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TC Minutes 01-27-1987MINUTES OF THE REGULAR AVON TOWN COUNCIL MEETING HELD JANUARY 27, 1987 - 7:30 P.M. The regular meeting of the Town Council of the Town of Avon, Colorado was held in the Municipal Building, 400 Benchmark Road, Avon, Colorado, in the Council Chambers. The meeting was called to order by Mayor Pro Tem Steve Miller at 7:53 p.m. A roll call was taken with Emilie Harrison, Clint Watkins, Gloria McRory, Al Connell and Jerry Davis present. Mayor Allan Nottingham was absent. Also present were Town Attorney John Dunn, Town Manager Bill James, Director of Engineering/Community Development Norm Wood, Director of Public Works, Parks and Recreation Larry Brooks, Chief of Police Joe Olson, Planning Consultant Jim Lamont, as well as, members of press and public. The Mayor Pro Tem called for Citizen Input. There being no one wishing to be heard, the Mayor Pro Tem closed the discussion. The Town Attorney requested that Ordinance No. 87-1, Series of 1987, be deferred until later in the meeting so that the he could review documents that he had just received regarding the shopping center. The Council agreed. The Mayor Pro Tem proceeded. First reading of Ordinance No. 87-2, Series of 1987, AN ORDINANCE AUTHORIZING EXECUTION OF A CERTAIN EQUIPMENT LEASE AGREEMENT(police cars). Councilman Watkins moved approval of Ordinance No. 87-2, Series of 1987 on first reading. The motion was seconded by Councilman Connell. The Mayor Pro Tem opened the meeting for discussion. The Town Manager stated that he felt that this was somewhat of an urgency. He stated that the police cars were being delivered the first part of February and that the ordinance would have to be approved before the cars could be delivered. Mr. James recommended that Council go ahead and take action on the ordinance. He stated that there were a couple of changes that needed to be made to the ordinance. He stated that there were five leases, one for each car, so the ordinance would have to be changed to read plural. The interest rate was 7.8%. Joe Olson stated that after addendum I, add, "II,III,IV,V". • Councilman Watkins amended his motion to include the changes. Councilman Connell amended his second. A roll call was taken with Emilie Harrison, Clint Watkins, Gloria McRory, Al Connell and Jerry Davis voting aye. There were no nay votes. The motion was unanimously carried. First reading of ordinance No. 87-3, Series of 1987, AN ORDINANCE AMENDING THE MUNICIPAL CODE OF THE TOWN OF AVON BY THE ADDITION OF SECTIONS 9.12.050, 9.12.060 AND 9.12.070 AS IT PERTAINS TO FALSE IDENTIFICATION, POSSESSION OF LIQUOR BY UNDER AGE PERSONS PROVIDING PENALTIES FOR VIOLATION THEREOF. Councilman Watkins moved approval of Ordinance No. 87-3, Series of 1987 on first reading. The motion was seconded by Councilman Connell. Joe Olson stated that this ordinance was at the request of the Council. It was felt that this matter was a weakness in the present ordinance. This ordinance would now impose a penalty at the Municipal Level for those under age who were attempting to purchase alcohol. There being no further discussion, a roll call was taken with Emilie Harrison, Clint Watkins, Gloria McRory, Al Connell and Jerry Davis voting aye. There were no nay votes. The motion was unanimously carried. First reading of Ordinance No. 87-4, Series of 1987, AN ORDINANCE AMENDING THE MUNICIPAL CODE OF THE TOWN OF AVON BY THE ADDITION OF SECTIONS 10.14.010 THROUGH 10.14.100 AS IT PERTAINS TO PARKING AND IMPOUNDMENT OF VEHICLES. Councilman Connell moved approval of Ordinance No. 87-4, Series of 1987 on first reading. The motion was seconded by Councilwoman Harrison. The Mayor Pro Tem called for discussion. Joe Olson stated that this ordinance would bring the Town in compliance with the State Law, which had been changed last July regarding towing of vehicles on private and public property. After discussion the Mayor Pro Tem called for a roll call. Those Councilmembers voting aye were: Emilie Harrison, Clint Watkins, Al Connell, Gloria McRory and Jerry Davis. There were no nay votes. The motion was unanimously carried. First reading of Ordinance No. 87-5, Series of 1987, AN ORDINANCE ANNEXING TO THE TOWN OF AVON A PARCEL OF LAND LOCATED IN SECTION 12, T.5 SOUTH, RANGE 82W OF THE 6TH P.M., EAGLE COUNTY, COLORADO; AND SETTING FORTH FINDINGS AND CONCLUSIONS AND OTHER DETAILS THERETO. -2- 0 • Councilwoman Harrison moved approval of Ordinance No. 87-5, Series of 1987 on first reading. The motion was seconded by Councilman Watkins. Norm Wood stated that with two previous meetings, there were concerns expressed regarding the Annexation Agreement for the Stockyard Property. He stated that a number of changes have been made in the agreement in an attempt to address those concerns. The concerns are as follows: 1. Permitting minimum development. This phrase has been changed to "permitting allowed land uses and development. 2. Paragraph 2.4 has been revised to provide for the dedication of open space Tract at no cost to the Town prior to,or upon,acceptance of constructed roadway for maintenance by the Town. 3. Paragraph 2.5 has been added to provide for the granting of a 25 foot wide easement along the westerly side of Lot 1 for the possible future construction of Avon Road. Mr. Wood stated that staff had reviewed the conceptual plan that was prepared by Centennial Engineering for an Avon Road upgrade for a separated grade crossing. Mr. Wood stated that after the review, they had transposed the proposed Subdivision for the basis of that agreement onto the plans. Mr. Wood stated that it did appear that with the 25 foot setback construction easement, that the widening could be accomplished in accordance with the conceptual plans prepared by Centennial Engineering. Mr. Wood recommended approval of the Annexation Agreement, and approval of Ordinance No. 87-5 for the Annexation of the property. Michael Blair, Planner and representing the applicant for the Nottingham Ranch, approached the Council. He reviewed what the applicant was proposing to do as it related to the road situation. Councilman Watkins suggested that a construction easement agreement be prepared. It was requested that in paragraph 2.5, the paragraph be clarified. It was agreed that a time limit should be suggested before the land would revert back to the owners of record of Lot 1. The Town Attorney suggested that in paragraph 2.5, in the 11th line, it should be changed to read,"that is not used". Councilman Davis requested that the wordage be clarified on the 25 foot setback and to clarify the time limit only on the construction access easement. Mr. Wood stated that Tract A was based upon the access permit that was approved by the Highway Department. He stated that, to meet the Highway Department standards for that access, it would have required another lane to the bridge and additional widening at the railroad crossing. He stated that this present location was a compromise that the applicant worked out with the Highway Department, eliminating a crossing, until the road would be totally widened,to get the bridge constructed, then the road would probably be moved to the south of the property. Councilman Watkins questioned the signage on the property. Mr. Blair stated that those signs would be in regard to directional signs, such as, street name signs, identification signs, such as, pointing out trails and trailways. He stated that in any case, the signs would have to be approved by the Town. -3- • • The Mayor Pro Tem called for a roll call. Those Councilmembers voting aye were Emilie Harrison, Clint Watkins, Gloria McRory, Al Connell and Jerry Davis. There were no nay votes. The motion was unanimously carried. Second reading of Ordinance No. 87-1, Series of 1987, AN ORDINANCE REPEALING ORDINANCE 86-19 AND AUTHORIZING THE OBLIGATION OF THE TOWN OF AVON TO ACQUIRE A PORTION OF LOTS 23 AND 75, BLOCK 2, BENCHMARK AT BEAVER CREEK SUBDIVISION, TOWN OF AVON, FOR THE USE BY THE TOWN FOR PARKING PURPOSES. This was a public hearing. Councilman Davis moved approval of Ordinance No. 87-1, Series of 1987 on second reading. The motion was seconded by Councilman Connell. The Mayor Pro Tem opened the meeting for public hearing. There being no one wishing to be heard, the Mayor Pro Tem closed the public hearing. The Town Attorney presented the Council with a revised Ordinance 87-1 for the proposed shopping Center. He then read the ordinance by title. Attached to the revised ordinance was an agreement that incorporated some changes. Mr. Dunn then reviewed some of the substantial changes with the Council. The Town Attorney stated that some of the exhibits were missing, such as, Exhibit A(boundary survey to show how the tracts would be replatted); Exhibit D(agreement that the Town would sign to purchase the parking lot area; Exhibit E(the site plan). The developer requested that twenty two changes be made to the agreement. Lengthly discussion followed. The parking lot of the shopping center was discussed. Councilman Connell was concerned of the language in Section 7-C. He stated that it referred to it as the developer would control taxpayer paid parking. The Town Attorney suggested a minimum number of parking spaces. He stated that there were two motivations to that provision. 1. It was to satisfy Wal-Mart's parking requirements and in effect not to obstruct the full use of the parking lot. 2. To allow the sale of the entire project after the bonds were paid. He stated that after discussing that matter with Bond Counsel, it was decided that it was unacceptable, and could not be entered into under the Town's Charter. The Charter requires an election to sell property that was used for governmental purposes. He stated that the developer wanted the option to re-purchase the parking lot so the Town could retrieve its investment back. Mr. Dunn stated that Section 7-C has not been resolved. He stated that he did have concern of the language of that section. Councilman Connell stated that he could not support it. He stated that if the parking was paid for by the general public, then the general public should be the one controlling it, not the developer. -4- Wayne Peterson, representing HSW, Investments, Inc., approached the Council. Mr. Peterson stated that they agree in principle, the problem was the language. He stated the reason for the re-purchase agreement was; 1) that it allowed the Town to re-coop some of its investments other than through the normal sales tax; 2)that it prevented any future development on Tract A. He stated that the reason it was important that in financing a project, the lender would want to be satisfied, by the fact that they do not want us to break any of the convenants with Wal-Mart. One of the convenants with Wal-Mart was that the parking area remain as parking area as shown on the site plan. If the Town, in five years, wanted to put a building on the parking area, both the developer and the lender would be in default of the Wal-Mart lease. Councilman Connell did not feel comfortable with the developer telling the Town what to do with the parking area. The Town Attorney stated that the rest of the changes were reviewed by him and that those changes have been incorporated in the agreement. At that point, the Town Attorney summarized the above discussions. 1. Was the Council comfortable with the changes in the agreement. 2. What was to be done with the unresolved matters that were not done at this point. 3. There was a change in respect to the square footage of the line shops. 4. The cap of 12% interest rate on the bonds was removed. 5. They have advanced to the point of actually viewing the form of the purchase agreement, but at this time the Council does not have an Exhibit, which was to be executed and provided for that evening. 6. Did the Council feel comfortable with deleting the site plan and leaving it to the Planning and Commission's process. 7. Did not arrive at a mutally satisfactory language dealing with Tract A. 8. Have seen a check in the amount of $100,000. Have received a Escrow Agreement which would place the $100,000 into the escrow account of Bendelow, Dethman & Muse at the Chancery National Bank, and it also provided that, the $100,000 would be delivered to the Town of Avon upon execution of the agreement by all the parties. He stated that the escrow would have a term through February 15, 1987, and if the release of funds to the Town was not authorized by February 16, 1987, the escrow agent would be authorized to return the money to the developer. He stated that basically, another two weeks was needed by the developer. Arnie Ray, representing Ross Consulting, approached the Council. He stated that one of the points that he was concerned with was; 1)the history of what had happened in the last two weeks; 2)the changes that were requested by the developer in the contract. He stated that two weeks ago, there was a Developement Agreement on the table, they had a representation to Wal-Mart that was deal, they had a rental rate, which had been agreed to, they kept Bendelow in the deal because of Wal-Mart's endorsement of that deal. Mr. Ray stated now, Bendelow disappears, a new developer was in place, a re-negotiation of a deal with Wal-Mart, and a re-negotiation with the Town of Avon. He stated that they had a deal that the developer agreed to two weeks -5- Mr. Ray stated that now, there seems to be twenty two changes in the agreement that the developer would feel more comfortable with. Councilman Davis had concern that two weeks ago the developer agreed to,everything, and now they are before the Council with twenty two changes in the agreement, and were requesting another two weeks to perform. He stated what was the purpose of continuing if the things are being changed all the time, and that the Council does not particularly like anyway. Bill James stated that he had conversed with Bendelow's attorney, and that there was some discomfort between Avon and the developer, but at the same time, there needed to be a firm financial commitment from the developer at this time, and if the developer was requesting another two weeks, then it would cost them money. There would be no refund, no deposit. He stated that if the Council wanted to give the developer another two weeks, the developer would be directed to put up $50,000 as risk, non-refundable. He stated that time was too valuable. Wayne Peterson stated that his group has never defaulted on any loan, on any lease agreement, or any contracts that they have entered into. He stated that their group would like to do a deal with Avon, but could not deposit $50,000 as risk at this time. Steve Simanski, the second choice of developer, approached the Council. He stated that what Mr. Peterson had presented to the Council was a real part of the development business. He stated that whoever the Council would choose, they would have to allow more than another two weeks to perform. He stated that with his group's experience with Wal-Mart and with City Market, they would'be willing to put up $50,000 at risk. He stated that he could not promise that everything would be accomplished in two weeks. Scott Shenfeld approached the Council. He stated that he was given a full finance package commitment from the bank, and that his group was ready to move. He stated that he had put up $75,000 before, and was willing to do it again. Wayne Peterson stated that the last few hurdles was not unreasonable for his group to ask, and he had hoped that Council would not hold that against them. He stated that for the Council to award to another developer without the same contingency would not be fair or reasonable. Councilman Davis stated that Bendelow's group was Council's first choice, and Council had made it very clear that the Town needed performance, and the developer did not perform as the Council requested. At that point the Council recessed at 10:17 p.m. and reconvened at 10:30 p.m. The Town Attorney stated that the Council had two alternatives; 1. To agree to the acceptance of $100,000 deposit by way of the escrow agreement which was submitted. He stated that if the Council had chosen to pursue this alternative, his recommendation was to table Ordinance No. 87-1 for a period of two weeks to permit finalization of the -6- agreement and that at the same time accept the $100,000 in escrow. 2. To accept the offer of Palmer Development Company to place $50,000 at risk now, in consideration of them being accepted as the preferred developer, and if this was the desire of the Council, his recommendation was to.amend Ordinance No. 87-1 by the substitution of Palmer Development Company for Edward M. Bendelow and HSW Investments, Inc., as the developer. If that motion passed, then table Ordinance No. 87-1 until the next regular meeting of the Town Council with instructions that the ordinance be re-posted along with the agreement. He stated that the original agreement that was submitted with ordinance 87-1 at the last meeting should be used. Councilman Connell moved to amend Ordinance No. 87-1 by the substitution of Palmer Development Comany for Edward M. Bendelow and HSW Investments, Inc. as the developer on the condition that $50,000 non- refundable would be placed into an account tomorrow. The motion was seconded by Councilwoman McRory and was unanimously carried. Councilman Connell moved to table Ordinance No. 87-1 as amended until the next regular meeting with instructions that the ordinance be re-posted with the amended agreement. The motion was seconded by Councilman Watkins and was unanimously carried. Resolution No. 87-2, Series of 1987, A RESOLUTION APPROVING A SPECIAL REVIEW USE FOR THE TRANSFER OF ONE RESIDENTIAL DEVELOPMENT RIGHT FROM LOT 46, BLOCK 2, BENCHMARK AT BEAVER CREEK TO LOT 45, BLOCK 2, BENCHMARK AT BEAVER CREEK. Norm Wood stated that the owner of Falcon Pointe Lodge requested a Special Review Use for the transfer of one development right from Lot 46, Block 2, to Lot 45, Block 2. He stated that the additional Development Right was needed to meet the development right requirement for the remodeled Falcon Pointe Lodge project. He stated that the Town records indicated that there were 30 residential development rights assigned to Lot 45, and 32 residential development rights to Lot 46. This transfer would even out the development rights on the two sites. He stated that this development right was acquired through a foreclosure on a portion of Lot 46, which includes the swimming pool recreation facilities area, which amount to 25% of that lot. A public hearing was held by the Planning and Zoning Commission and it was determined that the owner did meet all the requirements and was recommended Town Council approval. Councilwoman Harrison moved approval of Resolution No. 87-2. The motion was seconded by Councilman Connell and was unanimously carried. Be it noted that a check in the amount of $67,000 for a 1% transfer tax of the sale of Falcon Pointe to the time-sharing firm was presented to the Town Manager. -7- • i Resolution No. 8773, Series of 1987, A RESOLUTION APPROVING A SPECIAL REVIEW USE FOR THE UPGRADE OF AN EXISTING 69KV TRANSMISSION LINE ACROSS PORTIONS OF SECTION 1, SECTION 2 AND SECTION 12,T5S, R82W, OF THE 6TH P.M., TOWN OF AVON, EAGLE COUNTY, COLORADO TO A 115KV TRANSMISSION LINE. Norm Wood stated that Holy Cross Electric Association applied for a Special Review Use to the Planning and Zoning Commission for an upgrade of an existing line and that that line was recommended for approval, but was also subject to a condition that if there were any changes that would result in the location or design that may be required within the Town boundaries as a result of the Eagle County review and approval process that it be resubmitted to the Town of Avon for review and approval. Mr. Wood stated that following todays hearing before the Eagle County Commissioners, the Commissioners directed that this line be looked at that was beyond the Town boundary. He stated that until that was resolved, Holy Cross has requested that this item be tabled. This matter should be clarified by the next meeting. The Council requested that a representative be available at the next meeting to address some concerns that the Council had. Councilman Watkins moved to table Resolution No. 87-3. The motion was seconded by Councilwoman Harrison and was unanimously carried. The Town Attorney stated that the Town had been served with a Third Party complaint on a law suit pending in the US District Court, which has been pending since August. He stated that NOTICE was given to CIRSA insurance carrier. There was a question as to whether CIRSA would cover the claim. CIRSA is not a claims made coverage carrier, but is a coverage of Errors and Omissions and damage occuring during the policy. Mr. Dunn felt that the occurance was when the suit was filed in Federal Court against PPL by Magnet Bank, but CIRSA was not convenienced. He then reviewed some of the history of PPL's claim with the Council. He stated he would proceed, if that was the Council's desire, to defend the Town and also defend Tyree and Associates, which were acting as the Town's inspector. He stated that he would file a Motion or answer of whatever seems appropriate on behalf of both the Town and Tyree & Associates, and would seek to recover attorney fees. Mr. Dunn stated that FSLIC's Motion to dismiss the whole suit would be heard January 29, 1987. Next on the agenda was an update report on the Singletree Golf Course. The Town Manager stated that he had talked to the Town Manager of Vail, Ron Phillips. He stated that basically, he would offer to the Town of Avon, that if the Town wanted to participate in the debt service of the Golf Course, $13.64 for a round. The Town could buy into this system and reserve time, and not be treated the same as the Vail Lodging Community. If there was profit shown on the Golf Course, then the figure would be reduced accordingly. Mr. James stated that he would look into other alternatives if the Council desired. This matter would be discussed at a scheduled work session. -8- • 0 The Town Manager reported on the Christie Lodge Bus Service. Mr. James stated that he and Norm Wood met with the new management company of Christie Lodge, as well as, the president of the Homeowners Association. He stated that the Town was unable to discontinue the bus service because of a 1984 settlement. He stated that in 1982 Christie Lodge and Avon Center agreed to buy one small bus, and make a contribution to the Town. Christie Lodge did not pay for the bus, therefore, John Dunn took them to court and they reached a settlement, that in 1984 they would pay on a schedule for that bus over a five year period. Included in that settlement agreement was a clause that stated that as long as they made their payments on the small bus, that the Town of Avon would be required to provide bus service. He stated that after the meeting with the management company and the president of the Home:own:e(r:sr Association, they were willing to work with the Town and try to resolve a solution in helping to finance a bus system for Avon. They were also willing to try to collect the past due assessment accounts. Discussion Followed. The Council suggested to stop the bus service to the Christie Lodge and to allow the Breech of Contract of the agreement. The Town Attorney stated that he would look at that suggestion and come back with some alternatives. Council agreed that there should be some settlement in two weeks or action would be taken based on the upcoming meeting in two weeks. Next on the agenda was the discussion of the Nuclear Free Zone Issue. Council directed that staff draft an ordinance and that it be placed on the agenda for the next Council Meeting. Western Vail Valley Association and the Town's support for 1987 was then presented to the Council. This again was tabled for further discussion at a scheduled work session. Antenna Site Sub-License Agreement was then brought before the Council. Joe Olson stated that Vail Communications had agreed to cooperate with the Town of Avon in an attempt to gain a site within the Town of Avon for the use of one antenna in exchange for two repeaters for the Town. He stated that the Town would not be charged for tower rental. There were a couple minor changes to the agreement. Third paragraph, 4th line, after the word, "Agreement", change to read, "the licensee by these presents does grant a license unto the Sub-Licensee", change "towers" to "antennas". In Section 1.Use of Site. The 17th line, change "tower" to , "towers". After discussion Councilman Watkins moved approval and authorized the signing of the Antenna Site License Agreement and the Antenna Site Sub-License Agreement with the noted changes. The motion was seconded by Councilman Connell and was unanimously carried. -9- 0 0 The Town Manager stated that they were experimenting a new revised bus service of West Beaver Creek Boulevard. He stated that about every forty five minutes, a large bus would run West Beaver Creek Boulevard and pick up riders, and bus them directly to the base of the ski area. He stated that in the afternoons, anybody boarding the Avon Bus would be transported down West Beaver Creek Boulevard to accommodate the skiers. There would be no transfer. The Mayor Pro Tem stated that in regard to the Vail Valley Foundation, he had been lobbied by some.of the lodging community to indicate that; 1)some literature had been circulated and that Avon was never mentioned in the brochures, even though Avon was contributing to the Foundation; 2)that an assortment of lodging representatives have attempted to get on the lodging committee, that have met numorous times to date in reference to the 1989 World Cup Championships and they have not been successful in getting on the committee. Discussion followed. It was suggested to possibly have a representative from the Foundation appear before the Council to discuss these concerns. No action was taken. The Financial Matters were next presented to the Council. Councilman Connell moved approval of the General Fund of Accounts Payable for January 27, 1987. The motion was seconded by Councilwoman Harrison and was unanimously carried. Councilman Connell moved approval of the Transit Fund of Accounts Payable for January 27, 1987. The motion was seconded by Councilman Watkins and was unanimously carried. Councilman Connell moved approval of the Reconciliation Sheet of Accounts Payable for January 27, 1987. The motion was seconded by Councilwoman Harrison and was unanimously carried. The minutes of the January 13, 1987 Council Meeting was next presented to the Council. Councilwoman McRory moved approval of the January 13th minutes as presented. The motion was seconded by Councilman Connell and was unanimously carried. The Town Manger stated that he had received a call from Joe Macy, Vail Planning and Technical. He stated that Mr.M-acy was asking if the Town of Avon would send a letter to the Executive Director of Natural Resources supporting Cloud Seeding. It was indicated that the snowfall was below average. Mr. James stated that Mr. Macy was not asking for contributions, but was asking for support of the State funding monies for the project. The Council had concerns and stated they felt that more study needed to -10- r be done in regard to side effects of the Cloud Seeding. There being no further business to come before the Council, Councilman Connell moved to adjourn. The motion was seconded by Councilwoman Harrison. The meeting was adjourned by Mayor Pro Tem Miller at 11:50 p.m. APPROVED: --11-