 W., 6th P.M. (b) 1250 feet south of the north section line and 700 feet east of the west section line of Section 4, T. 8 S., R. 79 W., 6th P.M. (c) 1200 feet north of the south section line and 800 feet east of the west section line of Section 33, T. 7 S., R. 79 W., 6th P.M. (d) Runoff, surface flow, and seepage from the area above the East Fork Interceptor Ditch as it runs between the above - described points of diversion and Eagle Park Reservoir. (2) The Chalk Mountain Interceptor Ditch, which has a capacity of 12 cfs and diverts runoff' and seepage as it runs a distance of approximately 3.4 miles from Fremont Pass, located in the W 1/2 of Section 11, T. 8 S., R. 79 W., 6th P.M., northwesterly along State Highway 91 and the south side of Robinson Tailing Pond, thence westerly to the south of Chalk Mountain Reservoir and Robinson Reservoir, thence northwesterly to Eagle Park Reservoir. The Chalk Mountain Interceptor Ditch diverts water from the headwaters of Tenmile Creek in Summit County and from the headwaters of the East Fork of the Eagle River in Eagle County. (3) The East Interceptor Ditch, which has a capacity of 20 efs and runs northeasterly from a point whence the northeast corner of Section 2, T. 8 S., R. 79 W., 6th P.M. bears North 77 °20' East a distance of850 feet at the north fork of McNulty Creek, thence along the east side of Robinson and Tenmile Tailing Ponds into Supply Canal No. I described below. The East Interceptor Ditch diverts water from the north fork of McNulty Creek and surface flow, seepage, and runoff from watersheds above it that are tributary to Tenmile: Creek. (4) The Supply Canal No. 1, which has a capacity of 10 efs and diverts water from the following tributaries of Tenmile Creek at the following points: Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 21 (a) On the west bank of Humbug Creek at a point whence the southwest corner of Section 18, T. 7 S., R. 78 W. bears South 71 °35' Nest a distance of 3250 feet. (b) On the south bank of Mayflower Creek at a point whence the northeast corner of Section 24, T. 7 S., R. 79 W., 6th P.M. bears North 16 °55' East a distance of 22.50 feet. (c) Runoff, surface flow, and seepage from the area above the Supply Canal No.1 as it runs between the above - described points of diversion and the Climax Mill. (5) The Supply Canal No.2, which has a capacity of 10 cfs and diverts water from the following tributaries of Tenmile Creek at the following points: (a) On the west bank of Searle Creek at a point whence U.S.L.M. Kokomo bears South 45 °58' East 3740 feet (located in the NW 114 of the SE1 /4 of Section 13, T. 7 S., R. 79 W., 6th P.M.). (b) On the south bank of Kokomo Creek at a point whence U.S.L.M. Kokomo bears North 39 °36' east 2635 feet (located in the SE114 of Section 22, T. 7 S., R. 79 W., 6th P.M.). (c) Runoff, surface flow, and seepage from the area above the Supply Canal No.2 as it runs between the above - described points of diversion and the Climax Mill. (6) The East Fork Pumping Plant, which has a capacity of 6 cfs and diverts from the East Fork of the Eagle River at a point in the SE1 /4 NE 114 of Section 32, T. 7 S., R. 79 W., 6th P.M. at a point whence the NE corner of said Section 32. bears N. 31 '53'E, a distance of 2414 feet. Eagle Park Reservoir is augmented by exchange by decree of the Water Court in Case No. 95CW348 and the East Fork Pumping Plant is augmented by exchange by decree of the Water Court in Case No. 03CW211. ii. Exchange Supply. Pursuant to a Memorandum of Understanding dated effective as of April 21, 1998 (the "MOU ") among the City of Aurora, the City of Colorado Springs, the River District, Climax Molybdenum Company, Vail Associates, Inc., the Authority, and the ERWSD; and the Water Exchange Agreement dated June 17, 1998 among Aurora, Colorado Springs, and the Eagle Park Reservoir Company, Aurora and Colorado Springs agreed to make up to 500 Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 22 acre feet of water available for West Slope use from facilities owned and operated by Aurora and Colorado Springs in exchange for up to 800 acre feet of replacement water from the West Slope participants. The River District's 100 shares of Class B stock in the Eagle Park Reservoir Company entitle the River District to up to 100 acre feet per year of consumptive beneficial use water to be derived from fully consumable water annually diverted by and /or stored in the following structures owned and controlled by Aurora and Colorado Springs: (1) Homestake Project. Homestake Reservoir, also known as Elliott -Weers Reservoir, was decreed by the Eagle County District Court in Civil Action No. 1193 for 83,338.98 acre feet conditional, 43,504.7 acre feet of which is now absolute. This reservoir is located on Homestake Creek with a dam being located whence the NW Corner of Section 31, T.7 S., R. 80 W., 6th P.M. bears N. 58 °30.6' E. 24,659 feet from the East dam abutment and N. 62 °25.8' E. 25,746 feet from. the West dam abutment. The sources of supply of said Reservoir are the East Fork of Homestake Creek, the Middle Fork of Homestake Creek and Homestake Creek. The right to the annual release of this Homestake Reservoir water is obtained pursuant to (1) the 2004 Water Exchange Agreement dated June 21, 2004, among the City of Aurora, the Eagle Park Reservoir Company, the River District, ERWSD, the Authority and Vail Associates, Inc., and the Water Exchange Agreement dated June 17, 1998, among the foregoing parties and the City of Colorado Springs, as all such agreements are modified by the Consolidated Water Exchange Agreement dated January 5, 2010, among the foregoing parties and the City of Colorado Springs; and (2) the 2004 Homestake Reservoir Agreement dated July 22, 2004, among the Eagle Park Reservoir Company, the River District, ERWSD, the Authority and Vail Associates, Inc., and the April 21, 1998 Homestake Reservoir Agreement between these same parties, (2) Camp Hale Project. Aurora and Colorado Springs may provide to the River District water released from those surface and ground water storage rights sought by Aurora and Colorado Springs in Cases No. 88CW449 and 95CW272, District Court for Colorado Water Division No. S. River District Contractors' use of augmentation water from Homestake Reservoir made available through contract or other arrangement with the Eagle Park Reservoir Company shall be dependent upon the continued existence of, and conditions set forth in, the Water Exchange Agreement dated .tune 17, 1998 between the Cities of Aurora and Colorado Springs and the Eagle Park Reservoir Company, together with any modifications thereto, or constraints thereon, as may be necessitated by the decree entered in Case No. 98CW270, Water Division No. 5. Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 23 Additional Information for Homestake Project. The detailed descriptions of the structures decreed by the Eagle County District Court in Civil Action No. 1193 for the Homestake Project are set forth below. Structure Amount French Creek Intake. 60.1 cfs S. 82 °18.3° E. 20988 ft to NW corner Sec. 31, T. 7 S., R. 80 W. Fancy Creek Intake. 38.6 cfs N85 010.5' E. 25280 ft. to NW corner Sec. 31, T. 7 S., R. 80 W. Missouri Creek Intake. 39.8 cfs N. 77 °12.4' E. 28800 ft. to NW corner Sec. 31, T. 7 S., R, 80 W. Sopris Creek Intake. 41.3 cfs N. 74 °7.6' E. 29848 ft. to NW corner Sec. 31 T. 7 S., R. 80 W. East Fork Conduit. The East Fork Conduit diverts water from the East Fork of Homestake Creek pursuant to its appropriation of 70.8 cubic feet per second of time absolute and 189.2 cubic feet per second of time conditional therefrom and conveys these waters to Homestake Reservoir for conveyance to Homestake Tunnel or storage in the reservoir, said East Fork Conduit having a capacity of 260 cubic feet per second of time and total length of approximately 3093 feet. The point of diversion of said conduit is on East Fork Homestake Creek at a point whence the Northwest corder of Section 3I, T. 7 S., R. 80 W. bears N. 55 °40.5' E., 22,917 feet. Homestake Tunnel. Homestake Tunnel under the Continental Divide for the conveyance of water into the Arkansas River Basin with its intake located at a point under Homestake Reservoir whence the Northwest corner of Section 10, T. 9 S., R. 81 W., 6th P.M. bears S. 15 °27'08' E. 26,173.03 feet appropriates a maximum amount of 10 cubic feet per second of time conditional of water Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW 225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 24 seeping and percolating into Homestake tunnel from former Water District No. 37 areas and 300 cubic feet per second of time absolute from Middle Fork of Homestake Creek, at its said Northerly portal, its point of diversion; said tunnel has a length of 27,400 feet and a capacity of 700 cubic feet per second of time. The tunnel will convey out of former Water District No. 37 up to 700 cubic feet per second of time of waters appropriated by the tunnel from the Middle Fork of Homestake Creek, together with water appropriated by the tunnel from the Homestake Creek and East Fork Conduits and Homestake Reservoir, to an outlet at a point from where the Northwest corner of Section 10, T. 9 S., R. 81 W., 6th P.M. bears N. 6 °40'52" E., a distance of 2,173.54 feet. Homestake Reservoir. Homestake Reservoir, also known as Elliott - Weers Reservoir, has capacity of 83,338.98 acre feet conditional, is located on Homestake Creek with a dam whence Homestake Peak bears S. 73 °26' E. 10,477 feet from the easterly end thereof and S. 74 °57' E. 13,347 feet from the westerly end thereof, said dam having a maximum height of 411.5 feet and a length of 3,380 feet. The sources of supply of said reservoir are Homestake Conduit (the sources of this conduit as herein above set forth), East Fork Conduit (the source of this conduit as herein above set forth), the Middle Fork of Homestake Creek and Homestake Creek, and said reservoir has appropriated For storage 83,338.98 acre feet annually from said sources. Homestake Reservoir also conveys water from Homestake Conduit and East Fork Conduit to Homestake Tunnel, Existing Homestake Reservoir has a storage capacity of 43,504,7 acre feet absolute and is located on Homestake Creek with a dam whence the NW Corner of Section 31 T. 7 S., R. 80 W., 6th P.M. bears No. 58 °30.6' E. 24,659 feet from the East dam abutment and N. 62 025.8' E. 25,746 feet from the West dam abutment, said dam has a maximum height of 265.0 feet and a length of 1996 feet. The sources of supply of said existing Homestake Reservoir are Homestake Conduit, East Fork Conduit, the Middle Fork of Homestake Creek and Homestake Creek. Existing Homestake Reservoir has appropriated 43,504.7 acre feet annually from said sources and also conveys water from Homestake Conduit and East Fork Conduit to Homestake Tunnel. 15. Statement of Plan for Augmentation: Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Catirt Page 25 A. Provision of Municipal Water Service; The Town has requested approval of this plan for augmentation, including exchange, to replace all out -of- priority depletions associated with the provision of municipal water service, by the. Town. Such water service is anticipated to include a reasonable expectancy of expanded municipal water service in the future within the Town's current and anticipated water service area, including, without limitation, the Town's annexed areas and other lands within the Town's 2003 Three Mile Plan and including, without limitation, those lands that are the subject of the project known as the Battle Mountain Project, subject to the terms and conditions set forth herein. Under this plan for augmentation, any out -of- priority depletions associated with the Augmented Water Rights will be replaced in time, place and amount by the provision of augmentation supplies from any one or combination of the Augmentation Water Rights. Augmentation is required only in the event of a valid senior call against the Augmented Water Rights. For purposes of determining the level of consumptive use depletions, the factors set forth in Paragraph 15.F. shall apply. The specific administration and operation of the determination of the time, place and amount of augmentation supplies necessary to replace out -of priority depletions (after calculating appropriate credits for wastewater, system loss and other return flows) shall be made in accordance with the accounting forms established in accordance with Paragraph 42 and such other applicable terms and conditions set forth herein. With respect to the senio.r water rights of the Town decreed to the Minturn Water System Ditch and Minturn Well Nos. I and 2, as described herein, the provisions of Paragraphs 15.13. through 153. shall specifically apply in addition to such other applicable terms and conditions set forth herein. B. Consumptive Use Limitation. The Minturn Water System Ditch water right decreed in CA 671 on .tune 5, 1916, at its original and relocated point of diversion decreed in CA 1 137 and 1333 and alternate point of diversion decreed in 94CW355 (the "Minturn. Ditch Water Right ") and the Minturn Well Nos. 1 and 2 water rights decreed in W -1100 and W -1 101, with alternate points of diversion decreed in Case No. 05CW262 at Minturn Well Nos. 3 and 4 and Well Field No.l (the "Minturn Well Nos. 1 and 2 Water Rights ") may be exercised when in priority without offset or replacement up to a maximum consumptive use of 38 acre feet per year. Included within such 38 acre feet of consumptive use, Minturn Well No. 1 (as diverted at the Minturn Well No. 3) may be exercised when in priority without offset or replacement tip to a maximum consumptive use of 9.6 consumptive acre feet per year and Minturn Well No. 2 (as diverted at the Minturn Well No.4) may be exercised when in priority without offset or replacement up to a maximum consumptive use of 2.48 consumptive acre feet per year. The consumptive use limitation in this paragraph shall apply to the Minturn Ditch Water Right and the Minturn Well Nos. 1 and 2 Water Rights at any future alternate point of diversion for said water rights. Consolidated Case Nos. 06 CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 26 i. As described in Paragraph 15.G, the Minturn Ditch Water Right and the Minturn Well Nos. 1 and 2 Water Rights benefit from releases of Green Mountain Reservoir, and are allowed to divert by exchange under the Operating Policy for Green Mountain Reservoir, Colorado -Big Thompson Project, Colorado as set forth in the Federal Register, Vol. 48, No. 247, pp. 56657 -58 and under the exchange priorities approved in Case No. 88CW382, District court, Water Division No. 5. Linder Case No. 88CW382, the exchange priority for the Minturn Ditch Water Right is August 1, 1935; and the exchange priority for both Minturn Well Nos. 1 and 2 Water Rights is August 31, 1962. (1) References in this Paragraph 15.8 to the exercise of the Minturn Ditch Water Right and Minturn Well Nos. 1 and 2 being "in priority" shall include being in priority by exchange from Green Mountain Reservoir. Releases from Green Mountain Reservoir technically constitute. "an offset or replacement" for consumptive use for the Minturn Ditch Water Right and Minturn Well Nos. 1 and 2 but shall be restricted for credit hereunder up to 38 acre feet per year as provided herein, (2) It is understood that the 38 acre feet per year is an absolute maximum irrespective of whether it is used in priority or in priority by exchange from Green Mountain Reservoir. ii. The rate of exchange for Minturn Well Nos. 1 and 2 Water Rights shall be limited to 0.056 cfs each during the irrigation season and 0.005 cfs during the non - irrigation season. iii. Notwithstanding the foregoing provisions of this Paragraph 15.8, the maximum consumptive use of 9.6 consumptive acre feet per year associated with Minturn Well No. 1 (as diverted at the Minturn Well No. 3) shall be limited to 9.0 consumptive acre feet per year and the _maximum consumptive use of 2.48 consumptive acre feet per year associated with Minturn Well No. 2 (as diverted at the Minturn Well No. 4) shall be limited to 2.31 consumptive acre feet per year. iv. The exchange for the Minturn Well Nos. 1 and 2 Water Rights shall not operate at any time the Town's wastewater returns are made downstream of the current point of wastewater returns at the Town of Avon. v. The rate of exchange limitations in this paragraph shall also apply to the Minturn Well Nos, 1 and 2 Water Rights at any future alternate point of diversion for said water rights. vi. The consumptive use and rate of exchange limitations in this paragraph shall not be exceeded at any future alternate point of diversion for said water Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 27 rights, but may be subject to a further reduction based on changed circumstances in any future change case. C. Monthly Maximum Limitations. Collectively, the diversion of the 38 consumptive acre feet per year from the Minturn Ditch Water Right and Minturn Well Nos. 1 and 2 Water Rights shall be limited to the following monthly maximum amounts: i. A maximum of 0.75 consumptive acre feet per month during months of November through March. ii. A maximum of 1.5 consumptive acre feet during April. iii. A maximum of 5.0 consumptive acre feet per month during the months of May and June. iv. A maximum of 10.0 consumptive acre feet per month during the months of July and August; provided, however, that the maximum amount during June, July and August shall_ not exceed 22.5 consumptive acre feet. v. A maximum of 7.0 consumptive acre feet during September. vi. A maximum of 4.0 consumptive acre feet during October. D. Monthly Accounting. The Town shall maintain monthly accounting forms to reflect the limitations set forth in Paragraphs 15.B and 15.0 above. The accounting year shall begin November 1 of each year and end October 31 the following year. E. Minturn Wells. Use of the Minturn Well Dios. I and 2 Water Rights shall be in conformance with the additional terms and conditions contained in the decree in Case No. 05CW262. F. Consumptive Use Factors. For purposes of calculating the annual and. monthly maximum consumptive use limits, the Town will measure all diversions from the Minturn Ditch Water Right and Minturn Wells Nos. 1 and 2 Water Rights at all points of diversion. Total metered use (the total of the individual meters) during the months of November through March shall be considered inhouse uses with a consumptive use factor of 5 %q. The portion of the total metered use during the months of April through October that exceeds the average of the preceding November through March monthly metered use shall be considered irrigation water use with a consumptive use factor of 85 %. These factors will be allocated to each of the Minturn Well Nos. 1 and 2 Water Rights and Minturn Ditch Water Right based upon the measured production Consolidated Case Nos. 06CW264 and 07CW22.5 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 28 of the Minturn Well Nos. 1 and 2 Water Rights which will be a total determined percentage of the total production of treated water (inclusive of the water produced by the Minturn Well Nos. 1 and 2 Water Rights) that will then provide the percentage for each well and the Minturn Ditch Water Right for accounting purposes. i. The difference between total measured diversions and total metered use through individual user meters shall be considered system loss. ii. The determination of the method of accounting for the consumptive use associated with irrigation herein is based on the historical actual use of Applicant that was calculated at a 75% consumptive use factor in light of the nature of the irrigation within the Town. The 85 %v consumptive use factor decreed herein is to be applied upon the entry of the decree as provided for in this paragraph and as accounted for in connection with the accounting forms approved and maintained in this case. In the event water stored in Bolts Lake is available to the Town as contemplated in this case, the Town agrees that the measure of its irrigation use within the place of use described in Paragraph 15.H below, subject to the consumptive use factor of 85% shall be the greater of either: (I ) the method set forth above; or (2) the average monthly crop irrigation requirement on a per -acre basis applicable at that time as approved by the Division Engineer and as applied to the total irrigated acreage to be reported in the Town's monthly accounting. G. Historic Users' Pool Protection. The amounts set forth in Paragraph 15.B associated with the Minturn Ditch Water Right and the Minturn Well Nos. 1 and 2 Water Rights shall be deemed to continue to receive full "Historic Users' Pool" protection with annual releases from Green Mountain Reservoir, subject to the exchange limitations for Minturn Well Nos. 1 and 2 Water Rights in Paragraph 15.B. The Minturn Ditch Water Right and the Minturn Well Nos. I and 2 Water Rights shall not be entitled to any Historic Users' Pool protection from Green Mountain Reservoir for any diversions that result in an excess of the 38 consumptive acre feet per year as limited and determined by the provisions of this decree. H. Place of Use. The place of use of the Minturn Ditch Water Right and the Minturn Well Nos. 1 and 2 Water Rights shall be limited to the Town's pre -2008 water service area (the Town, school district lands known as Maloit Park, and the Pierson property) and the Palmatecr, Burnett, Two Elk Creek {open space) and Kings Ranch aka West Minturn areas of the 2403 Three Mile Plan as shown in Exhibit D attached hereto, subject to the limitations set forth above. Any water service provided by the Town within the Town outside of the foregoing areas must be with other decreed water rights diverted either in priority or pursuant to this or another court- approved plan for augmentation. Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 29 I. Municipal Use, The Minturn Ditch Water Right and the Minturn Well Nos. 1 and 2 Water Rights may be used for municipal purposes consistent with these terms and conditions, including the irrigation of plants, parks, cemeteries and gardens; provided, however, such water rights may not be used for golf course irrigation or snowmaking. J. Augmentation of Diversions. Any diversions from the structures decreed to the Minturn Ditch Water Right and the Minturn Well Nos. 1 and 2 Water Rights that result inn an excess of the 38 consumptive acre feet annual limitation and the monthly maximum limitations shall be allocated to the junior water rights decreed in Water Division No. 5, Case No. 06CW264 and this case, Case No. 07CW225 (the "06CW264 and 07CW225 Priorities "), and must be fully replaced and augmented under the plan for augmentation set forth herein. During times when diversions from such structures result in the consumptive use limitations being exceeded and are operating under either or both the 06CW264 and 07CW225 Priorities, and (a) there is a call placed by a senior water right (including a senior exchange right or an exchange to which these priorities have subordinated) that is within the reach of the Eagle River between the confluence of the Eagle River and Cross Creels and the point of discharge of the Town's municipal effluent, or (b) the Eagle River instream flow water rights within that reach are not being met, then the Town will augment its diversions with augmentation water that is upstream of the confluence of the Eagle River and Cross Creek. The amount of such augmentation water shall be that amount required to meet the decreed instream flow and meet the senior call or call to which it has subordinated, up to the maximum amount of the Town's out of priority diversions, reduced by applicable return flow credits (wastewater, system loss and return flows) derived from the 06CW264 and 07CW225 Priorities and junior priorities decreed in Case No. 05CW263. i. The reference to wastewater in this Paragraph 15.J is not intended to provide credit for municipal effluent returns at the regional wastewater treatment plant at Avon to reduce any obligation of the Town to provide augmentation water to a calling water right located upstream of said point of effluent discharge. K. Other Augmentation of Out -of- Priority Depletions: Under this plan for augmentation, out -of- priority depletions will be replaced in time, place and amount by the provision of augmentation supplies from any one or combination of the Augmentation Water Rights. Augmentation is required only in the event of a valid senior call against the Augmented Water Rights. L. Augmentation by Exchange: As part of the Conditional Rights of Exchange described in the Fifth Claim below, the Town requests approval of a plan to augment by exchange out -of- priority depletions resulting from diversions at any one or Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 30 combination of the Augmented Water Rights. The exchange reaches will vary, depending on which of the Augmentation Water Rights is providing water for augmentation by exchange, and which of the Augmented Water Rights is augmented by the exchange. The maximum rate of exchange is 8 cfs, conditional, for any combination of Augmented Water Rights augmented by exchange by releases from any combination of the Augmentation Water Rights. The priority date of the exchange is December 19, 2007, subject to the provisions of Paragraph 16.D. M. Water Quality: The water to be provided for augmentation is of a quality and quantity in order to meet the requirements for which the water has been used by senior downstream appropriators, and therefore meets the requirements of C.R.S. § 37- 92- 305(5). N. Sufficient Augmentation: Consistent with the requirements of the Minturn Municipal Code, Minturn agrees that, prior to the authorization of the sale of any lot in any phase of any development of the Battle Mountain Planned Unit Development or other project on Battle Mountain Annexation Parcels Nos. I through 9 and any other Battle Mountain Property annexed into Minturn, the source for augmentation, including without limitation Bolts Lake, will be physically and legally available or otherwise constructed to and be operable with a capacity sufficient to provide augmentation water to support the water service for such phase pursuant to the provisions of this decree. O. Non - Injury: The plan for augmentation, including, exchange, will prevent injury to vested or decreed conditional water rights. The Town will provide adequate replacement water necessary to meet the lawful requirements of a senior diverter at the time and location and to the extent that the Senior would be deprived of his or her lawful entitlement by the Town's diversions. FIFTH CLAIM: FOR CONDITIONAL RIGHTS OF EXCHANGE 16. The Town seeks approval to operate the following conditional rights of exchange with a date of appropriation of December 19, 2007: A. Augmentation Exchange: The Augmentation Exchange is comprised of both the exchange described in Paragraph 15.L above, and the Effluent Exchange (up to a maximum of 5 efs), for a projected maximum exchange rate of 8 cfs combined. The Effluent Exchange will exchange treated water released from the wastewater treatment plant or plants that provide treatment service for water distributed in the Town's municipal water system to the points of diversion for the Pumpback, the Augmented Water Rights, and/or the Augmentation Water Rights. The most downstream terminus of the Effluent Exchange is the outfall of the wastewater Consolidated Case Nos. 06CW 264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 31 treatment plant operated by the ERWSD in Avon, located in the NWIA of Section 12, Township 5 South, Range 82 West, 6th P.M. ( "Avon WWTP "), and /or any other upstream wastewater treatment plant utilized by the Town for treatment of municipal wastewater and located upstream from the Avon WWTP (including without limitation any wastewater treatment plant permitted and located in the future at the previously identified Dowd Junction site, a Cross Creek site or other site within the Battle Mountain annexation lands). The upstream termini of the Effluent Exchange are the points of diversion of the Pumpback, the Augmented Water Rights, and /or the Augmentation Water Rights previously identified herein.. To the extent that the Town has augmentation credits in excess of the need for actual augmentation under this plan, the Town may exchange such unused augmentation credits upstream into Bolts Lake. B. Eagle Diver Contract Exchange: The Eagle River Contract Exchange will exchange Fully - consumable water made available by lease with ERWSD or contract with the River District or other appropriate entity from the Eagle Park Reservoir Project, into storage in Bolts Lake. For the exchange to Bolts Lake, the downstream terminus of the exchange is the confluence of the Eagle River and Cross Creek, and the upstream termini are the points of diversion into storage at Bolts Lake. The maximum rate of the Engle River Contract Exchange is 20 efs, conditional. This Eagle River Contract Exchange is separate from the Augmentation Exchange using water from the Eagle Park Reservoir Project. C. Colorado River Contract Exchange: The Colorado River Contract Exchange will exchange fully- consumable water made available by contract with the River District from Wolford Mountain Reservoir, Ruedi Reservoir or both into storage in Bolts Lake. The downstream terminus for the exchange of Wolford Mountain Reservoir releases is the confluence of the Eagle River and the Colorado River, The downstream terminus for the exchange of Ruedi Reservoir releases is the confluence of the Roaring Fork River and Colorado River. The upstream termini of the Colorado River Contract Exchange are Bolts Ditch Headgate on Cross Creek and Ginn Eagle River Diversion No. 2 on the Eagle River. The maximum rate of the Colorado River Contract Exchange is 20 efs, conditional. This Colorado River Contract Exchange is separate from the Augmentation Exchange using water from Wolford Mountain Reservoir and /or Ruedi Reservoir. D. Exchange Subordination. The exchanges decreed herein shall subordinate to and shall operate as junior in priority to any exchanges that may be subsequently decreed in Water Division No. 5 Case Nos. 06CW96, 06CW97, 09CW28, 09CW191 and 09CW192. To the extent that either the instream flow or the senior exchanges in the approximately 8100 foot reach of the Eagle River upstream of the Avon wastewater treatment plant are being adversely affected by the Town's diversions, the Town and the affected parties agree to discuss, in good faith, alternatives to address Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 32 such effects, including without limitation, releases from Minturn's allocated storage in Eagle Park or Homestake Reservoirs, releases from Bolts Lake, or the Town paying the pumping costs otherwise incurred by the Authority by operating its raw water booster to divert the amount of water at the Metcalf Ditch headgate that is reduced due to the Town's upstream out of priority depletion. In its sole discretion, the Authority shall determine which alternative to implement. H. CONCLUSIONS OF LAW 17. The foregoing findings of fact are fully incorporated herein. 18. All notices required by law have been properly made, including as required under C.R.S. § 37 -92- 302(2) and (3). 19. The Court has jurisdiction over the Application and over all persons or entities who had standing to appear, even though they did not do so. 20. The Application is complete, covering all applicable matters required pursuant to the Water Right Determination and Administration Act of 1969, C.R.S. §§ 37 -92 -101 through -602. 21. Applicant has fulfilled all Legal requirements for a decree for the requested water rights, including C.R.S. §§ 37 -92 -302 and 37 -92 -305. 22. Applicant has fulfilled all legal requirements for a decree for the requested plan for augmentation, including exchange, including without limitation C.R.S. §§ 37 -92 -302 and 37 -92 -305. 23. Applicant has fulfilled all legal requirements for a decree approving and confirming the requested conditional rights of exchange, including without limitation C.R.S. §§ 37 -92 -302 and 37 -92 -305. 24. Pursuant to C.R.S. § 37- 92- 305(8), the plan for augmentation is sufficient to permit the continuation of diversions when curtailment would otherwise be required to meet a valid senior call for water, because Applicant will provide adequate replacement water necessary to meet the lawful requirements of a senior diverter at the time and location and to the extent that the senior would be deprived of his or her lawful entitlement by Applicant's diversions. 25. The Court hereby concludes the Town has established that water can and will be diverted under the subject conditional water rights decreed herein and will be Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 33 beneficially used, and that this water supply project can and will be completed with diligence and within a reasonable time. 26. The conditional water rights and conditional rights of exchange decreed herein are individual components of the Town's integrated water supply system. Consequently, in subsequent diligence proceedings, work on any one feature of the Town's municipal supply system shall be considered in finding that reasonable diligence has been shown in the development of water rights for all features of the Town's water supply system, see C.R.S. § 37- 92- 301(4)(b). 27. If operated in accordance with the terms and conditions of this decree, the plan for augmentation, including Augmentation Exchange, described herein will prevent injury to senior vested or decreed conditional water rights. 28. The subject Application is in accordance with Colorado law. Applicant has fulfilled all legal requirements for entry of a decree in this case. M. JUDGMENT AND DECREE 29. The foregoing findings of fact and conclusions of law are fully incorporated herein. 30. The Court hereby approves and decrees the water rights to the Pumpback, CC Diversion, Minturn Well Nos. 3 and 4 Enlargements, and conditional rights of exchange, subject to terms and conditions set forth herein. 31. The Court hereby orders the State Engineer to issue any required well permits for the wells described herein upon application to the State Engineer. Within 60 days of completion of any well within the Minturn Well Field Nos. 1 and 2 pursuant to a well permit, the Town shall notify both the Court and Division of Water Resources of the precise location of the constructed well. 32. As provided in C.R.S. § 37- 92- 304(3.6), the Town shall not construct any well on lands awned by another other than the Town unless the right to construct such a well is obtained by consent of the landowner of the exercise of the power of eminent domain by the Town. 33. This decree does not grant the Town any additional property interests in lands on which structures are or will be located. 34. In connection with the diversion of water under the junior priorities decreed herein, the following terms and conditions shall apply. In order to satisfy a Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 34 senior call downstream on the Eagle River or to satisfy the Colorado Water Conservation Board's water rights on Cross Creek, decreed in Case No. W -3795, and on the Eagle River, decreed in Case Nos. W -3788, W -3796, 80CWI34, 80CW126 and 80CW 124 as determined by the Water Commissioner or the Division Engineer, Applicant agrees to either curtail its diversions, or replace the depletions in time and amount, upstream from the place where the depletions impact the river system. A. In addition to the terms and conditions of this Paragraph 34, during times when the structures decreed to the Minturn Ditch Water Right and the Minturn Well Nos. 1 and 2 Water Rights result in the consumptive use limitations being exceeded and are operating under either or both the 06CW264 and 07CW225 Priorities, and (a) there is a call placed by a senior water right (including a senior exchange right or an exchange to which the Minturn Well Fields priorities have subordinated) that is within the reach of the Eagle River between the confluence of the Eagle River and Cross Creek and the point of discharge of the Town's municipal effluent, or (b) the CWCB's Eagle River instream flow water rights within or downstream of that reach or on Cross Creek are not being met, then the Town will augment its diversions with augmentation water that is upstream of the points of diversion. The amount of such augmentation water shall be that amount required to meet the decreed instream flow and meet the senior call or call to which the Minturn Well Fields priorities have subordinated up to the maximum amount of the Town's out of priority diversions, reduced by any applicable return flow credits (wastewater, system loss and return flows) derived from the 06CW264 and 07CW225 Priorities and junior priorities decreed in Case No. 05CW263. i. The reference to wastewater in this Paragraph 33 is not intended to provide credit for municipal effluent returns at the regional wastewater treatment plant at Avon to reduce any obligation of the Town to provide augmentation water to a calling water right located upstream of said point of effluent discharge. B. All references in this decree to "instream flow" shall be the instream flows that are decreed to and held by the CWCB. 35. The Court hereby decrees and approves, the plan for augmentation, including Augmentation Exchange, described herein. 36. Transit losses charged in the delivery of the augmentation water pursuant to the augmentation plan may be modified by the Division Engineer subject to notice thereof to the Town and Objectors and review of such modification by this Court upon petition by the Applicant or any Objectors. Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 35 37. In consideration of the specific findings and conclusions made herein, and in conformance with C.R.S. § 37- 92- 304(6) (2005), as amended, the plan for augmentation decreed herein shall be subject to reconsideration by the Water Judge on the question of injury to the vested water rights of others for a period of five years from the date of entry of this decree. With regard to the determination of consumptive use for irrigation within the place of use described in Paragraph 15.11 above or any consumptive use of the Town's system losses described in Paragraph 15.F above, the retained jurisdiction period shall be ten years in order for the Applicant and State and Division Engineers to re- evaluate whether the consumptive use determinations in Paragraph 15.17 continue to reflect and account for the actual consumptive use for the irrigation. During this ten year period, the State and Division Engineers shall have the right to: (1) present to the Court evidence concerning whether injury has occurred or is likely to occur without new terms and conditions to preclude such injury, or (2) seek an extension of this retained jurisdiction period until the absence of injury can be conclusively established. If no petition for reconsideration is filed within the applicable retained jurisdiction periods, retention of jurisdiction for this purpose shall automatically expire. Any party who wants the Court to reconsider the question of injury must file a verified petition with the Court, setting forth the facts that cause such injury and explaining the claimed injury. The party filing the petition shall have the burden of going forward to establish the prima facie facts alleged in the petition. If the Court finds those facts to be established, the Applicant shall thereupon bear the burden of proof to show (a) that any modification sought by the Applicant will avoid injury to other water rights, or (b) that any modification sought by the petitioner is not required to avoid injury to other water rights, or (c) that any term or condition proposed by Applicant in response to the petition does avoid injury to other water rights. 38. This Decree does not and cannot affect the finality of any decree mentioned herein. Notwithstanding any retained jurisdiction provisions herein, this decree is final and appealable upon entry. The Court expressly determines that there is no just reason for delay and expressly directs the entry of judgment. 39. In conformance with Colo. Rev. Stat. § 37 -92- 305(8) and in regard to the plan for augmentation approved in this decree, the Court finds that replacement of depletions pursuant to the plan so approved will prevent injury to vested water rights. In the event Applicant at any time is not in compliance with such plan, the State Engineer shall curtail all out -of- priority diversions, the depletions from which are not so replaced as to prevent injury to vested water rights. However, the citation of this statute shall not be considered as authority for the Division Engineer to disregard any provision. of this decree. 40. Eagle River Pum back Augmentation or Exchan e. The CWCB hereby consents and agrees that the obligation to prevent injury to the instream flow will be Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 36 satisfied in the event the outfall of the treated wastewater that is used to offset upstream diversions is within 150 feet downstream of the point of diversion of an Eagle River Pumpback diversion decreed herein. 41. Measuring Devices. In order to assure the operation of the augmentation and exchange plan, Applicant will install and maintain such water measuring devices, implement such accounting procedures, and provide such calculations as may be required by the State or Division Engineer to administer the terms of this decree, including the plan for augmentation. The CWCB shall have access to any such measuring device(s) at reasonable times in order to make readings therefrom. Applicant shall file an annual report consistent with the accounting forms provided for herein with the Division Engineer by November 15 of each year summarizing diversions and replacements made under this plan as provided herein. 42. Accounting Forms. The plan for augmentation and use of the subject water rights and described water storage rights in the plan for augmentation can and will be administered by the Division Engineer, consistent with these terms and conditions, and in accordance with the accounting farms to be prepared and approved by agreement with the Division Engineer. The accounting forms set forth in Section 9 of the Martin and Wood Revised Engineering Report on Minturn's Application in Case No. 07CW225 for Junior Water Rights and a Plan for Augmentation, dated July 14, 2010, as they may be modified, shall constitute the initial forms for consideration along with such other accounting forms that may be developed and approved by the Division Engineer that may be necessary and appropriate to implement this plan for augmentation. The accounting forms shall be finalized within 90 days of the entry of the decree herein. 43. The water to be provided for augmentation is of a quality and quantity so as to meet the requirements for which the water has been used by senior downstream appropriators, and therefore meets the requirements of C.R.S. § 37- 92- 305(5). 44. If the Town wishes to maintain the conditional water rights decreed herein, it shall file an application for a finding of reasonable diligence on or before the last day of the month and year specified below, or make a showing on or before then that the conditional water rights have become absolute water rights by reason of the completion of the appropriations. 45. The findings of fact, conclusions of law, judgment and decree were the result of substantial discussions, negotiations and compromises between the applicant and the objectors pertaining to many parts of the findings, conclusions, judgment and decree. With respect to the Pumpback, CC Diversion, Minturn Well Nos. 3 and 4 Enlargements, conditional rights of exchange and plan for augmentation described Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 37 herein, the findings of fact, conclusions of law and judgment and decree herein are binding and define the decreed rights and limitations of those rights and they shall be operated and administered in accordance with the provisions of this decree. With the exception of the decreed rights and limitations of the Pumpback, CC Diversion, Minturn Well Nos. 3 and 4 Enlargements, conditional rights of exchange and plan for augmentation as specifically decreed herein, it is specifically understood and agreed to by the parties hereto, and found and concluded by the Court, that the acquiescence of the parties to a stipulated decree under the specific factual and legal circumstances of this contested matter and upon the numerous and interrelated compromises reached by the parties will never give rise to any argument, claim, defense or theory of acquiescence, waiver, bar, merger, stare decisis, res judicata, estoppel, ]aches, or to any administrative or judicial practice or precedent, by or against any of the parties hereto in any other matter, case or dispute not involving the Pumpback, CC Diversion, Minturn Well Nos. 3 and 4 Enlargements, conditional rights of exchange and plan for augmentation decreed herein, nor shall testimony concerning such acquiescence of any party to a stipulated decree herein be allowed in any other matter, case or dispute not involving the Pumpback, CC Diversion, Minturn Well Nos. 3 and 4 Enlargements, conditional rights of exchange and plan for augmentation decreed herein. With the exception of the decreed rights and limitations of the Pumpback, CC Diversion, Minturn Well Nos. 3 and 4 Enlargements, conditional rights of exchange and plan for augmentation as specifically set forth herein, all parties stipulate and agree that they do not intend the findings, conclusions, judgment and decree to have the effect of precedent or preclusion on any factual or legal issue in any other matter not involving the Pumpback, CC Diversion, Minturn Well Nos. 3 and 4 Enlargements, conditional rights of exchange and plan for augmentation decreed herein. With the exception of the decreed rights and limitations of the Pumpback, CC Diversion, Minturn Well Nos. 3 and 4 Enlargements, conditional rights of exchange and plan for augmentation as specifically set forth herein the parties further stipulate and agree that they each reserve the right to propose or to challenge any legal or factual position in any other change of water right, plan for augmentation or other matter filed in this or any other court without limitation by these findings, conclusions, judgment and decree. 46. The Application, as decreed herein, is administrable by the State and Division Engineers. Review of determinations made by the Division Engineer or the State Engineer in administration of the subject water rights are "water matters" which the Water Court may review under its exclusive jurisdiction. Accordingly, it is ordered that this judgment and decree shall be filed with the Water Clerk and shall become effective upon such filing, subject to judicial review pursuant to C.R.S. § 37 -97 -304, as amended. Consolidated Case Nos. 06CW264 and 07CW225 Applicant in 07CW225: Town of Minturn Findings of Fact, Conclusions of Law, Judgment and Decree of Water Court Page 38 Further, it is ordered that a copy of this judgment and decree shall be filed with the State Engineer and the Division Engineer for Water Division No. 5. Done at the City of 2010. , Colorado, this _ day of THE MONTH FOR FILING AN APPLICATION FOR A FINDING OF REASONABLE DILIGENCE SHALL BE 201 BY THE COURT: Thomas W. Ossola Water Judge Water Division No. 5 3950760_14.noC ,'hii)it A t- e-) Prnnn.cwri 1)t-rrr?a in Y`ac.A Nn n 7 M" ) 9 q J u h u F Well N6.4 Enlargement dl No. 3 largement-'- Minturn Water - z Bolts Ditch Headgate G� Lower Cross Creek %Diversion Structure Eagle River' Pumpback Maloit Park Diversion Stru�ctur -':'Ginn Eagle River Diversion No, 3 Ginn Eagle River Diversion No. 2 r nanr mj?ur"a ipum r lrtauiaaay- Anamam —$ nr vrverspan.rrara N • Eagle River Diversion Point W + E 0 0.25 0.5 1 • Cross Creek Diversion Point Miles S Job No.: 649.1 Remaining Points of 602 Park Point Drive Date: 18-May-2010 v Town of Minturn Diversion Applied for in suAa275 Drawn: JPB Case No, 07CW225 Case No. 07iCW225 Golden, CO 80401 (303) 526 -2600 Checked- JTW MARTINANDWOOD WATER COKSUTAHTS, MC wwwlmartinandwood.com 6,1819 -Town at M nlurn'�49,1 - Nlnlom MmaUr' Warnr Supplyl0ic507CLY725 Englnat�r[np Repon Fl9al CopyrIOht 2010 Martin and Woad Walar COnaVllaM. Inc.. All Rohl. Rea 7 . nanr mj?ur"a ipum r lrtauiaaay- Anamam —$ nr vrverspan.rrara Exhibit B to Proposed Decree in Case No. 07CW225 R81 W Well No. 1 Well No. 2 r �=--�� Well No. 4 U7 co �, F Well No. 3 t0 V N Well Field No. 9 (Cross Creek) 0 500 1,000 2,000 W E Well Field No. 2 (Eagle River) Feet S Job No.: 649.1 Minturn Wells and 6o2 Park Point Drive TDWn of Minturn Suite Date: 1- Mar -2010 Well Fields Golden, co $0401 h%,V Drawn: JPB Case No. 07CW225 (303) 526 -2600 Checked: JTW MARi1N AND WOOD www.martinandwood.com w&TFRelINSAIANTS urFC S W49 • Town of Mfnlumk649.1 - Minturn MssIor Water SmpVGisr07Cl/Sy25 Enpine®rtnp Rancd OM Copyright 2.010 Marlin and Mod Water Consultants. Inc, All fthN Reserved .07CVM5 MXUBT- quma- wellFields rand Ehibit C to Proposed Decree in Case No. 07CW225 CA RB1 W I R5OW Enlarged Bolts Lake Gio�� (1,210 acre -feet) I.. S �0 - tan Creeks and Rivers N 1 Enlarged Bolts Lake: 1,210 acre -feet 0 1,000 2,000 4,000 W E Feet S Job No.: E549,1 602 Park Point Drive Date: 15-Apr-2010 Town of Minturn Suite n, P Enlarged Bolts Lake Golden, co 80401 Drawn: JPB Case No. 07CW225 (303) 526 -2600 MARTIN AND WOOD www.martinandwood.rom Checked: JlW w TFAI caxauLr. Y11 INC 91849 - Te— of Minlurn1819 1 - mmum Master mter Supply4QMUCVY225 Enpineerinq Report Ffgs A0ure3- EnlarOaC Bolts Lake mul Copyngh12010 manin end lhroW Water Consuamms, Inc. Al RI01t15 ReaemM. Exhibit D to Proposed Decree in Case No. 07CW225 U U F �l F Ro i rr Movrr r" Oran Palmateer Propertyi ./ Minturn Municipal Boundary — Burnett Property'. !• }f 1 Denotes an Area that Minturn N l'I King Ranch h7 in tern / A Pians to Serve Water from W+ Y1 C.<it t � r Its Senior Water Rights s ® Minturn 3 -Mile Plan Inclusion Areas © I'm 2,500 5,000 Two €Ik; Area Maloit Park Pierson 649.1 Property" 662 Park Point Drive Two Elk Area I Maloit Park Area*" . ANV suite 275 Golden, CO 80401 Drawn: JPB Bolts Lake Inclusion Areas 1 Denotes an Area that Minturn N ® *Pre -2p08 Water Service Area Pians to Serve Water from W+ (red outline indicates Minturn Municipal Boundary} with Its Senior Water Rights s ® Minturn 3 -Mile Plan Inclusion Areas © I'm 2,500 5,000 Feel Job No.: 649.1 Pre-2008 Water Service 662 Park Point Drive Date: 24- Jun -2010 I Own of Minturn Areas and 2003 3 -mile Plan ANV suite 275 Golden, CO 80401 Drawn: JPB Inclusion Areas (303) 528 -26o0 MARTIN AND WOOD www.martknandwood _ oom Checked: JTW w•,rn GPnaWIT�MYb. INC - C®POW 2910 Manta and Wnod WaIM Cmswnnu, Im All Rlehts Read Memo To: Honorable Mayor and Town Council Initials Thru: Larry Brooks, Town Manager From: Sally Vecchio, Dir. Asst Town ManagerlComm. Dev. Date: August 5, 2010 Re: Intergovernmental Agreement For Building Inspection Services between the Eagle County and the Town of Avon. summary The proposed Intergovernmental Agreement (1GA) for uibinspection Council to� include atween the County and the Town, has been revised pursuant e the request a services to the County as reciprocity clause that allows the Town to p requested. A copy of the iGA is attached hereto. Background The IGA provides that the County wil) make available to time. ©The Town building will ncompensate then as requested by the Town Building official from tim per inspection. The County for each inspection completed at a flat r t is fully executed and wll terminate on iGA will be effective from the date the Agr December 31, 2011. Either party may terminate the Agreement without cause upon 30 days provide written notice. A reciprocity clause was added which provides ms and conditions provided by building inspections services to the County under the same the County to the Town. The Town expects to utilize this service when the Town wiBuilding h County iisespecilallly import nt the office for extended periods of in w that thehTown employs only one full -time building in maintaining continuity of service inspector. Recommendation Staff recommends approval of the 2010 Intergovernmental Agreement for Building Inspection Services between the Town of Avon and County of Eagle, Colorado. 2010 INTERGOVERNMENTAL AGREEMENT FOR BUILDING INSPECTION SERVICES BETWEEN THE TOWN OF AVON AND THE COUNTY OF EAGLE, COLORADO This Intergovernmental Agreement ( "Agreement ") by and between EAGLE COUNTY, a body politic and corporate of the State of Colorado ( "County ") and the TOWN OF AVON, a Col o municip 1 corporation ( "Town ") (collectively the "Patties ") is made to be effective on the _day o - , 2010. WHEREAS §29 -20 -101 et seq., C.R.S enables the Parties to enter into Intergovernmental Agreements and authorizes each of the Parties to perform the functions described herein, as provided in §29 -20 -105 CRS; and WHEREAS the Avon Town Council has determined that it is in the best interest of the Town and its inhabitants to contract with Eagle County to provide building permit and inspections services within the 'boundaries of the Town specified under the terms of this Agreement; and WHEREAS, Eagle County has determined that the County Building Official has the resources to provide building permit and inspection services to the Town of Avon in exchange for compensation to be provided by the Town of Avon under this Agreement, and upon the further terms and conditions contained herein; and WHEREAS, the Parties desire to enter into this Intergovernmental Agreement to provide building inspection services for the Town of Avon and to define the manner in which each of the Parties will participate in the provision of such services. NOW THEREFORE, in consideration of the mutual rights and obligations as set forth below, the parties agree to the following: A. SERVICE TO BE PROVIDED. County shall make available to the Avon Building Department personnel with the qualifications and State certifications necessary to perform building, plumbing and mechanical inspections requested by the Town. Inspectors shall be made available on those dates and at those times as are mutually agreed upon between the Town Building Official and County Building Official. -The County Inspectors providing services to the Town pursuant to this Agreement shall have all jurisdiction, authority, powers, functions, and duties of the Town Inspectors with respect to any and violations of State Law and Town Ordinances. County will administer and enforce all applicable provisions of the Building Code adopted by the Town subject to the enforcement procedures adopted by the Town of Avon. B. COMPENSATION. The Town shall promptly reimburse the County for each inspection completed. For the purposes of this Agreement, the cost shall be a flat rate in the amount of S 100.00 per inspection. C. PERSONNEL. Every County officer and employee engaged in performing inspection services under the terms of this Agreement shall remain an officer or employee of Eagle County while performing the same and the relationship of the Eagle County Building Official to the Town of Avon under this Agreement is that of an independent contractor. In this capacity, and for the sole purpose of providing the services contracted for hereunder, the Eagle County Building Official and his employees provided under this Agreement shall be considered to be the agents of the Town of Avon. This Agreement does not change the status of any employee, contractor or officer of the Town or County. D. LIABLITY. The County, its officers and employees, shall not be deemed to assume any liability for intentional or negligent acts, errors, or orissions of the Town or of any officer or employee thereof. Likewise, the Town, its officers and employees, shall not be deemed to assume any liability for intentional or negligent acts, errors or omissions of the County or by any officer or employee thereof. The County agrees to indemnify, defend and hold harmless to the extent allowed by law, the Town, its respective agents, officers, servants and employees of and from any and all loss, costs, damage, injury, liability, claims, liens, demands, action and causes of action whatsoever, arising out of or related to the County's intentional or negligent acts, errors or omissions or that of its agents, officers, servants, and employees, whether contractual or otherwise. Likewise, the Town agrees to indemnify, defend and hold harmless to the extent allowed by law, the County, its respective agents, officers, servants and employees of and from any and all loss, costs, damage, injury, liability, claims, liens, demands, action and causes of action whatsoever arising out of or related to the Town's intentional or negligent acts, errors or omissions or that of its agents, officers, servants and employees, whether contractual or otherwise. E. INSURANCE. The County and the Town shall respectively provide its own public liability, property damage, and errors and omissions insurance coverage as each party may deem adequate and necessary for any potential liability arising from this Agreement. The County and the Town, respectively, shall name, subject to the approval of each respective party's insurance carriers, the other respective party as a co- insured under such insurance policies to the extent of any potential liability arising under this Agreement and, upon reasonable written request, shall furnish evidence of the same to the other respective party. The Parties further agree, without waiving any governmental immunity protection to which they and their officials and employees are entitled under CRS 24 -14 -141 ct seq., to procure and maintain current valid workers compensation insurance coverage for all subject workers throughout the period of this Agreement. F. NO WAIVER OF !GOVERNMENTAL IMMUNITY. Nothing in this Agreement shall be constfued to waive, limit, or otherwise modify any governmental immunity that may be available by law to the Contractor, its officials, employees, contractors, or agents, or any other person acting on behalf of the Contractor 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. G. TERM AND TERMINATION. This Agreement will be effective as of the effective date stated above and will terminate on. December 31, 2011, and shall automatically roll over until December 31 of each succeeding year thereafter unless either party fails to substantially perform the duties and obligations in accordance herewith. In such an event, the other party may terminate this Agreement upon seven (7) days written notice to that party, unless that party cures the breach within the seven (7) day remedy period. Either party may terminate this Agreement without cause upon thirty (30) days written notice. Not later than 60 days prior to the January 1, 2012, representatives of the parties shall meet to consider necessary or desirable changes in the terms of this agreement. H. NOTICES AND PAYMENTS. All notices, bills and payments shall be made in writing and may be given by personal delivery or by mail. Notices, bills, payments sent by mail should be address as follows: Town of Avon Attn: Address: Phone: P.O. Box 975 One Lake Street Avon, CO 81620 Eagle County Attn: Address: P.O. Box 850 Eagle, CO 81631 Phone: I. MODIFICATION. This Agreement contains the entire agreement between the parties, and no agreement shall be effective to change, modify, or terminate in whole or in - part unless such agreement is in writing and duly signed by the party against whom enforcement of such change, modification, or termination is sought. J. NO THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement is intended to or shall create a contractual relationship with, cause of action in favor of, or claim for relief far, any thud party, including any agent, sub - consultant or sub - contractor of Town or County. Absolutely no third party beneficiaries are intended by this Agreement. Any third -party receiving a benefit from this Agreement is an incidental and unintended beneficiary only. K. RECIPROCITY. When the parties mutually deem it necessary and appropriate, Town will provide to County Building Inspection Services on the same terms and conditions as set forth herein with respect to service provided by County to Town. IN WITNESS WHEREOF, Each party, by signature below of its authorized representative, hereby acknowledges that it has read this Agreement, understands it and agrees to be bound by its terms and conditions. EAGLE COUNTY By- Jai Date: l0 A [name, t de] TOWN OF AVON Ronald C. Wolfe, Mayor Date: Patty McKenny, Town Clerk Memo To: Honorable Mayor and Town Council Initials Thru: Larry Brooks, Town Manager 70— From: Sally Vecchio, Asst Town Manger/ Community Development Date: August 5, 2010 Re: Land Code Review- Response to Public Comments Summary: This memorandum responds to the written public comments received by the Town regarding the draft Avon Development Code as presented to the Town Council on July 27, 2010. The responses are intended to provide background information regarding proposed Development Code language, planning issues and rationale, and highlight relevant considerations in order to assist with Council's review of the proposed Development Code. Previous Council Action: The Town Council held a noticed public hearing on July 27, 2010 to take public comment on the proposed Development Code. The hearing was continued to August 10, 2010. Background: Staff and Council have received numerous public comments on the proposed Development Code since the document was presented to the Council at its last meeting. Generally, the comments focused on the new aspects of the Code, including the new Development Standards, Design Standards and engineering requirements for subdivisions and development on steep slopes. There were also a number of comments concerning the new Town Center Zone District, the new Bonus Development Requirements, and the revisions to the PUD process. After more than four hours of public testimony and discussion on July 27'h, the Council agreed to continue the hearing to August 10"' and directed staff to prepare written responses to written comments received. The comments and staff responses to the Annexation regulations and the 1041 Regulations will be addressed at the Special Council meeting scheduled for August 17, 2010. Discussion: The public comments have been compiled and re- organized in a chapter -by- chapter format that follows the proposed Code format. Some of the public comments have been abbreviated and repetitive comments have combined. The original comments are attached as Exhibit A. Staff will bring to the meeting all of the data from the design tests completed in Wildridge and Town Center. Town Manager Comments: AVON DEVELOPMENT CODE RESPONSE TO PUBLIC COMMENTS GENERAL PROVISIONS Chapter 7.01 Non Conforming Structures Section 7.04.128 (Page 13) Comment: We should not be writing codes that create non conforming uses of the majority of the existing development in the residential areas. By doing this additional expenses will be created both by Town and the property owners. Town staff will have a much larger job evaluating remodels, redevelopment and new development. STAFF RESPONSE: Most of the residential communities will not be affected by the changes proposed in the new Code. Most are governed by t PUD standards or previously approved subdivision plats_ Most of the existing residential lots in the Town will not be affected by the new slope, grading and driveway standards. Staff disagrees that the new regulations will create a much larger job of reviewing applications. Development review will be easier (and more legally defensible) with specific standards and regulations by which to review projects. Preliminary Subdivision and PUD Approvals Section 7.04.110(d) — (Page 13) Comment: I am concerned that this section would require an approved project to have to obtain a new approval to comply with new design standards. The Gandorf project would be an example of an affected project. This could have a significant impact on costs. I think this section needs to allow existing approvals to continue as approved with no changes. STAFF RESPONSE: 1. The Gandorf project received final design approval under the current Code and will remain valid until the termination date of the approved plan pursuant to Sec 7.04.110 of the new Code (Transition to Avon Development Code). The owner will need to record a condo plat for the property before a final CO is issued on the homes. The requirements for preparing a condo plat have not changed with the new Code, although the approval process has been simplified by changing it from Council approval to administrative approval. DEFINITIONS Chapter 7.08 Block Diversity Plan Section 7.08. 010 — (Page 24) Comment: What does this definition apply to? STAFF RESPONSE: This definition is not needed in the new Code and has been deleted Cash in Lieu Section 7.08.010 — (Page 26) Comment: The definition (in combination with its practice in the Park Land dedication standards) leaves the issue entirely up for negotiation- no certainty for investment or calculation of costs associated with development. SEE TOWN ATTORNEY MEMO Compatibility Section 7.08. 010 — (Page 27) Comment: Why is this definition being inserted? STAFF RESPONSE: Because the term is used throughout the new Code, as in the required criteria and findings for a Special Review Use (SRU) Permit: "The proposed SRU must demonstrate compatibility with surrounding uses. ", and because the term can be interpreted in multiple ways, it was important to define the meaning of the term as it applied specifically to the Avon Development Code. Development. Section 7.08.010 — (Page 29130) Comment: Items exempted from the development definition seem to contradict those areas being defined by the proposed 1041 (AASI) regulations as development. Also, the definition seems to contradict the non - conforming uses being created. SEE TOWN ATTORNEY MEMO Page - 1 - of 19 Floor Area Ratio (FAR) Section 7.08.010 — (Page 33) Comment: Does this include counting enclosed parking in FAR? If it does, it should not. STAFF RESPONSE: The definition of gross floor area excludes: enclosed parking facilities, basements, open balconies and 1/2 of all storage and display areas for durable goods. Grade, natural. Section 7.08.010 — (Page 34) Comment. Throughout the code "existing grade" is used to mean natural grade. "Existing grade" is not defined. STAFF RESPONSE: Staff recommends the following definition: Grade, Existing means the existing topography of a site prior to construction and may include natural or manmade conditions. The Building Height definition has also been revised to require the measurement from nature or finished grade. Gross square footage (GSF) Section 7.08.010 — (Page 35) Comment: There are multiple definitions of floor area which is confusing. STAFF RESPONSE: Staff recommends the following definition: Floor Area, also called Gross Floor Area, means the total square footage of the building measured along the outside wails of the building and including each floor level, but not including open balconies, garages or other enclosed automobile parking areas and basement storage areas, and not including one -half (1/2) of all storage and display areas for durable goods Natural areas Section 7.08.010 — (Page 41) Comment. Seems like a front -range definition. STAFF RESPONSE: This definition is not needed in the new Code and has been deleted. Non Conforming Uses Section 7.08.010 — (Page 41) Comment: By way of several new development standards, virtually all properties in the Town will become nonconforming (irrespective of the degree or specific area of nonconformance); penned this broadly and in light of the sweeping changes proposed, this seems to promote dilapidation of existing structures instead of upkeep and investment. Is that truly the goal? SEE TOWN ATTORNEY MEMO Public Benefit Section 7.08.010 Comment: Not defined. STAFF REPONSE: A following definition will be added: Public Benefit means a benefit realized by the general public of the Avon community which meets a goal in the Avon Comprehensive Plan or is determined by the Town Council to be a public benefit and which may include improvements, services, design, or use of lands. Site Coverage Section 7.08.010 — (Page 47) Comment: Site cover in the past was a measurement of essentially building footprint and is commonly used to regulate the bulk and mass of structures. The new definition includes parking lots and driveways which makes it nearly impossible to develop a building with a parking lot in the Town Core or elsewhere. For example in Neighborhood Commercial, the maximum site coverage is 60% and if that include parking areas one would be forced to build underground parking and 40% of the parcel would have to remain as softscape. It is easy to see how this does not work and the results of its implementation would have a dramatic suburbanizing affect on the town. Also confusing is the use of the term "lot coverage" which I believe is intended to be "site coverage. As drafted this affects every property in the Town include those parcels developed and owned by the Town. Does site coverage include below grade parking that is plaza or landscaped on the surface? If it does, this will discourage or even prevent underground parking. STAFF RESPONSE: The definition was erroneously expanded to include all impervious surfaces, and has been revised back to its definition in the existing Code (structures only). Town District Plan Page - 2 - of 19 Section 7.08.010 —(Page 49) Comment: The Town Center District Plan is defined well enough, but the Town Center description in the Zoning Dimensional Standards doesn't mention the District Plans, but instead reverts to the more general Land Use Plan of the Avon Comprehensive Plan? This doesn't make sense — why aren't we referencing both the general and specific master plans? STAFF RESPONSE: The definition of Town District Plan has been replaced with Comprehensive Plana which is defined to include all the current plans : "Comprehensive Plan means the 2006 Town of Avon Comprehensive Plan; The West Town Center District Investment Plan (August 2007); The East Town Center District Plan (May 2008); The Master Plan for Harry A. Nottingham Park (November 2008); The Town of Avon Recreational Trails Master Plan (February 2009); and, The Town of Avon Comprehensive Transportation Plan (July 2009). "(Chapter 7.08 Definitions). DEVELOPMENT APPLICATION REVIEW AUTHORITY Chapter 7.12 Director Section 7.12.050 — (Page 54155) Comment: This section essentially requires that there be a Director of Community Development. The Town should have the flexibility to not have this position in order to react to budgetary requirements. You might consider using a more generic term like "Administrator" that the Town Manager can designate to enforce and interpret the Code. This tends to be more common. SEE TOWN ATTORNEY MEMO DEVELOPMENT REVIEW PROCEDURES Chapter 7.16 Determination of Completeness Section 7.16.020(c) - (Page 58) Comment: A development application shall be reviewed for completeness by the Director within fifteen (15) business days after receipt. If the application is determined to not be complete then a written communication shall be promptly provided to the applicant indicating the specific deficiencies in the application. The determination that an application is complete or the failure to determine an application is incomplete within fifteen (15) days shall not preclude the Town from requiring information which is necessary and relevant to evaluate the development application for compliance with the review criteria. A determination by the Director that the application is incomplete may be appealed to the Town Council in accordance with the procedures in §7.16.160. 15 days to determine completeness seems fairly excessive. Completeness of an application should be done in no more than 5 days . SEE TOWN ATTORNEY MEMO Comment: With the requirement of a pre - application meeting or meetings with any development application, stretching completeness review to half a month appears excessive especially for smaller classes of development applications. SEE TOWN ATTORNEY MEMO Referral to Other Agencies Section 7.16.020(c)(2) — Page 58 Comment: 30 days for a referral is excessive. Referrals should be limited to 14 days. SEE TOWN ATTORNEY MEMO Mailed Notice Section 7.16.020(d)(2) - Page 59) Comment: The Town should be responsible for mailing any notices otherwise will be issues with content and inconsistencies. The application fees should cover this. You might consider having town staff also generate the list of owners within 300' by using GIS and again eliminating potential errors. Notice and process should be the most important aspect of the Town's role and pawning this off on the applicant could create significant issues SEE TOWN ATTORNEY MEMO Page -3 -of 19 Public Hearings Section 7.16.020(e) — Page 60 Comment: Why limit the timeframe for tabling? Why not have the maximum flexibility on behalf of the Town as possible? SEE TOWN ATTORNEY MEMO Changes to an approved development application, Minor Amendments Section 7.16.020(g)(4) — (Page 62) Comment: There is something wrong with this section. Something seems to be missing. STAFF RESPONSE: We don't understand the comment. Subsection (4) is one of four defined categories of amendments which are defined as "minor amendments" and which may be approved administrative Comp Plan Amendment Section 7.16.030 — (Page 62) Comment: There are new amendment review criteria in this section which conflict, expand or replace the existing amendment procedures outlined in Appendix E of the Comprehensive Plan itself — which is it? Why are we proposing a new criteria and where is the public notice that we now seek to scrap the amendment procedures of the existing and approved Comprehensive Plan? SEE TOWN ATTORNEY MEMO Review Procedures. Section 7.16.040 — (Page 63164) Comment: Applications to amend the text of the Development Code shall be initiated by the Town Council and may not be initiated by another person, except for citizen's initiative submitted pursuant to Chapter 7, of the Avon Home Rule Charter. WOW! A citizen is not allowed to apply for a text amendment to the code except by an initiative? I can't believe this is even in the proposal. Today's language allows any real property owner to initiate an amendment. STAFF RESPONSE: Amendments to the text of the Development Code are legislative. Council can designate other parties which would have the right to submit applications to amend the text of the Development Code. Staff suggests such parties should include registered voters and property owners. Upon inquiry, Staff believes that no one other than Council has initiated amendments to the text of the Town's zoning and subdivision regulations since the Town of Avon was incorporated. Temporary Suspension of Development Approvals Section 7.16.040(d) — (Page 64) Comment: This is essentially a moratorium on development. The regulations should go into when they are adopted and in effect. All existing approvals should be recognized and allowed to proceed to development unless they expire. STAFF RESPONSE: This issue was addressed at the last meeting by the passage of an emergency ordinance. Council direction should be provided to Staff regarding Section 7.16.040(d). Planned Unit Developments (PUD) Section 7.16.060 (Pages 65 -73) Comment: 1 How can large changes be made that have not been contemplated in the code? 2. Why any minimum project size for PUD? 3. This was not a direction given by Council. Comment: The entire ULC approach to removing the PUD process in lieu of the Development Bonus criteria should be deleted along with the proposed FAR provisions. A more sensible approach would be to create a streamlined development review process for those areas already falling under the guidance of both East and West Town Center District Plans. STAFF RESPONSE: 1. The existing Town Center zone district clearly does not allow the type of development contemplated in the East and West Town Center Plans. Clarion submitted a zoning diagnosis in December of 2008 which proposed to move away from the use of PUDs, This diagnosis was reviewed and approved by Council. Staff has sought to implement this direction since that time. Page -4-of 19 2. If a propose development exceeds the zoning district standards (height, FAR and residential density), and it is something the Town desires, the Council could adopt a new zone district specifically for that particular development. This is a common practice when communities have a unique or large scaled mixed -use development proposal that requires special entitlements that would only be appropriate on a specific parcel such as the Westin. 3. In April 2009, the Council provided direction to Clarion to make a series of changes to the PUD process which would reduce its use for development approvals. The recommended changes included: a. Improve the regular zone districts to make by- right development projects easier to achieve, b. Establish development parameters and clear public benefit requirements and c. Establish a minimum project size or location for PUD applications All three revisions have been incorporated in the new Code including the PUD eligibility requirements which establish a 10 acre minimum project size or location in the Town Core. At the July 27 meeting, Council discussed deleting the minimum project size for PUD applications so that the PUD process could remain as an available option for smaller projects as well as larger. Council agreed that the revised PUD regulations contain sufficient review criteria to ensure a more efficient review process (Sec. 7.16.060). 4. A streamlined development review process has been created (Development Review Procedures Chapter 7.16), along with improved standards for all of the zone districts (Use Regulations, Chapter 7.24), and Development Bonus Requirements (Chapter 7.20.100). Together, these new regulations create a predictable, transparent review process which ties development standards to approved policy documents (Development Standards Chapter 7.28). Overlay District Section 7. 1 6.060(c)(1) — Page 67 Comment: Underlying re- zoning should be allowed to be processed concurrent with a PUD application rather than being required to be processed "prior to" PUD approval- STAFF RESPONSE: Staff concurs. Section 7.16.060 (c )(1) Overlay District, should be revised to allow the process of a rezoning to occur prior to or concurrent with PUD approval. Alternative Equivalent Compliance (AEC) Section 7.16.120 — (Page 83) Comment: Flexibility provided with this procedure is good, but the review criteria and areas of applicability are confusing. So, do you need to meet one or all criteria and why should a neighbor have standing in this matter if the only real questions are the first and last criteria? Was it clearly explained to P &Z and Council that adjacent property owners will now have standing in design review where they have not before? After much investment to prove, for instance, that an engineered retaining wall is safe and in keeping with the intent of a design standard to the Town Engineer and P &Z my approval may be revoked? This requires some clarity and explanation. STAFF RESPONSE: 1. Alternative equivalent compliance is a new process added by Clarion to allow for creative modifications to the following development standards: Mobility /Connectivity, Landscape, Screening and Retaining Walls, Fences and the Design Standards. 2. There are 4 review criteria that the reviewing authority (PZC or TC) shall consider as the basis for a decision to either grant or deny an AEC application. Review Criteria 4 states: The proposed alternative imposes no greater impact on adjacent properties then would occur through compliance with the specific requirement of the ordinance. Staff disagrees that this criteria gives a neighbor "standing" in the matter. 3. The size and design of retaining walls is subject to approval by the PZC and compliance with the Town's engineering standards, In order for the PZC to make an informed decision concerning the wall, the project will require preliminary grading (which will stipulate top and bottom of wall), and type of wall (e.g. boulder or MSE), Vested Property Rights and Site Speck Development Plan Section 7.16.140(a) — (Page 85) Comment: When asked during your first reading about the need to approve a development agreement to receive a `Development Bonus', I was informed that a development agreement is possible without a site specific development plan or need for a PUD. The code as penned contradicts this. Which is it? SEE TOWN ATTORNEY MEMO Page - 5 - of 19 Floor Area Ratio (FAR) Section 7.20 — (Page 91) Comment: Throughout the zone districts FAR has been added as an additional control of floor area and bulk and mass. I think this provision adds unnecessary complexity to the Town Code that is not needed to achieve the goals of the Town. The Town Center should be more about attractive floor area and density and the focus should be on the building form and relationship to other buildings and the street. SEE STAFF COMMENTS ON FAR BELOW Appeals Process Section 7.16.160 — (Page 91) Comment: The other area that I would recommend looking closely at is the appeals process and the timeframe for hearing and deciding appeals. In my experience, you might get a verbal decision that you disagree with from staff, but then getting that in a "final" written form could take weeks. With that and then the process to get before the P &Z could take weeks. I would not rely on that as much of a relief value. SEE TOWN ATTORNEY MEMO Neighborhood Commercial (NC) Section 7.28.080 — (Page 96197) Comment: This zone district has been included in the Town Center designation. Several properties zoned NC are located north of 1 -70 and do not exhibit all of the same characteristics of the Town Center. As drafted the "maximum" front setback is 15'. In some cases this would place a building within Nottingham Rd_ Either the setbacks need to be adjusted or there needs to be some language added to allow deviations in special circumstances without the need for a variance. If this provision is adopted, numerous properties will be made nonconforming. STAFF RESPONSE 1. At a previous work session, Council enlarged the Town Core area to include the area north of 170 at the Avon Road roundabout (due to its visibility at the roundabout), and required Council review of all development applications in the Core. (See Town Core Map, Exhibit C). 2. The measurement o f a setback can be addressed by clarifying the definition of setback to include "that the minimum setback shall be measured from the property line or the edge of pavement of a public roadway, whichever is more restrictive." Floor Area Ratio (FAR) Section 7.20.08(c) — (Page 98) Comment: I am very concerned also with the FAR requirements in general but especially the minimum FAR. There are many properties that are zoned Town Center that are likely to never being economically viable at a 1.6 FAR so in the interim (next 30 years) the code is making it impossible to do anything with many properties. The unintended consequence is that you would be guaranteeing that those properties could never improve and remain as they are today. An owner would be prevented from even making small additions due to the minimum FAR. There is theory about how the Town could look in the future and then there is reality. I don't think we can ignore the economic realities in Avon. I think you need to examine each and every property subject to this provision to determine if it is a reasonable provision. STAFF RESPONSE 1. The West Town Center Investment Plan recommends a revision to the zoning code to increase to by -right density permitted on a Town Center property, and to include an FAR measurement to better control the bulk and mass of building. The Plan also recommends a minimum 1.6 FAR in West Town Center District as a way of ensuring that the area reaches the appropriate critical mass of retail, commercial and housing, to create a viable town center districts, Exhibit B provides a list of the policies and recommendations from the West Town Center District Plan that were used by Clarion as a basis for the FAR requirements as well as the Design and Development Standards. 2. The minimum 1.5 FAR was added to the Town Center Zone District, as directed by Council during its April work sessions on the topic. As indicated, this minimum FAR was based on a recommendation from the West Town Center Investment Plan. Council should discuss whether they desire the same density expectations for all property zoned Town Center, including areas outside of the West Town Center District, east of Avon Road. Page -6 -of 19 Comment: This is possibly one of the most troubling aspects of the code. Yes, as staff has noted the Comprehensive Plan called for FAR as a potential tool for shaping mass and bulk, but FAR is a poor predictor of physical form in the context employed by the ULC as proposed and in light of the specific goals and policies of the East and West Town Center District Plans. Do a word search of the East Town Center District Plan and you will find no mention of "FAR" as a tool to promote the desired redevelopment. The minimum ratios will discourage any improvements (investments both public and private) in the Town Center zone district and combined with the language on non - conformities, you are possibly encouraging the continued dilapidation of existing structures. This entire approach should be removed from the proposal. For example, this excerpt of 'preferred district future land uses' is from the adopted East Town Center District Plan: The massing and uses expressed in the East Town Center District Plan will be nowhere close to this form under the proposed FAR. Even under current acreages, for instance the Christy Sports Lot has a 40,423 square foot site that only permits 80,846 square feet at an FAR of 2:1. How will this affect something like the Westin Riverfront PUD should they seek 'replatting' and find themselves non - conforming to maximum FAR and since they have no underlying zoning? If we are seriously looking to rescind the District Plans the Town invested years of effort and public input to create, respect the public process and seek to amend those plans first before proposing a new ULC that virtually eliminates the possibility for the level of public and private investment and vitality as envisioned in this adopted policy document (the East Town Center District Plan in this case). Frankly, the redevelopment plans for the Town Core provide a level of detail that should warrant a simplification of development review processing and allow applicants a modified design review process instead of fighting for even an existing level of development rights and having to argue that their project provides public benefit. Partnership and investment in the stated goals of the Town should be ample public benefit to the future residents and guests of Avon. STAFF RESPONSE 1. A Floor Area Ratio (FAR) measurement has been added to the Commercial Zone District standards (Chapter 7.20). One of the community goals stated in the Avon Comprehensive Plan is to "Promote a Compact Community Form" (Goal B.1). A series of nine polices were established to implement Goal B.1, including a recommendation to amend the zoning code to include an FAR measurement to help "minimize the standardization of building heights and break up building bulk." 2. After reviewing the Design Tests for Avon 21, Avon Center, Sheraton Mtn Vista, Chapel Square and The Seasons, the Council made the following observations concerning density in the Town Center Zone District: a. A 2:1 FAR reflected a higher development density in Town Center that has typically been approved under the current Town Center Zone District standards (e.g, Denny's, Annex Plaza, Post Office, various bank buildings). b. The PUD process was typically used in Town Center to waive parking requirements, increase dwelling units, and increase site coverage. c. 2:1 FAR with a Development Bonus could increase the development density on a parcel up to 2.6:1 FAR, which would accommodate the density, FAR, and building height for most of the approved PUDs in Town Center. d. Avon 21 proposed a 3.5:1 FAR with a 110 ft building height and the Sheraton Mtn Vista was approved with a 2.7:1 FAR. Both would have to reduce density and Avon 21 would also have to reduce building height under the new Code provisions, unless the Council approved a special zone district designation for that particular project, 3. A replat of Westin property would not be affected by the proposed FAR because the property is regulated and vested to the Westin Riverfront PUD. If the PUD vesting expired before the project was built out, the property would have to either be rezoned or the Council could grant an extension to the PUD entitlements. 4. Under the current Town Center Zone District, the Christy Sport Lot could build by- right, approximately 121,530 sf, with up to 38 dwelling units and a max building height of 80 ft. Under the new Town Center Zone with Bonus Density, the property could be approved for development up to 105,326 sf, with unlimited additional dwelling units (provided that the applicant has water and sufficient parking), with a max building height of 104 feet. Although the new process and district standards somewhat reduce the permissible density on the property, the real issue for the project will be meeting the parking requirements at that density. A 121,530 sq foot mixed use development (Chapel Square is 120,000 sf) could required 300 -•400 parking spaces depending on the mix of uses. Under the existing PUD process, parking was typically waived or reduced in Town Center. The new Code only allows up to a 20% parking reduction for mixed use projects. Page -7 -of 19 5. The East Town Center District Plan (May 2008) does not explicitly call for a minimum FAR, and instead only includes illustrations of bulk, mass and height. The Town Center zoning district can accomplish the density and development pattems described in this Plan, but the comment is correct that minimum FAR was only called out for the West Town Center District, and therefore Council may want to limit that provision to only that district. ZONE DISTRICTS AND OFFICIAL ZONING MAP Chapter 7,20 Development Bonus Section 7.20.100 — (Pages 101 -105) Comment: Staff continues to point out that the PUD process has failed the Town, and they are therefore proposing to remove the PUD process by reducing its viability in lieu of a 'development bonus process' which allows an absolute maximum bonus of 35% over all underlying zone district requirements (height, density, and FAR). While this sounds great in theory, as penned and in combination with the FAR provisions this will have the consequence in many instances of nullifying the goals of both the East and West Town Center District Plans. This is a confusing and complex system that does not incentivize investment or promote "accuracy in investment expectations ", takes a guidance plan (the Housing Plan) and makes it a regulatory requirement, and then discounts private investment in Town desired public improvements. STAFF RESPONSE 1. The issues related to the current PUD process were identified by Council with Clarion Associates during the Diagnosis phases of the code re -write process. 2. The new Town Center Zone District standards along with the Bonus Density Requirements create predicable development standards that meet or exceed most of the development density in the Town Core that has been approved under the current PUD process (see Design Tests Sheets Exhibit XXX). 3. The Design Standards are deferential to area- specific design standards adopted by the Town Council, including the East and West Town Center Plans (Section 7.28.090(b)), and require any property located in those Districts to abide by those standards. General Review Criteria Sec 7.20.100(d)(1)(iii). Comment: The first criteria last sentence is not comprehendible. STAFF RESPONSE. Section 7.20. 1 00(d)(1)(iii) requires public benefits to promote Town goals and policies. PZC added `projects listed in the approved CIP budget. Comment: I really don't understand this section. It is written in a way that does not allow for creativity or the changing goals of the Town. For instance, if additional residential floor area is added, 50% has to be for deed restricted housing and an additional 25% must be occupied full -time. I think the Town really needs to understand the implications of this section. I am not sure it is really needed given the ability to apply for a PUD. You might consider deleting this section entirely. ,STAFF RESPONSE: Pursuant to the Bonus Development Requirement one of the following public benefits would be required in lieu of the additional residential density granted by Council: a) at least 50% of the bonus units deed restricted to full -time residents, OR b) 25% of the bonus units deed restricted to full -time residents and price controlled, OR c) payment -in -lieu, OR d) any combination of a, b and c. Height Bonus Section 7.20.100(d)(2) — (Page 104) Comment: How does this promote investment and am I still permitted an architectural projection or will I now have to provide for public benefits above and beyond the revitalization of an aged structure, for instance, in the Town Center Districts? STAFF RESPONSE. Architectural projections (i.e, chimney, cupola) may project beyond the plane of a required height limitation. Architectural projections do not increase FAR, Density or Building Height, and are therefore not subject to the Bonus Development Requirements. Staff recommends limiting the size of architectural projects to 15 feet above the permitted height plane, with additional height allowed with PZC approval. Increased FAR for Public Benefits Section 7.20.100(d)(3) — Page 104 Page -8 -of 19 Comment: The staff example of Chapel Square PUD under the proposed ULC permitted an additional 6 residential units, 5 of which have to be deed restricted. There is no real "bonus" in reality and certainly no incentive to build according to the District Redevelopment Plans unless staff can prove otherwise with relevant scenarios and examples that are provided to the public through this process that also temper the desired physical shape of a redeveloped Town Core against the pro- formas that went into both East and West Town Center Planning efforts. Again, if the desire of the Town is to repeal these adopted policy plans it should do so first through a public process and before proposing a sweeping regulatory change. As penned, this does nothing to promote a public/private partnership like the one that successfully built the Westin Riverfront project. Why is the developer cost Discounted 25% when in truth costs should be escalated for inflation in a multi -year phased project like the several envisioned in the Town District Redevelopment Plans? Again, there is no development incentive or bonus really being provided and you are reducing the value of even existing zoning rights by discouraging any investment in non - conforming structures. Certain staff criticism leveled against the Westin Riverfront PUD process among others during my tenure on the ZAC is unfounded. Many PUD projects made the best of existing vesting and an imperfect set of design tools, but the inference that hours were spent negotiating over things like sidewalks and landscape areas as a result of a wholly dysfunctional land use code and PUD process is absurd. Good projects come from good partnerships and clear design goals. apply for a PUD. You might consider deleting this section entirely. STAFF RESPONSE: The Chapel Square PUD includes 69 residential units (14 additional units above the 55 by- right units attached to the property). Eight of the additional 14 units are deed - restricted units for local residents and price capped. Under the Bonus Density Requirements the 14 additional units would have required either 7 units' deed restricted for local residents, or 5 units' deed restricted for local residents and price capped. NO COMMENTS USE REGULATIONS Chapter 7.24 DEVELOPMENT STANDARDS Chapter 7.28 Development 'Standards Section 7.28.110(b) — (Pagel 26) Comment: In combination with the nonconformities definition, the applicability of new standards to all existing development language is unclear. Is it addition or removal of 50% of uses and structure? Development is poorly defined- for instance, if a facade remodel of 100% of my existing property requires that the entire development is in compliance with all the development standards, I will not remodel or invest or provide an adaptive reuse of existing buildings, especially in the Town Core. Is that the desired effect of this process? STAFF RESPONSE. The non - conforming provisions of the existing Code have not changed with the new Code. Specifically, non conforming structures may be remodeled or even added on to provided that the remodel or addition does not add to the non - conformity. Should 50% of a non - conforming structure or 54% of the non- conforming portion of the structure be destroyed, it must be rebuilt in conformance with the Code. A facade remodel (such as The Seasons), is considered maintenance and would therefore not be affected by these provision. Many of the existing structures in Town Core are non - conforming under the current Code because they do have sufficient onsite parking, and therefore could not be expanded. Staff agrees however, that the development standards will create some additional non - compliance and the Council should understand the implications that may result if an existing non - conforming structure wanted to expand. Maximum Parking Spaces Allowed Section 7.28.020(d) — (Page 129) Comment: I think this section is overly restrictive especially when considering smaller projects. You should consider making this provision applicable to parking lots or uses requiring over 40 parking spaces. STAFF RESPONSE: This section limits the amount of off- street parking spaces to not more than 125% of the minimum requirements, unless approved by the Director and mitigated through additional landscaping. The provision was added by Clarion to encourage support the recommendations of the Comp Plan and Investment Plans by encourage more density on commercial properties, reducing asphalt, and promoting a more pedestrian oriented town center. Staff does not recommend changing this provision. Page -9 -of 19 Public Parking District Section 7.28.020(i) — (Page 1331134) Comment: A public parking district has already been established in Town Center, but may need to be reaffirmed by this provision at the same time of adoption. Also, there is no language as to the delivery of the parking by the GID or other form of district by the Town (at least some form of commitment other than receiving funds should be noted or you are shorting private and public parking for a project). This requires some attention to get right to encourage private investment in long desired central public parking structures_ STAFF RESPONSE. A parking district was approved by the Town Counci'i for the West Town Center District in 2005 (Council Res 2005 -32). Staff agrees that the Town will need to re- evaluate the district standards and requirements following the adoption of a new Code. Access Drive requirements Applicability Section 7.28.030(b) — (Page 139) Comment: The provisions in this section are applicable to all developments. For Development on lots platted at the date of the adoption requirements listed in this section MAY be waived by the Director. Furthermore, additional mitigation of impacts due to development may be required by the Director. This statement aids in making the remaining steep lots possible to develop, but puts all the authority with the Director. STAFF RESPONSE: 1. The provisions in this section are applicable to all development. 2. Staff is recommending that the Applicability Requirements be changed as shown below and to remove the ability of the Director to waive the requirements.. 3. For development on lots platted prior to the date of adoption of the new Code, the requirements Fisted in this section may be waived by the Director. Additional mitigation of the impacts due to development may be required by the Director, Emergency Access Section 7.28.030(d)(1)(ii) — (Page 139) Comment: Majority of residences do not conform, why change to 45' radius -very large? STAFF RESPONSE: This section was prepared by Clarion and previously edited by staff. The 45' radius requirement has been removed along with some of the grade requirements. Access Drive requirements Driveways in Mountainous Terrain Section 7.28.030(d)(2) — (Page 140) Comment: Driveways on lots with slopes greater than 30 %. Under NO circumstance shall any driveway cross a slope greater than 50% The lot that I am working has about 28' of the entire street frontage at 50 %. The other Street frontage is over 50 %. This frontage is at the highest part of the lot and not the most practical location for a drive. I will be relying on the Director to help. STAFF RESPONSE: Significant changes are being recommended to this section. In summary, the numerical standards have been removed and the PZC will be the reviewing body for the layout of driveways on lots over 30 %. (1) Driveways in Mountainous Terrain (i) Applicability. All driveway access and parking lots on lots containing slopes in excess of thirty percent (30 %). (ii) Driveways on lots with slopes greater than thirty percent (30 %) shall be designed to ensure safe, convenient, and adequate access to individual buildings and shall confonn to the following standards: (A) Driveways shall to the maximum extent feasible follow natural contour lines. (B) Driveway shall minimize disturbance or the cutting of slopes. Shared driveways are encouraged when the design will minimize cut, fill and disturbance of slopes. Page -10 - of 19 iR - R (D) Driveways reager than fi4 (50) feet in length, ry measured —a1eRg uze eeateFlifie, shall not cross slopes over betwoefl thirty (30) unless specifically authorized by the Planning and Zoning Commission ,-=,.w n hWgJi et! alter finding that all of the following conditions and constraints are applicable: (1) No alternate location for access is available; (2) No individual segment or- inerement of the dfiveway that will emss slopes n afid o per-eent f'-et in length; (3) No significant adverse visual, environmental, or safety impacts will result from the driveway crossing, either as originally proposed or as a result of incorporation of remedial improvements provided by the developer to mitigate such impacts. (iii) Proposed development on lots with mountainous terrain may require the preliminary layout and design of the individual driveways at the preliminary plan stage, and the precise design of the driveway at the final plan stage, to assure that access can be provided to each dwelling unit served by the driveway in compliance with the standards of this Division. (iv) Driveways may be considered public improvements and thus collateralized, constructed, and subject to the terms and conditions of the other public improvements in the development. Driveways Requiring Significant Cuts and/or Fills Discouraged Section 7.28.030(d)(3) — (Page 141) Comment: Significant cut and fill is defined by more than. Limits on change to Natural Grade. On steep lot design it is beneficial to use the home as retaining for the uphill side to create proper drainage and /or driveway grades. The drive and grade has the possibility of the Director sign -off. STAFF RESPONSE: There is not a specific standard so no changes have been made except to remove the requirement that driveways may be considered public improvements. Maximum Number of Entryways Section 7.28.030(d)(6) — (Page 142) Comment: Generally, no more than one entryway shall be allowed for any parcel of property where the frontage is less than one - hundred (100) feet., In residential areas like Wildridge, having two entryways for a duplex structure may result in a better layout and more privacy afforded to dwellings. This is especially true in the case of a corner lot. I think this provision should be changed to allow for two access points given some specific criteria or based on the judgment of the Town Engineer STAFF RESPONSE:. Second driveways are permitted with approval by the Town Engineer if lot frontage exceeds 100 ft and the loft is zoned for more than one unit. If the frontage is less than 1010 ft there will not be enough separation between driveways, particularly roads with grade changes and numerous curves. Staff recommends no change. Page - 11 -of 19 Access Table- 20' perpendicular to Right of Way not practical. Table 7.28 -4 — (Page 143) Comment: A large percent of existing properties will not conform. Creates unbuildable properties when combined with 6' maximum change in grade. STAFF RESPONSE: Table 7.28 -4 Residential Access Standards. This section was copied from the existing design guidelines. Several changes to Table 7.28 -4 recommended by Staff include: change the point of measurement of the first 20 feet along the centerline of ,access drive from the edge of right -of- way to edge of asphalt or the back of curb and gutter from which access is obtained, and change the note that states access must be perpendicular through easements adjacent to right -of -way to they must intersect 90 degrees for the first 20 feet measured from the edge of asphalt from which access is obtained and the driveway must be between 45 degrees and 90 degrees through the remaining right -of -way and snow storage easement. Table 7.28 -4. Residential Access Requirements Standard Single Family Duplex Multi- family Driveway curb cut (drive aisle width in Min. 10 Min. 10 Min. 20 feet, not including Max. 14 Max. 14 [1] Max. 24 radii Maximum number 1 1 1 [ 1 (8 dwelling units of curb cuts or less) 1 Driveway grades 4% max. for first 20 4% max. for first 20 4% max. for first 20 ft. adjacent and ft. adjacent and ft. adjacent and perpendicular to perpendicular to perpendicular to public ROW edge of pub4G R9W edge of pWAc -RO1Ar edge of asphalt of street asphalt of street asphalt or back of obtaining access obtaining access curb of street from or back of odr-b from or back of sur-b obtaining access er- adjasent4e Gr--�n#4e from or adjaceicit to 10% max. ; 10% max. W ; 8% max. All access must be intersect 90 degrees for the first 20 feet from the street asphalt edge and between 45 degrees and 90 degrees through the remaining right -of -way and snow storage easements perpendieulaF Notes: r l j Maximum May he inrre oc nrl o+ + e efiel ht/Y[ eri FaRgiReer. [1] Maximum number of curb cuts may be increased at the discretion of the Town Engineer. (7.28.030 (d)(6) [2] Ten foot maximum radius on access flares Landscape Units Section 7.28.050(e) — (Page 152) Comment: 1. What community uses this table 2. Does it take into account our dry climate 3. What current buildings satisfy these requirements? STAFF RESPONSE: a. Clarion prepared the Table and has used it frequently with other jurisdictions that it has worked with. b. The plant list comes from the Design Guidelines and edited by Public Works to comply with the Town's drought - tolerate plant list. PZC replaced points for sod with xeriscape. c. The current Code only requires that a percentage of a lot be landscaped without specific planting requirements. The result is an ad hoc negotiation between the PZC and the applicant during the review process. d. The material quantities for single family development are based on a staff review of recently approved landscape plans for single- family homes. Page -12 -of 19 Retaining Walls Section 7.28.070 — (Page 1621163) Comment: Why only two tiers? STAFF RESPONSE: Clarion prepared this section based on the existing Design Guidelines. Staff is proposing two modifications based on the July 27, 2010 hearing. The first is removing the restriction on two tiers. The second is to allow for retaining walls with a height greater than 7 feet if approved by PZC. The previously proposed standard prohibited retaining walls greater than 7 feet in height. Comment: Retaining walls may be utilized ONLY where finished grades cannot meet the recommended Standards do the Development Code Due to naturally occurring topo. and other site development constraints. Again I have issue with the term of only. I may be beneficial to create an architectural feature such as an on grade patio or yard area that could be accomplished by a retaining wall rather than re- grading to a 2:1 slope. The site disturbance area would be limited by the use of retaining walls. STAFF RESPONSE: The intent on the word "only " in this standard is to limit excessive grading of lots and to ensure that the site plan follows the existing topography and does not 'fight' the topography. There is plenty of flexibility in the phrase "due to naturally occurring topography and other site development constraints" to allow for grading for patios and other auxiliary improvements. Staff does not recommend a change to this section. Plastic, vinyl siding or cementious board — not permitted materials Section 7.28.090(c)(3)(iii)(e) — (Page 167) Comment: Why can't you have cementious board? This material is used throughout the valley and including Vail especially in areas where siding is proposed above 35'. STAFF RESPONSE. This prohibited material was added by Clarion to promote a higher quality of building materials. Staff agrees that cementious board does have a fire - rating that makes it a desirable building material and can be found on most commercial buildings in Avon. Staff recommends that cementious board be permitted with the approval of the PZC along with metal siding, concrete and concrete block- Roof Overhangs Section 7.28.090(c)(4)(ii) — (Page 168) Comment: on dormers to be less than 1.5' for the main roof forms.l. Smaller elements keep in proportion STAFF RESPONSE: this is a specific standard from the Design Guidelines. Staff recommends clarifying that the requirement is for primary roofs only. In addition, this standard can be modified through the AEC process. Building Separation Section 7.28.090 (d)(2) — (Page 168) Section 7.28.090(b) — (Page 166) Comment: The minimum separation between residential buildings, including accessory buildings, is fifteen (15) feet. For purposes of measurement in this subsection, projections such as decks and bay windows shall not be counted. Should roof overhangs also be excluded from this measurement? STAFF RESPONSE: Roof overhangs can be excluded from the building separation measurement. This is a design standard that can be modified by the AEC process. Generally Applicable Residential Design Standards Roofs. Section 7.28.090(d)(3) — (Page 168) Comment: All residential buildings shall have pitched roof with a rise of not less than 4:12. This first sentence is not needed. The third and fourth sentence say the roof can be less than 4:12. All buildings shall incorporate roofline modulation. The max. length of ANY continuous roofline shall be 30' far residential buildings. My personal opinion is that this length should be a proportion of the building size and reviewed on each project. A building with a 25' great room and 3' overhangs on either side, would not meet this requirement. I agree with designs with interesting roof lines, especially on hillside lots where they are viewed from a distance above or below. Would adding a chimney on this length break the ridgeline? STAFF RESPONSE: See following response. 30' Continuous Roof Line Section 7.28.090(d)(3)(ii) — (Page 169) Comment: Too Small Make 45'. Page -13 -of 19 STAFF RESPONSE: The Design Guidelines require "no long monotonous rooflines °. The PZC asked staff to include a specific length because the guidelines do not provide sufficient guidance. Identifying a specific length (whether its 30ft or 45 ft) gives the applicant and PZC some context by which they can evaluate the AEC proposal, Council should discuss the proposed Design Standards with the PZC and the merits (and consequences) of more specificity in the new Code. Wildridge Single Family and Duplex Section 7.28.090(e) — (Page 169) Comment: 1. Approximately 15% left to full build out 2. Why make significant changes to penalize undeveloped property owners. 3 Incentivize owners to make changes desired. STAFF RESPONSE: Based on comments at the July 27 meeting, staff has recommended several changes to the driveway access requirements, retaining walls, and development on steep slope that address many of the concerns with building on the remaining platting lots on steep slopes. Mixed Use Buildings in Town Center Section 7.28.0900)(3)(ii) — (Page 170) Comment: This design standard seems overly restrictive and does not allow for typical ground level uses as they exist today or would with any new project that requires office, lobby or real estate windows to market and sell the product being created- like the Westin. Combined with the nonconformities section, an extensive remodel of a space in Town Center that may, for instance, serve as office or medical space may not be incentivized through this design review criteria. Is that really the desired result? STAFF RESPONSE: The design standards were prepared by Clarion and based on the West Town Center Investment Plan and Avon Comprehensive Plan (See Exhibit B). Staff recommends restricting ground floor to retail and lobbies or registration offices for accommodation uses. Council did not want real estate or other offices on ground floor. Council should consider allowing other uses such as live /work, offices, residential, etc. as special review uses in Town Center so that there is some flexibility. Building Design in Wildridge. Section 7.28.090(e) — (Page 169 -171) Comment: It seems a little late to adopt a new building height standard on the last 10% of the remaining lots in Wildridge. The likely result of this regulation will be to make every existing home in Wildridge nonconforming. The new standards are excessive and will essentially result in the taking of some development rights on the property. don't think these provisions were adequately studied in order to determine their impact on properties in Wildridge. Case studies should be done to show the potential impact of the regulations before they are adopted. STAFF RESPONSE: Staff agrees that design testing provides a unique and informative understanding of the potential impacts resulting from the proposed Design Standards. Staff will come prepared to meeting with all of the design tests that we conducted in Wildridge. Council will need to determine a) whether the tests sufficiently represent the "typical" conditions In Wildridge, b) whether the design standards provide adequate guidance for property owners and the PZC or c) whether the standards are over - reaching. Single -Fam and Duplex Design Standards for Wildridge Building Weight Section 7.28.090(e)(3) — (Page 171) Comment: The max. overall height of a building's tallest elevation shall not exceed 45' measured from the lowest part of the building to the highest part. This measurement includes retaining walls that are part of the base foundation of the structure. Due to the steepness of Lot 8 Western Sage, this is proving to be a difficult and controlling factor since the garage needs to be so high to have drive access from the upper street and the home needs to be responsive to the site. The ht. of the lowest finished floor of the structure, EXCLUDING BASEMENTS, shall not be more than 3' above the existing finished grade to ensure that buildings follow slopes. believe that this should read Including and not excluding. If the lowest level is classified as a walk -out Basement as defined by 2009 IRC, then the main level would be the lowest (story above grade) finished floor and be limited to within T of the existing grade. This does not make any sense unless you assume that the Basement would be dug out to achieve the walk -out. Again, Lot 8 Western Sage and other homes on any sloping site would have issues with this item. STAFF RESPONSE: If the Council agrees that existing lots with slopes greater than 30% should be exempted from certain driveway, slope and grading standards, then these two Design Standards are probably not necessary, since they were intended to address development on slopes greater than 30 %. Council should Page - 14 - of 19 discuss the purpose of these standards and whether they continue to be relevant in light of proposed charges to other sections of the Code. The Presence of the Garage Shall be Minimized Along the Street Section 7.28.090(e)(3)(i) — (Page 171) Comment: Again, I think the Town Council needs to study this closely. I was unaware that garage doors were an aesthetic issue in Wildridge. This again, will make just about every home in Wildridge nonconforming. Garage doors have to setback 10' into the facade of a home? That seems very odd. Comment: The face of the garage door shall be decorative; a flat, blank door is not permitted. What constitutes a flat blank door? STAFF RESPONSE- 1 , This standard applies to all single family and townhomes projects not just the Wildridge subdivision. 2. The standard was written by Clarion. Stepping the garage back from the front facade minimizes its importance on the front facade of a home. This is a design standard which can be modified through the AEC process. 3. A flat, blank garage door is the opposite of a paneled door or a door with decorative relief or windows. Comment: On the street facing facade, the width of the garages shall not occupy more than 30% of the facade. Because of the desire and effort made to make the home relate to the grade, access point, and height limitation, the garage may be more than the 30% of the facade. Does the Roof mass count as street facing facade? STAFF RESPONSE 1. This was a design standard proposed by Clarion that affects all residential properties. 2. The facade is only the wall elevations not the roof mass. 3. This is a design standard which can be modified by the AEC process Town hom es-Si ngle Width Parking Configurations For 50% of Units Section 7.28.090(g)(2) — (Page 173) Comment: Creates less desirable properties STAFF REPONSE: This section was deleted during PZC review. The Code will be corrected. Mixed -Use Buildings in Town Center Mixed Section 7.28.090(j)(3)(ii) — (Page 179) Comment: Requiring all first floor areas of a building to be retail or restaurant ignores the Fact that not all areas on the first floor make sense as retail. Residential buildings and hotels for instance require lobby areas, offices, check -in areas, loading and delivery facilities, etc. This provision needs to include some qualifiers. What about a bank? STAFF RESPONSE: 1. The standard was added by Clarion to implement the West Town Center Investment Flan (See Exhibit XXX) 2. Sec. 7.28.O90(j)(3)(ii)(B) was added to limit that requirement to Facades adjacent to or most visible from primary street frontages or major pedestrian walkways. A bank is a retail use if it provides typical retail banking services to the general public (as opposed to private offices). 3. Staff agrees that hotel lobbies should be added as permitted ground floor uses. Mixed Use 16' Ceiling Height Section 7.28.090(j)(3)(ii) — (Page 179) Comment: Is this excessive? STAFF RESPONSE 1. This design standard written by Clarion; and is consistent with the recommendations from the West Town Center Investment Plan (CITATION). 2. This is a design standard, which can be modified by the AEC process. Common Spaces Section 7.28.0900)(3)(iii) — (Page 179) Comment: Not all sites are appropriate for community spaces. How does one incorporate a community space into a 3,000 sq. ft. retail building? Page -15 -of 19 STAFF RESPONSE: This design standard was written by Clarion to promote pedestrian activity and spaces. Common Space includes sidewalks and sidewalk connectors to adjacent properties which would probably very easy to accommodated on a small commercial property. There is no size or acreage requirement. The provision can be broadly interpreted and AEC is available. Town Center Ground Level Design Section 7.28.090 — (Page 187) Comment: Pedestrian level 75% glass? STAFF RESPONSE: This standard was written by Clarion pursuant to the West Town Center investment Plan policies (Exhibit B). This is a design standard which can be modified by the AEC process. Upper Level Commercial Windows Section 7.28.0900)(4)(XII)(d) — (Page 187) Comment: 10 sq ft. maximum individual pane size and 12 x 5 window max. Seems very small. STAFF RESPONSE: Clarion wrote this standard that supports the West Town Center Plan policies which recommends articulated building facades. This is a Design Standard which can be modified by the AEC process. Natural Resource Protection Steep Slopes 7.28.100 — (Page 189) Comment: For Development on lots platted at the date of the adoption requirements listed in this section may be waived by the Director. Furthermore, additional mitigation of impacts due to development may be required by the Director. Lot 8 will require a great number of these requirements to be waved. STAFF RESPONSE: Staff is recommending several changes based on direction received at the July 27, 2010 hearing. The most substantial change is to the Applicability Section which will revised from applying to all development, to only new subdivisions, PUDs, zoning amendments, commercial and industrial development. By applying this standard only to new subdivisions, or PUD and zoning amendment projects, no new lots will be created with slopes over 30 %. Consequently, there is no need to apply the standard to residential development or to create an exemption for pre - existing lots. The goal of the standard is to addresses site design, slope stability and aesthetics and is based on the existing Design Guidelines that discourage development on slopes in excess of 30%. Clarion originally proposed no development on slopes in excess of 30% (typical along Front Range). Staff previously revised that standard to no development on slopes in excess of 40% (more common in CO resort communities). Also staff proposed verbiage that allowed the Town Engineer to waive /modify standards on pre - existing lots to make the standard more workable with the existing lots. Applicability The standards in this section shall apply to Subdivision, PUD, Zoning Amendment, Commercial and Industrial development applications when any portion of the development let- contains naturally - occurring slopes of thirty percent (30 %) or greater: —dew PeFGGRt %) or great6F IGS ryes that-tkl flgfW4)eRefit#erR the appliratino a +hip „4 0 appliGability of this see4ion-. (a) For Development on lots platted at the date of adoption requirements listed in this section may be waived by the Director. Furthermore, additional mitigation of the impacts due to development may be required by the Director. 40% Slope Section 7.28.100(a)(3) — (Page 1891190) Comment: Why minimum lot size? Six foot maximum lowering or raising of grade - makes lots unbuildable. Where is this coming from Precedent set in Wildridge that development can occur on steep slopes a, to change would be a taking. STAFF RESPONSE: See above for grading requirements. Clarion proposed a standard limiting lot size on lots with steep slopes. The proposed standard is for new lots that contain natural slope areas greater than 30% that comprise at least 2,500 sf of the lot. Under these conditions, the lot must have a minimum lot size is Iacre (43,560sf). This standard ensures there is sufficient room to build on areas that are less than 30% slope and that lots with negligible steep slopes do not have to comply with the standard. This standard affects new lots and re- Page -16 -of 19 platting lots only. New subdivisions can avoid the minimum lot size requirement by not including areas in excess of 30% on lots. Comment: Riparian is not a defined term in the code — you should use the informed definition of the 1996 ERWP or just call it what it is — a stream setback. You could specify the use of organic or natural chemical treatments, hand or mechanical treatment only for noxious weeds in the riparian zone. Also you do not specifically permit river access by the section or provide for public seating, for instance, at Bob the bridge in the section. If the goal is to protect riparian areas, you should make this a minimum and reword so it could be increased based on site specific survey of riparian zone- which are not always attributable to the surveyed ANWt_. STAFF RESPONSE: Staff will add a definition for riparian areas and a requirement that a site specific riparian delineation study may be required for subdivision, PUD, zoning amendment, commercial and industrial development along drainages. Slopes Over 30% Appeal To Director Section 7.28.100(a)(2) — (Page 189) STAFF RESPONSE: Director may waive /modify the requirements. Scenic Views Section 7.28.100(f) — (Page 218) Comment: There is only one platted view corridor from a public right of way and it is in the Westin PUD to Beaver Creek. Please explain the intent of this reserved section. If new view corridors are proposed, either public or private, they should be done through amendment of the existing suite of Comprehensive Plans first before regulating them here. STAFF RESPONSE: This section has been reserved since the original draft of the code by Clarion. Some members of the ZAC committee felt it was necessary to address views with the Development Code due to the fact that some of the Town's planning documents identify view corridors that should be preserved_ , For example, the East Town Center District Plan includes six (6) view sheds: Wildridge, Daybreak Ridge, Gypsum Bluff, Whiskey Creek, South Game Creek Bowl, and Swift Gulch. (Pages 48 -50) The Comprehensive Plan specifies up to six (6) "important view corridors" on the Community Framework Plan (Page 35). Although no further direction was provided by the Council to preserve these view corridors, ZAC wanted the new Code to at least acknowledge that such corridors could be created at some future point, and therefore requested the section be reserved. Alternative Energy Standards Section 7.28.100(g) -- (Page 218) Comment: No definition provided for Ground Mounted Solar Collection Systems. Does not differentiate between passive or active solar. You could promote both and not require use of roof space first and potentially create a NIMBY issue. STAFF RESPONSE: A definition for both Ground Mounted Solar Collection System and Roof- mounted Solar Collection system will be added to the Code. PZC recommended only permitting ground mounted collection systems when a roof mounted system has already been maximized on a property's primary structure. See Section 7.28.100(g)(2)(i)(c) (Page 219). Ground Mounted Solar Collection System. A freestanding, ground - mounted solar collection system, the primary purpose of which is to provide for the collection, inversion, storage, and distribution of solar energy for electricity generation, space heating, space cooling, or water heating. Roof Mounted Solar Collection System. A roof mounted solar collection system, the primary purpose of which is to provide for the collection, inversion, storage, and distribution of solar energy for electricity generation, space heating, space cooling, or water heating. ENGINEERING AND IMPROVEMENT STANDARDS Chapter 7.32 Comment: A number of design standards that create nonconformities of many residential lots based on a simple amended plat or technical correction plat, for instance dividing a platted lot as a minor subdivision in Wildridge or Page -17 -of 19 creating an additional egress requirement through a simple remodel in Eaglebend that requires a replat of a party wall subdivision. Is this the desired outcome? STAFF RESPONSE: The intent of the building envelope requirements and lot size requirements is not to apply to duplex subdivisions and condominium subdivisions of existing lots. Language will be proposed that will clarify that building envelope and minimum lot sections of the code do not apply to the subdivision of existing buildings Building Envelopes 7.32.020(e)(7) — (Page 227) Comment: 80'x 80' minimum building envelope? 1. Hurd Lane Lot sizes? Some are narrower than this. 2. Discourages patio home /cluster, high density development. P &Z actions do not promote this change. Response: Comment: How about an area instead of a square, which doesn't fit every residential lot condition, especially in Wildridge or Eaglebend. Comment: This requirement is redundant and in conflict with the entire access design standard section of the Code. If it is a unified code, why have a separate Engineering standard to accomplish the same as the Design Standards? STAFF RESPONSE: Staff is proposing that the standard be modified to a building envelope not less than 5,000 square feet and with a minimum with of 25 feet_ This modification should meet the minimum requirements for a buildable site. Stormwater Drainage 7.32.050 — (Page 234) Comment: Does not address pre and post development hydrology and flow regime of river, or distributed stormwater management (green infrastructure strategies) but only pollutant treatment. The maintenance provision is weak and should be tied to a CO or other enforceable mechanism for annual review on larger projects. Stormwater or non -point source runoff is one of the biggest threats to our water resources. This section could be enhanced considerably, STAFF RESPONSE: Staff does not agree with this statement. Section 7.32.050 (b)(3)(ii) specifically addresses peak flow reduction. Maintenance of drainage infrastructure is addressed in 7.32.050 (b)(S). Failure to maintain drainage infrastructure is a code violation and the town reserves the right to maintain private drainage infrastructure, particularly when there is the potential for off -site property damage from the lack of maintenance. Park Land Dedication Section 7.32.090 -- ('Pages 243 -247) Comment: The term 'residents' is not defined. There is no sliding scale based on density and use (no acres per household scale - which is commonplace for these types of dedications). There is no flexibility afforded from district redevelopment plans if park space is not contemplated on properties? No cash in lieu formula is specified- again, entirely negotiable and with no predictability. SEE TOWN ATTORNEY MEMO Page -18 - of 19 Exhibit A Sally Vecchio From: Larry Brooks Sent: Wednesday, July 28, 2010 10:25 AM To: Eric Heil Email; Sally Vecchio Subject: FW: Unified Code I can't tell If you go this, so here it is. From: Dominic Mauriello [mailto:dominic @mpgvail.com] Sent: Wednesday, July 28, 2010 10:09 AM To: Town Council Members Subject: Unified Code Hello Council members: I had a couple of things I wanted to say last night that I did not. I think I got a little exhausted there at the end. Anyway, I wanted to let you know I am a big supporter of the code being updated and the requirements made more clear. I was a little worried during the discussion on the emergency ordinance as the discussion on that gave the impression that the Town Council was going to rush to adopt the new code. After you got into the the review of the code I was relieved to hear that Town Council members had concerns and that you would be deliberate in your review. While updating the code is a great project it needs a lot of detailed work to make it work properly and address the real issues. I appreciate you taking the time to get it right. I would recommend that you spend some time looking at the AEC portion of the code and understand fully what can be varied and what cannot and what that process looks like. As an example, early in the meeting I heard that building height could be adjusted and then later it was stated that height could not be adjusted. The other area that I would recommend looking closely at is the appeals process and the timeframe for hearing and deciding appeals. In my experience, you might get a verbal decision that you disagree with from staff, but then getting that in a "final" written form could take weeks. With that and then the process to get before the P &Z could take weeks. I would not rely on that as much of a relief value. I am very concerned also with the FAR requirements in general but especially the minimum FAR. There are many properties that are zoned Town Center that are likely to never being economically viable at a 1.6 FAR so in the interim (next 30 years) the code is making it impossible to do anything with many properties. The unintended consequence is that you would be guaranteeing that those properties could never improve and remain as they are today. An owner would be prevented from even making small additions due to the minimum FAR. There is theory about how the Town could look in the future and then there is reality. I don't think we can ignore the economic realities in Avon. I think you need to examine each and every property subject to this provision to determine if it is a reasonable provision. Finally, I hope you are ok with me sharing my comments directly with you since this is a legislative process. There are obvious personality conflicts between me and the Director of Community Development that I don't believe can be resolved, so I would prefer work with the Town Council directly. It was due to this conflict that I found it necessary to remove myself from the ZAC. I appreciate the opportunity to provide input. Thanks, Dominic F. Mauriello, AICP Mauriello Planning Group, LLC PO Box 1127 5601A Wildridge Road Avon, Colorado 81620 970- 376 -3318 cell www.mpgvaii.com Avon Development Code July 11, 2010 David Dantas Notes for Discussion We should not be writing codes that create non conforming uses of the majority of the existing development in the residential areas. By doing this additional expenses will be created both by Town and the property owners. Town staff will have a much larger job evaluating remodels, redevelopment and new development. 10 acre minimum PUD requirement outside Town Core. 1. Wow can large changes be made that have not been contemplated in the code? 2. Why any minimum? 3. Not a direction by Council Page 66 TC Direction given in March /April 2009 — Clarion — PUD /Zone District /Public Benefits Memo Staff Wrote Regs based on above. Minimum acreage limits the use of the PUD to projects to major and unique project that have a measureable impact on the community or located in esp important areas such as Town Center.. Projects that don't meet criteria can rezone to standing zone district. Needs compensation public benefits to offset impact of development and in recognition of the design flexibility. Small projects can't provide (unless in TC Leave single family detached in as special review use Page 108, Table 7.24 -1 P139 3iii Majority of residences do not conform, why change to 45' radius -very large? Clarion Wrote it. Access for emergency vehicles. Staff Edited it. To require 150 ft. Already been changed to eliminate radius and replace with requirement that District approve case by case. Access Table- 20' perpendicular to Right of Way not practical. A large percent of existing properties will not conform. Creates unbuildable properties when combined with b' maximum change in grade Page 143 Table 7.28 -4 Residential Access Standards. Currently in the Design Guidelines "Applicability" Waivers Permitted for Pre - platted Lots - pg 39 152 -153 Landscape units 1. What community uses this table 2. Does it take into account our dry climate 3. What current buildings satisfy these requirements Plant List comes from Design Guidelines edited by PW. Definitely drought tolerates. PZC replaced points for sod with xeriscape. Code currently only requires percentage of lot landscaped. No standards. PZC adhoc review. Clarion came up with the Unit Count for plantings New Code — includes standards and quantities. Quantities based on design testing recent SF development in WR —based quantities recently approved by the PZC. 163 Retaining Walls 1. Why only two tiers? Design Guidelines — suggest terracing walls with landscaping. Rarely get that. Instead. Long tall walls, no benching, no landscaping. New Standards Proposed by Clarion, including limiting to 2 tiers to reduce site disturbance and massing of tall walls. PZC supported. 167 40% slope conflicting zoning versus new code 1. Precedent set in Wildridge that development can occur on steep slopes a. to change would be a taking Purpose of limiting development on steep slope — slope stability and aesthetics. Clarion originally proposed no development on slopes in excess of 30% (typical along front range). Staff revised to no development on slopes in excess of 40% (more common in CO resort communities). Also added the Applicability Section -Town Engineer can waive /modify standards on Pre - existing Lots. It's not just WR — it would also affect future lots in other subdivisions. 168 Roof overhangs on dormers to be less than 1.5' for the main roof forms 1. Smaller element keep in proportion. Comes from the Design Guidelines. Should be clarified that its primary roofs only. * ** Never had compliance problems AEC available for alternative designs. 169 30' continuous roof line too small make 45' Design Guidelines s no long monotonous rooflines. New standard (30 ft limit) comes from PZC — who wanted to set a numerical limit, rather than vague design standard. 169 Wildridge Single Family and Duplex 1. Approximately 15% left to full build out 2. Why make significant changes to penalize undeveloped property owners 3. Incentivize owners to make changes desired There are 49 underdeveloped lots in WR and 94 SF units on duplex lots (under built). Plus likely redevelopment and additions on lots with homes 20 years and above. The proposed standards get guidance from the Design Guidelines and the WR Covenants . which call for development that is sensitive to the ridgelines and slopes in WR. Clarion wrote the standards, which were more about architecture style and design. Staff modified extensively after PZC requested that they be changed to address the slope and massing issues instead. TC concurred during the April /May work sessions, including specific request from TC to address the size /massing with "coast to coast" duplex. Overall maximum height of 45' 1. What buildings are over this height today? a. howwiil they be dealt with in case of redevelopment or addition /remodel Pg 171. Any building in WR that exceeds the 45 ft max height measurement (Design standards page...), would be non - conforming structure (page 13 -14). May continue as legal non - conform. Can't enlarged or alter bldge to increase non - conformity. If more the 50% of structures is destroyed, it has to be re -built in conformity with new Code. Town homes-Single width parking configurations for 50% of units 1. Creates less desirable properties Pg 173 Should have been deleted, during PZC review * ** Front Load Garages less than 35% of front facade 1. Is this linear or total front square footage a. recessed 4' extra cost? not needed For SF and Duplex Homes. Page 177 Written by Clarion. Recessing the garage minimized its impact and importance on the streetside elevation. AEC is available for better design alternatives. Mixed use 16' ceiling height, Is this excessive? Page 179. Written by Clarion. Required for ground floor retail spaces in TC. 1.5' over hang - dormers? Page 186 Clarion wrote this. Snow shedding, articulation. AEC Available. Pedestrian level 75% glass? Pg 187 Clarion wrote this. Large windows enliven and activate the streetscape in TC. AEC Available 10 square foot maximum individual pane size on upper level commercial 2 x 5 window max.? seems very small Page 187 Clarion wrote this. Smaller panes of glass helps articulate a facade (rather than large flat expansive glazing). AEC available. slopes over 30% appeal to director? Clarion wrote to prohibit construction on lots over 30 %. Staff revised to prohibit on 40% or greater, and added the pre - platted lot exception. Page 189 Steep Slopes. Pre - platted lots Director may waive /modify the requirements. 3i. 40% slope, platted lot with zoning, building setbacks 3b. minimum lot size, why? 3d. 6' maximum lowering or raising of grade 1. makes lots unbuildable 2. Where is this coming from? Page 190. Clarion wrote this. If lot contains natural slope areas that greater than 30 %, and comprise at least 2,500 sf — mim lots size is lacre (43,560sf). Ensures sufficient room to build on areas that are less than 30% slope. Affects new lots and re- platting lots only- Addresses slope stability and aesthetics. Based on Design Guidelines that discourage development on slopes in excess of 30°1 Building envelopes 7i more 40% slope regulations? Ti 80'x 80' minimum building envelope? 1. Hurd Lane Lot sizes? Some are narrower than this. 2. Discourages patio home /cluster, high density development 3. P &Z actions do not promote this change. Where is council? Page 227 Clarion wrote this, Patio homes or other density development should be streictly managed on steeper slopes, and in natural hazard areas such as floodplains. Recent PZC actions approved this type of land use on slopes less than 30% slope. Mauriello Questions May 28, 2010 version online: Page 11 (d) Preliminary Subdivision and PUD Approvals. Preliminary subdivision and preliminary PUD approvals granted prior to the effective date of the Development Code shall be considered as approved pursuant to the Development Code. Final approvals shall be required to comply with the application submittal requirements and development and design standards contained in the Development Code unless specific conflict provisions or standards were approved with a vested right by the Town by ordinance. Final approvals shall be reviewed according to the review criteria contained in this Development Code. Preliminary subdivision and PUD approvals granted under the previous regulations shall be valid for two (2) years from the date of approval unless a vested right providing a longer period was granted by the Town Council by ordinance. Failure to obtain a final plat or plan approval in the allowed time shall result in the expiration of the preliminary plan. I am concerned that this section would require an approved project to have to obtain a new approval to comply with new design standards. The Gandorf project would be an example of an affected project. This could have a significant impact on costs. I think this section needs to allow existing approvals to continue as approved with no changes. Gandorf is not affected by these regulations. Gandorf does not have preliminary subdivision approval or preliminary PUD approval. However, if Gandorf applies a subdivision after TC approved Code, they have to comply with the New Code.. Page 23 Block Diversity Plan is a plan provided by an applicant which demonstrates that an adequate mix of housing models and styles are offered within a neighborhood and within each block face. The intent is to insure that diverse and quality design elements are integrated into the character of residential homes and streets. A Block Diversity Plan shall be required for the following: (a) Single- family detached and duplex housing; and (b) Multi- family stacked units, including condominiums and apartments. P 24. Found in definition section. Should be deleted. Staff is still going thru Code and deleting or revision sections that don't apply with recent revisions. * *'" Page 31 Floor Area Ratio (FAR) means the amount of gross floor area of all principal buildings on a lot or block, as the case may be, divided by the total area of such lot, or the block size, respectively, on which such buildings are located. For mixed -use blocks, the residential square footage shall be added to the commercial development for a total block FAR. Does this include counting enclosed parking in FAR? If it does, it should not. P 31. Definition of Floor Area when read with FAR, indicates that floor area does not include enclosed parking. Page 33 Grade, natural means the elevation of the ground surface in its natural state, before manmade alterations. Throughout the code "existing grade" is used to mean natural grade. "Existing grade" is not defined. P 34. Existing grade is part of the Existing Code, and is a term only used for measuring Height. Staff will clarify the definition of existing grade for purposes of measuring building height. Gross square footage (GSF) means the total floor area designed for occupancy and use, including basements, mezzanines, stairways and upper floors, if any, expressed in square feet and measured from the centerline of joint partitions and from outside wall faces. There are multiple definitions of floor area which is confusing. P 35. There is one definition of Floor Area and one definition of Gross Square Footage. GSF is not needed. Staff recommends deleting definition. Page 39 Natural areas means floodplains and flood ways, natural drainage and water ways, significant native trees and vegetation, wildlife travel corridors, special habitat features such as raptor nest sites, key nesting, breeding or feeding areas for birds; fox and coyote dens, prairie dog colonies over twenty -five (25) acres in size, remnant native prairie habitat, plains cottonwood galleries, and any wetland greater than one - quarter ('!) acre in size. Seems like a front range definition. Prairie dog colonies? Really? P 41. Another definition that should be deleted Page 45 Site Coverage means the ratio of the area of the site which is rendered impermeable by buildings and hardened surfaces compared to the total area of a site, excluding those rendered undevelopable, expressed as a percentage. This is a new definition of site coverage which is a significant departure from the previous code and will make every building in town nonconforming. Site cover in the past was a measurement of essentially building footprint and is commonly used to regulate the bulk and mass of structures. The new definition includes parking lots and driveways which makes it nearly impossible to develop a building with a parking lot in the Town Core or elsewhere. For example in Neighborhood Commercial, the maximum site coverage is 60% and if that include parking areas one would be forced to build underground parking and 40% of the parcel would have to remain as softscape. It is easy to see how this does not work and the results of its implementation would have a dramatic suburbanizing affect on the town. Also confusing is the use of the term "lot coverage" which I believe is intended to be "site coverage." As drafted this affects every property in the Town include those parcels developed and owned by the Town. Does site coverage include below grade parking that is plaza or landscaped on the surface? If it does, this will discourage or even prevent underground parking. Written by Clarion and staff. New defininition solved a problem in the residential areas, but cause problem in commercial zones, because the landscape requirements (pg 151) min 20% and site coverage max is 60°x6 (i.e. 40% landscape) P 47. Staff understands a change may be necessary and we will review the implication and suggest a modification at the Next TC meeting. Page 53 7.12.050 Director The Director of the Community Development Department ( "Director ") is authorized and directed to do the following: (a) Review applications, provide recommendations, and render administrative decisions as indicated in this Title 7; (b) Establish application submittal requirements, including content and quantities of materials to be submitted; (c) Render interpretations of the Development Code; (d) Enforce of all provisions of the Development Code, for which purpose the Director shall have the powers of a law enforcement officer; and, (e) Delegate any duty set forth in this Development Code to another official within the Community Development Department when determined appropriate and efficient by the Director. This section essentially requires that there be a Director of Community Development. The Town should have the flexibility to not have this position in order to react to budgetary requirements. You might consider using a more generic term like "Administrator" that the Town Manager can designate to enforce and interpret the Code. This tends to be more common. P 54. TOWN ATTORNEY WILL ADDRESS Page 56 (1) Determination of Completeness. A development application shall be reviewed for completeness by the Director within fifteen (15) business days after receipt. If the application is determined to not be complete then a written communication shall be promptly provided to the applicant indicating the specific deficiencies in the application. The determination that an application is complete or the failure to determine an application is incomplete within fifteen (15) days shall not preclude the Town from requiring information which is necessary and relevant to evaluate the development application for compliance with the review criteria. A determination by the Director that the application is incomplete may be appealed to the Town Council in accordance with the procedures in §7.16.160. 15 days to determine completeness seems fairly excessive. Completeness of an application should be done in no more than 5 days. P 58. TOWN ATTORNEY WILL ADDRESS (2) Referral to Other Agencies. Development applications may be referred to other agencies for review and comment. The Director shall attempt to identify appropriate referral agencies and shall consider the comments from referral agencies as part of the staff review and report. The Planning Commission and Town Council may determine that referral of a development application to an agency for review and comment is appropriate where such referral agencies may provide comments relevant to evaluating the development application for compliance with the review criteria. Referral of development applications to other agencies should generally request review and comment within thirty (30) days of such referral; however, the timeframe for review and comment may be extended if the development application presents technical issues which require additional review, if additional information is provided by the applicant, or the application is modified. Referral agencies may include, but are not limited to: 30 days for a referral is excessive. Referrals should be limited to 14 days. P 58. TOWN ATTORNEY WILL ADDRESS Page 57 (2) Mailed Notice. For procedures that require mailed notice, notice shall be sent by first -class mail to all real property owners within three hundred (300) feet of the property which is the subject of a development application, as measured from the boundary of the property. If a property within three hundred (300) feet that requires notification is a condominium project, notice may be mailed to the managing agent, registered agent, or any member of the board of directors of the project. If the development application includes a condominium project, notices shall be mailed to all owners within the condominium project. Mailed notice shall be postmarked at least eleven (11) days prior to the meeting. Mailed notice shall be sent by the applicant at the applicant's expense. The Eagle County Assessor's records may be used to determine the addresses of real property owners. The applicant shall provide a certificate of mailing to the Town prior to the public hearing. The Town is not responsible for defects in mailed notice caused by the applicant's failure to provide accurate information, and should a public hearing be found invalid for defective notice caused by applicant error, the applicant shall be responsible for all reasonable fees and costs associated with re- hearing the application. The Town should be responsible for mailing any notices otherwise will be issues with content and inconsistencies. The application fees should cover this. You might consider having town staff also generate the list of owners within 300' by using GIS and again eliminating potential errors. Notice and process should be the most important aspect of the Town's role and pawning this off on the applicant could create significant issues. P 59. TOWN ATTORNEY WiLL ADDRESS Page 58 (e) Step 5: Public Hearings. The Director shall schedule a public hearing date before the PZC and/or Town Council after a complete application has been received, town staff has completed town staff review and referral agencies have had an opportunity to provide comments. The Director may delay the scheduling of a public hearing to a subsequent meeting where an agenda of the PZC or Town Council is full. The PZC or Council may continue a public hearing on its own initiative for a maximum of thirty -five (35) days after the date of the initial public hearing without the consent of the applicant. PZC or Council may continue a public hearing for a maximum of ninety -five (95) days at the request of the applicant. Why limit the timeframe for tabling? Why not have the maximum flexibility on behalf of the Town as possible? P 60. TOWN ATTORNEY WILL ADDRESS Page 60 (4) Changes to an approved development application which do not result in: (i) An increase in the approved number of dwelling units; (ii) An increase in the amount of square footage of a non - residential land use or structure; (iii) A change in the housing mix or use mix ratio; or, (iv) A change in the character of the development. There is something wrong with this section. Something seems to be missing. P 62. Nothing is missing. This is part of Minor Amendment Application definition, which begins on page 60. Defines what is considered a Minor Amendment Application. Page 61 (a) Review Procedures. Applications to amend the text of the Development Code shall follow the general review procedures set forth in §7.16.020. Applications to amend the text of the Development Code shall be initiated by the Town Council and may not be initiated by any other person, except for citizen's initiative submitted pursuant to Chapter 7, of the Avon Home Rule Charter. WOW! A citizen is not allowed to apply for a text amendment to the code except by an initiative? I can't believe this is even in the proposal. Today's language allows any real property owner to initiate an amendment. P 63. TOWN ATTORNEY WILL ADDRESS Page 63 (e) Temporary Suspension of Development Approvals. Whenever the Council has initiated an application for zoning amendment, no development application may be approved nor building permit issued which does not comply with the regulations, standards, or permitted uses set forth in the proposed zone amendment. The date of such temporary suspension shall begin on the day that the proposed amendment is in a complete ordinance form and is made available to the public. The temporary suspension shall remain in effect for a maximum duration of six (6) months. This is essentially a moratorium on development. The regulations should go into when they are adopted and in effect. All existing approvals should be recognized and allowed to proceed to development unless they expire. P 64. TOWN ATTORNEY WILL ADDRESS Page 65 (1) Overlay District. A PUD shall be an overlay district and shall be applied over an underlying zone district. If there is no underlying zone district one shall be established prior to PUD approval. The rezoning process set forth in §7.16.050 shall be used to establish the underlying zone district. Underlying zoning should be allowed to be processed concurrent with a PUD application rather that being required to be processed "prior to" PUD approval. P 67. Could allow applications to run concurrent. Page 67 (xii) A statement specifying the public benefit(s) to be contained in or associated with the PUD. The section refers to "public benefit" but the term is not defined. P 67. Definition of Public Benefit is found here. Staff recognizes it may be best in the Definitions section. Page 94 (a) Neighborhood Commercial (NC) This zone district has been included in the Town Center designation. Several properties zoned NC are located north of 1 -70 and do not exhibit all of the same characteristics of the Town Center. As drafted the "maximum" front setback is 15' in in some cases this would place a building within Nottingham Road. Either the setbacks need to be adjusted or there needs to be some language added to allow deviations in special circumstances without the need for a variance. If this provision is adopted, numerous properties will be made nonconforming. P 97. ** *Gan be addressed with an addition to setback definition, fond on P 46, which allows setback measurement to begin at ROW line in those cases where the ROW boundary is behind the front property (line boundary. FAR Throughout the zone districts FAR has been added as an additional control of floor area and bulk and mass. I think this provision adds unnecessary complexity to the Town Code that is not needed to achieve the goals of the Town. The Town Center should be more about attractive floor area and density and the focus should be on the building form and relationship to other buildings and the street. P 97 -98. No Staff Comment Page 99 7.20.100 Development Bonus Requirements I really don't understand this section. It is written in a way that does not allow for creativity or the changing goals of the Town. For instance, if additional residential floor area is added, 50% has to be for deed restricted housing and an additional 25% must be occupied full -time. I think the Town really needs to understand the implications of this section. I am not sure it is really needed given the ability to apply for a PUD. You might consider deleting this section entirely. P 101. No Staff Comment Page 131 (E) Maximum Number of Entryways Generally, no more than one entryway shall be allowed for any parcel of property where the frontage is less than one - hundred (100) feet. Additional entrances or exits for parcels of property having a frontage in excess of one hundred (100) feet shall be permitted only when the applicant demonstrates they are required for actual convenience and necessity, and that safety to the traveling public will not be compromised. In residential areas like Wildridge, having two entryways for a duplex structure may result in a better layout and more privacy afforded to dwellings. This is especially true in the case of a corner lot. I think this provision should be changed to allow for two access points given some specific criteria or based on the judgment of the Town Engineer. P 142. Written by Clarion, but Mimics our Current Design Guidelines. We have specific criteria — 100 ft. If the lot length is at least 100 feet, the Town Engineer can consider a second driveway. Less than 100 ft would not provided enough separation between driveways, particularly if there was a blind corner. Staff will modify Table 7.28 -4 to include Duplexes for consideration. Page 134 (b) Maximum Parking Spaces Allowed I think this section is overly restrictive especially when considering smaller projects. You should consider making this provision applicable to parking lots or uses requiring over 40 parking spaces. P 129. Written by Clarion Limiting the parking area is a common technique encourage public transportation, limit asphalt and create density. Consistent with Comp Plan and Investment plans for TC. Page 135 Parking for restaurants includes counting outdoor seating areas. Refer to my prior email on the topic. P 131. Written by Clarion. Addressed with PZC edits Page 166 (E) plastic, vinyl siding or cementious board. Why can't you have cementious board? This material is used throughout the valley and including Vail especially in areas where siding is proposed above 35'. P 167. Written by Clarion Cementious board is used as a stucco substitute. Doesn't look as rich as real stucco. Tends to be flat with seams. Best with very contemporary application. Page 167 (2) Building Separation The minimum separation between residential buildings, including accessory buildings, is fifteen (15) feet. For purposes of measurement in this subsection, projections such as decks and bay windows shall not be counted. Should roof overhangs also be excluded from this measurement? P 168. If limited to 1.5 ft overhangs. * * * ** Page 168 (2) Building Design Determing building height on steep slopes has frequently reulsted in two problems: (a) house entries that are well below the road grade or (b) three (3) story walls on the downhill side that create an overbearing presence on properties below. Therefore, when dealing with building height on slopes the following will be required: (i) Reduce the visual impact of a building by minimizing the impact of height and massing fronting the street. (A) Walls taller than twenty (20) feet in height and within thirty -five (35) feet of the front property line shall be limited to a cumulative wall length of fifty (50) feet. If a wall is longer than fifty (50) feet it must set back from the property line by an additional fourteen (14) feet. (B) Buildings on a natural /existing "flat" (less than a fifteen percent (15 %) slope) lot shall comply with one of the following requirements: (1) Proportional Stories The total residential floor area of each story other than the basement in a multi -story building shall not exceed seventy -five percent (75 %) of the base floor area. (2) Front Facade Step back At least twenty -five percent (25 %) of the front fagade of a building shall be stepped -back a distance of at least twenty percent (20 %) of the building depth It seems a little late to adopted a new building height standard on the last 10% of the remaining lots in Wildridge. The likely result of this regulation will be to make every existing home in Wildridge nonconforming. The new standards are excessive and will essentially result in the taking of some development rights on the property. I don't think these provisions were adequately studied in order to determine their impact on properties in Wildridge. Case studies should be done to show the potential impact of the regulations before they are adopted. P 169 -170. PZC and TC have requested that these standards be included in the Code. Page 169 (3) Building Elements (1) The presence of the garage shall be minimized along the street. (A) Pedestrian entrances shall be the dominant element facing the street, with garage doors as a subsidiary element. All single family and duplex structures shall have a street oriented entrance. (B) The front fagade of the garage shall be set back at least ten (10) feet further from the street then the front -most wall of the house. The garage may be located forward on the front fagade of the house only if the garage doors are perpendicular to the street. (C) On the street facing fagade(s), the width of the garage(s) shall not occupy more than thirty percent (30 %) of the fagade. (D) The face of the garage door shall be decorative; a flat, blank door is not permitted. Again, I think the Town Council needs to study this closely. I was unaware that garage doors were an aesthetic issue in Wildridge. This again, will make just about every home in Wildridge nonconforming. Garage doors have to setback 10' into the fagade of a home? That seems very odd. P 171. Written by Clarion. Stepping the garage back from front fagade minimizes its importance on the front fagade of a home. This is for all SF and TH homes not just WR. (D) The face of the garage door shall be decorative; a flat, blank door is not permitted. What constitutes a flat blank door? P 171. A door that is flat and blank. No molding, trim, windows or other relief. Page 177 (B) Mixed -Use Buildings in Town Center Mixed -use structures in the Town Center district shall meet the following standards: (1) The ground level shall be devoted to retail and restaurant space, (2) Ground level retail and restaurant space shall be located along those fagades adjacent to or most visible from primary street frontages or major pedestrian walkways, and (3) All ground floor commercial space must be at least sixteen (16) feet in height as measured from finished floor elevation to finished ceiling. Requiring all first floor areas of a building to be retail or restaurant ignores the fact that not all areas on the first floor make sense as retail. Residential buildings and hotels for instance require lobby areas, offices, check -in areas, loading and delivery facilities, etc. This provision needs to include some qualifiers. What about a bank? P 179. Written by Clarion Has already been clarified to limit to primary street frontages and pedestrian walkways. A bank is a retail use if it provides typical retail banking services to the general public (as opposed to private offices). (ii) Common Spaces (A) Required Common Spaces Mixed -use and non - residential development shall incorporate on -site indoor and outdoor common spaces or community amenities as visible, accessible, focal points. Common spaces shall be connected, to the maximum extent practicable, to pedestrian areas, sidewalks, trails, or public open space in order to create functional pedestrian connectors. This provision applies to anything that is "non - residential." Not all sites are appropriate for community spaces. Flow does one incorporate a community space into a 3,000 sq. ft. retail building? P 179. Written by Clarion. Common Space includes sidewalks and sidewalk connectors to adjacent properties — which would probably very easy to accommodated on a small commercial property. There is no size or acreage requirement. Can be broadly interpreted and AEC is available. Q /V�L BOARD OF - REALTORS Town Council Avon, Colorado P.O. Box 975 Avon, CO 81620 July 23, 2010 Dear Mayor Wolfe and Council Members, On Behalf of the Vail Board of REALTORS" (VBR), which represents over 700 REALTORSO and affiliates in Eagle County, we are writing regarding the update of the Avon Development Code. After our members who reside in Avon attended 2 of the public hearings in May and June, VBR retained premier land use attorneys to review the update, and advise VBR of its implications. We commend the Town's efforts to update the development code. This type of work is lengthy and detailed. After review of the draft new Avon Development Code, the Vail Board of REALTORS" has the following comments that either provide support, opposition, or in many cases, ask for clarification: Role of a Zonin_g map Presumably the Town will create and adopt a revised zoning map that reflects the new zoning district classifications. The new map might alter zoning district classifications. Unfortunately, the draft of the development code circulated for public comment does not include a revised zoning map. When will a revised zoning map be prepared in connection with the development code? VBR encourages the Council to postpone Council action until a revised zoning map is made available for public review and comment as part of the public hearing process. Non - Conforming Status We are also not aware of any parcel - specific analysis to determine how many properties in Avon will be downzoned under the Development Code, and how many existing uses and structures would become non - conforming. Does an analysis exist? If it does not, VBR suggests that the Town direct the consultants to provide a comprehensive analysis of the impact that the Development Code would have on the development potential of specific parcels in Avon. The analysis should compare the development potential that exists 0275 Main Strcet. 5iiitc G004 Edw,lyds, CO 81632 970 - 766 -1026 (office) 970 - 766.1038 (faxi info @vbr.net for parcels under the current zoning code with the development potential under the proposed Development Code. These maps will help the citizens of Avon, and perhaps the Council, better understand the proposed changes. VBR appreciates the Town's effort to allow non - conforming buildings to exist as is, but require that non- conforming buildings get up to code when making alterations to their existing space. VBR believes this is a fair way to move forward without penalizing property owners that aren't able to comply with the new code due to financial constraints. The Increased Cost of Development in Avon Many of the proposed Chapter 7.28 development standards can be expected to decrease the development potential and increase the cost of development on affected properties in Avon. To further the stated purpose of "implementing the comprehensive plan vision for a more attractive, efficient and livable community," the Development Code introduces several restrictive development standards that are likely to reduce the development potential of property within the Town. Chapter 7.78 establishes detailed and elaborate development standards for mobility and connectivity; landscaping, screening, walls and fences, and design standards. These standards will decrease the amount of developable land on affected lots in the Town. The minimum and strict standards require "high quality, durable building materials ", and states that all exterior walls "shall be finished with at least two different building materials in a manner sympathetic to the scale and architectural style of the building." The policy also does not allow the use of asphalt siding, imitation brick, and plastic vinyl siding or cementious board" on the exterior of any structure. Has the Town considered the effect the Development Code will have on housing affordability by reducing development potential and increasing development costs? VBR suggests the Town should evaluate the impact of the development standards on the cost of residential development and the production of affordable housing in Avon. The Town should ensure that each proposed development standard is a cost- effective approach to achieving the stated goal of fostering an "attractive, efficient, and livable community". taking into account the development costs and impact on a property's development potential. Comprehensive Plan and Its Relationship With the Development Code The Avon Comprehensive Plan explicitly states that it is an advisory document, however, as currently drafted, the Development Code appears to give the Comprehensive Plan regulatory effect as Colorado State Statute C.R.S. 31- 23- 206(1) contemplates. The statute states that the ' "comprehensive plan or any part thereof may be made binding by inclusion in the municipalities adopted subdivision, zoning, platting, planned unit development, or other similar land development regulations". Section 7.04.060(b) states that "development applications will be reviewed for compliance with the Town of Avon's Comprehensive Plan, with the regulations and standards adopted in this Development Code, or with such regulations as are applicable in the Avon Municipal Code or state or federal law." Several other previsions of the proposed Development Code contain similar requirements, referencing compliance with the Comprehensive Plan, including Section 7.16.020(f)(1) review criteria, Section 7.16.080(f)(3) (Development Plan Review criteria), and Section 7.16.100(c)(1) (Special Review Use - Review Criteria). As such, the Development Code appears to signal a departure from the understanding that the Comprehensive Plan is merely an advisory document to guide regulatory policy, and not a regulatory document in its own right. Do the Development Code provisions as reference above mean that the Avon Comprehensive Pion will now serve a regulatory function? If the answer is yes, the Town should explain its rationale for changing the approach to the Comprehensive Plan. VBR strongly believes that if the Development Code itself is consistent with the goals and policies of the Comprehensive Plan, any proposed development that conforms to the requirements of the Development Code must also be generally consistent with the goals and policies of the Comprehensive Plan. To the extent that a development that conforms to the requirements of the Development Code is not perceived to be consistent with the Comp Plan, Appendix D indicates that amendments should eventually be made to the either the Development Code or the Comprehensive Plan to align provisions that are in conflict, but the immediate conflict should be resolved in favor of the Development Code. VBR believes the Comprehensive Plan should be an advisory document, leaving the Council and Planning Commission flexibility as economic and environmental situations change. Streamlining of Development Application Process and Adherence to Timelines As currently drafted, the proposed "application processing" requirements arguably are susceptible to delay and inefficiencies because some provisions do not require the Town's reviewing and decision making authorities to perform their duties within specific time frames. For example, although section 7.16.020(c)(3) requires the Director to "review the development application in accordance with criteria established in this chapter and to prepare a written findings of fact," it does not require those tasks to be completed within a specific timeframe. It also appears that neither the "General Procedures and Requirements" for development application review nor the specific review procedures for each type of development application require that a final decision be issued within a certain period of time after application submittal. if there is no time limit on these review processes, some applicants could be required to wait an indefinite period of time for one or more agencies to review a development application or to issue a decision. Such delays have the potential to increase the cast of development and undermine the private property rights of the affected applicants. VBR recommends that the Council revise Chapter 7.26 of the Development Code to include deadlines for the Town's reviewing and decision making bodies to perform their duties. Reviewing bodies should be required to review development applications and to issue decisions on applications within a specified and reasonable period of time. VBR urges the Town to reconsider the amount of time provided for development review and to condense the time between the application and the public hearing. For example, 15 business days to review an application is too long, particularly when an application is straightforward, such as a special review use or variance application. 5 business days seems reasonable for such reviews. Regarding Specific Provisions of the Development Code Chapter 7.04. General Provisions • Section 7.04.12O(e)(3) (Lot Reduction- Prohibition Against establishing New Non - Conforming Uses) This provision states: Any "transferee who acquires a lot or parcel of land in violation of this Section without knowledge of such violation, and any subsequent transferee shall have the right to rescind and/or receive damages from any transferor who violates the provisions of this section." This appears to create certain rights and liabilities for parties involved in the transfer of a lot or parcel created in violation of the Development Code. VBR would like to know the source of the Town's authority to create these rights and liabilities. • Section 7.04.160(e) (Persons Liable) This provision appears to impose liability for violations of the Development Code on any "owner, tenant, or occupant of any building or land, any part of the building or band, and any architect, builder, contractor, agent or other person who participates in, assists, directs, creates, or maintains any situation that is contrary to the requirements of the Development Code or a permit or approval issued pursuant to the Development Code," VBR is concerned that because "agent" is included in the text of this provision', it appears this provision could lead to liability for a real estate agent or REALTOR' who is involved of the marketing of a property where a permit violation or code violation exists, even though a REALTORS did not cause and was not aware of the violation. VBR strongly urges the Town to revise this provision to limit liability for Development Code violations to responsible parties that were directly involved in the creating the violations. • Section 7.04.190(a) (Right of Entry): "Whenever necessary to make an inspection to enforce any of the provisions of the Development Code, or whenever the Director has reasonable cause to believe there exists in any building or upon premises any violation of the development code, the Director may enter such building or premises at all reasonable times to inspect the same or to perform any duty imposed upon the Director by the Development Code ". VBR is strongly opposed to any Town staff entering a private property without express consent of the property owner or legal occupant of the property. The Director should first obtain an inspection warrant or other remedy provided under law for gaining entry under such circumstances. • Section 7.04.200(d) (Revocation of Permits – Findings): This provision would authorize the Town Council to revoke "any development permit, building permit, or other authorization" upon finding "a violation of any provision of the Development Code." VBR suggests that revocation of permits is a severe penalty that should be reserved for serious offenses (e.g., obtaining a permit by false representation, as provided at Section 7.04.200(d)(4)(iii)). General enforcement provisions of Chapter 7.04, including Sections 7.04.170 (Penalties), 7.04.180 (Civil infraction), and 7.04.190 (Enforcement Authority and Procedures) are sufficient to address common Development Code violations. Chapter 7.16: Development Review Procedures • Section 7.16.020(a) (Pre - Application Conference): Under this section, a pre - application conference between an applicant and the Director is required "for all development applications," unless waived by the Director. VBR believes that the Town revise this section to make pre - application conferences voluntary for relatively minor development applications such as administrative subdivisions, minor subdivisions, minor development plans, special review uses, variances, and roadway vacations. • Section 7.16.020(b)(3) (Required Studies and Reports): This section would authorize the Town to require applicants to submit reports or studies -- including studies of soils, geological hazards, fiscal impacts, market analysis, traffic impacts, and environmental impacts —in connection with a development application. Such reports must be prepared by "professionals or other persons qualified to provide the requested reports." This is an example of an unnecessarily broad and burdensome requirement that is likely to increase the cost of development in Avon. Such reports and studies should only be required where the necessary findings to approve a development application cannot be made in their absence. • Section 7.16.080(f }(6) (Development Review Criteria): This section would establish the following as a criterion for review of development plans: "That the development can be adequately served by city services. including but not limited to roads, water, wastewater, fire protection, and emergency medical services." To the extent this criteria could be applied to deny a proposed development plan on the grounds that it cannot be adequately served by one or more of the listed city services, Section 7.16.080(f)(6) appears to be a concurrency requirement. In general, concurrency requirements, also known as "adequate public facility ordinances" ( "APFOs "), tie development approvals to the availability of adequate public facilities —if existing public facilities do not have sufficient capacity to serve a proposed development, the proposal may be denied unless the developer pays for the needed public facility improvements. Typically, a concurrency ordinance contains two main components: (1) an identification of the types of public Facilities and related levels of service that are needed to permit new development, and (2) a clear policy about when the public facilities must be in place relative to the impact of development. Implementation of these requirements necessitates an ordinance and map that specify the level of service ( "LOS") that must be maintained by each public facility, a coordination plan among affected service providers, a long -term capital improvements plan (CIP) to each public facility, a system designed to measure and monitor the levels of service, and a permit approval process with dearly articulated standards. As currently drafted, proposed Section 7.16.080(f)(6) does not appear to be tied to a capital improvements plan ( "CIP ") for roads, water, wastewater, fire protection, and emergency medical services. Moreover, Section 7.16.080(f)(6) does not include specific level of service standards for the public facilities that would allow developers and property owners considering a particular parcel to ascertain whether adequate capacity exists in the public facilities to accommodate a proposed development on that parcel. Setting LOS standards is one of the most important steps in establishing an APFO. The LOS standards established for roads, water, wastewater, fire protection, and emergency medical services will determine how restrictive the concurrency provision would be. Moreover, the LOS standards adopted under an APFO provide an objective basis for the reviewing entity to determine whether sufficient capacity exists in the appropriate public facilities to accommodate the proposed development. In contrast, Section 7.16.080(f)(6) includes no objective standards, instead relying upon the ambiguous "adequately served" standard to determine whether existing public facilities are adequate. VBR would like the Town to identify its authority to enact such a concurrency requirement, and address the concerns identified above. • Section 7.16.090(4)(1), (3) (Design Review Criteria); This section would require development plan designs to "relate ... to the character of the surrounding community" and to "reflect the long range goals and design criteria from the Avon Comprehensive Plan and other applicable, adopted plan documents." These criteria are vague and susceptible to inconsistent and potentially unfair interpretation and application. VBR urges the Town to revise the design review criteria to include objective standards, clearly worded guidelines. • Section 7.16.100(4), (e) (Special Review Use - Expiration): Section 7.16.100(d) states that "all special review use approvals shall be valid for two (2) years unless otherwise stated in the approval ordinance." Section 7.16.100(e)(1), by contrast, states that "developments and uses granted by special review use permit shall be developed or established in accordance with an approved development schedule or within one year of the date of approval." These provisions appear to be inconsistent. These provisions should be revised to address the apparent conflict. • Section 7.16.110(c)(3) (Variances — Review Criteria): This section would establish the following as a variance application review criteria: "Such other factors and criteria as the decision- making body deems applicable to the proposed variance." This provision appears to allow the Commission to establish ad hoc variance criteria in connection with individual variance applications. This prevents an applicant from knowing ahead of time what standards will be applied to its variance application. It creates a high potential for arbitrary and inconsistent decision- making. VBR notes that this provision is unfair to the applicant by preventing it from knowing ahead of time what standards will apply to its application. There is also high potential for to arbitrary and inconsistent decisions as the Commission might announce new review standards for every application.. Chapter 7.28: Development Standards • Section 7.28.030(i) (Bicycle Facilities): This provision would require developments containing 25 or more parking spaces to provide bicycle parking facilities at a rate of one bicycle space for every ten vehicle parking spaces, with a minimum of four bicycle parking spaces. Bicycle parking spaces must be 4 feet by 6 feet in area. In general, the idea of requiring bicycle parking spaces as a means of reducing motor vehicle dependency is a good one. VBR suggests the Town consider offering incentives for developers to include bicycle parking spaces in new development projects rather than mandating their inclusion. Reserved spaces for bicycle parking should not be required for all developments having 25 or less vehicle parking spaces. • Section 7.28.070(a) (Steep Slopes): This provision would prohibit development on natural slopes of 40 percent or greater and would limit development on slopes greater than 30 percent. In addition, any lot that contains a natural slope area greater than 30 percent that is larger than 2,500 square feet would require a minimum lot size of one acre and a minimum street frontage of 150 feet. The current Zoning Code does not appear to restrict development on steep slopes. As proposed, Section 7.28.080(a) would reduce the development potential on affected lots with slopes greater than 30 percent and would bar development on natural slopes of 40 percent or greater. The proposed one acre minimum lot size requirement for lots having 2.500 square feet or more of 30% slopes apparently would also render lots under an acre unbuildable. Although Section 7.28.080(x)(2) authorizes the Director to waive the proposed steep slope regulations for lots platted as of the date of adoption of the Development Code, it is unclear on what basis the Director would decide whether to grant such a waiver. Several provisions of Section 7.28.080(a)(3) contain specific quantitative threshold levels and development restrictions. Below are several examples: • (C) Minimum Lot Size: Where a lot contains a natural slope area of greater than thirty percent (30%) that is larger than ,2,500 square feet, the lot shall be a minimum of one (1) acre in size with a minimum street frontage of one hundred and fifty (150) linear feet. Lots shall not be mass - graded to avoid this section. • (D) Limits on Changes s to Natural Grade: The original, natural grade of a lot shall not be raised or lowered more than six (6) feet at any point for construction of any structure or improvement. Retaining walls must comply with the requirements set forth in this section. (E) Limits on Graded or Filled Man -Made Slopes: (1) Grading of slopes to twenty-five ,percent (25%) or less is greatly encouraged wherever possible. (2) Graded or filled man -made slopes shall not exceed a slope of fifty percent (50%). (3) Cut man -made surfaces or slopes shall not exceed a slope of fifty percent (50 %) unless it is substantiated, on the basis of a site investigation and submittal of a soils engineering or geotechnical report prepared and approved by the Town Engineer, that a cut at a steeper slope will be stable and will not create a hazard to public or private property. (4) Bedrock which is exposed in a cut slope may exceed the maximum one and one - half -to -one (1.5 :1) cut slope. These numerical standards arguably benefit property owners and applicants by providing a measure of predictability that should result in consistent treatment of similar applications. However, it is not clear how the drafters of the Development Code arrived at these particular standards or what their engineering basis is. V8R suggests the Town revise Section 7.28.080(a)(2) to make the waiver for lots platted on the date of adoption of the Development Code automatic, or alternatively, to establish clear and objective criteria for the Director to determine whether to grant a waiver request. What basis were the quantitative standards set by Section 7.28.080(a) established? Section 7.28.070(g)(4)(Small Wind Energy Systems): This provision would establish standards for the installation of small wind energy systems in the Town. Pursuant to Section 7.28.070(g)(4)(ii)(B), the height of any small wind energy system would be limited to the maximum height allowed in the zoning district. The U.S. Department of Energy provides the following guidance for small wind energy systems: In addition to geological formations, you need to consider existing obstacles, such as trees, houses, and sheds. You also need to plan for future obstructions, such as new buildings or trees that have not reached their full height. Your turbine needs to be sited upwind of any buildings and trees, and it needs to be 30 feet above anything within 300 feet. For comparison purposes, it is worth noting that the model small wind bylaw prepared by the Massachusetts Department of Energy Resources recommends the following height regulation: Small wind turbines shall be no higher than 254 feet above the current grade of the land, as measured at the uppermost point of the rotor's swept area. A small wind turbine may exceed 250 feet if: (a) the applicant demonstrates by substantial evidence that such height reflects industry standards for a similarly sited wind facility; (b) such excess height is necessary to prevent financial hardship to the applicant, and (c) the facility satisfies all other criteria for the granting of a building permit under the provisions of this section. The proposed height limit for small wind energy systems seems inconsistent with industry standards and is likely to undermine the Town's efforts to encourage the use of small wind energy. We hope you find our comments to be useful in formulation of the Avon Development Code. We realize our comments are extensive and may require the town to slow the process of approval of the Development Code down to take these comments into consideration. We encourage the Town to do so. If you have any questions, please feel free to contact Sarah Thorsteinson, VBR Government Affairs Director at (970) 393 -3939 or sarah@coloradorealtors.com. Sincerely, Matt Fitzgerald Chair Sally Vecchio From: Sally Vecchio Sent: Thursday, August 05, 2010 5:24 PM To: Sally Vecchio Subject: FW: Unified Code Comments From: Tambi Katieb [ mailto:landplan @centurytel.net] Sent: Friday, July 30, 2010 3:35 PM To: Town Council Members Cc: Eric Heil Email Subject: Unified Code Comments Dear Council members: I am providing you with a list of review concerns on the proposed Unified Land Code (ULC). While I appreciate the many issues related to residential properties in Wildridge discussed this week, a most troubling prospect of the ULC as drafted is the potential effect it will have on the years of work by citizens, staff and elected officials to bring about public and private invstment in the Town Core. Updating and modernizing the code to make it more useable is a great project, but it will take time to understand how seemingly minor changes or additions proposed in the draft will either support the goals of District Redevelopment Plans or result in a `soft' moratorium on investment in Avon. I believe requirements can be made clearer without negating the important goals of the adopted District Redevelopment Plans. I can't possibly stress how important it is to `get it right' before passing anything in light of our current economic situation. As I mentioned in your hearing this week, a new purpose provision has been added to the ULC that expects to achieve "quality real estate investments... by disclosing risks, taxes and fees; by incorporating practical and comprehendible legal arrangements, and by promoting accuracy in investment expectations." To that end, i have seen no thorough or realistic staff or consultant generated physical test concepts that illustrate how the desired and developed massing, density range and economics behind the West or East Town Center District plans are functional under this new code. Likewise, by making many properties non- conforming in the Town Core and elsewhere I think it should be explained in plain English to the average resident and property owner how an extensive remodel of an existing building or residence will be limited or encouraged by the Code, and what the rational basis for that approach is. Considering today's economic realities and the aggressive scope of this Land Use code revision, it is of paramount importance that you demonstrate the Code is functional under approved policy plans like the West and East Town Center District Redevelopment Plans, using the established redevelopment economic /market investigations and massing models, before contemplating moving forward. In its final form, the ULC should not represent an end run around these duly adopted redevelopment plans but support their goals and make investment and implementation of their objectives easier and more attractive. Now that you have a complete draft ULC, I also believe it is wholly appropriate to provide specific referrals and outreach to business and property owners and design professionals rather than the regular posting or notice of meeting agendas on this matter. This is typical procedure for most jurisdictions; for example, Eagle County has long instituted a paperless email notice and referral system that links to their website and provides ample notice to design professionals affected by major code amendments like the one proposed here. A list of initial review comments is below, and thanks again for your time and for providing the opportunity for critical review and input. Best, Tambi Land Planrrifig Collab -ora 6vc Tambi Katieb, AICP PO Drawer 3722 Eagle, CO 81631 Voice /Fax: 970.328.4364 Email: Ictndplon @centurytel.net 7,04.120 N-on- Couforna ng Lases and Sn-actures (a) Intent. WAin the districts established by this zotung code, or atneadnitmts thereto tbt may be adopted. there imy exist lots„ stm w=es and rases of land and stmtures. Much Avere lawfully established before this Development Code was passed or an=ded. but which would be prohibiTed, regWated or restricted lmder the teEms of this Development Code or by future amendment to this Development Cade_ It is the intent of this section to peanit these nonconformtties to continue until they are removed, abandoned Of more than fifly percent (50%), destroyed, It is the fiuther intent of this Section that nonconforming structures and uses shall not be enlarged upon. expanded or extended, nor be toed as grotmds for adding other stnictures or uses prolubited elsm here ua the same district (b) Uses of Land. tk'here at the time of the passage of thus Development Code, or amendment thereof lativfui use of land existed ;Mich %votrld not be penanitted by the regulations imposed by this D4nelopruent Code_ the use may be continued so long as it reams otherwise lawful, provided., (1) '.No such n,onconfornung use shall be enlarged or increased, nor extended to occupy greater area of band than was occupied at the effective date of adoption, or amendment of this Development Cade; By way of several new development standards, virtually all properties in the Town will become nonconforming (irrespective of the degree or specific area of nonconformance); penned this broadly and in light of the sweeping changes proposed, this seems to promote dilapidation of existing structures instead of upkeep and investment. Is that truly the goal? BF.!rciti Dh ersiay Flog is a plm prosided b-y any applicant which demonstrates that an adequate mrx of housing models and styles are offered within a neighborhood and within each block face. The intent is to insure that diverse and qualicy design elements are integrated into the character of residential hornes and streets. A Block Diversity Plata shall be required for the following: (a) Single - family detached and duplex housing:, and (b) Multi- fkmily staged units: including condominiums and apartments_ What is it and when is it required? Vague and ambiguous as to purpose and goals as you have already heard. Is a single property considered a neighborhood without respect to size? Cash- hi-fien (also kwwu as "fie -in- lieu') means that the applicant, as tbe deten3ination of the Conncii, may pay the Town money instead of land dedication in tbm cases where the dedication of land is not the pr€ferre€L altemative:. The payrnent shall comply v-ith the fallowing requirements unless otla ff%isse provided for by this Code. (a) Payment sisall be based on the market value. to be deteralined Niter con ipletimi of the platting process, of the entire property as it is ualrted after pLattiing. (b) The value of the laud is based Maori ara appraM by a competent, iazek"idtlxt appraiser selected by the Tom,77 10r7, and the applicant, or upon value aegotiatcd tvmdery tlae Town and appl canit. The smtability of the land to be dedicated for public purposes and the credit to be Oven toatard the land dedication reguirejnent is at the ro n S sole option and discretion. The definition (in combination with its practice in the Park Land dedication standards) leaves the issue entirely up for negotiation- no certainty for investment or calculation of costs associated with development. Cornpatibili(v means the characteristics of different uses or acti,%i ies x de-sign which allow then to be located near or adjacent to each other to harmony. Sonx elements affecting compatibility include height, scale, mass and bulb of strtactures. Other characteristics include pedestrian or vehicular t -Ak, circulation, access and padting impacts_ Other important characteristics that affect compatibility are landscaping. lighting, noise, odor and arclutecture. Compatibility doers not paean "the same as." Rather, compatibility refers to the sensitivity of development proposals in maintaining the charactef of existing development_ Why is this definition being inserted? Why should a redevelopment project which seeks innovation in building and design seek to maintain the character of existing development it that character is less than ideal? This is highly subjective and best deleted from the Definitions section. Does being sensitive to existing development mean platting private view corridors or not being able to exercise existing property rights? 3 (b) Do7elop2nent shall nor include: (1) Work by a highway or road agency or railroad company fof the rrtamtervmce or improveminit of a road or railroad track, if the work is carried out on lased within the bot:nckines of the right- of way, (2) Work by any public utility for the purpose of suspecting. repairing. reneuiing or €ottsttucting, on established righ s- of -lvay, any emits, pipes, cables. utility ttia eels, power lines, toners, poles, or the like; prm ided. ho%Nelmr, that this exenVtion shall not include work by a public eunty in coastructutg or enlarging mass tansit or fixed ,gLude way mass transit depots or terniioals or am, s milm traffic generating activity; (3) The maintenance, renex%-al, impr tmm, or alteration of any stntcture, if the work affects only the interior or the color of the structure or tine decoration of the exterior of the swicture; Items exempted from the development definition seem to contradict those areas being defined by the proposed 1041 (AASI) regulations as development. Also, the definition seems to contradict the non - conforming uses being created. Stye Coverage ineam the ratio of the area of the site which is rendered i Verimable by buildin s and hardened suafares compared to the total area of a size, exchiding those rendered undvmlopable, expressed as a percentage. New definition makes every building in Avon nonconforming and should not include 'all hardened surfaces'. This needs clarity - does if include underground parking that is surface plaza? This discourages redevelopment as penned. Also, I believe the terminology in the dimensional fables in every zone district is 'Lot Coverage' which is not defined herein. Favor area, also miffed gross ,,door area- means the total square footage of the building measured along the outside w alls of the building anal includitng each floor level, but not including open balconies, garages or other enclosed automobile parking areas and basement storage areas, and not including one -half. ('F-) of all storage and display arras for (tenable goods. Floor Area Ratio (FAR) auearn the amount of gross Door area of all principal buildings on a lot or bloc%, as the case may be, divided by the total area of such lot„ or the block size, respectively, on which such buildiag& are located_ For mixed -use bloom, the residential Square footage shall be added to the commercial dei-r-loparent for a total block FAR This is possibly one of the most troubling aspects of the code. Yes, as staff has noted the Comprehensive Plan called for FAR as a potential tool for shaping mass and bulk, but FAR is a poor predictor of physical form in the context employed by the ULC as proposed and in light of the specific goals and policies of the East and West Town Center District Plans. Do a word search of the East Town Center District Plan and you will find no mention of "FAR" as a tool to promote the desired redevelopment. The minimum ratios will discourage any improvements (investments both public and private) in the Town Center zone district and combined with the language on non - conformities, you are possibly encouraging the continued dilapidation of existing structures. This entire approach should be removed from the proposal. For example, this excerpt of 'preferred district future land uses' is from the adopted East Town Center District Plan: 4 Upper Floor Residential and Office Space IJse upper floors for primarily residential and office. Co nsidcraa;tion of views, Solar cxixasurc, nctlsc, gild I)roximiq, to arneraitics should be givcrz Lo the locations of residential uses. L__ j. I„-- I l 1 The massing and uses expressed in the East Town Center District Plan will be nowhere close to this form under the proposed FAR. Even under current acreages, for instance the Christy Sports Lot has a 40,423 square foot site that only permits 80,846 square feet at an FAR of 2:1. Now will this affect something like the Westin Riverfront PUD should they seek `replatting' and find themselves non - conforming to maximum FAR and since they have no underlying zoning? The FAR standards proposed are below: Table 7.20-9 D cew for the T eun Center District _ i SY�M,�% �+ d Z i,9 Ci e7i 1C uu4 p; 30 &VACre or 141 F rL a ura 20 0 7.S 10 $� stun and, 2,01 FAR nnax 1, 41 121 3 _L30 [1] Troth development shall watch the synallest setbmck of'e.+cistir fit„ adjacent stnictures. [2] TC atnuttug a residential district sisal.l match the side yard setback sundards of that district. [3] Wbeat abuttiag a public street, alley, or public xi*u -of -way. The rear setback for TC ablittirzg m re.sidenttatl district &lLall be nventti (20) feet tegmiless of the location of acy street, ally, or RoS.ET. [4] Non- residential development that incorporates public space such as a plaza or courtyard into the biuldmg deiqu may increase the front setbKk b) up to meat '(20) feet to accommodate that area to forty. !rceein 40% of the Brow building line_' If we are seriously looking to rescind the District Plans the Town invested years of effort and public input to create, respect the public process and seek to amend those plans first before proposing a new ULC that virtually eliminates the possibility for the level of public and private investment and vitality as envisioned in this adopted policy document (the East Town Center District Plan in this case) . Frankly, the redevelopment plans for the Town Core provide a level of detail that should warrant a simplification of development review processing and allow applicants a modified design review process instead of fighting for even an existing level of development rights and having to argue that their project provides public benefit. Partnership and investment in 5 the stated goals of the Town should be ample public benefit to the future residents and guests of Avon. Town Dfttfia .Flan niezm plains develaped by the T m-n thit describe the vision for expansion of the care coimnini.ty in enough dehW to influeme the vitaliNy and character of the Ta'n's g owth, The plans are based, upon an analysis of the origLwl pattern of development and actual opportunities and, cold wim assodated u th the land, such as eamuents, eaviroatttemal . issues, oil and gas daing rigbis, etc_ The street potrm n t reinforce pedestrian nsoz.enieut and insure that the co =Rmipr interconnects as it graves_ (c) Town Center (IQ The. TC theist is intended to provide sites for a , ety of uses such as hotels, conmercial estab aliments. offices and some residential users ia a predominately pedestrian envivonrnw. The Town Center should be distix>pished from other areas in the Town and sem as the focal pohit for social, business, and cuitural activities. This district cots zim die highest intensity of uses a,id should serve as the major trainit destination as v4J1 as pr(wide high le-vels of pedestTian accessibility. The TC distriet implements the mhw&we classification of the: Avian Fu ure Laird Use Plan. The Town Center District Plan is defined well enough, but the Town Center description in the Zoning Dimensional Standards doesn't mention the District Plans, but instead reverts to the more general Land Use Plan of the Avon Comprehensive Plan? This doesn't male sense - why aren't we referencing both the general and specific masterplans? 6 ;.20.100 Development Bonus Requh.-ements (a) Purpose. Din-elopment Bonuses may be awarded for proposed development projects in the Town Center JQ, Mixed-Use Commercial (MC), and Neighborhood Corffcial (NC) zone districts Miffe the application mmis Town goals and exceeds mininnim development standards and requirement-, A Development Bonus may allow a. project to exceed the maximum density, maximiun building height, or the mamamin FAR where the negab.ve impacts of such allowance on the public of on adjacent property owners do not oumeigh the beliefits to the public. The public benefits identified fit this section are related to, mitigating the impacts of higher density and more intense site development as well as related to promoting the viability and fitamonality of higher density and mare intense site development_ (b) Proceftres. An application for a Development Bonus sbAl be submitted concurrently with the principle, application for development of the property and shall follow the re%ieiv procedures, notice requim m-ents, and hearing requirements of the underlying development application. A public hearing by Town Coinicil, shall be conducted before the Town Council takes action on any application for a Development Bonus. A Development Bonus shall only be effective a-act binding on the Town if stated in a develcTment agreement which is approved by ordinance. (c) Submittal Re*rements. En addibion to the, reqniremeats- of the principle development application and application submittal requirernents required elsewhere in this Code, The Applicant shall submit the following additional maternh when requesting a Development Bonus: (1) A. narrative describing the nature and extent of the proposed Development Bonus and statement describing why the Applicant bebevies the requested Developmeur Bomis meets the criteria of this section, §7,20.100(d). The narrative should also describe how the proposed Development Bonus and the public benefits promote the Ninon Comprehensive Plan and the purposes of the Avon Unified Land Use Code. (Z) A solar resource ansaly^sis depicting the impact to sawrotm-ding property miners and public right -of -ways for applications which propose an increase in building height or an increase in FAR- The solar resomce analysis shall also include analysis of shade and potential ice formation for pedestrian sidewallcs, , plazas and routes. (3) Architectural renderings for each side of tile proposed structure which depict the impact to mews from adjacent properties and public right-of-ways and three dimensional modeling which demonstrates the height, bulk, view impacts and shading created by the proposed building in relationship to other stnxtwes. public areas and right-of-way within three hundred feet of the propeM � boundary. (4) An analysis of the additional impacts to public infrastructure and smices for proposals which include increased FAR aad'or increased density, including but not limited to additional impacts to streets, parks, water., water iiglits, sewer, public utilities, and schools. Staff continues to point out that the PUD process has failed the Town, and they are therefore proposing to remove the PUD process by reducing its viability in lieu of a 'development bonus process' which allows an absolute maximum bonus of 35% over all underlying zone district requirements (height, density, and FAR). While this sounds great in theory, as penned and in combination with the FAR provisions this will have the consequence in many instances of nullifying the goals of both the East and West Town Center District Plans. This is a confusing and complex system that does not incentivize investment or promote "accuracy in investment expectations", takes a guidance plan (the Housing Plan) and makes it a regulatory requirement, and then discounts private investment in Town desired public improvements (see below). 7 (1) Gem 'al Chteda. (i) Absolute Maximum. The absolute cLunulative maxitnuin paten al Development Banos shall be an increase m floor area ansl +'or building heigha that is thirty- five percent (35ANe) gieat"cr than the yiiaaranum.. allowed in the imderlying zone district. There shall be no naaxiinum potential Developnient. Bonus for deWty as long as the prv;risioris of this subsection. (h) Ctunulative Developnmit Bonuses, Subject to the absolute waximiun for Development Bonuses stated in sub - section a, above, multiple Development &anuWs inay be awrarded. by the Toun Council and way be applied cu miilativ-dy to a property, (iii) Promote Town Goals and Policies. The public bents proposed by Development Bonuses shall generally promote gams or policies of the Avon Comprehensive Plan, purpose.! of the A;,ron Development Code:. 2 the p.ojecis listed in tht aprQ- °ed Capital lnIprovemenr Projects budget_ The first criteria last sentence is not comprehendible. (2) HeigN Bonus (i) The minim mn building height may be increased to the extent of the floor to ceiling height (rip to a maximum of twenty (20) feet) for a portion of the building by the Pallor\ ring studs: ('A) An area which is equal to the floor area of the public parking andior transit area dedication. (B) An area ist ich is equal to the boor area of the area dedicated to tine by the general public as a streetscape enhanceinear. (C) An area which is equi�.ralent to the square footage of the area dedicated to the Town for streetscape eahauceruents_ (D) An area which is equivalent to the square footage of the area dedicated to the Tovkn for a retail business incubator. How does this promote investment and am I still permitted an architectural projection or will I now have to provide for public benefits above and beyond the revitalization of an aged structure, for instance, in the Town Center Districts? (3) Increased FAR The aimumurn FAIL may be imcreased by providing Attainable Haitsing that meets. the foilowying sumdasds: (A) At least fifty percent (3{ o) of a Development Bonus in FAR shall irnc-ltude . far -sale residential units with a deed restriction limiting the use and owitersimp of the property to full -orate residual use n the paincipal residence of the owner and without restriction on the prise of the initial sale or stt"hsequent resale; or.. (B) At least twenty -five percew (25 %) of a Development Bonus in FAR shall include for -sale residential units limcitiag the arse MW 01mersiaip of the properm� to full time residential use, resWctisag the appreciation on reWe price of the residence, aad requiring an itaitiai sales price which is affordable for a qualified buyer earnhig oue- limidred thirty perceut (1301/6) of avvrage median inco-me, -, or, (C) Payment -in -lieu of pro%idding affordable housing abased upon existing reel estate - vatues, market conditions, market trends, the anticipated t meframe to utilize fivads to se rge and pro-Me hour tra mctiong costs and adriumstrative costs for the Town to se cite and pwwding hot=& as svw amounts are determincai by the To, n- or, The staff example of Chapel Square PUD under the proposed ULC permitted an additional 6 residential units, 5 of which have to be deed restricted. There is no real "bonus" in reality and certainly no incentive to build according to the District Redevelopment Plans unless staff can prove otherwise with relevant scenarios and examples that are provided to the public through this process that also temper the desired physical shape of a redeveloped Town Core against the pro - formers that went into both East and West Town Center Planning efforts. Again, if the desire of the Town is to repeal these adopted policy plans it should do so first through a public process and before proposing a sweeping regulatory change. 9 incubator. The maxim mn FAR. may also be increased according to the following formida: _ Cost of approved public improvement The average- estimated cost per i quare foot of = additional square footage finished construction for the property seventy - five: percent (754-x) (ii!i) The maxinumn FAR may be increased at the ratio of one- thousand (1,000) Aime feet for each single filni ly equivalent of surplus water right dedicated to the To \va. (4) Increased Density (i) The inaximurn density tiny be increased by protridirg Attainable Housing that meets the following standards; (_) At least fifty percent (50" /8) of a Development Bonus in density sba.11, include for -sale residoiwl units with a deed restriction liuuting the use and ownership of the propemy to full -tune residendal use as the principal residence of the oximer and without restriction on the price of the initial sale or subsequent resale, or, (B) At least twenty-filre percent (25 %) of Development Bongs in density shall include for -sale residential units limiting the use and mxnersLp of the pry to full -tune residential use, restricting the appreciation on resale price of the residence, and requiring an initial sales price ,which is affordable for a qualified btr�er earning one - hundred thirty percent (130%) of avffage urethan income, ear_ As penned, this does nothing to promote a public /private partnership like the one that successfully built the Westin Riverfront project. Why is the developer cost Discounted 25% when in truth costs should be escalated for inflation in a multi -year phased project like the several envisioned in the Town District Redevelopment Plans? Again, there is no development incentive or bonus really being provided and you are reducing the value of even existing zoning rights by discouraging any investment in non - conforming structures. Certain staff criticism leveled against the Westin Riverfront PUD process among others during my tenure on the XAC is unfounded. Many PUD projects made the best of existing vesting and an imperfect set of design tools, but the inference that hours were spent negotiating over things like sidewalks and landscape areas as a result of a wholly dysfunctional land use code and PUD process is absurd. Good projects come from good partnerships and clear design goals. The entire ULC approach to removing the PUD process in lieu of the Development Bonus criteria should be deleted along with the proposed FAR provisions. A more sensible approach would be to create a streamlined development review process for those areas already falling under the guidance of both Bast and West Town Center District Plans. 7.15.144 Vested Property Right. The purpose of this Section is to provide procecitxres necessary to implement the provisions. of Article 68 of Title 24, C.R.S„ as a,nended. (a) As used in this Section, imless the context othenviise requires: 10 Site specffl1c developmenr plan means a planned. unit development plan, ar any amendment thereto_ approved ptxsmt to §7.16.00. Planned Unit of this Code, together with a. development agreenrut apprm,ed pursuant to y§(CROSS REFERENCE FORTH COMM) hereof: .A site specific development plan that creates vested property rights may also include other development approvals if approved at the discretlou of the Town Cntw.cil upon request by a propemy oxxmff: however, such request shall not result in an application for a development approval odd than a planned tinit development platy to be treated as a site specific development plan for die. puspows ofC -R-S. t§2-4- 68- 107'.?(l). When asked during your first reading about the need to approve a development agreement to receive a 'Development Bonus', I was informed that a development agreement is possible without a site specific development plan or need for a PUD. The code as penned contradicts this. Which is it? (c.) Stepp 3: Application Processing. (1) Dvtetinination of Completeness. .A €levelopmevi applicationp, sl'ta1l be reviewed for completeness by the Director within fifteen (15) business days after receipt. If the application is detertrr wd to not be complete then a v;Titten comnnmiraticm shall be promptly provided to the applicant indicating the specific deficicicies in lice application, The detemiirnationn that an application is complete or the bilure. to determine an application is incomplete tx°itivn fifteen (la) days shall not preclude the Town fram requiring infcinirati+an which is necessary acrd relmrant to ev =aluate the development application for cortrpliamce with the review, criteria_ A detem3inatimi icy, the Director that the application is iWomplete m<ay 1-w- arras ate 9 to tt- Tn-am f niwrit in acrnr&!,urp sx=ith thi- nrnrM - tine in A7 115 16n Jnnon c With the requirement of a preapplication meeting or meetings with any development application, stretching completeness review to half a month appears excessive especially for smaller classes of development applications. 7.16.030 Comprehens v-e Plan Amendment. This section setts forth procechues for reviewing proposed amendments to dv texts and maps of the Avon Cmiprehmsive Plan. The amendment process is established in order to pro -Ode flexibility M response to ch mging circumstances, to reflect changes in public policy, and to advance the general welfare of the To »vin. There are new amendment review criteria in this section which conflict, expand or replace the existing amendment procedures outlined in Appendix E of the Comprehensive Plan itself - which is it? Why are we proposing a new criteria and where is the public notice that we now seek to scrap the amendment procedures of the existing and approved Comprehensive Plan? (1) Dwelling, Ground 1-1oor Residential uses are prohibited on the ground floor of a ituxed -use stttacture in the NC, MC, and TC distncts. R,esidennal uses may be perriZ tted on die grotntd floor in the N- C and MC districts by special review Really. How does this apply to a PUD overlay, and why would you want to prohibit the potential of an employee housing unit in the BOH space of a mixed use project in any zone district? What about live work arrangements in the Town Core? 11 %a. vy a" 41x11. WY iN� nL" "64 aLWI}14"4 4y Ism-N 4l ufitlt and' cos►stnKtOn or nnaintertarace %%vrlc sclieduted to taste place upon Town streets Chapter 7.18 Dei- etoptament Standards 718MO >Pugxse and App- 11cabilin (a), Purpose The ptupo-se of the development stand wds in thus chapter is to establish the nim min reclWitments for design and development vnthLa the Toum of Avon. The development and design standards to this chapter shall apply to the ph5 sisal layout and design of all development. toilets exempted by ibis Detetapm Fade. These pro-% issons address the physical relatiombtsp t*tvl,eea devt1opmeal and adjacent properties. public streets., aeighboriic*ds, anal the natural emironrment m ctirder to 3ntlrtentent the coWehensivt plea vision for a more attmactive, efficient. aW 1ivgble conmuiaity (b) Applicability The general applicability of the pmrisions of this Cliapter 7. 8, D¢►cai'tltatnwo Standards. are more completely defined in this section. Ali new &— velopitteut shall comply with the standards of this Chapter. Any modification to an exist%rtg development. that is tion- couformuag to the regulations of this Chapter. which results in an additm or removal of fife percenr {50 %) or more of the development shall require the entire develapmem to come into compliance. Avon Developn+tent Code — PZCC Strikethrough Draft July 16, 2{D10 Page 126 In combination with the nonconformities definition, the applicability of new standards to all existing development language is unclear. Is it addition or removal of 50% of uses and structure? Development is poorly defined- for instance, if a fatyade remodel of 100 %b of my existing property requires that the entire development is in compliance with all the development standards, I will not remodel or invest or provide an adaptive reuse of existing buildings, especially in the Town Core. Is that the desired effect of this process? 7.16.120 Altei mative Equivalent Compl ance. Atterllative equivalent cm%itiance is a prmedttre that ailom development to meet the intent of the design -related pro %isions of this Cllapt+er through an alwrnatiw design, It is mart a general. waiver or weakening ofsegtrlitio„s; rather, dais application procecialre pern> is a site - specific plan that is equal to or better than the strict application, of a design standard specified in this Development Code. This procedure is not intended as a substitute for a variance or adalitusnfative modification or a wMclie for relief fi m sixidards in this Chapter. Alternaii'vt- compliance shall apply only to the specific site fer utdch it is requested and does not establish a. precedent for assured approval of other requests. Flexibility provided with this procedure is good, but the review criteria and areas of applicability are confusing. 12 (b) Bedew- Procedtrt-es. Applications fcT .altema& e equiRalew compliance shall be processed concurrently with the anderly aie ns t i u° � equivalent compliance with tie applicable design standards is desired and shall follow the procedures for such ttuderlying dew-ek9ntew application- Applications for alteniatiw equivalent compliance may be irAtiated by the cntmer of property for which alternative equivalent compl Nice is desired. (c) Review Authetity. The revrinv authority sbal.l be the rmiew authority as set forth for lie underlying development application- The PZC shall review all alternative equivalent compliance applications that have a conctarreat minor developn=t plan. application. (d) Rolew Ctitetia. The review atudmity shall use the fvlicming revimr ccxiteria as the basis for a decision oa an application for alternatrve egWtralent couaphawe: (1) The proposed alternative achieves ft intent of the subject desip or development standard to the sane or better dkegret tbm rte subject standard: (2) The proposed allternatiwle achieves the goals and policies of the Avon Comprelse<isiv, e Plana to the same or better degree than the subject standard, (3) The proposed alternative r ults m beuefiu to the community that are equivalent to or better than compliance with the, subject standard.- and (4) The proposed alternati-oc ides no greater impacts on adjacent properties than would occur through comphanrce tit °ith the specific requirements of this ordinance.. So, do you need to meet one or all criteria and why should a neighbor have standing in this matter if the only real questions are the first and last criteria? Was it clearly explained to P &Z and Council that adjacent property owners will now have standing in design review where they have not before? (e) Conditions. The re,.iewing authority mad- reconend or impose con diticm on an approval for alternative egtut-alent compliance provide such conditions are related to ensuring the performance of the alternamve equit"alent comphauce to meet or exceed the subject standard. Such conditions may include perf+annance guarantees, required, nmefranzes, or the ability to retFake an approval for altermauve equivalew compliance. After much investment to prove, for instance, that an engineered retaining wail is safe and in keeping with the intent of a design standard to the Town Engineer and P &Z my approval may be revoked? This requires some clarity and explanation. (i) Public Parking Districts and Facilities Council may establish Public Parl6ng Districts arid approve Public Parking, Facilities for designated areas of To %tit which may be used by property o u rners within the Public Parking District to street the nainisntum parking requirements set f6 ft in this y718.020, Parking and Loading, for commercial uses, structures or lets_ Tine procedures for establishing Public Rukintg .Distracts and standards for appro%gng Public Parking Facilities are set forth as fallows: 13 ray pu�r�c pate�mg praavat�a, or to ae lua,n�xea, tk7t�xiu a ruonc ra�txg tns�txct_ ieus ree. shall be aulomatically adjusted on the first day of January or each year based on the prior year's forecast of the D+eaorver- Boulder- Gre.eley conwiner Price 1 The paymiext in- lieu shall be due and payable at the time of the issuance of a building permit or at such other tune and pursw tt to such other terrtts as may be determined in a Development Agreement approved by the Cotxeecil by ordinance, .ill fiuktls collected shall be deposited in the Toum Public Fare Fund. A public parking district has already been established in Town Center, but may need to be reaffirmed by this provision at the same time of adoption. Also, there is no language as to the delivery of the parking by the GID or other form of district by the Town (at least some form of commitment other than receiving funds should be noted or you are shorting private and public parking for a project). This requires some attention to get right to encourage private investment in long desired central public parking structures. tA444iil Mixed -l.;se Buildings in Town center. Nixed -use sWactures in the To,am Center district shall meet the following standards- (A) The ground level shall be devoted to retail and restaurmt space, (B) Grotuid level retail and restaurant space shah be located along those fagades adjacent to or most visible frotn primary street frontages or major pedestrian wali+ways, and (CC ) -U ground floor commercial space must be at lust sb-Lreen (16) feet in height as measured from finished floor elevation to finished ceiling. This design standard seems overly restrictive and does not allow for typical ground level uses as they exist today or would with any new project that requires office, lobby or real estate windows to market and sell the product being created- like the Westin. Combined with the nonconformities section, an extensive remodel of a space in Town Center that may, for instance, serve as office or medical space may not be incentivized through this design review criteria. Is that really the desired result? (It) Parking (A) Parking areas shall be located behind buildings or distributed between the sides and rear of buildings. (B) Surface parking areas are prohibited benkreen the front fagade of the building and the streer. (C) Portions of the primary roaduray frontage not occupied by parking shall be occupied by— Not sure this is worded as intended for mixed use design standards. What about below buildings or a free standing parking structure lined with commercial /retail space? Or surface parking that is within the 'street' but not in the Town right of way. Overall the design guidelines are very affirmative (shall) in places where some creativity in design may not be consistent with the criteria proposed- this is an area you will frequently visit the alternative equivalence compliance provision in the Town Center where the District Redevelopment Plans have specified design objectives that conflict with aspects of this section. The ULC now also proposes to provide public standing in the design review process. 14 7.28.100 Natural Resource Protection (b) Stream River, Waterbody, and Wetlands (7) Purpose Tlus section is intended to tnwinuze erosion, stabilize stream banks, protect and improve water quality:, presme fish and wildlife habitat, and preserve the natural aesthetic value of streams, rivers, cater bodies, and wetland areas of the Tovm of 141voA Riparian is not a defined term in the code - you should use the informed definition of the 996 BRWP or just call it what it is - a stream setback. You could specify the use of organic or natural chemical treatments, hand or mechanical treatment only for noxious weeds in the riparian zone. Also you do not specifically permit river access by the section or provide for public seating, for instance, at Bob the bridge in the section. If the goal is to protect riparian areas, you should make this a minimum and reword so it could be increased based on site specific survey of riparian zone- which are not always attributable to the surveyed AHWL. ff) Scenic' 1ews (Xeser ed] There is only one platted view corridor from a public right of way and it is in the Westin PUD to Beaver Creek. Please explain the intent of this reserved section. If new view corridors are proposed, either public or private, they should be done through amendment of the existing suite of Comprehensive Plans first before regulating them here. (g) Alterma&e Energy System Standards The purpose of this smtion is to estates standards for alternative energy generating systenrs so that they may be altowed and will be comgatible in appropriate l+xations iu the To%vtt of Avon. (1) General StanLlards (i) Any person(s) or associatiais) regardless of date of establislunent is prohibited from irttposOg private cog s, oon+dirums, restrictions, deed clattses, or other agreements bemeen parties that prevent pe (s) from installing and using alternative energy systems. (ii) (resef -ved for additional standards added &ough review, process) (2) Solpz- Lqa�--Ground- Mounte€i Solar Collection Sy stem No definition provided for Ground Mounted Solar Collection Systems. Does not differentiate between passive or active solar. You could promote both and not require use of roof space first and potentially create a NIMBY issue. 15 Chapter 732 Engineering Improvement Standards 7.31010 General FroAsions (a) Pqupase These desip and improvement standards are adopted for the following ptarposes: (1) To proTect and to provide for the public bealtL safety. and general welfafe of present and film a vesidents of the Town, A number of design standards that create nonconformities of many residential lots based on a simple amended plat or technical correction plat, for instance dividing a platted lot as a minor subdivision in Wildridge or creating an additional egress requirement through a simple remodel in Eaglebend that requires a replat of a party wall subdivision. Is this the desired outcome ? (i) All lots with natural herds, floadpLains and slopes sleeper than thirty percent (30%) shall have platted building emdopes w rich restricts det-elopme yt to wears without natural hazards. floodplains and slopes steeper tw a thirty percent (iii) All building envelopes shall be no smaller than eight), (80) feet by eighty (8 -0) feet square. How about an area instead of a square, which doesn't fit every residential lot condition, especially in Wildridge or Eaglebend. (iv) If the access to the buildable area crosses slopes stems Own thirty percent (30%), the developer frill have to demonstrate that the access to dw buildable area can meet all other standards in this Code- Redundant and in conflict with the entire access design standard section of the Code. If it is a unified code, why have a separate Engineering standard to accomplish the same as the Design Standards? 7.32.050 Stot -mixer Drainage (a) Purpose and 4pwlicability (1) Ptupose laid &�lc aat, particularly increased i npervious uUtice area, has been shcn;m to degrarde crater quality and salter natural hydrology_ The standards of this section are intended to minimize the likel hood and extent of flooding and environmental damage from uncontrolled urban ninof L Does not address pre and post development hydrology and flow regime of river, or distributed stormwater management (green infrastructure strategies) but only pollutant treatment. The maintenance provision is weak and should be tied to a CO or other enforceable mechanism for annual review on larger projects. Stormwater or non -point source runoff is one of the biggest threats to our water resources. This section could be enhanced considerably. 16 7.32.090 Pirk-s Land Dedication (a) Pill -post This section is intended to regulate the &- velopment, presen -tiom avid mainternaace of parks, open space., and trails throughout Awn- PaGrlm, q3.m space, and trail regurlatiow; are intended to preserve natural areas and resources, preseru--e scenic vinirs, prwide access to omen areas and recreational opportuattm create public health benefits, and generally enhance the quality of life for Avon residents. Farticuia€ emphasis should be placed on prodding a diversity of parks. txa h, and open space oppose muties that serve residents of all ages and abilities aid that are accasst'ble front a variety of locations within the community. {b) Applicability The term 'residents' is not defined. There is no sliding scale based on density and use (no acres per household scale -which is commonplace for these types of dedications). There is no flexibility afforded from district redevelopment plans if park space is not contemplated on properties? No cash in lieu formula is specified- again, enfirely negotiable and with no predictability. C iviprer 7.36 _Annexation and Disconnection Procedures 7.36 -010 Purpose. Non residential property is not the same as Nonresidential Landowner, which is defined in CRS Title 31, Article 12. You should define both in this Chapter. ClELALPTER 7.40 1041 regulations A17icle it Adrtr Wstrt Ihv Provisions ons and Definitions 7.40.010 Tittle and eltation. Tie "Regulations for Areas and .divides Designated as _11avers of Sure and Local Interest," as the same may be vended f mn time to tune (tiie "Regulations') may be rated as the Torwn of Amon 1041 Regulations." 7.40.020 Purpose and findings. The general ptupose of these Regulations is to facilitate identification, designation and adnu rlistraticn of matter& of statre interest consistent with the how lade power and authority of the Toiim of Avon (the '- Touan" ), as authorized pursuant to Article XX of tlue Constitution of the State of Colorado, and the statutory powers mud criteria set forth in bq 24- 65.1 -101. et sec!.. C R.S. The goals of these Regulatic us are: 17 (a) The site selection of arterial highways, interchan res and collector highways. (b) Mimicipall and industrial - ater pr©jects, in.clulding the site selection and coustru ction of major new domestic water and sewage treatment systems. and major extension of existing domestic water and sewage treatment systems. (c) Development occin -ring within iiattura.l hazard areas, including the f7oodplain hazard area, the steep slope lia.zard area., and the , ;xedands hazard! areal. 7.40.110 Desi = nations o areas and actiw-ities of state and local interest. Wetland Hazard area is not defined and is a typo (I think- wetlands are regulated by the USACE). Is this right? Will 25 EQR's threshold apply to redevelopment applications identified in District Redevelopment Plans? If so, is that intentional? All approval criteria tests are covered in the zoning code already. This is a perverse incentive for redevelopment of Town Center (including a $10,000 application fee). Why are only the three AASI areas being selected? What is the basis for those areas and not other being included, like site selection of rapid or mass transit terminals or stations or efficient utilization of municipal water projects? For the almost two years l volunteered my time to the Zoning Advisory Committee, there was no discussion of the intent to regulate via a new 1041 regulation. Why does the staff memo indicate the only discussion forthcoming is with the ERWSD when as penned this new regulation affects everyone in the development community since they are the ones that will bear the burden of this application process, not just the water and sanitation district. THIS ELECTRONIC MALL TRANSMISSION INCLUDING ANY ATTACHMENT IS INTENDED ONLY FOR THE PERSON TO WHOM IT IS ADDRESSED AND CONTAINS INFORMATION THAT' IS CONFIDENTIAL AND LEGALLY PRIVILEGED. IF YOU ARE NOT THE INTENDED RECIPIENT, PLEASE. NOTIFY THE SENDER AT THE EMAIL ADDRESS ABOVE AND DESTROY ALL COPIES OF THIS MESSAGE. THANK YOU, 18 EXHIBIT B WEST TOWN CENTER INVESTMENT PLAN Policies and Recommendations 1. Page 5: Floor to Site Area Ratio (FAR) - A maximum FAR of 7:1 is allowed, provided that the project meets all priority design guidelines. 2. Page 5: Development in the town center shall provide a minimum FAR of 1.5:1. 3. Page 6: The first floor shall be retail on pedestrian- oriented streets, such as Main Street and Lettuce Shed Lane, for a depth of at least 35 feet from face of building. 4. Page 6: Office is not permitted on the ground floor, however, require retail space may be used for office uses on a temporary basis is approved by the Planning and Zoning Commission and re- reviewed on an annual basis. 5. Page 6: Housing is not permitted on the ground floor unless it is a transition from a residential neighborhood to the mixed -use core of the town center. 6. Page 13: It is recommended that stormwater volume rates area maintained, such that the post - project development two -year, 24 -hour peak discharge volume does not exceed the pre - project development two -year, 24 -hour peak discharge volume. 7. Page 15: Screening utilities with grading, walls or fences constructed to be consistent with the adjacent building's materials, color, and thoughtful detailing is encouraged. 8. Page 17: Grading must be sensitive to the natural topography by minimizing cut and fill in undisturbed areas. 9. Page 17: Grading areas must be re- vegetated with acceptable plant species within one growing season. 10. Page 18: Pedestrian walkways shall be continuous and shall compliment adjacent surfaces. 11. Page 20: All commercial service areas are to be screened from adjacent land uses by architectural features such as walls and fences at a minimum height of six -feet and /or heavily massed plant materials. 12. Page 20: Railroad ties, pressure- treated wood, and chemically treated wood are prohibited. 13. Page 23: Existing trees and mature vegetation may be preserved by protecting their root systems through the use of barricades and fencing during construction. 14. Page 55: Buildings, plazas and landscaping must be the predominant elements of the pedestrian areas, rather than parking lots and large signs. 15. Page 55: 70 percent of any ground floor facade that is visible from a street or Lettuce Shed Lane shall be comprised of windows with clear "vision " glass. 16. Page 57: A combination of balconies, recesses, and terraced roof gardens shall be used to articulate the building. 17. Page 57: It is recommended that buildings convey a visually distinct "base" and "top." 18. Page 59: It is recommended that parking occur in either interior courts or in structured parking. 19. Page 59: Loading and unloading docks are recommended to be separated from areas of heavy circulation and screened to minimize visual impact. Page -19 -of 19 LA _ _ Exhibit C a: k i r , i �,r r m� AVON RD. o i fi G� N 0 — IAM c ° Z I g O O S S- �o Z3 CD $a9a v m" 3 m N O CO dL O d �. m ro Cl) b� zi So 0 3 N O CD n o o 3 a m m CD N co g co co _- ° c) 00 TWA C m ` Q Q1 o. o Cr) C-) M CD g CD� m y cA Co QY �1 en b CD ro C_ (q TOWN OF AVON, COLORADO VON AVON WORK SESSION MEETING FOR TUESDAY, AUGUST 10, 2010 C— � A . u n MEETING BEGINS AT 2:45 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.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 2:45 PM — 3:45 PM 1. EXECUTIVE SESSION: a. Receiving legal advice pursuant to Colorado Revised Statute §24-6 - 402(4)(b) and for developing a strategy for negotiations and instructing negotiators pursuant to Colorado Revised Statute §24- 6- 402(4)(d) specifically related to pending litigation and settlement discussions regarding Minturn water rights cases, Nos. 07CW225 and 06CW264 (Town of Minturn and Ginn Battle South, LLC et al.) b. Receiving legal advice pursuant to Colorado Revised Statute §24-6 - 402(4)(b) related to pending litigation and settlement discussions regarding Town of Avon v Traer Creek Metropolitan District, 2008 CV 0385 and Traer Creek, LLC, et.al. v Town of Avon 2010 CV 316 3:45 PM 2. INQUIRY OF THE PUBLIC FOR COMMENT AND APPROVAL OF AGENDA 3:45 PM 3. COUNCIL COMMITTEE AND STAFF UPDATES 3:45 PM -4:15 PM 4. REVIEW TOWN OF AVON'S DEBT ISSUANCE SCHEDULES AND PROPOSAL FOR NEW ISSUANCES IN LIGHT OF PROPOSED NOVEMBER BALLOT MEASURE 61 (Scott Wright, Assistant Town Manager Finance) Review status of Avon's bond debt and financing options in light of proposed November ballot measures 4:15 PM 5. ADJOURNMENT Avon Council Meeting. 10.08.10 Page 1 of 5 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: August 4, 2010 Re: Bond Refunding/Amendment 61 Program Summary: Initials This memorandum and my PowerPoint presentation on Tuesday will present a more refined program regarding the 1998 COP refunding, new money issuance, and Amendment 61 implications that I briefed Council on at our last Council meeting. Financial Implications and Discussion: Amendment 61 Recap • Amendment 61 is effective beginning January 1, 2011 and amends Article X, Section 20 and Article XI of the Colorado Constitution ( "TABOR ") to add a new section to prohibit State debt and limit local government financings, in addition to all other existing provisions of TABOR. • Amendment 61 redefines what will be considered "debts" of the State and local governments. It applies to "any loan, whether or not it lasts more than one year; may default; is subject to annual appropriation or discretion; is called a certificate of participation, lease - purchase, lease -back, emergency, contingency, property lien, special fund, dedicated revenue bond, or any other name; or offers any other excuse, exception, or form." Traditional lease - purchase and lease - leaseback financings would be considered debt under Amendment 61. • Except for enterprise borrowings, when a borrowing is repaid, tax rates must decline in an amount equal to its planned average repayment, even if the debt is not repaid from taxes. Amendment 61's proponents intend this to include when a current lease purchase or other non -debt transaction is repaid. The proponents Page 1 state that if no specific tax is pledged to the debt, the government may choose which tax to decrease. Amendment 61 places various limits on borrowings, such that they may only be in the form of bonded debt, must be subject to prepayment without penalty at any time, and must mature within 10 years. These limitations are uncommon in municipal credit markets and will likely increase borrowing costs for issuers as well as increase annual repayment costs. Financial Repercussions The financial repercussions to the Town if Amendment 61 passes and the Town is not proactive in dealing head -on with the issues could be devastating. Over the next 8 years, taxes totaling over $1.2 million per year would be eliminated from the Town's coffers. Action Plan There are three debt issues that are outstanding that should be addressed between now and election day as follows: Series 1998 Certificates of Participation (COPS) with an outstanding balance at December 31, 2010 of $3,990,000, and annual debt service of approximately $560,000 per year through 2018. These bonds were used to finance the construction of the Fleet Maintenance facility. Series 1999 Revenue Refunding Bonds with an outstanding balance of $1,670,000, and annual debt service of approximately $475,000 per year through 2014. These bonds were originally used to finance the purchase of land at Swift Gulch and help construct the Avon Recreation Center. 2007 Capital Lease with an outstanding balance in the amount of $306,395 at December 31, 2010 and annual lease payments of $83,972 through 2014. Series 1998 Certificates of Participation As I discussed with Council at the last meeting, the opportunity exists now for the Town to refinance the existing COPS and issue "new money" that would be used to either provide matching funds for the Swift Gulch Transit/Public Works Facility Project or use the proceeds for existing CIP projects and reserve the funds that were to be used for those projects for the Swift Gulch project at some time in the future. The benefits of this action plan are as follows: • Having matching funds available for the Swift Gulch project; • Avoiding a reduction in taxes for twenty years if Amendment 61 passes; • Avoiding having to go to a vote if Amendment 61 passes; • Avoiding an accelerated maturity if Amendment 61 passes. • Page 2 The main drawback of the action plan is that but for the potential of Amendment 61 passing, the timing of the refinancing and cash out of funds for the Swift Gulch project occurs earlier than would be necessary. However, it is not recommended that the Town delay because of the financial repercussions discussed above. In addition, going to market after the election could potentially significantly increase the cost of borrowing if Amendment 61 passes and there is a rush to market by government entities or a negative outlook placed on all Colorado governments by the credit rating agencies. There are three refunding options that are being evaluated by myself, staff, bond counsel and bond underwriters. Refunding Option #1— Uniform Savings. This option refunds the existing debt over the same maturity (2018) as the exiting bonds. The new money or cash -out amortizes the remaining debt over a twenty -year period. This creates the largest present value savings for refunding the existing bonds, $294,404 or 7.78 %. The downside to this option is that the annual debt service is approximately $240,000 higher than current debt service over the next 7 years. Refunding Option #2 — Extend Refunding. This option refunds the existing debt over a twenty year period along with issuing the new money over that same twenty year period. This results in a much lower present value savings, only $7,718 or 0.22 %, but results in a much better cash flow with the annual debt service approximately $71,000 lower than is currently paid. Refunding Option #3 — 30 New Money. This option refunds the existing debt over a twenty -three year period for a $1 present value savings (legal requirement of a refunding), along with issuing the new money over a thirty-year term. Again, this results in no present value savings, but results in a much better cash flow with the annual debt service approximately $130,000 lower the first twenty -three years and $260,000 lower the final seven years. The downside to a thirty year term is that most capital projects other than new facilities do not have that long of an estimated life. Series 1999 Revenue Refunding Bonds If Amendment 61 passes, staffs recommendation would be to advance cash refund the existing Series 1999 Revenue Refunding bonds. Because of the extremely low interest rates available right now, the amount required to be placed into escrow would approximate the par amount of the bonds plus the interest coupons due each year, or $1,938,413. Because a 2011 debt service payment would already be provided for in the Town's 2011 budget, the additional funds required to come up with would be $1,449,575. This refunding could be accomplished in the short period of time between the election and the end of the year because there is no bond issuance occurring. The funds could be borrowed from other operating funds of the Town, with one caveat — a Council commitment to repay the funds from what would have been the normal appropriation of a General Fund transfer to the • Page 3 Debt Service Fund for the next four years. If Amendment 61 passes this action will preclude the Town from having to reduce its sales tax by approximately $470,000 beginning in 2015. 2007 Capital Lease The 2007 Capital Lease is basically the same as the 1999 Revenue Refunding Bonds. The Town could pay -off the lease in the amount of $306,394 prior to December 31, 2010 with a loan from another fund, and continue to budget the appropriation in the amount of $83,972 over the next 4 years as the means to repay the funds from which they were advanced. Recommendations: It is my recommendation for Council to direct staff to move forward with Refunding Option #2 for the CON using the attached timetable as a guide for issuance. It is also my plan to continue working out details regarding the refunding of the Series 1999 Revenue Refunding Bonds and the pay -off of the 2007 capital lease in the event that Amendment 61 passes. Town Manager Comments: Attachments: A— Refunding Option #1 — Uniform Savings B — Refunding Option #2 — Extend Refunding C — Refunding Option #3 — 30 -Year Term D — Draft Timetable • Page 4 kt q c• %YvNe tA t A Jul 20, 2010 2:30 pm Prepared by Piper Jaffray & Co. TABLE OF CONTENTS TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Uniform Savings Report Sources and Uses of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bond Debt Service Breakdown . . . . . . . . . . . . . . . . . . . . . . . . . . . Aggregate Net Debt Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . Bond Pricing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Savings..... ............................... Summary of Refunding Results . . . . . . . . . . . . . . . . . . . . . . . . . . . Prior Bond Debt Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Pipedaff ray Page 1 2 3 4 5 6 7 A,V�ctclime,v& A Jul 20, 2010 2:30 pm Prepared by Piper Jaffray & Co. Page I SOURCES AND USES OF FUNDS TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Uniform Savings Dated Date 09/01/2010 Delivery Date 09/01/2010 Sources: Bond Proceeds: Par Amount 6,765,000.00 Net Premium 171,770.85 6,936,770.85 Other Sources of Funds: Debt Service Reserve Fund 563,570.00 Prior Debt Service Fund 319,600.00 883,170.00 7,819,940.85 Uses: Project Fund Deposits: Project Fund Refunding Escrow Deposits: Cash Deposit SLGS Purchases Other Fund Deposits: Debt Service Reserve Fund Delivery Date Expenses: Cost of Issuance Underwriter's Discount Bond Insurance Other Uses of Funds: Additional Proceeds PiperJaff ray 3,000,000.00 0.07 4,058,344.00 4,058,344.07 553,188.66 60,000.00 67,650.00 76,174.08 203,824.08 4,584.04 7,819,940.85 A4a. e—k wee v,�i— A Jul 20, 2010 2:30 pm Prepared by Piper Jaffray & Co. Page 2 Period Ending 12/01/2010 12/01/2011 12/01/2012 12/01/2013 12/01/2014 12/01/2015 12/01/2016 12/01/2017 12/01/2018 12/01/2019 12/01/2020 12/01/2021 12/01/2022 12/01/2023 12/01/2024 12/01/2025 12/01/2026 12/01/2027 12/01/2028 12/01/2029 12/01/2030 PiperJaff ray BOND DEBT SERVICE BREAKDOWN TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Uniform Savings Series 2010 (New Money) 62,550.00 244,600.00 247,300.00 244,900.00 246,300.00 247,550.00 248,650.00 248,925.00 244,025.00 248,425.00 247,425.00 246,225.00 244,825.00 248,225.00 245,787.50 248, 137.50 245,062.50 246,287.50 247,062.50 246,850.00 246,162.50 Series 2010 (Refund 1998 COPS) 100,431.25 520,225.00 516,825.00 518,325.00 520,275.00 516,775.00 517,975.00 516,350.00 239,200.00 4,995,275.00 3,966,381.25 Total 162,981.25 764,825.00 764,125.00 763,225.00 766,575.00 764,325.00 766,625.00 765,275.00 483,225.00 248,425.00 247,425.00 246,225.00 244,825.00 248,225.00 245,787.50 248,137.50 245,062.50 246,287.50 247,062.50 246,850.00 246,162.50 8,961,656.25 hkkcl C-1-� vvve ✓� l" A Jul 20, 2010 2:30 pm Prepared by Piper Jaffray & Co. Page 3 AGGREGATE NET DEBT SERVICE Date TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Uniform Savings Fund earnings Debt Service & draws Total Annual Total 12/01/2010 162,981.25 2,765.94 160,215.31 160,215.31 12/01/2011 764,825.00 11,063.78 753,761.22 753,761.22 12/01/2012 764,125.00 11,063.78 753,061.22 753,061.22 12/01/2013 763,225.00 11,063.78 752,161.22 752,161.22 12/01/2014 766,575.00 11,063.78 755,511.22 755,511.22 12/01/2015 764,325.00 11,063.78 753,261.22 753,261.22 12/01/2016 766,625.00 11,063.78 755,561.22 755,561.22 12/01/2017 765,275.00 11,063.78 754,211.22 754,211.22 12/01/2018 483,225.00 293,995.45 189,229.55 189,229.55 12/01/2019 248,425.00 5,405.14 243,019.86 243,019.86 12/01/2020 247,425.00 5,405.14 242,019.86 242,019.86 12/01/2021 246,225.00 5,405.14 240,819.86 240,819.86 12/01/2022 244,825.00 5,405.14 239,419.86 239,419.86 12.01/2023 248,225.00 5,405.14 242,819.86 242,819.86 12/01/2024 245,787.50 5,405.14 240,382.36 240,382.36 12/01/2025 248,137.50 5,405.14 242,732.36 242,732.36 12/01/2026 245,062.50 5,405.14 239,657.36 239,657.36 12/01/2027 246,287.50 5,405.14 240,882.36 240,882.36 12/01/2028 247,062.50 5,405.14 241,657.36 241,657.36 12/01/2029 246,850.00 5,405.14 241,444.86 241,444.86 12/01/2030 246,162.50 275,662.13 (29.499.63) (29.499.63) 8,961,656.25 709,326.52 8,252,329.73 8,252,329.73 Pipedaff ray A-[+CkC� v►A per•- A Jul 20, 2010 2:30 pm Prepared by Piper Jaffray & Co. Page 4 BOND PRICING TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Uniform Savings Maturity Call Call Bond Component Date Amount Rate Yield Price Date Price Serial Bond: 12/01/2010 105,000 2.000% 1.250% 100.185 09/01/2010 Delivery Date 12/01/2011 535,000 2.000% 1.300% 100.864 Premium 171,770.85 12/01/2012 545,000 2.000% 1.450% 101.212 6,869,120.85 101.539111% Accrued Interest 12/01/2013 555,000 3.000% 1.700% 104.091 12/01/2014 575,000 3.000% 1.970% 104.177 12/01/2015 590,000 3.000% 2.400% 102.940 12/01/2016 610,000 3.500% 2.770% 104.160 12/01/2017 630,000 3.500% 3.040% 102.969 12/01/2018 370,000 4.000% 3.240% 105.459 12/01/2019 150,000 4.000% 3.430% 104.481 12/01/2020 155,000 4.000% 3.610% 103.312 12/01/2021 160,000 4.000% 3.770% 101.935 C 12/01/2020 100.000 12/01/2022 165,000 4.000% 3.900% 100.833 C 12/01/2020 100.000 12/01/2023 175,000 4.250% 4.020% 101.911 C 12/01/2020 100.000 12/01/2024 180,000 4.250% 4.140% 100.905 C 12/01/2020 100.000 12/01/2025 190,000 4.250% 4.250% 100.000 12/01/2026 195,000 4.500% 4.350% 101.223 C 12/01/2020 100.000 12/01/2027 205,000 4.500% 4.450% 100.401 C 12/01/2020 100.000 12/01/2028 215,000 4.750% 4.540% 101.699 C 12/01/2020 100.000 12/01/2029 225,000 4.750% 4.610% 101.126 C 12/01/2020 100.000 12/01/2030 235,000 4.750% 4.680% 100.557 C 12/01/2020 100.000 6,765,000 Dated Date 09/01/2010 Delivery Date 09/01/2010 First Coupon 12/01/2010 Par Amount 6,765,000.00 Premium 171,770.85 Production 6,936,770.85 102.539111% Underwriter's Discount (67.650.00) (1.000000) Purchase Price 6,869,120.85 101.539111% Accrued Interest Net Proceeds 6,869,120.85 Pipedaffray k a O: AE ( Oc OC U c � C Cn Q OE �zj c C C O' O U cC cam.. d a a s a i G1. a 0 M N _O O N O N a ti 00 j o H > N d A (t7 V7 E � W C a cn `a i L" - cv\ vwe vA- A boo 0000O -r nn11o0oo 0000�nno�oo� R N M M M Vl [- fT 00 O fT 00 C r 1 OOOO\O y O M J, H 110 'IT RT RT � -11 Rr C v1 N N N N N N N O > \O ONO N N W O od ll N O k �O ^ N N l- h O w kn [- l— O �c M M RT M M M M.tr M C O h M M M M M M M f'1 �a t O W \O �O ^ M V lam; U W) vi vi vi vi vi vi -- a� z one �0� 'IT 'tTRr RT RT R^ c n lq lq l M o0000000www6 C U h h h h h h h O� W O llc lc llc h R o0 N 04 d h 0 0 0 0 0 0 0 0 C V N O O O O O O O O 'p v1 kn kn kn kn kn O C C y M N N N l- l- l- Vl O O, god O N ^^ N ^ ^^ M nO. h h V1 h h h h N c c v,000OOOO c ^V lO lO \OV \OV 't W V' N N N N N r- a A ^� h h h� h h U kn V 1 V 1 kn Vl kn to Z z `o v O O O O O O O O p" U [� y N N N N N N N 00 N r M ^ ^ h �- d O O O O O O O O O O U 0 0 0 0 0 0 0 0 0 0. 0 0 0 0 0 0 0 0 0 y ONOOOOOVivi N^ h h h h Vl N [l O, — N N ^ D\ ^ N h \O h \O \O 'V A 0 0 0 0 0 0 0 0 0 r N N N N N N N N N A _ A 6 0 0 0 0 0 0 0 0 N N N N N N N N N 00 DD O O1 N tw V1 00 00 M M O 00 ri h O� N M � 8 N a p� N M C O > C m M , o. O r Cpl O h r 0 O O N 00 V1 O� 00 ^ 0o a. 0o vi O ri a. N a. M 0 a N 3 � o s � c s c U 'C c O a as z W A m-e vnV ik Jul 20, 2010 2:30 pm Prepared by Piper Jaffray & Co. Page 6 SUMMARY OF REFUNDING RESULTS TOWN OF AVON, COLORADO REFUNDING CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refund Series 1998) Uniform Savings Dated Date Delivery Date Arbitrage yield Escrow yield Bond Par Amount True Interest Cost Net Interest Cost Average Coupon Average Life Par amount of refunded bonds Average coupon of refunded bonds Average life of refunded bonds PV of prior debt to 09/01/2010 @ 3.712904% Net PV Savings Percentage savings of refunded bonds Percentage savings of refunding bonds Piperjaff ray 09/01/2010 09/01/2010 3.712904% 0.138120% 3,460,000.00 2.994983% 3.223050% 3.233597% 4.526 3,990,000.00 4.996412°.. o 4.576 4,247,777.29 294,403.79 7.378541% 8.508780% Jul 20, 2010 2:30 pm Prepared by Piper Jaffray & Co. Page 7 PRIOR BOND DEBT SERVICE TOWN OF AVON, COLORADO REFUNDING CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refund Series 1998) Uniform Savings Dated Date 09/01/2010 Delivery Date 09/01/2010 Period Ending Principal Coupon Interest Debt Service 12/01/2010 360,000 4.800% 99,200 459,200 12/01/2011 380,000 4.900% 181,120 561,120 12/01/2012 400,000 5.000% 162,500 562,500 12/01/2013 420,000 5.000% 142,500 562,500 12/01/2014 440,000 5.000% 121,500 561,500 12/01/2015 460,000 5.000% 99,500 559,500 12/01/2016 485,000 5.000% 76,500 561,500 12/01/2017 510,000 5.000% 52,250 562,250 12/01/2018 535,000 5.000% 26,750 561,750 3,990,000 961,820 4,951,820 Piperjaff ray Aikra*'Kmevll� 16 Jul 20, 2010 2:29 pm Prepared by Piper Jaffray & Co. TABLE OF CONTENTS TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Extend Refunding Report Page Sources and Uses of Funds . . . . . . . . . . . . . . . 1 Bond Debt Service Breakdown . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Aggregate Net Debt Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Bond Pricing . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Savings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Summary of Refunding Results . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Prior Bond Debt Service . . . . . . . . . . . . . 8 PiperJaff ray A�ehme V-. 'lam Jul 20, 2010 2:29 pm Prepared by Piper Jaffray & Co. Page 1 SOURCES AND USES OF FUNDS TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Extend Refunding Dated Date 09/01/2010 Delivery Date 09/01/2010 Sources: Bond Proceeds: Par Amount Net Premium 6,920,000.00 131,381.95 7,051,381.95 Other Sources of Funds: 60,000.00 Debt Service Reserve Fund 563,570.00 Prior Debt Service Fund 319,600.00 883,170.00 Other Uses of Funds: 7,934,551.95 Uses: 3,864.83 Project Fund Deposits: 7,934,551.95 Project Fund 3,000,000.00 Refunding Escrow Deposits: Cash Deposit 0.07 SLGS Purchases 4,058,344.00 4,058,344.07 Other Fund Deposits: Debt Service Reserve Fund 653,197.72 Delivery Date Expenses: Cost of Issuance 60,000.00 Underwriter's Discount 69,200.00 Bond Insurance 89,945.33 219,145.33 Other Uses of Funds: Additional Proceeds 3,864.83 7,934,551.95 PiperJaff ray Jul 20, 2010 2:29 pm Prepared by Piper Jaffray & Co. Page 2 Period Ending 12/01/201 12/01/201 12/01/201 12/01/201 12/01/201 12/01/201 12/01/201 12/01/201 12/01/201 12/01/201 12/01/202 12/01/202 12/01/202 12/01/202 12/01/202 12/01/202 12/01/202 12/01/202 12/01/202 12/01/202 12/01/203 Piperjaff ray BOND DEBT SERVICE BREAKDOWN TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Extend Refunding Series 2010 Series 2010 (New (Refund 1998 Money) COPS) Total 0 63,056.25 1 251,625.00 2 249,225.00 3 251,825.00 4 248,075.00 5 249,325.00 6 250,425.00 7 250,700.00 8 250,800.00 9 250,000.00 0 249,000.00 1 247,800.00 2 251,400.00 3 249,600.00 4 252,162.50 5 249,300.00 6 251,225.00 7 252,225.00 8 252,775.00 9 252,325.00 0 251,400.00 5,074,268.75 135,459.38 249,837.50 252,637.50 250,337.50 251,887.50 253,287.50 249,537.50 250,162.50 250,612.50 250,212.50 249,612.50 253,812.50 252,612.50 251,212.50 254,200.00 251,762.50 254,112.50 250,562.50 251,787.50 252,050.00 591,837.50 5,507,534.38 198,515.63 501,462.50 501,862.50 502,162.50 499,962.50 502,612.50 499,962.50 500,862.50 501,412.50 500,212.50 498,612.50 501,612.50 504,012.50 500,812.50 506,362.50 501,062.50 505,337.50 502,787.50 504,562.50 504,375.00 843,237.50 10,581,803.13 A}i0, \YvNewk- .n Jul 20, 2010 2:29 pm Prepared by Piper Jaffray & Co. Page 3 AGGREGATE NET DEBT SERVICE Date TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Extend Refunding Fund earnings Debt Service & draws Total Annual Total 12/01/2010 198,515.63 3,265.99 195,249.64 195,249.64 12/01/2011 501,462.50 13,063.94 488,398.56 488,398.56 12/01/2012 501,862.50 13,063.94 488,798.56 488,798.56 12/01/2013 502,162.50 13,063.94 489,098.56 489,098.56 12/01/2014 499,962.50 13,063.94 486,898.56 486,898.56 12/01/2015 502,612.50 13,063.94 489,548.56 489,548.56 12/01/2016 499,962.50 13,063.94 486,898.56 486,898.56 12/01/2017 500,862.50 13,063.94 487,798.56 487,798.56 12/01/2018 501,412.50 13,063.94 488,348.56 488,348.56 12/01/2019 500,212.50 13,063.94 487,148.56 487,148.56 12/01/2020 498,612.50 13,063.94 485,548.56 485,548.56 12/01/2021 501,612.50 13,063.94 488,548.56 488,548.56 12/01/2022 504,012.50 13,063.94 490,948.56 490,948.56 12/01/2023 500,812.50 13,063.94 487,748.56 487,748.56 12/01/2024 506,362.50 13,063.94 493,298.56 493,298.56 12/01/2025 501,062.50 13,063.94 487,998.56 487,998.56 12/01/2026 505,337.50 13,063.94 492,273.56 492,273.56 12/01/2027 502,787.50 13,063.94 489,723.56 489,723.56 12/01/2028 504,562.50 13,063.94 491,498.56 491,498.56 12/01/2029 504,375.00 13,063.94 491,311.06 491,311.06 12/01/2030 843,237.50 666,261.66 176,975.84 176,975.84 10,581,803.13 917,742.51 9,664,060.62 9,664,060.62 Piperjaff ray. A-Vvxc-1-AMeVNft- b Jul 20, 2010 2:29 pm Prepared by Piper Jaffray & Co. Page 4 BOND PRICING TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Extend Refunding Maturity Bond Component Date Amount Rate Yield Price Call Date Call Price Serial Bond: 12/01/2010 130,000 2.000% 1.250% 100.185 12/01/2011 230,000 2.000% 1.300% 100.864 12/01/2012 235,000 2.000% 1.450% 101.212 12/01/2013 240,000 3.000% 1.700% 104.091 12/01/2014 245,000 3.000% 1.970% 104.177 12/01/2015 255,000 3.000% 2.400% 102.940 12/01/2016 260,000 3.500% 2.770% 104.160 12/01/2017 270,000 3.500% 3.040% 102.969 12/01/2018 280,000 4.000% 3.240% 105.459 12/01/2019 290,000 4.000% 3.430% 104.481 12/01/2020 300,000 4.000% 3.610% 103.312 12/01/2021 315,000 4.000% 3.770% 101.935 C 12/01/2020 100.000 12/01/2022 330,000 4.000% 3.900% 100.833 C 12/01/2020 100.000 12/01/2023 340,000 4.250% 4.020% 101.911 C 12/01/2020 100.000 12/01/2024 360,000 4.250% 4.140% 100.905 C 12/01/2020 100.000 12/01/2025 370,000 4.250% 4.250% 100.000 12/01/2026 390,000 4.500% 4.350% 101.223 C 12/01/2020 100.000 12/01/2027 405,000 4.500% 4.450% 100.401 C 12/01/2020 100.000 12/01/2028 425,000 4.750% 4.540% 101.699 C 12/01/2020 100.000 12/01/2029 445,000 4.750% 4.610% 101.126 C 12/01/2020 100.000 12/01/2030 805,000 4.750% 4.680% 100.557 C 12/01/2020 100.000 6,920,000 Dated Date Delivery Date First Coupon Par Amount Premium Production Underwriter's Discount Purchase Price Accrued Interest Net Proceeds PiperJaffray 09/01 /2010 09/01/2010 12/01/2010 6,920,000.00 131,381.95 7,051,381.95 101.898583% (69.200.00) (1.000000) 6,982,181.95 100.898583% 6,982,181.95 a cn Q O U c0 N CL a s ° L C C. 0. 0. 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SUMMARY OF REFUNDING RESULTS TOWN OF AVON, COLORADO REFUNDING CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refund Series 1998) Extend Refunding Dated Date 09/01/2010 Delivery Date 09/01/2010 Arbitrage yield 4.225254% Escrow yield 0.138120% Bond Par Amount 3,565,000.00 True Interest Cost 4.377934% Net Interest Cost 4.476621% Average Coupon 4.367086% Average Life 12.477 Par amount of refunded bonds 3,990,000.00 Average coupon of refunded bonds 4.996412% Average life of refunded bonds 4.576 PV of prior debt to 09/01/2010 @ 4.225254% 4,162,595.28 Net PV Savings 7,718.23 Percentage savings of refunded bonds 0.193439% Percentage savings of refunding bonds 0.216500% Pipedaff ray Page 7 A4c-x-1nYvie- V'-1S Jul 20, 2010 2:29 pm Prepared by Piper Jaffray & Co. Page 8 PRIOR BOND DEBT SERVICE TOWN OF AVON, COLORADO REFUNDING CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refund Series 1998) Extend Refunding Dated Date 09/01/2010 Delivery Date 09/01/2010 Period Debt Ending Principal Coupon Interest Service 12/01/2010 360,000 4.800% 99,200 459,200 12/01/2011 380,000 4.900% 181,120 561,120 12/01/2012 400,000 5.000% 162,500 562,500 12/01/2013 420,000 5.000% 142,500 562,500 12/01/2014 440,000 5.000% 121,500 561,500 12/01/2015 460,000 5.000% 99,500 559,500 12/01/2016 485,000 5.000% 76,500 561,500 12/01/2017 510,000 5.000% 52,250 562,250 12/01/2018 535,000 5.000% 26,750 561,750 3,990,000 961,820 4,951,820 PiperJaffray A-Ac�� me tll+ "I. Aug 2, 2010 4:04 pm Prepared by Piper Jaffray & Co. TABLE OF CONTENTS TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 20I0 (Refunding & New Money) Report Page Sources and Uses of Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Bond Debt Service Breakdown . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Aggregate Net Debt Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Bond Pricing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Savings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Summary of Refunding Results . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Prior Bond Debt Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Piperjaff ray Aug 2, 2010 4:04 pm Prepared by Piper Jaffray & Co. Page 1 SOURCES AND USES OF FUNDS TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Dated Date 09/01/2010 Delivery Date 09/01/2010 Sources: Bond Proceeds: Par Amount 6,790,000.00 Net Premium 114,772.90 6,904,772.90 Other Sources of Funds: Debt Service Reserve Fund 563,570.00 Prior Debt Service Fund 319,600.00 883,170.00 7,787,942.90 ses: Project Fund Deposits: Project Fund 3,000,000.00 Refunding Escrow Deposits: Cash Deposit SLGS Purchases Other Fund Deposits: Debt Service Reserve Fund Delivery Date Expenses: Cost of Issuance Underwriter's Discount Bond Insurance Other Uses of Funds: Piperjafiray 0.98 4,058,382.00 4,058,382.98 496,798.81 60,000.00 67,900.00 102,191.52 230,091.52 2,669.59 7,787,942.90 AA,,,v,,,e,A— Q, Aug 2, 2010 4:04 pm Prepared by Piper Jaffray & Co. Page 2 BOND DEBT SERVICE BREAKDOWN TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION PiperJaff may IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Series 2010 Period Series 2010 (New (Refund 1998 Ending Money) COPS) Total 12/01/2010 51,096.88 136,796.88 187,893.76 12/01/2011 204,087.50 235,187.50 439,275.00 12/01/2012 202,887.50 233,387.50 436,275.00 12/01/2013 201,687.50 236,587.50 438,275.00 12/01/2014 204,887.50 233,737.50 438,625.00 12/01/2015 202,937.50 235,887.50 438,825.00 12/01/2016 205,987.50 237,887.50 443,875.00 12/01/2017 203,537.50 234,212.50 437,750.00 12/01/2018 201,087.50 235,537.50 436,625.00 12/01/2019 203,287.50 236,137.50 439,425.00 12/01/2020 205,287.50 236,537.50 441,825.00 12/01/2021 202,087.50 236,737.50 438,825.00 12/01/2022 203,887.50 236,737.50 440,625.00 12/01/2023 205,487.50 236,537.50 442,025.00 12/01/2024 201,662.50 235,800.00 437,462.50 12/01/2025 202,837.50 234,850.00 437,687.50 12/01/2026 203,800.00 233,687.50 437,487.50 12/01/2027 204,300.00 236,937.50 441,237.50 12/01/2028 204,575.00 234,737.50 439,312.50 12/01/2029 204,350.00 236,900.00 441,250.00 12/01/2030 203,887.50 233,587.50 437,475.00 12/01/2031 203,187.50 230,037.50 433,225.00 12/01/2032 202,250.00 236,250.00 438,500.00 12/01/2033 205,750.00 551,250.00 757,000.00 12/01/2034 203,750.00 203,750.00 12/01/2035 201,500.00 201,500.00 12/01/2036 204,000.00 204,000.00 12/01/2037 201,000.00 201,000.00 12/01/2038 202,750.00 202,750.00 12/01/2039 204,000.00 204,000.00 12/01/2040 204,750.00 204,750.00 6,156,584.38 5,865,946.88 12,022,531.26 PiperJaff may 0� vv-'�'e ot� 0--, Aug 2, 2010 4:04 pm Prepared by Piper Jaffray & Co. AGGREGATE NET DEBT SERVICE Date TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Fund earnings Debt Service & draws Total Annual Total 12/01/2010 187,893.76 2,484.00 185,409.76 185,409.76 12/01/2011 439,275.00 9,935.96 429,339.04 429,339.04 12/01/2012 436,275.00 9,935.96 426,339.04 426,339.04 12/01/2013 438,275.00 9,935.96 428,339.04 428,339.04 12/01/2014 438,625.00 9,935.96 428,689.04 428,689.04 12/01/2015 438,825.00 9,935.96 428,889.04 428,889.04 12/01/2016 443,875.00 9,935.96 433,939.04 433,939.04 12/01/2017 437,750.00 9,935.96 427,814.04 427,814.04 12/01/2018 436,625.00 9,935.96 426,689.04 426,689.04 12/01/2019 439,425.00 9,935.96 429,489.04 429,489.04 12/01/2020 441,825.00 9,935.96 431,889.04 431,889.04 12/01/2021 438,825.00 9,935.96 428,889.04 428,889.04 12/01/2022 440,625.00 9,935.96 430,689.04 430,689.04 12/01/2023 442,025.00 9,935.96 432,089.04 432,089.04 12/01/2024 437,462.50 9,935.96 427,526.54 427,526.54 12/01/2025 437,687.50 9,935.96 427,751.54 427,751.54 12/01/2026 437,487.50 9,935.96 427,551.54 427,551.54 12/01/2027 441,237.50 9,935.96 431,301.54 431,301.54 12/01/2028 439,312.50 9,935.96 429,376.54 429,376.54 12/01/2029 441,250.00 9,935.96 431,314.04 431,314.04 12/01/2030 437,475.00 9,935.96 427,539.04 427,539.04 12/01/2031 433,225.00 9,935.96 423,289.04 423,289.04 12/01/2032 438,500.00 9,935.96 428,564.04 428,564.04 12/01/2033 757,000.00 325,309.45 431,690.55 431,690.55 12/01/2034 203,750.00 3,628.50 200,121.50 200,121.50 12/01/2035 201,500.00 3,628.50 197,871.50 197,871.50 12/01/2036 204,000.00 3,628.50 200,371.50 200,371.50 12/01/2037 201,000.00 3,628.50 197,371.50 197,371.50 12/01/2038 202,750.00 3,628.50 199,121.50 199,121.50 12/01/2039 204,000.00 3,628.50 200,371.50 200,371.50 12/01/2040 204,750.00 185,053.82 19,696.18 19,696.18 12,022,531.26 753,209.39 11,269,321.87 11,269,321.87 Piperjaff ray Page 3 Onoc.V\ vvve v�� (L Aug 2, 2010 4:04 pm Prepared by Piper Jaffray & Co. Page 4 BOND PRICING Pipedaff ray TOWN OF AVON, COLORADO CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refunding & New Money) Maturity Call Call Bond Component Date Amount Rate Yield Price Date Price Serial Bond: 12/01/2010 115,000 2.000% 1.250% 100.185 12/01/2011 150,000 2.000% 1.250% 100.926 12/01/2012 150,000 2.000% 1.370% 101.390 12/01/2013 155,000 3.000% 1.620% 104.350 12/01/2014 160,000 3.000% 1.840% 104.719 12/01/2015 165,000 3.000% 2.290% 103.491 12/01/2016 175,000 3.500% 2.680% 104.687 12/01/2017 175,000 3.500% 2.970% 103.430 12/01/2018 180,000 4.000% 3.190% 105.830 12/01/2019 190,000 4.000% 3.380% 104.885 12/01/2020 200,000 4.000% 3.570% 103.659 12/01/2021 205,000 4.000% 3.730% 102.277 C 12/01/2020 100.000 12/01/2022 215,000 4.000% 3.860% 101.171 C 12/01/2020 100.000 12/01/2023 225,000 4.250% 3.980% 102.249 C 12/01/2020 100.000 12/01/2024 230,000 4.250% 4.100% 101.239 C 12/01/2020 100.000 12/01/2025 240,000 4.250% 4.210% 100.324 C 12/01/2020 100.000 12/01/2026 250,000 4.500% 4.310% 101.554 C 12/01/2020 100.000 12/01/2027 265,000 4.500% 4.410% 100.729 C 12/01/2020 100.000 12/01/2028 275,000 4.750% 4.510% 101.945 C 12/01/2020 100.000 12/01/2029 290,000 4.750% 4.590% 101.289 C 12/01/2020 100.000 12/01/2030 300,000 4.750% 4.670% 100.638 C 12/01/2020 100.000 12/01/2031 310,000 4.750% 4.750% 100.000 12/01/2032 330,000 5.000% 4.820% 101.435 C 12/01/2020 100.000 12/01/2033 665,000 5.000% 4.870% 101.031 C 12/01/2020 100.000 12/01/2034 145,000 5.000% 4.900% 100.790 C 12/01/2020 100.000 12/01/2035 150,000 5.000% 4.920% 100.630 C 12/01/2020 100.000 12/01/2036 160,000 5.000% 4.930% 100.550 C 12/01/2020 100.000 12/01/2037 165,000 5.000% 4.940% 100.470 C 12/01/2020 100.000 12/01/2038 175,000 5.000% 4.950% 100.390 C 12/01/2020 100.000 12/01/2039 185,000 5.000% 4.960% 100.310 C 12/01/2020 100.000 12/01/2040 195,000 5.000% 4.970% 100.231 C 12/01/2020 100.000 6,790,000 Dated Date 09/01/2010 Delivery Date 09/01/2010 First Coupon 12101,2010 Par Amount 6,790,000.00 Premium 114,772.90 Production 6,904,772.90 101.690323% Underwriter's Discount (67900.00) (1.000000) Purchase Price 6,836,872.90 100.690323% Accrued Interest Net Proceeds 6,836,872.90 Pipedaff ray 7 bU 0. 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C7 Q 0 U c� ca a a s v a E C6 v 0 v 0 0 N N bA 7 Q z _o Q 0. Ov A � O 00 U W OQ U Q c?. O F w U oZ A tz. W a N a� E N W � e Cn cti � O 't M V1 O V1 O 00 O\ 3 � o cd � s s 0 U 'C A- 4ck C-V-\ VVI e V-1 +- Q-.j C� CCS 1� 44,ck c�� me v\4- C, Aug 2, 2010 4:04 pm Prepared by Piper Jaffray & Co. Page 7 SUMMARY OF REFUNDING RESULTS TOWN OF AVON, COLORADO REFUNDING CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refund Series 1998) Dated Date 09/01/2010 Delivery Date 09/01/2010 Arbitrage yield 4.592788% Escrow yield 0.128251% Bond Par Amount 3,540,000.00 True Interest Cost 4.557606% Net Interest Cost 4.657188% Average Coupon 4.560680% Average Life 14.407 Par amount of refunded bonds 3,990,000.00 Average coupon of refunded bonds 4.996412% Average life of refunded bonds 4.576 PV of prior debt to 09/01/2010 @ 4.592788% 4,103,086.11 Net PV Savings 9,053.99 Percentage savings of refunded bonds 0.226917% Percentage savings of refunding bonds 0.255762% Piperjaff ray Aug 2, 2010 4:04 pm Prepared by Piper Jaffray & Co. Page 8 PRIOR BOND DEBT SERVICE TOWN OF AVON, COLORADO REFUNDING CERTIFICATES OF PARTICIPATION IN LEASE PURCHASE AND SUBLEASE AGREEMENT SERIES 2010 (Refund Series 1998) Dated Date 09/01/2010 Delivery Date 09/01/2010 Period Debt Ending Principal Coupon Interest Service 12/01/2010 360,000 4.800% 99,200 459,200 12/01/2011 380,000 4.900% 181,120 561,120 12/01/2012 400,000 5.000% 162,500 562,500 12/01/2013 420,000 5.000% 142,500 562,500 12/01/2014 440,000 5.000% 121,500 561,500 12/01/2015 460,000 5.000% 99,500 559,500 12/01/2016 485,000 5.000% 76,500 561,500 12/01/2017 510,000 5.000% 52,250 562,250 12/01/2018 535,000 5.000% 26,750 561,750 3,990,000 961,820 4,951,820 PiperJaff ray A �Q- � YKe vcc 6,800,000* TOWN OF AVON, COLORADO Certificates of Participation, Series 2010 Draft Timetable, as of July 28, 2010 S M T W T F S 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 27 28 29 30 S M T W T F S 1 2 3 4 5 � 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 S M T W T F S 8/12/10 Kick Off Conference Call All 8/13/10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Receive Ratings and Insurance Quote UW 10/5/10 Post POS BC Date Event Responsibility 8/10/10 Council update on refunding and new money plan A 8/12/10 Kick Off Conference Call All 8/13/10 Begin Legal Document/POS Preparation BC 8/24/10 or 9/14/10 First Reading of the Ordinance A 8/27/10 1t Draft of Legal Documents Distributed BC 9/2/10 2:00 P.M.—lat Document Review Session Location: Sherman & Howard All 9/9/10 Revised Legal and Offering Documents Distributed BC 9/14/10 2:00 P.M. -2 ND Document Review Session (if necessary) Location: Sherman & Howard All 9/16/10 Send Documents to Rating Agencies BC /UW 9/23/10 Ratings Calls with Ratings Agencies (estimated) A/UW 9/28/10 Second Reading of the Ordinance A 9/30/10 Receive Ratings and Insurance Quote UW 10/5/10 Post POS BC 10/14/10 . Market Bonds • CPA Signed UW A 10/18/10 Final OS Distributed for Comments BC 10/19/10 Final OS Printed and Distributed Printer 10/22/10 . Closing Documents Distributed • Comments Back to Bond Counsel on OS All 10/25/10 Final Closing Documents Distributed All 11/2/10 Closing All A - Town of Avon, Staff and Consultants BC - Bond Counsel and Disclosure Counsel (Sherman & Howard) UW - Underwriter (Piper Jaffray & Co) * Estimate PiperJaff ray.