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TC Minutes 09-11-1990MINUTES 'OF.THE REGULAR`COUNCIL MEETING HELD SEPTEMBER 11, 1990 - 7:30 P.M. The regular meeting of'the,Avon 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 Allan Nottingham at 7:55 p.m. -A roll call was taken with David Garton, Albert Reynolds, Mike Bennett, Gloria'McRory, Jim Stovall and Jerry Davis present. Also present were Town Attorney John Dunn, Town Manager Bill James, Director of,Engineering _ Norm Wood, Director of Municipal Services Larry Brooks, Fire Chief_ Charlie- Moore, Police Chief Art Dalton, Director of Community Development Rick Pylman, Planner Jim Curnutte, Town Clerk Patricia J. Doyle, as well as, members of the press and public. The Mayor called for Citizen Input. Colleen Corcoran, Student Assistance Program Coordinator for Drug Free Eagle County, approached the Council. She reviewed-the "statistics, of the 1990 program. Marka Mosher stated that the group started bout a year ago. She stated that-they were funded through grant money, which they were able to hire Colleen. She stated that what she would like to do through the survey they did, was to show that there was a tremendous need for a Employee Assistance Program, throughout the valley. Ms. Mosher was requesting some up-front funding for their proposed EAP Program, and also to expand upon the Student Assistance Program. Ms. Mosher was requesting a contribution of $10,000 from the Town of Avon for. 1991. There being no further discussion, the Mayor stated that this request- would be taken into consideration at the budget work sessions. Marjorie Plath, Battle Mountain High School Cheerleader Coach, approached the Council. Ms. Plath reviewed some of the activities of the school as far as the cheerleading squad. The squad participated in a USA spirit leading camp,.which was held in Boulder at CU, alongr,with-other schools. The Battle Mountain squad won the highest award at the cam. Ms. Plath stated-that because of their hard work, they were choosen to participate-in the 1990 Aloha Bowl Game which would take place in.. December in Hawaii. They had been asked that they perform at half time and-they had asked the entire squad to attend, which consisted of 22 girls. The funding for this trip would be $1,200 of each girl. She was requesting that the Town of Avon sponsor one of the girls, which would be in the amount of #1,200. The Mayor stated that the Town Council would take this request into consideration during the budget sessions. Frank Johnson, Chairman of the Vail Valley Marketing Board, approached the Council. He introduced some of the Boardmembers of the Marketing Board. He stated that there was an opening,on the Board, and if there was anyone interested, they would welcome their information for that position. Mr. Johnson then reviewed the 1990 activities of the marketing board with the Council. He stated that their mission was to -increase the•business in the Vail Valley for the non-ski season months. He stated. that the Board expanded the public relations program in 1990. Councilman Bennett stated that the summer was good as far as his lodging business was concerned. Discussion followed. Councilwoman McRory stated that one of the reasons the Marketing Board was formed was to promote summer. She stated she would like,-to see the Board concentrate on the summer months rather than fall and winter. Mr. Johnson stated that to maintain the same level of activity, it would probably require a 10% increase over last year.- He stated that to gain ground for additional programming for 1991, it would take additional dollars. He stated that they are looking for other_ sources of income for future programming. The Mayor stated that one of Avon's citizens was concerned that Avon was not noted in the Vail Valley Magazine and asked what the $90,000 contribution to the Marketing Board did for.-Avon. Mr. Johnson stated-that the publisher of that magazine hired local writers. -The Board helped develop the editoral schedule for that magazine. He,admitted that there was not a big focus on Avon. In respect to the $90,000, it was stated that you have to look at the increase in business in the valley. Councilman Davis stated that this matter was discussed with the publisher of that magazine and was informed that they put Avon in the magazine. It was stated that none of the $90,000 went into that magazine. The Mayor thanked Mr. Johnson for his presentation. The Council would review this at their budget sessions. There being no further Citizen Input discussion, the Mayor closed that portion of the agenda. Second reading of Ordinance No'. 90-14, Series of 1990, AN ORDINANCE CONCERNING A LOCAL IMPROVEMENT DISTRICT KNOWN AND IDENTIFIED AS THE "TOWN OF AVON, LOCAL IMPROVEMENT DISTRICT NO.1990-1;" APPROVING THE COST OF THE IMPROVEMENTS TO BE MADE IN LOCAL IMPVROVEMENT DISTRICT NO. 1990-1; APPROVING AND CONFIRMING-THE ASSESSMENT ROLL,-AS MODIFIED, IF MODIFIED,, AND ASSESSING A SHARE OF SAID COST AGAINST EACH LOT OR TRACT OF LAND. IN. THE DISTRICT; AND PROVIDING FOR THE LEVY AND COLLECTION OF SAID ASSESSMENTS. -2- • • The Mayor requested that the Resolution be approved before Ordinance No. 90-14. Elaine Lowry representing Sherman and Howard approached the Council. Ms. Lowry stated that'the resolution did accomplish one thing; which was that it confirmed the assessment roll for the Local Improvement District, which had already been filed with the Town Council. She stated that Ordinance No. 90-14 levied the assessment in the Local Improvement District, it levied the actual dollar amount per development unit. - The Ordinance gave the form of the Notice that would be'sent out to each owner after the adopting of the Ordinance. The Mayor entertained a motion to approve.Resolution No. 90-31. Councilman Reynolds so moved. The motion was seconded by Councilman Stovall. The Mayor- opened the meeting for public hearing. George Rosenberg of Ireland, Stapelton, Pryor and Pasco, representing Tang/Avon Corporation, Metcalf SA, and Genevieve Young, approached the Council.. He stated that his clients-just--"recently.-,were aware of the Local Improvement District. They were all absentee owners. 'He stated that there was a Notice supposedly sent to all,property owners in the Wildridge Subdivision. His Clients had a total of 31 lots and should have reveived 31 notices. At that point, Councilman Stovall stepped down due to conflict of interest. Mr..Rosenberg stated that there was a problem. He stated that his clients never received information of the June 12th Notice which was in respect to the formation of the District. He stated that.it was curious that two- more rounds of Notices were sent, one Notice in.August and three in September. He stated that he was before the Council to enter_a protest on behalf of the three owners. He stated that of the three owners, one,,(Tang/Avon Corporation) had the bulk of the property (27 lots). From a dollar standpoint it would be approximately°$170,650. He.stated that there were some other aspects where there was a concern. They had contacted the Town Manager and the Bond Counsel to try and resolve the' problem. Those representatives stated that there was nothing they could, do. -He stated there may be some way to compromise.. The real problem was specifically were wth.the lots on Metcalf. Those lots were lots 38,40 and 41, Block 1, Benchmark at Beaver Creek Subdivision. Metcalf was originally originally Industrial and then through some transfer of development, and ~'some. other changes,. the - unts',were placed,there. He stated'that his client, Metcalf SA,.did not-preceive,;of ariy'res'idential development occuring on those lots. He.stated that his client at some point of time would like to request that those units be moved out of that area: Mr. Rosenberg stated,•that the other concern was,-,-`that it was unfortunate that his clients did not have:the opportunity :to protest, as did some of the other property owners of the Wildridge Subdivision. He stated that his client: was- asking for relief: of those three lots in Metcalf. He stated that possibly something could,be`-Vorked out. If riot, then he' would have to protest 'the total 'of all 31 ' lots . -3- John Dunn reviewed the procedure of how the notices were handled and how they were mailed to all the property owners in,the Wildridge'Subdivision. He stated that it was almost impossible.for. Mr. Rosenberg's clients not to have received those Notices. -There were a total 'of 36 Notices that were sent to those clients. Elaine Lowry representing Sherman arid.Howard--approached the Council. She stated that just-assuming`his•client did not receive the Notices. The argument would be that it would violate due process under the Constitution. That everyone was entitled to some Notice of some assess- ment on their property. However-; an actual Notice for the first hearing was not constitutionally required under the State of the Law. She stated that if his clients received ANY Notice in time to protest these assessments before this evening, which Mr. Rosenberg's presence had indicated, they do have that opportunity to protest. She stated that there was no violation of due process. Mr. Rosenberg asked if they were still timely for protesting the assessments. Ms. Lowry stated that they could still do so. Mr. Rosenberg stated that so be it, he made his protest. Discussion followed,,on Ordinance No. 90-14, which listed some uses such as water, sewer, streets, etc. He stated that it was unusal for cable to be included. His clients:-would protest of whether that was a ligament use. Mr. Rosenberg stated that that would be his ground for his clients protest. The Mayor closed the public hearing and offered the discussion to the Council for-discussion. Ms. Lowry stated that the Council could go forth with the normal procedures of adopting the Ordinance. She recommended that Council adopt Ordinance No. 90-14 as it appeared before them. The reason being that the Council had already issued the Bonds. In that Bond Ordinance, one of the things that the Town would do,'was to take all necessary procedures and action necessary to levy the asaessments to pay those Bonds. The financial people have put together a package that allocated.the cost of this project. If for some reason the Council would choose not to levy the exact amount of each one of those development rights, then the Council would have to find another way for paying the Bonds. Bill James stated that as far as Mr. Rosenberg's Client was concerned (Metcalf SA) the Town was asked if they could transfer those units to a different location. He stated that the-Town did not allow that with other lot owner's. Mr. Rosenberg stated that they wou residential verses the benefit of Mr. Rosenberg gave:-'a brief history that the Town did in the past. He to pay for the assessments. ld have to look at the benefit of commercial. Cable was not a benefit. of the transferrable development rights stated that his client did not want -4- The Mayor stated that he understood his position and thanked him for his comments. The Mayor called for a vote on Resolution No. 90-31. The motion was carried with Councilman Stovall abstaining. The Mayor entertained a motion on Ordinance No. 90-14, Series of 1990. Those Councilmembers voting aye were: David Garton, Albert Reynolds, Mike Bennett, Gloria McRory and Jerry Davis. There were no nay votes. The motion carried with Councilman Stovall abstaining. Second reading of Ordinance No. 90-5, Series of 1990, AN ORDINANCE AUTHORIZING THE ISSUANCE AND SALE OF THE TOWN OF.AVON, COLORADO, MULTIFAMILY HOUSING REVENUE BONDS (EAGLEBEND PROJECT) SERIES 1990 IN THE AGGREGRATE PRINCIPAL AMOUNT OF $5,000,000 TO FINANCE THE CONSTRUCTION 'OF A MULTIFAMILY RENTAL HOUSING~PROJECT TO PROVIDE MORE ADEQUATE RESIDENTIAL HOUSING FACILITIES FOR LOW AND MIDDLE INCOME FAMILIES AND PERSONS; RATIFYING,CERTAIN ACTION HERETOFORE TAKEN; AUTHORIZING THE EXECUTION AND DELIVERY BY THE TOWN OF A FINANCING.AGREEMENT.INDENTURE "OF TRUST, REGULATORY AGREEMENT, NET OPERATING LOSS AGREEMENT CLOSING DOCUMENTS AND SUCH BONDS IN CONNECTION THEREWITH; APPROVING THE FORMS OF A DEED OF TRUST AND COMPLETION-GUARANTY; ACKNOWLEDING THE USE OF A_ PRIVATE PLACEMENT MEMORANDUM MAKINGCCERTAIN DETERMINATIONS AS TO THE SUFFICIENCY OF REVENUES AND AS TO OTHER MATTERS RELATING TO SUCH BONDS; REPEALING ACTION HERETOFORE TAKEN IN CONFLICT HEREWITH. Mr. James requested that this Ordinance once again be tabled because of the lack of financing for this project. Councilman Davis moved to table Ordinance. No-. 90-5, Series of 1990. The motion was seconded by Councilman Reynolds and was unanimously carried. Second.reading of Ordinance No. 90715, Series of 1990, AN ORDINANCE PROVIDING FOR THE AMENDMENT OF A PORTION OF THE WILDRIDGE SPA (LOTS 13,14, and 15, BLOCK 2).ESTABLISHING A DEVELOPMENT PLAN AND ITS CONTENT AND ESTABLISHING DETAILS RELATING THERETO. Mr. James stated that at,the, last Council meeting the Council re.gruested that the staff meet, . Withthe developers to see if they, :co.uld.'resolve the issue of'public=private roads. Rick Rosen, Legal Counsel.-.for KED Development, which are the developer for Wildridge'Acres, approached the`-Council-. He..stated that he had met with Jim Curnutte in resnect to the tax ramifications of building 12 single homes. The property was currently zoned duplex,, 4-plea and 6-, plex. If they had developed,the project`as it stood,today,'the Town would probably not see'that-,•kind.'of construction proceed.` He'then reviewed the numbers with the Council. Mr. James stated the problem was not with the project, but the maintenance of the private roads for that project. He suggested that after all twelve units were built, the Council may consider, at that time, taking over those `roads. Mr. Rosen stated that the developer did not anticipate dedicating the roads until the"project was completed. The developer would maintain the roads until the project was completed. -5- Councilman Davis stated that the Town still needed a policy that could be adhered to for the future., It'was stated that four of the units' were Pre-sold Iand the developer had contracts for fifteen of the twelve units. The Mayor called for a motion to bring the Ordinance to the floor. Councilman Stovall moved approval of Ordinance No. 90-15, Series of 1990 on second reading. The motion was seconded by Councilman Bennett. Councilman Stovall moved to amend the Ordinance. Section 5, to add a Subsection "C", "that the applicant KED Developers construct the two roads in compliance with the Town standards, and dedicate the same to the Town upon construction of the twelve units. The amended-motion was seconded by Councilman Bennett. The Mayor opened the meeting for public hearing. There being no one wishing to be heard, the Mayor closed the public hearing. The Mayor entertained a roll call. Those Councilmembers voting aye were: David Garton, Albert Reynolds,' Mike Bennett, Gloria McRory, Jim Stovall and Jerry Davis. There were no nav votes... The motion was unanimously carried. Councilman Davis requested that staff address the issue of how could the Town deal with annexing, developments, SPA's, and at what point would the Town take on the ownership and maintenance of the dedications of the facilities. He would like to.see staff.come back with a recommendation of some kind of completion,of x-number of units, possibly at some point of.build-out, if not 100% of a project. The Council agreed. Resolution No. 90-30, Series of 1990, A RESOLUTION GRANTING A SPECIAL REVIEW USE TO ALLOW RETAIL SALES IN THE DEEP ROCK WATER COMPANY BUILDING ON LOT 24, BLOCK 1, BENCHMARK AT BEAVER--CREEK.SUBDIVISION. Jim Curnutte stated that Richard Kass of Carpet, Paint and Interiors had applied for a Special Review Use approval to allow retail sales in the Deep Rock Water Company Building, which was located on' Lot 24, Block 1, at Benchmark at Beaver Creek. He stated that the Planning and Zoning Commission had held a public-hearing on the Special Review Use application. After review of this request, the Commission approved the Special Review Use and recommended Town'Council approval,with conditions. The Commission also approved a parking variance request in conjunction with their recommendation of approval of the Special Review Use. Mr. Curnutte stated that the Planning and honing Commission recommended approval of the Special Review -Use subject to: Be it noted that Councilman Stovall stepped down due to conflict of Interest. 1. Approval of the accompanying parking variance application. 2. Completion of parking lot striping, landscaping, and drainage. 3. Relocation of trash dumpster (inside the building) which was currently obstructing parking spaces. 4. Limitations on the frequency and impacts of merchandise "sales". No outdoor displays were permitted. 5. The Special Review Use approval should be specific to CPI's expressed use of the building (warehouse with limited retail sales) at this time. Any change in sue from that specifically authorized by this approval should come back to the Planning and Zoning Commission for renewal and approval. The Commission also approved the parking variance subject to: 1. Any change in the entensity of retail activity in the 5,600 square foot space, either by CPI or a future tenant, must be reviewed and approved by the Avon Planning and Zoning Commission. Councilman Garton moved approval of Resolution No. 90-30, Series of 1990. The motion was seconded by Councilwoman McRory and was carried with Councilman Stovall abstaining. Resolution No. 90-32, Series of 1990, A RESOLUTION FILING PETITIONS IN CONDEMNATION NECESSARY TO THE ACQUISITION OF RIGHTS-OF-WAY AND EASEMENTS. The TownciAttorney stated that in regard to the Avon Road Underpass, five condemnation petitions had been filed, which were, Confluence, Avon Town Square, Brien Pesch property, Tract Q and the Schultz Tract. He stated that the purpose of this resolution was to ratify the filing of those petitions. Councilwoman McRory moved approval of Resolution No. 90-32, Series of 1990. The motion was seconded by Councilman Reynolds and was unanimously carried. Rod Slifer approached the Council. This was in respect to the Avon Road Underpass. He was concerned about the impact-it would have on his business which was located in the Brian Pesch Building. He was concerned of the condemnation for the temporary railroad tracks. It was noted that it would be only temporary. Mr. Slifer noted that the barrier for the railroad tracks would be 12 feet from the corner of the building. It would be very difficult to conduct business and possibly harm his wife's business. He stated that there was no access or very little access for parking. The access for deliveries was in the south side of the building. Mr. Slifer stated that they had eighteen people that were working out of that space. He asked if the barrier could be built higher (a fence) so as to soften the nosie of the trains. Mr. Slifer requested that he would like to be informed of the schedule of procedures for the construction of the project. Mr. James stated that Mr. Slifer would be notified of the future meetings for the proposed Underpass. He stated that the Town would work with the business people, and try to make it as easy as possible during this construction period. -7- • • Next on the agenda was discussion of the abondoned foundation, Lot 18, Block 1, Wildridge. Mr. James reviewed the history of this project with the Council. He recommended that the Town look at demolishing the structure, lien the property, and return to the Council for authorization. Councilman Davis agreed. Councilman Bennett felt that all abondoned foundations should be treated equally. The next item on the agenda was discussion of the Eagle Mine Clean-up. Mr. James stated that at the last meeting it was agreed that before the Town put their name on the Class Action Suit, that Mr. Delap was proposing, that a copy of the complaint was requested so the Council could review it. He stated that the complaint had been filed. He stated that he had reviewed a letter from Kent Mueller, Town Manager of the Town of Minturn, which noted that Avon was not the representative of the Class Action. Mr. Dunn stated that he had reviewed the compaint that had been filed, and his conclusion was that he felt it was wise that the complaint was filed, because the damages were people damages, the people use the river, they fish the river, there are businesses that use the river. He felt it appropriate that the entities be left out. Tom Nichols, Attorney representing Paramount Corporation, approached the Council. He stated that he had just been informed that Avon was requested to join in this Class Action Suit against Paramount. He stated that the focus of their complaint was not damages to anybody; individual or business, but was predicated on the allegations that the Eagle River Valley was polluted with toxic waste, and that it was unsage and unhealthy to visit and to work in the valley. This was not based on his interpretation of the complaint, but on the language of the complaint itself, because the complaint that Avon was asked to support, contained the allegations that anyone in the Eagle River Valley was at "increased risk of harm and increased risk of contracting fatal or otherwise serious illness". He stated that he did not believe that was true. He felt the allegations were false and irresponsible. He stated that the State Department of health had exhaustedly studied the Eagle Mine and its health effects, and found no health hazard. The health department studies were confirmed by an.independent consultant, retained by the Eagle County School District. The School was given a clean bill of health, after careful review by the school board. The Upper Eagle Valley Water and Sanitation District of record stated that the drinking water was safe, and that no air standards had been violated, no one in the suit claimed any illness or health effects of any kind. He stated that Paramount was going to defend, the suit, and defend against the allegations, because they believed the allegations were not sustainable, but if the Avon Council were to go along with that, they would endorse the truth of those allegations, and the message that would be sent to the community would be, sone of agreement, by the.Town of Avon that it was unsafe, and that visitors and residents alike were at risk of contacting fatal or serious illness. He stated that Avon should be denouncing and rejecting this complaint. -8- Councilman Bennett asked if Mr. Nichols had viewed the river from Minturn. Mr. Nichols indicated that he had not. Councilman Bennett asked'if he would let his children-drink from the river. Mr. Nichols indicated that he would not, but then he-would not drink water from any river. Councilman Davis stated that the Council was a reasonable body of individuals and had concern of the community. He stated the issue today, was that the standards were not being met, the water treatment plant was not working, it was still putting metals into the river. He stated that it was not working, there were no fish in the river because of the metals going into the river, it was not getting resolved, and as a-community, the Council was very concerned. He stated that the Council was asking to get it cleaned up. Councilman Stovall felt that Paramount did not have a valid concern for what was going on the the valley. He stated that he attended the meeting in Minturn two months ago, and found the statements to be untruthful, and stated he did not find them very valid today. He stated that the plan was not working. Mr. Nichols stated that this was something that could not be cleaned up overnite - it was unfortunate. Councilman Davis stated that this Council was ready to do whatever needed to be done to get this taken care of. He.suggested that Paramount have it taken care of,.because this was just one incident where some people are no longer setting around waiting, they have decided to do something about it, and have asked the Town Council to participate.- Next on the agenda was the discussion of the 1990 Census. Mr. James stated that staff would like to appeal the count of the census for Avon, and challenge the preliminary housing units and total population counts provided by the census bureau. -there were nearly 200 units that were ,missed. The Council agreed to appeal. Next on,the agenda was the contract award for the Avon Road Separated Grade-:Crossing. Norm Wood stated that the bid from B & B Excavating, Inc. came in at a price of $893,811.50. Through negotiations explained by Kay Ferrin of Centennial Engineering, B & B Excavating agreed to a reduction of $95,703.00. He stated that it did not effect the project. The work would be starting in approximately two weeks. -9- Councilman Bennett moved to award the Utility Contract to B & B Excavating in the amount of $798,108.50. The motion was seconded by Councilman Garton and was unanimously carried. Next on the agenda was the Avon Road Centennial Engineering, Inc. Contract Amendment #1. Norm Wood stated that this was a proposed amendment to the Agreement with Centennial Engineering for work during the construction of•the utility line re-location detour.' The original Agreement with,the-State Highway Department anticipated the Highway Department would'be providing their' services, which basically were inspection construction management•on this phase. The Highway Department indicated they would not be able to perform the work for this phase of the contract, but would be providing it during the actual construction of the main.part of the contract. The 'Amendment would increase the Agreement with Centennial Engineering by $48,000. The total item budget was $518,000.00. This'was not a change or increase in the project cost. It was just a shift of who would receive the funds. Councilwoman McRory moved approval of the Amendment #1 of the Centennial Engineering,' Inc. Contract. The motion was seconded by Councilman 'Bennett and was unanimously carried:. The Town Attorney reported that he had met with Robert Duncan, Attorney, which has expertise in'condemnations. Mr. Dunn recommended that Mr. Duncan be employed in respect to the condemnation of proceedings in respect to the Avon Road Underpass. The funding for the above was contained'in the budget. Mr. Dunn stated that Bill James had met with Dan'Muse, a former member of the Utilities Commission and which specialized in Public Utility Law. Mr. James had engaged him-to represent the Town in connection with application for Certificate of Access and to assist in the Bus System instead of the Firm of Ireland; Stapelton, Pryor, Pasco. The Council agreed to-hire'.Dan Muse-'and Robert Duncan for"the above, two issues. The Financial Matters were=next presented to the Council. Councilwoman McRory moved to receive items #1 through #16. The motion was seconded-by Councilman Stovall and was u.animously-carried. -10- 0 • Councilwoman McRory moved approval of the General Fund of Accounts Payable for September 11, 1990. The motion was seconded by Councilman Stovall and was unanimously carried. Councilwoman McRory moved approval of the Reconciliation Sheet of Accounts Payable for September 11, 1990. The motion was seconded by Councilman Stovall and was unanimously carried. Councilwoman McRory moved approval of the August 28th, 1990 Council Meeting Minutes as presented. The motion was seconded by Councilman Stovall and was unanimously carried. Mr. James stated that the Agreement between the Town of Avon and Eagle County had been reviewed by the Town Attorney and himself and recommended that the Agreement be executed. The Agreement was in respect to the Avon Road Underpass. It was the consensus of the Town Council to moved forward and authorize execution of the Agreement. The Council appointed the Firm of Felsburg, Holt and Ullevig to perform the work on the Transportation Master Plan Study. A meeting had been scheduled for Thursday, 12:00 noon to meet with Mike Noonan and Robert Duncan. Tuesday, September 18, 1990 at 3:00 p.m., the Council would take the Beaver Creek Tour. Following the tour the Council would then retire into their budget work shop. There being no further business to come before the Council, Councilman Bennett moved to adjourn. The motion was seconded by Councilman Davis. The meeting was adjourned by Mayor Nottingham at 11:10 p.m. -11- • • -12-