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TC Council Packet 06-24-2014 TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, JUNE 24, 2014 AVON LIQUOR AUTHORITY MEETING BEGINS AT 6:00 PM REGULAR MEETING BEGINS AT 6:15 PM AVON TOWN HALL, ONE LAKE STREET Page 1 PRESIDING OFFICIALS MAYOR RICH CARROLL MAYOR PRO TEM JENNIE FANCHER COUNCILORS DAVE DANTAS, CHRIS EVANS, ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA C. EGGER TOWN CLERK: DEBBIE HOPPE ALL REGULAR MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS. GENERAL COMMENTS ARE WELCOME DURING PUBLIC COMMENT, AND COMMENTS ARE ALSO WELCOME ON ANY AGENDA TOPIC. PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MATERIALS. AGENDAS ARE POSTED AT AVON TOWN HALL, AVON RECREATION CENTER, AND AVON LIBRARY. THE AVON TOWN COUNCIL MEETS THE 2ND AND 4THTUESDAYS OF EACH MONTH. ______________________________________________________________________________________________________________ AVON LIQUOR LICENSING AUTHORITY MEETING BEGINS AT 6:00 PM (SEE SEPARATE AGENDA PAGE 3) REGULAR MEETING BEGINS AT 5:15 PM 1. CALL TO ORDER & ROLL CALL 2. APPROVAL OF AGENDA 3. SWEARING IN AND SEATING OF NEW COUNCIL MEMBER MATT GENNETT (MUNICIPAL JUDGE BUCK ALLEN) 4. PUBLIC COMMENT 5. ACTION ITEMS 5.1. FIRST READING OF ORDINANCE 14-10 - CAPITAL LEASE FINANCING FOR SNOW PLOW (ASSISTANT TOWN MANAGER SCOTT WRIGHT) 5.2. APPOINTMENT OF VACANT COUNCIL SEATS ON REGIONAL BOARDS (TOWN CLERK DEBBIE HOPPE) 5.2.1. VAIL VALLEY PARTNERSHIP ADVISORY BOARD 5.2.2. ECONOMIC DEVELOPMENT SUB-COMMITTEE 5.2.3. EAGLE RIVER WATER & SANITATION DISTRICT LIAISON 5.3. MOTION TO APPROVE AN OUTSIDE DATE EXTENSION NOTICE(S) TO NOT LATER THAN OCTOBER 15, 2014 (TOWN ATTORNEY ERIC HEIL) 5.4. MINUTES FROM JUNE 10, 2014 MEETING (TOWN CLERK DEBBIE HOPPE) 6. WORK SESSION 6.1. AVON RECREATION CENTER EXPANSION AND RECREATIONAL IMPROVEMENTS IN NOTTINGHAM PARK – OPEN HOUSE PRESENTATION MATERIALS, INCLUDING REVIEW OF ALTERNATIVES FOR BOND ISSUE (TOWN MANAGER VIRGINIA EGGER, PARKS & RECREATION SUPERINTENDENT JOHN CURUTCHET, DIRECTOR OF ECONOMIC INITIATIVES SUSAN FAIRWEATHER) 6.2. REVIEW OF BEAVER CREEK BOULEVARD BIKE LANE MARKINGS (PLANNING MANAGER MATT PIELSTICKER) 6.3.STAFF PRESENTATION: POLICE CHIEF BOB TICER: POLICY REVIEW AND DIRECTION FOR TRAFFIC PATROL AND TICKETING 7. WRITTEN REPORTS 7.1. MONTHLY FINANCIAL REPORT TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, JUNE 24, 2014 AVON LIQUOR AUTHORITY MEETING BEGINS AT 6:00 PM REGULAR MEETING BEGINS AT 6:15 PM AVON TOWN HALL, ONE LAKE STREET Page 2 7.2. GIFT REPORTING DISCLOSURE REPORT FOR HOFFMANN COMMERCIAL REAL ESTATE REDS, WHITES & BREWS AMERICAN MADE FESTIVAL 8. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 8.1. VILAR PERFORMING ARTS CENTER MEETING (COUNCILOR WOLF) 8.2. VAG STAGE UPDATE (COUNCILOR WOLF AND COUNCILOR DANTAS) 8.3.AVON POSTMASTER MEETING (COUNCILOR WOLF) 9. COUNCIL COMMENTS 10. MAYOR REPORT AND FUTURE AGENDA ITEMS 11. EXECUTIVE SESSION 11.1 DISCUSSION TO DETERMINE POSITIONS RELATIVE TO MATTERS THAT MAY BE SUBJECT TO NEGOTIATIONS, DEVELOPING STRATEGY FOR NEGOTIATIONS, AND/OR INSTRUCTING NEGOTIATORS, UNDER C.R.S. §24-6- 402(2)(E) RELATED TO THE UPPER EAGLE REGIONAL WATER AUTHORITY MASTER AGREEMENT 11.2 FOR A CONFERENCE WITH THE TOWN ATTORNEY FOR THE PURPOSE OF RECEIVING LEGAL ADVICE ON LEGAL REPRESENTATION UNDER C.R.S. §24-6-402(2)(B) 12. ACTION ITEM 12.1. RESOLUTION 14-14 APPROVING AMENDMENTS TO MASTER SERVICE AGREEMENTS WITH UERWA (TOWN ATTORNEY ERIC HEIL) 12.2. APPROVAL OF WATER COURT FILING FOR AVON’S WHITEWATER PARK (TOWN WATER ATTORNEY JAY MONTGOMERY) 13. ADJOURNMENT FUTURE AGENDA ITEMS: July 8th: Review of Avon Road and Pedestrian Mall Bids and Contractor(s) Award July 22nd: Council Retreat; Action on IGA to Participate in Eagle County Election TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, JUNE 24, 2014 AVON LIQUOR AUTHORITY MEETING BEGINS AT 6:00 PM AVON TOWN HALL, ONE LAKE STREET Page 3 PRESIDING OFFICIALS CHAIRMAN RICH CARROLL VICE CHAIRMAN JEANNIE FANCHER BOARD MEMBERS DAVE DANTAS, CHRIS EVANS, ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA EGGER TOWN CLERK: DEBBIE HOPPE ALL LIQUOR BOARD MEETINGS ARE OPEN TO THE PUBLIC EXCEPT EXECUTIVE SESSIONS COMMENTS FROM THE PUBLIC ARE WELCOME DURING PUBLIC HEARINGS PLEASE VIEW AVON’S WEBSITE, HTTP://WWW.AVON.ORG, FOR MEETING AGENDAS AND MEETING MATERIALS AGENDAS ARE POSTED AT AVON TOWN HALL AND RECREATION CENTER, AND AVON LIBRARY 1. CALL TO ORDER AND ROLL CALL 2. APPROVAL OF AGENDA 3. PUBLIC COMMENT 4. PUBLIC HEARING SPECIAL EVENTS PERMIT Applicant Name: Walking Mountains Science Center Event Name: Reach for the Peak Award Dinner Event Dates: July 10, 2014; 6 pm until 10 pm Location: 318 Walking Mountains Lane Event Manager: Gina Garrett 5. ELECTION OF AVON LIQUOR AUTHORITY VICE-CHAIRPERSON 6. MINUTES FROM JUNE 10, 2014 7. ADJOURNMENT PAGE 1 OF 1 TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Debbie Hoppe, Town Clerk Date: June 24, 2014 Agenda Topic: Election of Avon Liquor Authority Vice-Chairperson The Avon Home Rule Charter sets forth the election and duties of the Vice-Chairperson as follows: Section 5.08.030 Local Licensing Authority – Membership – Organization – Compensation (a) Until such time as the Town Council may determine otherwise by ordinance, the membership of the Local Liquor Licensing Authority shall be composed of each and every member of the Town Council. (b) At the next meeting of the Local Liquor Licensing Authority following the final passage of the ordinance codified in this Chapter a chairperson and vice-chairperson shall be elected by those members present at that time from among the entire membership of the authority. The chairperson shall preside at meetings, rule on questions pertaining to procedure and admissibility of evidence and perform such other duties as may be necessary. The vice-chairperson shall assume the duties of the chairperson when the chairperson is absent or incapacitated. A quorum shall consist of four (4) members, and a decision of a majority of the members present at any meeting shall control. The chairperson or acting chairperson shall have full voting rights the same as any other member. (c) Members of the Local Liquor Licensing Authority shall be compensated in the sum of twenty- five dollars ($25.00) for each meeting attended; except that no member shall receive more than fifty dollars ($50.00) in compensation for his or her services rendered during any one (1) month. (Ord. 79- 22 §2 (B, C, G)) It is recommended the Mayor entertain nominations, by motion and vote, for the Vice-Chairperson position, followed by the Council membership interviewing the nominee(s). A vote would follow with a paper ballot being completed by the Mayor and Councilors. The Town Clerk would record the results by reading out each ballot and name of Councilor submitting the vote. Election is by a simple majority. TOWN OF AVON, COLORADO AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, JUNE 10, 2014 AVON TOWN HALL, ONE LAKE STREET FINAL - ALB 06-10-2014 Minutes Page 1 1. CALL TO ORDER AND ROLL CALL Mayor Carroll called the meeting to order at 5:10 pm. A roll call was taken and Council members present were Chris Evans, Jennie Fancher, Buz Reynolds, and Jake Wolf. Dave Dantas arrived late. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Planning Manager Matt Pielsticker, Director of Economic Initiatives Susan Fairweather, and Town Clerk Debbie Hoppe as well as members from the public. 2. APPROVAL OF AGENDA There were no changes to the agenda. 3. PUBLIC COMMENT 4. PUBLIC HEARING SPECIAL EVENTS PERMIT 4.1. Applicant Name: Team Evergreen Bicycle Club Event Name: Triple Bypass Event Dates: June 12, 2014; 11 am until 8 pm Location: Nottingham Lake Park – Upper Soccer Field Event Manager: Jennifer Anderson The application was presented with no concerns for the Special Event application. Board Member Fancher moved to approve the Special Events Permit for Team Evergreen Bicycle Club for the Triple Bypass Event; Board Member Reynolds seconded the motion, and it passed unanimously by all present. (Board Member Dantas abstained due to late arrival.) 5. RENEWAL OF LIQUOR LICENSES 1.1. Applicant: YERF LLC d/b/a Ticino Italian Restaurant Location: 100 W. Beaver Creek Blvd Unit 127 Type: Hotel and Restaurant Liquor License Manager: Charles Frey The application was presented with no concerns for the renewal application. Board Member Dantas moved to approve the Hotel and Restaurant Liquor License for YERF LLC d/b/a Ticino Italian Restaurant; Board Member Wolf seconded the motion, and it passed unanimously. 1.2. Applicant: TCF 1 LLC d/b/a Castle Peak Grill Location: 0101 Fawcett Road #100 Type: Hotel and Restaurant Liquor License Manager: Dan Leary The application was presented with no concerns for the renewal application. Board Member Evans moved to approve the Hotel and Restaurant Liquor License for TCF 1 LLC d/b/a Castle Peak Grill; Board Member Wolf seconded the motion, and it passed unanimously . TOWN OF AVON, COLORADO AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, JUNE 10, 2014 AVON TOWN HALL, ONE LAKE STREET FINAL - ALB 06-10-2014 Minutes Page 2 6. MINUTES FROM MAY 27, 2014 Board Member Evans moved to approve the Minutes from May 27, 2014; Board Member Dantas seconded the motion, and it passed unanimously. There being no further business to come before the Board, the meeting adjourned at 5:15 pm. RESPECTFULLY SUBMITTED: ____________________________________ Debbie Hoppe, Town Clerk APPROVED: Rich Carroll ______________________________________ Dave Dantas ______________________________________ Chris Evans ______________________________________ Jennie Fancher ______________________________________ Albert “Buz” Reynolds ______________________________________ Jake Wolf ______________________________________ TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Debbie Hoppe, Town Clerk Date: June 24, 2014 Agenda Topic: Swearing in and Seating of New Council Member Matt Gennett Honorable Judge Buck Allen will be present for the swearing in and seating of new Council Member Matt Gennett, after which Councilor Gennett will take his seat with Avon Town Council. TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Debbie Hoppe, Town Clerk Date: June 24, 2014 Agenda Topic: Appointment of Vacant Council Seats on Regional Boards Former Mayor Pro Tem Todd Goulding served in the following positions. Consideration before Council is appointment of current Council members to one or more of entities. Action would be by motion and vote with a simple majority. 5.4.1 The Vail Valley Partnership Economic Development Leadership Council is a program of the Partnership and part of the Economic Council of Eagle County. It is a volunteer committee/task force that is instrumental in developing Eagle County’s Economic Development Plan. They welcome any and all participation in this group moving forward; this group will serve as economic ambassadors to help with business retention and other efforts related to our county wide economic development efforts. There are no scheduled recurring meetings at this time; it’s being used as an ad-hoc committee/task force. Former Mayor Pro Tem Todd Goulding served on the Leadership Council as well as Councilor Chris Evans. 5.4.2 The Economic Development Sub-Committee is an internal Town committee. Todd Goulding has requested that he remain on the sub-committee. 5.4.3 EAGLE RIVER WATER & SANITATION DISTRICT LIAISON – In following up with the District, I learned the District does not have a liaison position. Therefore, an appointment is not needed. Heil Law & Planning, LLC Office: 303.975.6120 2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com H EIL L AW TO: Honorable Mayor Carroll and Town Council Members FROM: Eric J. Heil, Town Attorney RE: Village (at Avon) Settlement Update DATE: June 20, 2014 SUMMARY: This memorandum provides an update on the Village (at Avon) Settlement. Various documents could not be finalized and completed in time for a July 8 bond closing. A new schedule is being prepared for an August 1, 2014 bond closing which anticipates finalizing and completing all documents by mid July. Documents not completed and finalized at this time include sever lender consents, a loan modification from Bank of the West, lender escrow instructions and several TCMD Reissue Bond documents. In additional, I have been informed that Laramie Participation and Royal Bank of Scotland are preparing a response letter to the Town Council’s letter concerning the requested restrictive covenant on Lot 5, Filing 1, Village (at Avon). An extension of the Outside Date beyond July 31, 2014 will be required for an August Bond Closing. As I am preparing documents related to the Escrow Agreement I request Council consider approving an additional extension of the Outside Date to October 15, 2014. COURT STATUS CONFERENCE: The next Telephone Status Conference with the Court is set for August 20, 2014 at 11:00 a.m. REQUESTED ACTION: Approval by motion for an Outside Date Extension Notice, or notices, not to exceed October 15, 2014. Thank you, Eric M EMORANDUM & PLANNING, LLC TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY JUNE 10, 2014 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 06-10-2014 Minutes Page 1 1. CALL TO ORDER & ROLL CALL Mayor Carroll called the meeting to order at 5:10 PM. A roll call was taken and Council members present were Jennie Fancher, Buz Reynolds, Jake Wolf, Dave Dantas and Chris Evans. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Senior Planner Matt Pielsticker, Director of Economic Initiatives Susan Fairweather, Director of Finance Scott Wright and Town Clerk Debbie Hoppe as well as members from the public. 2. APPROVAL OF AGENDA Mayor Carroll asked to add two agenda items, 7.2 Village (at Avon) update and 8.2 Trails at West Avon Preserve update. Town Attorney Eric Heil asked to add an Executive Session. Town Manager Virginia Egger would like to discuss whether there would be July 8th meeting. Council agreed to add items. 3. PUBLIC COMMENT 3.1. JAMES VAN BEEK, CANDIDATE FOR EAGLE COUNTY SHERIFF James Van Beek spoke to his candidacy. Kathy Ryan, Avon resident, spoke about new bike symbols, park rules and volunteer Police officer. 4. ACTION ITEMS 4.1. PUBLIC HEARING AND ACTION ON AMPLIFIED SOUND PERMIT-WALKING MOUNTAINS SCIENCE CENTER The application was presented with no concerns for the Amplified Sound Permit. Councilor Wolf motioned to approve Amplified Sound Permit for Walking Mountains Science Center; Councilor Dantas seconded the motion and it passed unanimously. 5. WORK SESSION 5.1. REVIEW OF RECREATION CENTER PHASE 2 EXPANSION AND NOTTINGHAM PARK IMPROVEMENTS AND DIRECTION FOR PUBLIC OUTREACH PROGRAM (PARKS AND RECREATION DIRECTOR JOHN CURUTCHET & TOWN MANAGER VIRGINIA EGGER) COUNCILOR DANTAS LEFT THE MEETING AT 6:45 PM. 5.2. REPORT ON WATER RESOURCES IN THE UPPER EAGLE REGIONAL WATER AUTHORITY PORTFOLIO – WATER AND STORAGE RIGHTS AND IMPACT OF THE STATE OF COLORADO WATER COMPACT IN DROUGHT PERIODS (UERWA LEGAL COUNSEL GLENN PORZAK) Glenn Porzak, Linn Brooks and Diane Johnson were present for discussion. 5.3. ANNUAL TOWN COUNCIL-EAGLE COUNTY COMMISSIONERS WORK SESSION Jill Ryan, Kathy Chandler-Henry, Keith Montag and John Lewis were present for the discussion. 5.4. OPTIONS REGARDING VACANT TOWN COUNCILOR SEAT & PROCESS IF DECISION IS TO FILL AT THIS TIME (TOWN ATTORNEY ERIC HEIL & TOWN MANAGER VIRGINIA EGGER) TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY JUNE 10, 2014 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 06-10-2014 Minutes Page 2 6. ACTION ITEMS 6.1. APPOINTMENT OF A COUNCILOR AND AN ALTERNATE TO THE UPPER EAGLE REGIONAL WATER AUTHORITY Mayor Carroll moved to appoint Councilor Reynolds as the primary principal member from the Town of Avon to the Upper Eagle Regional Water Authority; Councilor Fancher seconded the motion and it was passed unanimously by those present (Councilor Dantas was absent). Councilor Evans moved to continue Todd Goulding’s involvement in the Upper Eagle Regional Water Authority as the Town of Avon’s alternate member; Councilor Wolf seconded the motion and it was passed unanimously by those present (Councilor Dantas was absent). 6.2. APPOINTMENT OF MAYOR PRO TEM Appointment was discussed after Executive Session – See below. 6.3.MINUTES FROM MAY 27, 2014 MEETING (TOWN CLERK DEBBIE HOPPE) Councilor Fancher moved to approve minutes from May 27, 2014 meeting; Councilor Wolf seconded the motion and it was passed unanimously by those present (Councilor Dantas was absent). 7. WORK SESSION 7.1. REVIEW OF PROCESS FOR COMCAST FRANCHISE RENEWAL (TOWN MANAGER VIRGINIA EGGER) J.K. Perry Executive Director from TV5 was present for discussion. 7.2 Village (at Avon) Update (Town Attorney Eric Heil) 8. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 8.1. POST OFFICE-HOME AND BUSINESS DELIVERY (COUNCILOR DAVE DANTAS) Councilor Wolf updated council on recent meeting with Postmaster General; on home delivery possibilities. 9. COUNCIL COMMENTS Mayor Carroll gave an update on the trails that are being built in the West Avon Preserve. 10. MAYOR REPORT AND FUTURE AGENDA ITEMS 11. EXECUTIVE SESSION Councilor Reynolds moved to meet in Executive Session at 9:40 for a conference with the Town Attorney for the purpose of receiving legal advice under C.R.S. §24-6-402(2)(b) concerning the Village (at Avon) litigation settlement; the motion was seconded by Councilor Wolf and it passed unanimously by those present (Councilor Dantas was absent). TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY JUNE 10, 2014 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 06-10-2014 Minutes Page 3 Councilor Reynolds made a motion to end the Executive Session and reconvene to Regular Session at 9:54 p.m.; seconded by Councilor Wolf. The vote was unanimous, with Councilor Dantas absent during the Executive Session. Mayor Carroll stated that the Regular Session was now reconvened and if any Town Council member believed that any discussion in Executive Session was inappropriate and not related to the topic and purpose of the Executive Session to please state your objections at this time. Mayor Carroll then stated that hearing no objections the meeting would proceed to any remaining business. Councilor Reynolds made a motion to authorize the Mayor to sign a letter dated June 10, 2014, addressed to Michael Lindholm and Marcus Lindholm, regarding a Restrictive Covenant for Lot 5; Councilor Evans seconded the motion and it was passed unanimously by those present. Councilor Dantas returned to meeting at 9:45 pm. APPOINTMENT OF MAYOR PRO TEM (AGENDA ITEM 6.2) Councilor Wolf nominated Councilor Wolf. Councilor Reynolds nominated Councilor Dantas. Councilor Carroll nominated Councilor Fancher. A vote was taken with Mayor Carroll, Councilor Evans and Councilor Fancher voting for Councilor Fancher; and Councilor Dantas and Councilor Reynolds voting for Councilor Dantas and Councilor Wolf voting for Councilor Wolf. Next the top two vote getters, Councilor Fancher and Councilor Dantas were voted on. Mayor Carroll moved to appoint Councilor Fancher as Mayor Pro Tem; Councilor Evans seconded; Mayor Carroll, Councilor Fancher, Councilor Wolf and Councilor Evans voting yes; Councilor Dantas and Councilor Reynolds voting no. 12. ADJOURNMENT There being no further business to come before the Council, the regular meeting adjourned at 10:13 pm. RESPECTFULLY SUBMITTED: _________________________________ Debbie Hoppe, Town Clerk TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY JUNE 10, 2014 AVON TOWN HALL, ONE LAKE STREET FINAL - Avon Council Meeting 06-10-2014 Minutes Page 4 APPROVED: Rich Carroll ________________________________ Dave Dantas ________________________________ Chris Evans ________________________________ Jennie Fancher ________________________________ Albert “Buz” Reynolds ________________________________ Jake Wolf ________________________________ PAGE 1 OF 3 TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: John Curutchet, Parks & Recreation Director Susan Fairweather, Director of Economic Initiatives Virginia Egger, Town Manager Date: June 18, 2014 Agenda Topic: Avon Recreation Center Phase 2 Expansion and Recreational Improvements in Nottingham Park – Open House Materials, including Review of Options for a Bond Issue ---------------------------------------------------------------------------------------------------------------------------------------------------------------- Background At its Regular Meeting on June 10, 2014, Council considered the Recreation Center Phase 2 Expansion and a Public Outreach Program to gage public interest in the proposed improvements. Council directed staff to: • Develop an additional option for Nottingham Park improvement expenses to include: o Removing the artificial turf estimate ($534,000) replacing it with natural turf estimate ($350,000); and obtain an estimate on a hybrid grass/turf surface ($346,500) o Add the construction cost of Destination Jump Splash Learn (Playground) ($700,000) • Obtain estimated figures for financing the proposed improvements with 25YR and 30YR bond issue options • Propose dates for Open Houses Debt Service Options for Funding Recreation Projects, including Phase 2 Recreation Center Expansion The following table lists the recreation projects identified in The Nottingham Park Recreation Amenities and Indoor Sports/Community Center (2013 Report), the most prominent being the expansion of the Recreation Center, and estimated costs. The 2013 Report was provided in the Council Packet of June 10, 2014. Option 1 indicates which projects can be funded if annual debt service, currently being paid on an expiring General Obligation Bond ($546,000), is extended. 3.302 mills support the current debt service. This would be a “Limited” debt issuance question to the voters. • Total proceeds range from $9,207,000 (25YR) to $10,098,200 for a 30YR bond. • Three projects cannot be funded with either a 25YR or 30YR bond: Waterslide-Pool Renovation, Playground, and Shower Remodel. • The remaining projects can be fully funded if a 30YR bond is issued. • A bond issue yield short-fall of $882,000 results if a 25YR bond is issued for these same projects. • Options for funding the three projects not in this bond issue include grant application for the playground (maximum available from GOCO is $350,000) and Capital Project Funds. Option 2 provides debt service estimates if all listed projects are financed through a bond issue. This would be an “Unlimited” debt issuance question to the voters. • Debt service increases to $669,088 for 25YR bond and $609,351 (30YR bond) for all projects, which, respectively, is $123,088 and $63,351 higher than the current debt service of $546,000. • The mill levy would be increased from the current 3.302 mills to 4.013 and 3.655, respectively. • Bonding for these additional projects would add $1,045,000 to the Capital Projects Fund for other pay-as-you-go non-recreation related projects. PAGE 2 OF 3 PROPOSED RECREATION PROJECTS Project Option 1 Option 2 Notes Recreation Center: Phase 2 Expansion: 32,725 sq. ft. $7,700,000 $7,700,000 Indoor sports areas and multi-use community center to include additional space for activities such as basketball, yoga and fitness space, increased area for cardio/weights and special events (birthday parties, film or writer’s festivals) Parking for Recreation Center $1,290,000 $1,290,000 84 spaces Rec. Center South, 87 spaces on Lake Street, 38 spaces on Benchmark Road, South of Seasons Building Ice Rink/Summer Activity Center $290,000 $290,000 Upper Field Reconstruction: Artificial Turf (Option 1) Natural Turf (Option 2) $534,000 $350,000* *Hybrid grass artificial turf rebuild: $346,500 Restroom Remodel $275,000 $275,000 2016 CIP -$25,000 design 2017 CIP -$250,000 Construction Water Slide – Pool Theme Renovation $175,000 2014 CIP $100,000 (if not in Bond as a larger project) Destination Jump, Splash/Learn (Playground) $770,000 * 2014 CIP -$70,000 design GOCO Grant for Construction Shower Remodel $100,000 2014 CIP TOTAL BOND PROJECTS $10,089,000 $10,850,000 BOND REVENUE/ DEBT SERVICE SCENERIOS Revenue Mill Rate/ Debt Service 30 year bond term –OPTION 1 $10,098,200 3.302 /$546,000 Limited GO Bonds; No D/S Shortfall 30 year bond term – OPTION 2 $10,850,000 3.655 / $609,351 Unlimited GO Bonds; No financing or annual D/S shortfall 25 year bond term – OPTION 1 $9,207,000 3.302 / $546,000 Limited GO Bonds; Financing Shortfall of $882,000 ($10,089,000 - $9,207,000) 25 year bond term – OPTION 2 $10,850,000 4.013 / $669,088 Unlimited GO Bonds; No financing or annual D/S shortfall * Consider using funds now in CIP to finish Nottingham Pavilion. NOTES: The mill rates used above assume that there is no change in the Town’s current net assessed value of $166,734,780 and the current debt service mill rate of 3.302 for the 2014 levy. The estimated annual payment for residential and commercial properties for Options 1 & 2 will be available for Council’s Tuesday work session. The payment will be based upon an assessed valuation of $300,000. Sample ballot language for Unlimited and Limited Debt Questions are included with this memo. PAGE 3 OF 3 Public Outreach: Staff recommends four Open Houses to present the proposed improvements and funding alternatives. Dates suggested are: • Wednesday July 16, 2014 5:30 p.m. to 7:30 p.m. Wildridge Fire Station and Park • Wednesday July 23, 2014 5:30 p.m. to 7:30 p.m. Eagle Bend Apartments Community Room • Saturday July 26, 2014 9:30 a.m. to 11:30 a.m. Aspens Mobile Home Park Community Center and 2:30 p.m. to 4:30 p.m. Avon Recreation Center lobby The Open House agenda will include presentations by Council members, Town Manager, Staff and a representative from JACOBS Engineering, who has been retained by the Town Manager to prepare schematics for the presentations. Public comments and questions from the public would follow. Attendees will be able to vote project- by-project by placing a dot on favored projects, and the survey utilized last year to gain comment will also be distributed. JACOBS Engineering has been asked to prepare the following schematics for the Open Houses: • A schematic showing the expanded Recreation Center, distribution of parking, new social ice rink/summer activity center in front of the Recreation Center, plus new stage, pedestrian walkway interface and location of other facilities in the park • Pictures of ice rink alternatives – social and full regulation size at the Rec Center or in the park • Yoga studio and fitness center expansion depictions or pictures for increasing space and appropriate ambiance for these uses • Discrete boards for each proposed amenity so that Open House attendees can show preference by placing a dot for each amenity • Summary of the public process if a bond issue is successful and design –construction schedule • Summary of role of a leadership committee to promote the bond issue under election campaign laws The Town will be responsible for: • Project costs and estimated annual revenue – mill levy rate – price per residential and commercial unit/assessed valuation (Option 1 and/or 2) • Programming for the expanded facilities • Survey handout for attendees • Collecting names of community members interested in serving on a leadership committee to assure passage of ballot question (Should Council decide to place a question before the voters, staff recommends Council consider in the next two months finding the leadership for the formation of a committee to campaign for the bond issue, including raising funds as allowed for and reporting under State campaign laws.) Next Steps after Open Houses • Council Work Session on August 12 – Discussion on Ballot Issue • Council Action Item on August 26 - Ordinance Setting the Ballot Question Council Direction • Staff requests confirmation that the proposed Open House schedule is satisfactory and the proposed agenda for the Open Houses is sufficient. • Direction is needed whether one or both funding options should be presented to the public. 1 UNLIMITED TAX GENERAL OBLIGATION SHALL TOWN OF AVON DEBT BE INCREASED BY UP TO $______________ WITH A MAXIMUM REPAYMENT COST OF UP TO $_________ AND SHALL TOWN TAXES BE INCREASED BY UP TO $__________ SUBJECT TO THE FOLLOWING: (1) SUCH DEBT MAY BE ISSUED FOR THE PURPOSE OF FINANCING RECREATION FACILITIES AND IMPROVEMENTS INCLUDING ________, AND ANY COSTS NECESSARY OR INCIDENTAL THERETO, INCLUDING WITHOUT LIMITATION, ANY COSTS WHICH THE TOWN MAY INCUR IN CONNECTION WITH THE DEBT OR IMPROVEMENTS TO BE FINANCED AND THE COST OF ESTABLISHING RESERVES TO SECURE THE PAYMENT OF SUCH DEBT; (2) SUCH DEBT MAY BE EVIDENCED BY THE ISSUANCE OF BONDS, LOAN AGREEMENTS, INTERGOVERNMENTAL AGREEMENTS OR OTHER MULTIPLE FISCAL YEAR FINANCIAL OBLIGATIONS WHICH CONSTITUTE A GENERAL OBLIGATION OF THE TOWN PAYABLE FROM ANY TOWN REVENUES AS THE TOWN COUNCIL MAY PLEDGE TO THE PAYMENT OF THE DEBT; (3) THE TOWN’S MILL LEVY MAY BE INCREASED IN ANY YEAR WITHOUT LIMITATION AS TO RATE BUT ONLY IN AN AMOUNT TO PAY THE PRINICIPAL OF, PREMIUM IF ANY, AND INTEREST ON SUCH DEBT; AND (4) SUCH DEBT MAY BE SOLD OR ENTERED INTO FROM TIME TO TIME AT A PRICE ABOVE, BELOW OR EQUAL TO THE PRINCIPAL AMOUNT OF SUCH DEBT, ON SUCH TERMS AND CONDITIONS AS THE TOWN MAY DETERMINE, INCLUDING PROVISIONS FOR REDEMPTION OF THE DEBT PRIOR TO MATURITY WITH OR WITHOUT PAYMENT OF PREMIUM; AND SHALL THE TOWN BE AUTHORIZED TO ISSUE DEBT TO REFUND THE DEBT AUTHORIZED IN THIS QUESTION, PROVIDED THAT AFTER THE ISSUANCE OF SUCH REFUNDING DEBT THE TOTAL OUTSTANDING PRINCIPAL AMOUNT OF ALL DEBT ISSUED PURSUANT TO THIS QUESTION DOES NOT EXCEED THE MAXIMUM PRINCIPAL AMOUNT SET FORTH ABOVE, AND PROVIDED FURTHER THAT ALL DEBT ISSUED BY THE TOWN PURSUANT TO THIS QUESTION IS ISSUED ON TERMS THAT DO NOT EXCEED THE REPAYMENT COSTS AUTHORIZED IN THIS QUESTION; AND SHALL THE PROCEEDS OF SUCH DEBT AND ANY INVESTMENT INCOME THEREON BE COLLECTED, RETAINED, AND SPENT AS A VOTER APPROVED REVENUE CHANGE UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW? 2 PUBFIN/1666893.1 LIMITED TAX GENERAL OBLIGATION SHALL TOWN OF AVON DEBT BE INCREASED BY UP TO $______________ WITH A MAXIMUM REPAYMENT COST OF UP TO $_________ SUBJECT TO THE FOLLOWING: (1) SUCH DEBT MAY BE ISSUED FOR THE PURPOSE OF FINANCING RECREATION FACILITIES AND IMPROVEMENTS INCLUDING ________, AND ANY COSTS NECESSARY OR INCIDENTAL THERETO, INCLUDING WITHOUT LIMITATION, ANY COSTS WHICH THE TOWN MAY INCUR IN CONNECTION WITH THE DEBT OR IMPROVEMENTS TO BE FINANCED AND THE COST OF ESTABLISHING RESERVES TO SECURE THE PAYMENT OF SUCH DEBT; (2) SUCH DEBT MAY BE EVIDENCED BY THE ISSUANCE OF BONDS, LOAN AGREEMENTS, INTERGOVERNMENTAL AGREEMENTS OR OTHER MULTIPLE FISCAL YEAR FINANCIAL OBLIGATIONS PAYABLE FROM ANY TOWN REVENUES AS THE TOWN COUNCIL MAY PLEDGE TO THE PAYMENT OF THE DEBT INCLUDING THE TOWN’S EXISTING DEBT SERVICE MILL LEVY OF 3.302 MILLS WHICH WAS AUTHORIZED AT THE 1993 ELECTION TO FUND ROUNDABOUTS AND WHICH MAY BE CONTINUED FOR PURPOSES OF PAYING THIS DEBT; AND (3) SUCH DEBT MAY BE SOLD OR ENTERED INTO FROM TIME TO TIME AT A PRICE ABOVE, BELOW OR EQUAL TO THE PRINCIPAL AMOUNT OF SUCH DEBT, ON SUCH TERMS AND CONDITIONS AS THE TOWN MAY DETERMINE, INCLUDING PROVISIONS FOR REDEMPTION OF THE DEBT PRIOR TO MATURITY WITH OR WITHOUT PAYMENT OF PREMIUM; AND SHALL THE TOWN BE AUTHORIZED TO ISSUE DEBT TO REFUND THE DEBT AUTHORIZED IN THIS QUESTION, PROVIDED THAT AFTER THE ISSUANCE OF SUCH REFUNDING DEBT THE TOTAL OUTSTANDING PRINCIPAL AMOUNT OF ALL DEBT ISSUED PURSUANT TO THIS QUESTION DOES NOT EXCEED THE MAXIMUM PRINCIPAL AMOUNT SET FORTH ABOVE, AND PROVIDED FURTHER THAT ALL DEBT ISSUED BY THE TOWN PURSUANT TO THIS QUESTION IS ISSUED ON TERMS THAT DO NOT EXCEED THE REPAYMENT COSTS AUTHORIZED IN THIS QUESTION; AND SHALL THE PROCEEDS OF SUCH DEBT AND ANY INVESTMENT INCOME THEREON BE COLLECTED, RETAINED, AND SPENT AS A VOTER APPROVED REVENUE CHANGE UNDER ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION OR ANY OTHER LAW? TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Matt Pielsticker, AICP, Planning Manager Date: June 24, 2014 Meeting Agenda Topic: Bike Lanes Building on recent efforts to bring awareness and increase safety for cyclists in Town, including the introduction of bike symbols (or “sharrows”) to the entirety of Avon Road, Town staff has studied the feasibility of adding bike lanes to West and East Beaver Creek Boulevard. During the Work Session staff will present the entire plan to be implemented this summer, including: • W. Beaver Creek Blvd o From Avon Elementary to Lake Street - shift travel lanes approximately 3.5’ to accommodate westbound bike lane. Add additional bike symbols and signage. o From Lake Street to Avon Road - remove turn lanes, add additional parallel on- street parking where feasible, and add 6’ wide bike lanes in both directions throughout. • E. BC Blvd o From Avon Road to City Market - remove turn lanes, and add minimum 6’ wide bike lanes. Additional bike symbols and signage will be added. o From City Market to Post Blvd – add bike symbols and signage throughout. The Town Council appropriated $35,000 for the bike lane striping this year. I look forward to your comments and direction. TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Robert L. Ticer, Chief of Police Date: Tuesday, June 24, 2014 Agenda topic: Avon Police Department Patrol Operations Overview The purpose of the work session with Council is to review Patrol Operations of the Avon Police Department, to answer questions and ensure that the Department is meeting the Town Council’s direction in this important activity. The Avon Police Department Patrol Division is the backbone of the Department. The Division is divided into to two patrol teams of six officers and one sergeant responsible for coverage and response in the Town 24 hours per day, 7 days per week. The sergeants report to the Patrol Lieutenant. The teams are broken further into day and night shifts, which consist of 3 officers assigned to each time period. The sergeants are flexible and rotate between days and nights, depending upon coverage needs and other operational duties to maximize service during times of high call volume. The Avon Police Department and Patrol Division have three goals: Community Education, Crime Reduction/Deterrence, and Traffic Safety. Each Avon Police Officer is focused on these goals and Making a Difference positively in the community. Patrol Division is responsible for the following: First responders to community emergencies; criminal investigations; general patrol; traffic enforcement; traffic crash investigations; response to 911 emergency calls; response to non-emergency calls for service, staffing special events; and other duties as assigned. Several strategies for patrol operations are utilized, such as the Data Driven Approach to Crime and Traffic Safety (DDACTS), which is an evidence-based problem solving approach that includes the following seven guiding principles: 1. Partners and stakeholder’s input. 2. Data collection. 3. Data analysis. 4. Strategic operations. 5. Information sharing and outreach. 6. Monitoring, evaluation, and adjustments. 7. Outcomes. Additionally, officers are deployed to specific locations for problem solving based upon community input/complaints such as speeding and traffic or requests for extra patrols based upon specific crime trends. In addition to general community policing by the patrol teams, the detectives and chief assist in patrol coverage and augment staffing as necessary. The Avon Police Department participates in the Gore Range DUI Task Force, which is a regional law enforcement response to reduce impaired driving in the local communities. This program along with the National Click it or Ticket campaign to increase seat belt usage are funded through state grants.  Page 2 Avon Police Officers are effectively trained and equipped for their work. The Department conducts quarterly trainings and focuses on specific trainings to continuously improve the level of expertise in the Department. Avon Police Patrol Officers drive fully-marked Chevrolet Tahoes that are equipped with mobile data computers and cellular telephones. These technologies allow officers to remain mobile, which ensures rapid response to emergencies. In fact, Avon Police response times to emergencies averages between 2 and 4 minutes, which is significantly quicker than the national average of 10-11 minutes. The Avon Police Department measures success through the performance metrics which consists of the following: 1. Community Survey. 2. Internal survey (bi-annual ethics survey). 3. Crime and traffic statistics analysis. 4. Police response times. The community survey is pending; however the police department receives community input through a variety of means including day to day community interactions; complaint/compliments; and through channels such as the Citizens Police Academy. The results of the anonymous internal surveys over the last several years indicate a team of satisfied, ethical, and highly trained professionals. Through high visibility patrols and intelligence led policing, the Avon Police Department has seen many positive trends and decreases in crime and traffic crashes over the last several years. Total crime, assaults, theft, robbery, burglary, vehicle theft, vandalism, and traffic crashes, have been at all-time lows recently. Traffic enforcement has remained a priority in the Division for a dual purpose: One, to reduce/deter crime and two, to improve traffic safety. Officers remain visible in their patrols and stop on average 8.4 traffic violators per day and issue 1.9 traffic citations during these contacts. Officer use excellent judgment and discretion during these contacts with a goal to improve drive safety. Using the data driven model and intelligence led policing, officers focus on locations in town for patrol as first priority where the highest number of calls for service and most serious-life threatening calls are located. These areas are the core of Avon, Interstate 70, and East Avon. Additional Patrols are directed in Wildridge and West Avon. Success: The Avon Police Department’s Patrol Division, in partnership with the community, have achieved over the last several years efficiency in policing, increased partnerships, lower crime, improved traffic safety, minimal complaints, positive compliments, and buy-in. Additionally, many professional organizations have recognized the Department for their professional work including, Mothers Against Drunk Driving; Colorado Department of Transportation; the National Highway Traffic Safety Administration, Colorado Association of Chiefs of Police, and last year by the International Association of Chiefs of Police who awarded the Department with the prestigious Civil Rights Award for positive work in the immigrant community. Moving Forward: The Avon Police Department, through the aforementioned programs and strategies and through direction of the Town/Community leaders, will continue to improve. The Department is exploring additional strategies to further improve their policing model and efficiencies through crime mapping technologies, country wide electronic citations, and evaluation of officer proactive times. FISCAL YEAR 2014 FINANCIAL REPORT June 24, 2014 ______________________________________________________________________________________ 1. Fiscal Year 2014 Financial Report Cover Memo 2. Sales and Accommodations Tax Reports – April 2014 3. Real Estate Transfer Tax Report and Monthly Detail – May 2014 4. General Fund Year-To-Date Expenditures- May 2014 5. Fleet Maintenance Fund Year-To Date Expenditures- May 2014 6. Transit Fund Year-To Date Expenditures- May 2014 7. DestiMetrics Executive Summary- May 2014 TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Kelly Huitt, Budget Analyst Date: June 18, 2014 Re: Fiscal Year 2013 Financial Report – April/May 2014 Revenues: SALES TAX • Sales tax revenue for the month of April is up $74,432.43, or 24.21% compared to April 2013, and up 21.45% compared to the monthly budget. This increase includes approximately $15,000 from new businesses, and after adjusting for new business growth, 19.30% is the actual gain in revenue for the month. April 2014 sales tax revenue is the highest ever for the month of April. • April collections report increases in all industries over 2013 except for Miscellaneous Retail which was down ($3,308.41) or (13.60%). The decrease is due to a business closure in this industry, and there was also a business miscoded to Miscellaneous Retail that was removed and placed in the correct category. Revenue from Home/Garden is up 89.51% for the month, Sporting Goods Rental/Retail is up almost $9,000 or 37.40% and Other is up $12,725.06, or 35.84%. ACCOMMODATIONS TAX • Accommodations tax revenue for April is up $5,131.53, or 19.37% compared to April 2013, and up 15.92% compared to the monthly budget. April 2014 accommodations tax revenue is the highest on record for the month of April historically. • April accommodations tax collections are up for Hotels at 2.59%, Timeshares at 77.95%, while Vacation rentals are down (9.74%). REAL ESTATE TRANSFER TAX • 2014 real estate transfer tax collections for May equal $183,745.60. This is a 50.88% increase from May 2013 and 80.01% over the monthly budget. Expenditures: • General Fund expenditures at the end of May are 42.7% of the budgeted amounts. • Fleet expenditures to date are at 40.43% of the total budget. • Transit funds are 44.55% spent compared to the annual appropriation. This includes $177,168.48 for gondola operations during the 2014 portion of the ski season. DestiMetrics: • Avon’s occupancy was at 22.3% for the month of May, which is a 13.1% increase over May 2013. • June’s anticipated occupancy is 27.0%, a -16.6% decrease over 2013. • Looking back at the past six months, occupancy was up 6.9% while average daily rate was up 7.5% and revenue per average room night increased 14.9% over 2013. • Occupancy for the upcoming six months on the books is 1.3% higher than 2013 at 11.8%. • Rooms booked during May 2014 for arrival May – October has changed by 3.6% compared to rooms booked during May 2013 for arrival in the following six months. TOWN OF AVON SALES TAX WORKSHEET 2014 Actual vs. Budget Budget YTD Collections Budget % of change 2009 2010 2011 2012 2013 2014 2014 Variance from 2013 January 552,648.47$ 515,009.18$ 511,040.76$ 519,784.89$ 677,943.78$ 693,355$ 638,863.27$ (54,491.56)$ -5.76% February 516,349.68 504,752.59 532,903.25 533,546.48 636,702.27 651,176 673,722.03 22,546.21 5.81% March 536,913.42 620,937.20 665,532.70 643,910.29 720,267.31 736,640 793,301.96 56,661.50 10.14% April 319,833.51 309,937.09 305,269.73 304,220.84 307,407.13 314,395 381,839.56 67,444.43 24.21% May 267,960.76 242,830.16 236,424.93 270,082.79 309,938.72 316,984 June 396,066.29 377,920.42 406,828.27 430,588.57 490,329.18 501,475 July 409,956.20 421,975.98 452,873.44 472,215.40 537,479.66 549,698 August 374,965.99 361,702.25 419,977.29 455,439.86 504,332.25 515,797 September 350,585.25 359,139.22 391,546.49 424,793.75 475,362.88 486,169 October 286,412.11 288,859.84 299,193.35 341,711.43 356,925.96 365,040 November 281,696.02 284,528.70 301,407.41 336,060.63 362,460.94 370,700 December 786,701.84 818,360.74 921,815.61 852,868.64 981,917.79 1,004,239 Total 5,080,089.54$ 5,105,953.37$ 5,444,813.23$ 5,585,223.57$ 6,361,067.87$ 6,505,668$ 2,487,726.82$ 92,160.58$ 6.21% Actual Collections $0 $100,000 $200,000 $300,000 $400,000 2010 2011 2012 2013 2014 Year Sales Tax Collections for April TOWN OF AVON SALES TAX WORKSHEET 2014 Actual vs. Budget $- $250,000 $500,000 $750,000 $1,000,000 $1,250,000 $1,500,000 $1,750,000 $2,000,000 $2,250,000 $2,500,000 2010 2011 2012 2013 2014 YTD Sales Tax Collections $- $50,000 $100,000 $150,000 $200,000 $250,000 $300,000 $350,000 $400,000 $450,000 $500,000 $550,000 $600,000 $650,000 $700,000 $750,000 $800,000 Sales Tax Monthly Comparison 2012-2014 2012 2013 2014 TOWN OF AVON ACCOMMODATIONS TAX WORKSHEET 2014 Actual vs. Budget Budget YTD Collections Budget % of change 2009 2010 2011 2012 2013 2014 2014 Variance 2013 January 84,919.00$ 87,938.84$ 85,233.73$ 90,118.88$ 108,508.43$ 111,733$ 129,851.78$ 18,119.08$ 19.67% February 83,502.22 99,336.34 114,035.90 106,016.32 137,503.61 141,589 150,317.06 8,727.60 9.32% March 84,909.85 105,518.15 122,145.16 115,043.42 153,208.80 157,761 168,597.39 10,836.07 10.04% April 26,821.29 26,496.88 26,214.58 20,786.24 26,494.49 27,282 31,626.02 4,344.26 19.37% May 19,090.36 12,425.51 15,152.82 16,664.44 24,527.17 25,256 June 34,439.33 32,857.68 49,999.66 56,012.17 66,578.91 68,557 July 47,864.32 51,170.82 62,928.07 66,726.73 73,008.92 75,178 August 39,155.19 42,188.56 52,037.55 58,358.93 67,688.07 69,699 September 21,134.69 30,090.34 35,521.81 42,245.24 44,661.37 45,988 October 17,043.78 20,614.06 21,801.56 25,879.51 27,154.53 27,961 November 15,268.58 20,582.47 24,971.33 22,786.42 28,171.04 29,008 December 96,847.30 98,561.90 135,984.00 112,759.02 131,361.43 135,265 Total 570,995.91$ 627,781.55$ 746,026.17$ 733,397.32$ 888,866.77$ 915,279$ 480,392.25$ 42,027.00$ 12.84% Actual Collections - 5,000.00 10,000.00 15,000.00 20,000.00 25,000.00 30,000.00 35,000.00 2010 2011 2012 2013 2014 Accommodations Tax Collections for April Town of Avon Real Estate Transfer Tax May 2014 Collections Detail YTD Collections $ change % of change 2009 2010 2011 2012 2013 2014 2013 2013 January 34,468.00$ 237,133.00$ 57,540.00$ 50,204.00$ 22,535.00$ 85,126.74$ 62,591.74$ 277.75% February 95,703.38 362,719.22 230,705.50 41,750.07 55,872.69 562,219.70 506,347.01 906.25% March 6,023.70 284,243.65 187,099.47 84,760.49 125,927.64 50,375.06 (75,552.58) -60.00% April 92,238.95 210,185.30 249,482.30 219,195.80 144,437.80 197,656.36 53,218.56 36.85% May 37,803.12 112,431.30 187,668.62 270,170.12 121,784.12 183,745.60 61,961.48 50.88% June 365,324.28 66,271.14 49,606.58 169,040.47 90,309.74 July 208,800.24 63,509.36 46,707.37 71,057.40 386,434.78 August 87,827.30 88,823.40 106,785.21 232,505.93 97,579.70 September 159,877.84 159,861.96 140,876.56 96,389.34 157,010.67 October 205,537.52 222,575.20 64,005.33 176,889.62 169,839.80 November 131,944.57 115,654.16 98,057.44 150,549.86 112,491.82 December 336,431.50 236,117.45 198,448.03 145,134.57 83,382.60 Total 1,761,980.40$ 2,159,525.14$ 1,616,982.41$ 1,707,647.67$ 1,567,606.36$ 1,079,123.46$ 608,566.21$ 129.33% Budget 1,600,000$ Variance, Favorable (Unfavorable)(520,876.54) Actual Collections $- $100,000.00 $200,000.00 $300,000.00 $400,000.00 $500,000.00 $600,000.00 $700,000.00 $800,000.00 $900,000.00 $1,000,000.00 $1,100,000.00 $1,200,000.00 $1,300,000.00 2010 2011 2012 2013 2014 YTD Real Estate Transfer Tax Collections Town of Avon Real Estate Transfer Tax May 2014 Collections Detail Purchaser Name Property Amount Received Balance Forward 895,377.86$ Heritage Title - Blackham Lodge at Brookside #312 10,670.00 Stewart Title - DeMeillac 520 W Beaver Creek Blvd #A-103 (Buck Creek)6,560.00 Land Title - O'Halloran and Razus 1061 W Beaver Creek Blvd #J-204 (Sunridge)780.00 Land Title - Thomas Trust 137 Benchmark #405 (Seasons)6,640.00 Land Title - Evans 175 Lake St #405, wk 35 (Falcon Pointe)63.80 Title Co of the Rockies Christie Lodge CL #31 1,479.90 Title Co of the Rockies Mtn Vista #14-21 176.00 Stewart Title - Beaver Creek Landing 851 W Beaver Creek Blvd #B6 (Benchmark)2,800.00 Land Title - Beltran Falcon Pointe #208 135.90 Title Co of the Rockies Mtn Vista #14-20 296.00 Title Co of the Rockies Christie Lodge CL #30 1,414.70 Land Title - Delmont Falcon Pointe #408, wk23 20.00 Land Title - Zietz Falcon Pointe #502, wk27 63.80 Land Title - Kean Chapel Spare # BR-225 5,720.00 Land Title - Johns Family LLP Nightstar #C 8,800.00 Title Co of the Rockies Mtn Vista #14-19 557.90 Stewart Title - Pullins Greenbrier #D-29 4,300.00 Title Co of the Rockies Christie Lodge CL#29 2,366.80 Land Title - Ehlman Falcon Pointe #207, wk 22 63.80 Stewart Title - Bruun Greenbrier #B-15 1,060.00 Title Co of the Rockies Christie Lodge CL #28 957.00 Heritage Title - Pompano Chapel Spare # BR-314 7,760.00 Land Title - Benedict Lodge at Brookside #207 4,800.00 Land Title - Nelson 2455 Old Trail #C (Villamonte)5,580.00 Land Title - Braksick 126 Riverfront Ln #406 26,000.00 Land Title - Macartney 3000 Eaglebend Dr, Lot 10, filing 3 11,000.00 Land Title - Ebert 811 W Beaver Creek Blvd #D-4 2,120.00 Land Title - Davis Chapel Square #BR-202 8,100.00 Heritage Title - Redden Stonebriar Townhomes #4 6,800.00 Chicago Title Mtn Vista #14-16 219.00 Chicago Title Mtn Vista #14-14 219.00 Chicago Title Riverfront #14-18 736.00 Chicago Title Riverfront #14-17 436.00 Land Title - Kaufman 126 Riverfront Ln #450 55,000.00 Land Title - Sibold Falcon Pointe #105, wk 8 50.00 Total May Revenue 183,745.60 Total YTD Revenue 1,079,123.46 Total 2014 Budget 1,600,000.00 Variance, Favorable (Unfavorable)(520,876.54)$ Dept./Div.2014 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget General Government: Legislative: 111 Mayor and Town Council 578,920$ 750$ 329,222$ 248,948$ 57.00% 112 Boards and Commissions 15,299 - 4,024 11,275 26.30% 113 Town Attorney 155,000 111,553 43,550 (103) 100.07% 115 Town Clerk 170,427 6,795 89,494 74,138 56.50% Total Legislative 919,646 119,098 466,290 334,258 63.65% Judicial: 121 Municipal Court 98,235 14,578 38,273 45,384 53.80% Executive: 131 Town Manager 294,403 - 87,469 206,934 29.71% 132 Human Resources 229,806 2,362 90,044 137,400 40.21% 133 Community Relations 111,569 - 46,922 64,647 42.06% Total Executive 635,778 2,362 224,435 408,981 35.67% Finance Department: 141 Finance 741,372 29,326 259,261 452,785 38.93% 143 Information Systems 337,296 10,980 160,898 165,418 50.96% 149 Nondepartmental 290,998 16,180 201,251 73,567 74.72% Total Financial Administration 1,369,666 56,486 621,410 691,770 49.49% Total General Government 3,023,325 192,524 1,350,408 1,480,393 51.03% Community Development: 212 Planning 245,489 4,841 82,060 158,588 35.40% 213 Building Inspection 127,353 - 50,284 77,069 39.48% 214 Economic Development 111,605 - 28,806 82,799 25.81% Total Community Development 484,447 4,841 161,150 318,456 34.26% Police Department: 311 Administration 553,701 16,054 204,211 333,436 39.78% 312 Patrol 1,964,020 33,466 697,496 1,233,058 37.22% 313 Investigations 221,954 - 89,072 132,882 40.13% Total Police 2,739,675 49,520 990,779 1,699,376 37.97% Public Works: 412 Engineering 269,478 484 80,761 188,233 30.15% 413 Roads and Bridges 1,434,574 97,675 514,916 821,983 42.70% Total Public Works 1,704,052 98,159 595,677 1,010,216 40.72% Department Expenditure Summaries General Fund #10 May 2014 Expenditures to Date Dept./Div.2014 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget Department Expenditure Summaries General Fund #10 May 2014 Expenditures to Date Parks and Recreation: 513 Special Events 427,106 11,437 95,572 320,097 25.05% 514 Administration 223,113 6,626 95,772 120,715 45.90% 515 Adult Programs 28,657 - 10,529 18,128 36.74% 516 Aquatics 394,409 9,043 165,520 219,846 44.26% 517 Childcare 36,486 - 12,915 23,571 35.40% 518 Fitness 158,237 86 100,552 57,599 63.60% 519 Guest Services 235,050 5,159 78,536 151,355 35.61% 521 Youth Programs 118,979 138 31,961 86,880 26.98% 522 Cabin 43,643 - 6,460 37,183 14.80% 551 Parks & Grounds 1,065,325 68,139 370,438 626,748 41.17% 571 Buildings & Facilities 1,053,353 57,221 441,697 554,435 47.36% Total Parks and Recreation 3,784,358 157,849 1,409,952 2,216,557 41.43% TOTAL OPERATING EXPENDITURES 11,735,857$ 502,893$ 4,507,966$ 6,724,998 42.70% Dept./Div.2014 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget EXPENDITURES Public Works: 434 Fleet Maintenance 1,546,142$ 51,219$ 573,817$ 921,106$ 40.43% Total Operating Expenditures 1,546,142 51,219 573,817 921,106 40.43% TOTAL EXPENDITURES 1,546,142$ 51,219$ 573,817$ 921,106$ 40.43% Expenditure Summary Fleet Maintenance Enterprise Fund #61 May 2014 Expenditures to Date Dept./Div.2014 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget EXPENDITURES 431 Transit Administration 219,197$ 2,775$ 87,505$ 128,917$ 41.19% 432 Transit Operations 997,403 2,417 483,376 511,610 48.71% 435 Wash Bay 189,479 692 49,582 139,205 26.53% Total Operating Expenditures 1,406,079 5,884 620,463 779,732 44.55% TOTAL EXPENDITURES 1,406,079$ 5,884$ 620,463$ 779,732$ 44.55% Expenditure Summary Transit Enterprise Fund #52 May 2014 Expenditures to Date Destination: Avon Destination Period: Bookings as of May 31, 2014 Data based on a sample of up to 10 properties in the Avon Destination destination, representing up to 748 Units ('DestiMetrics Census'*) ) a. Last Month Performance: Current YTD vs. Previous YTD 2013/142012/13 Year over Year % Diff 22.2%19.6%13.1% $106$108 -1.4% $23$21 11.5% b. Next Month Performance: Current YTD vs. Previous YTD 27.0%32.3%-16.6% $148$153 -3.4% $40$49 -19.4% c. Historical 6 Month Actual Performance: Current YTD vs. Previous YTD 49.0%45.8%6.9% $227$211 7.5% $111$97 14.9% d. Future 6 Month On The Books Performance: Current YTD vs. Previous YTD 11.8%11.6%1.3% $157$157 -0.1% $18$18 1.2% e. Incremental Pacing - % Change in Rooms Booked last Calendar Month: May. 31, 2014 vs. Previous Year 5.7%5.5%3.6% ADR Copyright 2006 - 2014, DestiMetrics, LLC. All Rights Reserved. Information provided here is CONFIDENTIAL INFORMATION and is the exclusive property of DestiMetrics LLC. It is expressly not for reproduction, distribution publication or any other dissemination without the express written permission of DestiMetrics, LLC. Sample reports may be provided to interested persons, specifically for purposes of their evaluation of a potential subscription and are subject to Copyrights of this product. Data and Metrics represented on this report are representative of the Sample Properties only and may not be representative of the entire Community or Industry. Persons using this data for strategic purposes do so at their own risk and hold DestiMetrics harmless. Avon Destination RevPAR for the upcoming 6 months changed by (1.2%)RevPAR Rooms Booked during last month (May, 2014) compared to Rooms Booked during the same period last year (May, 2013) for arrival May to October has changed by (3.6%)Booking Pace (May) ADR (May) Avon Destination Occupancy for the upcoming 6 months changed by (1.3%)Occupancy * DestiMetrics Census: Total number of rooms reported by participating DestiMetrics properties as available for short-term rental in the reporting month. This number can vary monthly as inventories and report participants change over time. DESCRIPTION: The Reservation Activity Outlook Report tracks occupancy, average daily rate (ADR), and revenue per available room (RevPAR); the key metrics most of interest to lodging properties. The report combines the data sets of participating properties into a destination wide view that features three data sets (providing that sufficient information is available) including: i) current YTD occupancy, ii) last YTD occupancy, iii) last season's ending occupancy. The Reservation Activity Outlook Report is generated on a monthly basis, usually for a 12 month subscription period, and is created from data provided by a group of properties participating in a cooperative manner, and representing a valid set of data as a result. Report results are provided only to those properties who participate by submitting their data. Additionally, participating properties can order (on an a-la-carte basis) an individual report which shows the reservation activity of their property, measured against an aggregated set of competitive properties that they choose from amongst DestiMetrics's other participants. As is the case in all DestiMetrics data, all information provided by individual properties is strictly confidential, except when aggregated with other data and indistinguishable as a result. Avon Destination Average Daily Rate for the prior 6 months changed by (7.5%)ADR Avon Destination RevPAR for the prior 6 months changed by (14.9%)RevPAR Avon Destination Average Daily Rate for the upcoming 6 months changed by (-0.1%) Avon Destination Occupancy for next month (June) changed by (-16.6%)Occupancy (June) Avon Destination Average Daily Rate for next month (June) changed by (-3.4%)ADR (June) Avon Destination RevPAR for next month (June) changed by (-19.4%)RevPAR (June) Avon Destination Occupancy for the prior 6 months changed by (6.9%)Occupancy Avon Destination RevPAR for last month (May) changed by (11.5%)RevPAR (May) RESERVATIONS ACTIVITY REPORT Avon Destination Executive Summary Avon Destination Occupancy for last month (May) changed by (13.1%)Occupancy (May) Avon Destination Average Daily Rate for last month (May) changed by (-1.4%) 6/6/2014 Copyright (c) 2006 - 2014, DestiMetrics, LLC All Rights Reserved. Confidential Information not for reproduction and protected by law. info@DestiMetrics.com www.DestiMetrics.com 1 TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Town Council From: Debbie Hoppe, Town Clerk Date: June 24, 2014 Agenda Topic: Disclosure Report: Hoffmann Commercial Real Estate Reds, Whites & Brews American Made Festival Guest Ticket Please find attached the Town Clerk Gift Reporting Disclosure Report for June 2014, which lists the Hoffmann Commercial Real Estate Reds, Whites & Brews American Made Festival Guest Ticket for the upcoming event. Town Council is not required to take any action; however, any Town Council member may request Council consideration of a report gift to determine whether such gift constitutes a conflict of interest. The Town Code of Ethics requires disclosure of any gifts received which exceed $50 in value. “Gifts” includes any present, or offer of future, individual gift, favor, loan, service or thing of value in excess of $50.00 and such gift is offered due to such person’s status as a Town Officer then such Officer shall report such gift and the estimated value to the Town Clerk. The Avon Municipal Code requires the Town Clerk to disclose through a report any gifts offered to any Town Officer per Section 2.30.170 of the Town Code of Ethics. Town of Avon Town Clerk Disclosure Report In accordance with §7, Article XXIX of the Colorado Constitution and Section 2.30.170, Chapter 2.30 Avon Town Code of Ethics of the Avon Municipal Code, and any other applicable Avon Home Rule Charter provision, ordinance or resolution adopted by the Town of Avon, I, Debbie Hoppe, Town Clerk for Town of Avon, submit the following list of such gifts reported to be received by officers of the Town of Avon: 1. 2014 Hoffmann Commercial Real Estate Reds, Whites & Brews American Made Festival (Festival) Event Pass for use by one guest of the Mayor and each Councilor on June 28, 2014, with each pass valued at $90.00. The Mayor and each Councilor also have received a one-day pass as a condition of the Festival Agreement so they are able to observe the event to help in any future determination as to whether the Festival should again be permitted to occur in the Town of Avon in a subsequent year. Submitted to Avon Town Council on June 24, 2014. _________________________________ Debbie Hoppe, Town Clerk Heil Law & Planning, LLC Office: 303.975.6120 2696 South Colorado Blvd., Suite 550 Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com H EIL L AW TO: Honorable Mayor Carroll and Avon Town Council members FROM: Eric J. Heil, Town Attorney RE: Amendments to Authority Agreement DATE: June 20, 2014 SUMMARY: The Upper Eagle River Water Authority (“Authority”) has proposed amendments to the 1984 Establishing Agreement and the 1998 Master Service Agreement and has proposed consolidating the two agreements into one agreement, the “Authority Agreement”. This memorandum identifies the substantive changes in the Authority Agreement compared to the existing agreements. Attached is Resolution 14-14 which would adopt the Authority Agreement and Version 19 of the Authority Agreement. SUBSTANTIVE CHANGES: Base Charge: The existing agreements require unanimous consent of the members to increase the Base Charge more than the inflationary index. The new Authority Agreement would require a majority plus one (i.e. 5 votes). Plant Investment Fees: The existing agreements require unanimous consent of the members to increase the Plant Investment Fees more than the inflationary index. The Authority Agreement would require a majority plus one (i.e. 5 votes). Surcharge: The existing agreement only recognizes the ability of each member to impose a surcharge in each members respective jurisdiction. The Authority Agreement expands the ability to impose a Surcharge within a specified area to the Authority, which would require a simple majority vote (i.e. 4 votes). Debt Service Fee/Rate: The existing agreements do not expressly address Debt Service Fees and Rates, although the Authority members have approved such fees for repayment of debt. The Authority Agreement includes a specific definition of such term and allows the establishment and setting of the Debt Service Fee by simple majority vote (i.e. 4 votes). Treated Water Storage Fee: The existing agreements do not expressly address a Treated Water Storage Fee although the Authority has imposed this fee. The Authority Agreement includes a specific definition of such term and allows the establishment and setting of the Treated Water Storage Fee by simple majority vote (i.e. 4 votes). Cash-in-Lieu of Water Rights Fee: The existing agreements do not expressly address a Cash-in-Lieu of Water Rights Fee although the Authority has accepted cash-in-lieu of water rights. The Authority Agreement includes a specific definition of such term and allows the establishment and setting of a Cash- in-Lieu of Water Rights Fee by a simple majority vote (i.e. 4 votes). Other amendments update and clarify language related to the Authority’s practices and accounting for costs, such as the definition of “Cost of Authority Assets.” PROPOSED MOTION: “I move to approve Resolution No. 14-14 A RESOLUTION APPROVING THE AUTHORITY AGREEMENT AMENDING AND RESTATING THE AGREEMENT ESTABLISHING THE UPPER EAGLE REGIONAL WATER AUTHORITY AND THE MASTER SERVICE CONTRACT (“Authority Agreement”) Thank you, Eric M EMORANDUM & PLANNING, LLC Resolution No. 14-14 Approving the Authority Agreement June 24, 2014 TOWN OF AVON, COLORADO RESOLUTION NO. 14-14 SERIES OF 2014 A RESOLUTION APPROVING THE AUTHORITY AGREEMENT AMENDING AND RESTATING THE AGREEMENT ESTABLISHING THE UPPER EAGLE REGIONAL WATER AUTHORITY AND THE MASTER SERVICE CONTRACT (“Authority Agreement”) WHEREAS, the Upper Eagle River Water Authority (“Authority”) have proposed amendments and updates to the 1984 Establishing Agreement and 1998 Master Service Agreement as well as have proposed consolidating both agreements into one agreement for efficiency, convenience and accuracy; and WHEREAS, the Avon Town Council finds that the Authority Agreement is acceptable and will enhance the governance and function of the Authority; WHEREAS, CRS §29-1-204.2 authorizes the establishment of an authority by a combination of municipalities and special districts with such purpose and powers as is set forth in the Authority Agreement; and, WHEREAS, the Avon Town Council finds that the Authority Agreement will promote the health, safety and general welfare of the Avon community by improving the governing terms by which the Authority provides water to the Town of Avon, the other members of the Authority, and third parties who receive water from the Authority. NOW, THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, that the Town of Avon hereby approves the Authority Agreement attached hereto as Exhibit A; authorizes the Mayor to execute the Authority Agreement; and authorizes the Mayor, Town Manager and Town Attorney to review and approve any additional amendments to Authority Agreement to correct typographical, citation, reference and grammar errors and such amendments as may be determined acceptable to the other members of the Authority which do not adversely affect the interests of the Town of Avon. ADOPTED June 24, 2014. AVON TOWN COUNCIL BY:_______________________________ Attest:_____________________________ Rich Carroll, Mayor Debbie Hoppe, Town Clerk ATTACHMENT A: RES. NO. 14-14 {00219485.DOC / 19} AUTHORITY AGREEMENT AMENDING AND RESTATING THE AGREEMENT ESTABLISHING THE UPPER EAGLE REGIONAL WATER AUTHORITY AND THE MASTER SERVICE CONTRACT THIS AMENDED AND RESTATED AGREEMENT, (“Authority Agreement”) establishing the Upper Eagle Regional Water Authority (“Authority”) is made and entered into this _____ day of _____________, 2014, by and among ARROWHEAD METROPOLITAN DISTRICT, TOWN OF AVON (its predecessor being the Avon Metropolitan District), BEAVER CREEK METROPOLITAN DISTRICT, BERRY CREEK METROPOLITAN DISTRICT, EAGLE-VAIL METROPOLITAN DISTRICT, and EDWARDS METROPOLITAN DISTRICT, all of which are municipal or quasi-municipal corporations of the State of Colorado, all of which are located in the County of Eagle, State of Colorado, and which shall hereinafter be referred to as “Contracting Parties.” RECITALS WHEREAS, each of the Contracting Parties is authorized to own and operate water systems or facilities and is empowered to supply water for domestic and other public and private purposes by any available means, and to provide all necessary property, diversion works, reservoirs, treatment works and facilities, equipment and appurtenances incident thereto; and WHEREAS, any combination of municipalities, special districts or other political subdivisions of this state that are authorized to own and operate water systems or facilities may establish, by contract with each other, a separate governmental entity, to be known as a water authority, to be used by the contracting parties to effect the development of water resources, systems, or facilities in whole or in part for the benefit of the inhabitants of such contracting parties or others at the discretion of the board of directors of the water authority, C.R.S. § 29-1-204.2 (the “Act”); and WHEREAS, such contractual relationships between local governments are encouraged by Section 18(2)(a) and (b), Article XIV of the Colorado Constitution, Section 29-1-203, C.R.S., and Section 32-1-1001, C.R.S., to provide intergovernmental services and facilities, when authorized by their governing bodies; and EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 2 WHEREAS, the Authority was established by the Contracting Parties as a political subdivision and a public corporation of the State of Colorado, separate from the Contracting Parties and having the duties privileges, immunities, rights, liabilities, and disabilities of a public body politic and corporate, by the Agreement Establishing the Upper Eagle Regional Water Authority made on September 18, 1984 and as amended on April 1, 1985 (“EA”); and WHEREAS, the Contracting Parties entered into an Amended and Restated Master Service Contract (“MSC”) made as of January 1, 1998 that remains in effect. The Contracting Parties and the Authority desire to amend and restate the Amended and Restated Master Service Contract and replace it by this Agreement to re-affirm the conveyance of their individual Water Systems to the Authority and for simplification and accommodation of changes in operation and law; and WHEREAS, the establishment of the Authority by the Contracting Parties in Eagle County, Colorado, has served a public purpose and has promoted the health, safety, prosperity, security and general welfare of the inhabitants and taxpayers of the Contracting Parties, Eagle County, and the State of Colorado; and WHEREAS, the Authority provides treated water to customers of third parties by contract under substantially the same terms, conditions and costs under which it provides treated water to its Water Service Customers, as hereinafter defined. The third parties presently so served are: A. EMD Limited Liability Company, PVRT NOTT I LLC, PVRT NOTT II LLC, and PVRT NOTT III LLC, per agreement with Eagle-Vail originally dated May 15, 1997, with a First Amendment dated June 22, 1999, under which the Town of Avon has been substituted for Eagle-Vail to provide water service to the Village at Avon that has now been annexed to the Town of Avon; B. Kensington Partners, Stag Gulch Partners, and Galena Partners (collectively known as the Partnerships), per an Amended and Restated Water Service Agreement with Cordillera Metropolitan District as successor to Squaw Creek Metropolitan District to provide water service to the Cordillera service area; C. Bachelor Gulch Metropolitan District, under Section 9(b) of an Exclusion Agreement between Beaver Creek and Vail Associates, Inc., dated January 4, 1995; and D. Chateau St. Claire (now known as The Ascent), per a Water Service Agreement with Eagle-Vail, dated December 12, 1996, which is now annexed to and served through the Town of Avon. EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 3 WHEREAS, it is the responsibility of the Authority to provide a dependable legal and physical supply of water to the Contracting Parties in all reasonably foreseeable hydrologic conditions; and WHEREAS, it is the responsibility of the Authority to meet its water service obligations to any third party it serves by contract. WHEREAS, the Contracting Parties and the Authority now wish to replace the EA and the MSC, which are hereby known as the “Authority Agreement.” NOW, THEREFORE, in consideration of the mutual performance of the covenants, agreements and promises set forth hereinafter, the Contracting Parties agree to replace, amend and restate Agreement Establishing the Upper Eagle Regional Water Authority made on September 18, 1984 and as amended on April 1, 1985, and the Amended and Restated Master Service Contract made and entered into as of January 1, 1998, by this Authority Agreement to read in its entirety as follows: ESTABLISHMENT OF UPPER EAGLE REGIONAL WATER AUTHORITY 1. Effective Date. The effective date of this Agreement shall be January 1, 2014. As of the effective date of this Agreement, the Agreement Establishing the Upper Eagle Regional Water Authority made on September 18, 1984 and as amended on April 1, 1985, and the Amended and Restated Master Service Contract made and entered into as of January 1, 1998 are hereby superseded and all actions of the Authority taken prior to the Effective Date are hereby ratified and affirmed, and any contracts or stipulations entered into or decrees obtained remain in full force and effect, except as provided in Paragraph 49. The organization of the Authority pursuant to law and the obligations incurred by and the bonds of such Authority issued after September 18, 1984, and the proceedings related thereto, are hereby validated. 2. Term. This Agreement shall remain in effect until the Authority has no bonds, notes or other obligations outstanding in accordance with the terms of such obligations and the Contracting Parties unanimously consent to the dissolution of the Authority. The Initial Term of this Agreement shall be ten (10) years ending on December 31, 2023, but such term shall be subject to automatic renewal and extension for successive ten (10) year terms thereafter unless all of the Contracting Parties unanimously approve changes to this Agreement during any extended term to be effective on the first day of the extended term, including provision for payment of all bonds, notes and other obligations outstanding in accordance with their terms. 3. Establishment of the Upper Eagle Regional Water Authority. By contract with each other as authorized by the Act, the Contracting Parties do hereby ratify EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 4 and affirm the establishment of the Upper Eagle Regional Water Authority (“Authority”) on September 18, 1984, a political subdivision and a public corporation of the State of Colorado, separate from the Contracting Parties and having the duties, privileges, immunities, rights, liabilities, and disabilities of a public body politic and corporate. Since its establishment, the Authority has been and shall be used by the Contracting Parties to effect the development of water resources, systems, and facilities in whole or in part for the benefit of their inhabitants or others at the discretion of the Board of Directors of the Authority. For 30 years the Contracting Parties have developed water resources, systems and facilities for the benefit of their inhabitants which are now owned or leased by and operated by the Authority to provide water service directly to Authority Water Service Customers residing within and without the jurisdictional boundaries of the Contracting Parties. The Authority operates as the largest water service provider in Eagle County and is governed by a board of directors appointed by the governing bodies of the Contracting Parties. The legislative power of the Authority is vested in its Board of Directors. The Board of Directors operates by a majority vote on some items, a super-majority (majority plus one) vote on other items and unanimous consent to add a Contracting Party or to modify this Agreement. The Authority may continue to operate in perpetuity until rescinded or terminated by the Contracting Parties, except that such contract may not be rescinded or terminated so long as the Authority has bonds, notes, or other obligations outstanding, unless provision for full payment of such obligations, by escrow or otherwise has been made. Under the Act, the Authority’s powers include, but are not limited to the power to make and enter into contracts; to employ agents and employees; to acquire, construct, manage, maintain, or operate water systems, facilities, works or improvements, or any interest therein; to condemn property for public use as rights-of-way; to incur debts, liabilities, or obligations; to sue and be sued in its own name; to have and use a corporate seal; to fix, maintain, and revise fees, rates, and charges for functions, services or facilities provided by the Authority; to adopt, by resolution, rules and regulations respecting the exercise of its powers and the carrying out of its purposes; to exercise any other powers which are essential to the provision of functions, services or facilities by the entity and which are specified in this Authority Agreement; to do and perform any acts and things authorized by the Act under, through, or by means of an agent or by contracts with any person, firm or corporation; to permit other municipalities, special districts, or political subdivisions of this state that are authorized to provide water to enter the contract at the discretion of the Board of Directors, subject to fulfilling any and all conditions or requirements of the contract establishing the Authority, except that rates need not be uniform between the Authority and the Contracting Parties; and to provide for the rehabilitation of any surfaces adversely affected by the construction of water pipelines, facilities, or systems through the rehabilitation of EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 5 plant cover, soil stability, and other measures appropriate to the subsequent beneficial use of such lands. 4. Definitions. The terms listed in this Paragraph shall have the meanings herein specified for all purposes of this Agreement, and of any instrument or document appertaining hereto, except where the context, by clear implication otherwise requires. a. “Act” shall mean C.R.S. § 29-1-204.2, as amended, which provides for creation of, and establishes powers attendant to, water authorities. b. “Annual Budget” shall mean, with respect to a Contract Year, the budget of the Authority prepared in accordance with Paragraph 25 hereof for such Contract Year, or, in the case of an amended Annual Budget, for the remainder of such Contract Year. c. “Annual Costs” shall mean, with respect to a Contract Year, and to the extent not paid or to be paid from the proceeds of Obligations or other funds legally available to the Authority, the Cost of Authority Assets, and all costs and expenses of the Authority that are paid or incurred during such Contract Year and are allocable to Authority Assets, including, but not limited to, the payment of the Debt Service, the Operation and Maintenance Expenses, and all Depreciation and Replacement Expenses. d. “Authority” shall mean the Upper Eagle Regional Water Authority. e. “Authority Assets” shall mean the water rights and facilities owned by the Authority on the effective date of this Agreement, including the Contracting Parties’ former Water Systems, and the shares in the Eagle Park Reservoir Company representing up to 579 acre-feet of Eagle Park Reservoir Project Yield water. Definition and scope of Authority Assets shall automatically be further modified in the future by water rights and facilities acquired by or disposed of by the Authority during the term of this Agreement. f. “Base Charge” shall mean the amount charged each SFE irrespective of quantity of water used, which charge may be modified as provided in subparagraph a of paragraph 22 of this Authority Agreement. g. “Cash-in-Lieu of Water Rights Fee” shall mean a payment of cash in lieu of the dedication of water rights, in the discretion of the Authority’s Board of Directors, sufficient to serve the applicant’s proposed water demands and uses as required by the Authority’s Board of Directors. EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 6 h. “Contract Year” shall mean a year coterminous with the fiscal year of the Authority for the purpose of calculating Annual Costs. i. “Costs of Authority Assets” shall mean the Authority’s capital costs properly attributable to the construction and other acquisition of Authority Assets, including, but not limited to: (1) the cost of acquisition by or for the Authority of real or personal property or any interest therein; (2) costs of physical construction, engineering, inspection, fiscal, and legal expenses relating to Authority Assets; (3) interest which is estimated will accrue during the construction or other acquisition period and for a period not exceeding one (1) year thereafter on Obligations; (4) any discount on the sale of the Obligations; costs of financial, professional, and other estimates relating to Authority Assets; (5) any administrative, operating, and other expenses of the Authority prior to and during any acquisition period and for a period not exceeding one (1) year thereafter, attributable to Authority Assets as may be determined by the Board of Directors; (6) all other expenses as may be necessary or incident to the financing, acquisition, improvement, equipping, and completion of Authority Assets and the placing of the same in operation; and (7) provision of reserves for working capital, Operation and Maintenance Expenses or for payment or security of principal or interest on the Obligations as the Board of Directors may determine. j. “Debt Service” shall mean, with respect to any period, the aggregate of the amounts of principal, interest and redemption premium, if any, required to be paid from revenues of the Authority during said period on any Obligations then outstanding in accordance with their terms. k. “Debt Service Rate/Fees” shall mean a billing rate that when applied to the Customer account’s SFE factor, results in a portion of the charges due from the Customer to the Authority. Revenues collected by the Authority from Debt Service Fees are used by the Authority specifically to pay debt service on borrowed funds. Any increase in the Debt Service Fee for a new bond issue must be approved by a majority, plus 1 (currently at least 5 of 6) of the governing bodies of the Contracting Parties to be effective. EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 7 l. “Depreciation and Replacement Expenses” shall mean a charge to operations of the Cost of Authority Assets based on the calculated useful life of such Assets. m. “Dwelling Unit” shall mean a habitation of an average size. n. “Obligations” shall mean bonds, notes, or other evidences of borrowing by the Authority for purposes of acquiring or constructing Authority Assets. o. “Operation and Maintenance Expenses” shall mean all expenses incurred in the operation and maintenance of the Authority’s Water System and normally recurring expenses incurred by the Authority in the conduct of its activities which are properly Authority costs under generally accepted accounting principles as applied to governmental units. Such term does not include Depreciation and Replacement Expenses or reserves therefor, or Debt Service on the Authority’s Obligations, or principal of or interest on any other borrowing of the Authority. p. “Plant Investment Fee” shall mean the one time charge per SFE for each property served by the Authority as a pro-rata share of the capital costs necessary to serve new development. Receipts from Plant Investment Fees may offset the Debt Service Fee unless the Board of Directors reserves such revenues for capital improvements in a Restricted Reserve Fund. Plant Investment Fee is subject to increases by the Board of Directors of the Authority as provided in subparagraph a of paragraph 23 of this Authority Agreement. q. “Service Charge” shall be the charge to each customer for Water Service by the Authority, which charge shall be calculated as provided in subparagraph b of paragraph 22 of this Authority Agreement. As so calculated, the Service Charge may be identified as the Water Usage Charge in Statements issued by the Authority. r. “Single Family Equivalent Unit (SFE)” shall mean a use which is estimated to have an impact upon the Water System equal to that of the average usage of a Dwelling Unit, as determined by the Authority. s. “Surcharge” shall mean a charge unilaterally imposed by a Contracting Party or the Authority on a customer within any Contracting Party’s jurisdictional boundaries. t. “Treated Water Storage Fee” shall mean a fee charged to a customer for water storage facilities for property which is newly included into a Contracting Party, either by annexation, inclusion or contract, or property EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 8 which has received an increase in its allowed density, which action has resulted in a need for additional treated water storage. u. Water Rights Cash-in-Lieu Fee” shall mean a cash payment made in lieu of water rights dedication where water rights are not available to the developer to dedicate and payment of such Fee has been specifically and formally approved by the Board of Directors of the Authority. v. “Water Rights Fund” shall mean the fund or escrow of monies received for water rights purchases and expenses. Water Rights Cash-in-Lieu Fees and related revenues shall be deposited to this Fund. w. “Water Service” shall mean the Authority’s construction and other acquisition of Authority Assets, its diversion, storage, treatment, transmission of water for use by inhabitants of the Authority’s service area or others, and its maintenance of Authority Assets at all times in good and workable condition and available for such transmission. x. “Water Service Customer” shall mean customers of the Authority residing within and without the jurisdictional boundaries of the Contracting Parties receiving water service from the Authority. y. “Water System” shall mean all facilities and properties, real, personal, mixed or otherwise, now owned or hereafter acquired for provision of Water Service by any Contracting Party or the Authority through purchase, construction, or otherwise, and in any way appertaining thereto, whether situated within or without the limits of the Contracting Parties, or both within or without the limits of the Contracting Parties, excluding water rights. z. “Water Tap Fee” shall mean the impact fee or similar development charge that may be imposed by a Contracting Party pursuant to C.R.S. § 29-20- 104.5 to fund expenditures by such local government on water capital facilities needed to serve new development within its jurisdictional boundaries. Water Tap Fees shall, unless formally requested not to, be collected by the Authority and remitted to the Contracting Party imposing the Water Tap Fee for expenditure on capital facilities needed to serve the new development for which the Water Tap Fee was imposed. 5. Purposes. The purposes of the Authority are to supply water for domestic and other public and private purposes; to provide all necessary water diversion works, reservoirs, treatment works and facilities, equipment and appurtenances incident thereto; to effect the development of water resources, systems or facilities, in whole or in part, for the use and benefit of the Contracting Parties, their EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 9 inhabitants, and others; and to provide efficient, effective, and reliable water service. 6. Functions or Services. The functions or services to be provided by the Authority are the provision of treated water to persons residing within the boundaries of the Contracting Parties and to others residing within the Service Area of the Authority and having a water tap served by the Authority’s water distribution system (collectively “Water Service Customers”), by: a. Acquiring raw water from the Contracting Parties, from others with whom the Authority contracts to furnish treated water, and from those persons or entities who have raw water available for treatment and use by the Contracting Parties or others. b. Acquiring, constructing, owning, reconstructing, improving, rehabilitating, repairing, operating, and maintaining by way of illustration and not limitation, the following: raw water diversion, transmission and storage facilities; water treatment facilities and treated water storage systems, together with any and all appurtenances thereto; or interests in any of the above-described facilities, for the purpose of diverting and delivering raw water to the treatment facilities, treating such water, and delivering treated water from the treatment facilities to the Authority’s Water Service Customers. c. Acquiring water rights and developing water resources for treatment, augmentation and use by the Contracting Parties, their inhabitants, and others. d. Selling treated water to the Authority’s Water Service Customers. e. Providing such other services or functions as may be authorized by law and determined by the Authority Board of Directors, to be in the best interests of the Contracting Parties and the Authority’s Water Service Customers. 7. Powers of the Authority. To enable the Authority to carry out its functions and provide the services described herein, the Authority, acting by and through its Board of Directors, shall have the following general powers: a. To develop water resources, systems and facilities, in whole or in part, for the benefit of the Contracting Parties and the Authority’s Water Service Customers or others, at the discretion of the Board of Directors, subject to fulfilling the terms and conditions of this Agreement. b. To acquire, own, construct, manage, maintain, or operate water systems, facilities, works, or improvements, or any interest therein. EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 10 c. To acquire, hold, lease (as lessor or lessee), sell or otherwise dispose of any legal or equitable interest in real or personal property, including water rights, utilized for the purposes of raw water diversion, storage, transmission and treatment, storage and distribution of treated water, in the discretion of the Authority’s Board of Directors. d. To conduct its business and affairs for the benefit of the Contracting Parties and its Water Service Customers, in the discretion of the Authority’s Board of Directors. e. To enter into, make and perform contracts of every kind with other local governmental entities, the State of Colorado, or any political subdivision thereof, the United States, or any political subdivision thereof, and any individual, firm, association, partnership, corporation or any other organization of any kind. f. To hire agents, including, but not limited to, engineers, attorneys, architects and consultants, and employees. g. To incur debts, liabilities or obligations to the extent and in the manner permitted by law, and borrow money and, from time to time, to make, accept, endorse, execute and deliver bonds, notes and other obligations of the Authority for moneys borrowed; or in payment for property acquired, or for any of the other purposes, services or functions of the Authority, as provided by law; and to the extent permitted by law, to secure the payment of any such obligations by mortgage, pledge, deed, indenture, agreement or other collateral instrument, or by other lien upon or assignment of all or any part of the properties, rights, assets, contracts, easements, revenues and privileges of the Authority; provided, however, in no event shall the Authority be authorized to encumber any interest in water rights assigned or leased to the Authority by a Contracting Party, unless authorized by the Contracting Party. h. To own, operate and maintain real and personal property and facilities in common with others, and to conduct joint, partnership, cooperative or other operations with others, and to exercise all powers granted herein in joint, partnership or cooperative efforts and operations with others. i. To condemn property for public use as rights-of-way for the Authority’s facilities, including, but not limited to pipelines, vaults, valves, pumps, water storage tanks, treatment facilities, electric utility services, and all appurtenances thereto; provided such property is not owned by any public utility and devoted to public use pursuant to State authority. EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 11 j. To adjudicate, operate and administer changes of water rights and plans for augmentation, and to keep appropriate records in connection therewith. The water rights held by or leased to the Authority shall be used in an integrated fashion for the benefit of all Authority members and contractees, such an integrated water system being one of the purposes for which the Authority was formed. k. To sue, and to be sued, in its own name. l. To have and use a corporate seal. m. To fix, maintain and revise fees, rates and charges for all water functions, services or facilities provided by the Authority; such rates and charges to be in such amount or amounts as necessary to provide for the acquisition or development of raw water, the operation and maintenance of Authority facilities, debt service and reserves, capital improvements and other obligations and expenses of the Authority. All Water Service Customers shall be charged at the same rate for treated water delivered to their water meter, unless non-uniformity of rates is required by bond covenants, and in such case, the non-uniformity of rates shall be subject to the approval of the Authority’s Board of Directors. The requirement for uniform rates for the Water Service Customers shall not prohibit the Authority from a rate structure incorporating peak period pricing concepts or an increasing block or tier rate based upon per capita consumption rates. The Authority shall not utilize a declining block rate structure. The requirement for uniform rates for the Water Service Customers shall not prohibit the Authority from entering into water service agreements with third parties providing for different fees, rates and charges in the discretion of the Board of Directors. n. To adopt, by resolution, rules and regulations respecting the exercise of its powers and carrying out of its purposes. o. To receive contributions, gifts, bequests or other grants of cash, equipment or services from the Contracting Parties or other entities, individuals, or political subdivisions. p. To do and perform any acts and things authorized by the Act under, through, or by means of an agent or by contracts with any person, firm, corporation or special district. q. Subject to approval of the governing bodies of the Contracting Parties as hereinafter provided, to permit other municipalities, special districts, or political subdivisions of this State that are authorized to supply water to enter the Agreement as an additional Contracting Party at the discretion of EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 12 the Board of Directors, subject to fulfilling any and all conditions or requirements of the Agreement or requirements established by the Board of Directors; except that rates need not be uniform between the Authority and an additional Contracting Party. r. To provide for, if required, the rehabilitation of any surfaces adversely affected by the Authority’s construction of water pipelines, facilities or systems through the rehabilitation of plant cover, soil stability, pavement, and other measures appropriate to the subsequent beneficial use of such lands. s. In general, to exercise all powers which are now, or hereinafter may be, conferred by law upon a water authority organized pursuant to the Act, or its contracting parties, or necessary, incidental, convenient or conducive to the attainment of its purposes and provision of its functions, services and facilities, subject to such limitations as are, or may be, prescribed by law or this Agreement. 8. Board of Directors. The governing body of the Authority shall be the Board of Directors in which all legislative power of the Authority is vested. a. Number: The number of Directors shall be equal to the number of Contracting Parties (currently six). Each Contracting Party shall be entitled to fill one Director’s position which shall be by appointment made by the governing body of that Contracting Party. Each Director shall be entitled to cast one (1) vote. The Director representing a Contracting Party in default under the Agreement shall lose voting rights until the default is cured. b. Appointment: The governing body of each Contracting Party shall appoint one (1) principal member of the Board of Directors, and one or more alternate members who, in the discretion of the Contracting Party, may or may not be an elected official of that Contracting Party. Such alternate member shall act and vote only in the absence of the principal member appointed by the same body. c. Term: Each Director shall serve at the pleasure of the governing body of the Contracting Party by whom he or she was appointed until replaced at the pleasure of that governing body. d. Vacancies: A vacancy occurring in the Board of Directors, whether such vacancy be the result of loss of eligibility, resignation, death, removal or disability, shall be filled in the same manner of appointment or selection as provided above. EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 13 e. Compensation: Directors may receive compensation for their services within statutory limits, if any, as may be provided by resolution of the Board of Directors, and the Board of Directors, by resolution, shall provide for reimbursement to the Directors of their actual expenses incurred on behalf of the Authority. f. Regular Meetings: The Board of Directors, from time to time, may provide by resolution for the time and place of holding regular meetings without notice to the Directors, other than such resolution. g. Special Meetings: Special meetings of the Board of Directors may be held as often as the needs of the Authority require, upon notice to each Director as hereinafter provided. h. Notice of Meetings: Notice of the time and place designated for all regular meetings shall be posted in at least three public places within the Service Area of the Authority, and, in addition, one such notice shall be posted in the office of the Eagle County Clerk and Recorder. Such notices shall remain posted and shall be changed in the event that the time or place of such regular meetings is changed. Special meetings may be called by any director by informing the other directors of the date, time, and place of such special meeting, and the purpose for which it is called, and by posting notice as provided by law at least seventy-two hours prior to said meeting. Notice of any regular or special meeting may also be posted on the Authority’s website. All official business of the Board of Directors shall be conducted only during said regular or special meetings at which a quorum is present, and all said meetings shall be open to the public. i. Waiver: Whenever any notice is required to be given to any Director of the Authority under the provisions of law or this Agreement, a waiver thereof in writing signed by such Director, whether before or after the time stated therein, shall be equivalent to the giving of such notice. Attendance of a Director at any meeting of the Board of Directors shall constitute a waiver by such Director of notice of such meeting, except when such Director attends such meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully convened. j. Quorum: A majority of the Directors then in office shall constitute a quorum for the transaction of business; provided that, if less than a quorum is present, the Directors present may adjourn the meeting from time to time, provided, further, that the Secretary shall notify any absent Directors of the time and place of such adjourned meeting. Unless otherwise provided herein, the act of a majority of the Directors present at a meeting at which a quorum is present shall be an act of the Board of Directors. EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 14 k. Duties of the Board: The duties of the Board of Directors shall be: (1) To govern the business and affairs of the Authority. (2) To exercise all powers of the Authority. (3) To comply with the provisions of Part 1 (Local Government Budget Law of Colorado), Part 5 (Local Government Uniform Accounting Law) and Part 6 (Local Government Audit Law) of Article 1, Title 29 of C.R.S., as amended. (4) To adopt a budget which complies with statutory and other restrictions imposed by law on the affairs of the Authority. (5) To monitor, accept, authorize and/or approve the financial transactions of the Authority. (6) To provide for the services of a firm of independent certified public accountants to audit and examine, at least annually, the financial records and accounts of the Authority, and to report thereupon to the Board of Directors. (7) To keep records of the Authority’s proceedings. (8) To adopt such by-laws as appropriate for the conduct of its business not in conflict herewith. 9. Officers. The Officers of the Authority shall be a Chairman, Vice-Chairman, Secretary, Treasurer, and such other officers and assistant officers as may be authorized by the Board of Directors from time to time, to perform such duties as may be approved by the Board of Directors. The Chairman, Vice-Chairman and Treasurer shall be principal members of the Board of Directors, but the other Officers of the Authority need not be members of the Board. a. Regular Elections and Term of Office: At the first regularly scheduled meeting after regular special district elections, the members of the Board of Directors shall elect Officers who shall serve as Officers of the Authority until the next succeeding election of Officers or until their successors are elected and qualified. Vacancies or new offices may be filled at any meeting of the Board of Directors. b. Removal: Any officer or agent elected or appointed by the Board of Directors may be removed by the Board of Directors, with or without cause, whenever in its judgment the best interests of the Authority will be served thereby. EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 15 c. Duties of Officers: In addition to duties designated by the Board of Directors, the duties of the officers shall include the following: (1) Chairman. The Chairman shall preside at all meetings of the Board of Directors and, except as otherwise delegated by the Board of Directors, shall execute all legal instruments of the Authority. (2) Vice-Chairman. The Vice-Chairman shall, in the absence of the Chairman, or in the event of his inability or refusal to act, perform the duties of the Chairman, and when so acting, shall have all the powers of, and be subject to all restrictions upon, the Chairman. (3) Secretary. The Secretary shall maintain the official records of the Authority, including this Agreement, by-laws, rules and regulations established by the Board of Directors, minutes of the meetings of the Board of Directors, and a register of the names and addresses of the Directors and Officers, and shall issue notice of meetings and attest and affix the corporate seal to all documents of the Authority. (4) Treasurer. The Treasurer shall serve as financial official of the Authority, and pursuant to the budget adopted by the Board of Directors governing the financial transactions of the Authority and the restrictions imposed by law, be responsible for the receipt, custody, investment and disbursement of the Authority’s funds and securities, and for duties incident to the office of Treasurer. (5) General Manager; Legal Counsel, Auditor and Special Consultants. The Board of Directors may appoint a General Manager or contract with an administrator to serve in such capacity for such term and upon such conditions, including compensation, as the Board may establish, or the Board of Directors may enter into an Operations Agreement for management services as authorized by Section 28 of this Authority Agreement. The General Manager or administrator shall report directly to the Board of Directors of the Authority. Such General Manager or administrator shall have general supervision over the administration of the affairs, employees and business of the Authority and shall be charged with the hiring and discharging of employees and the management of the Authority properties. Such General Manager or administrator shall have the care and custody of the general funds of the Authority and shall deposit or cause to be deposited the same in the name of Authority in such banks or savings associations as the Board of Directors may select. Such General Manager or administrator will approve all vouchers, orders and checks for payment, and shall keep or cause to be kept regular EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 16 books of account of all Authority transactions and shall obtain, at the Authority’s expense, such bond for the faithful performance of his or her duties as the Board of Directors may designate. The Board of Directors may delegate such powers and duties to the General Manager or administrator as it deems appropriate, and authorize its General Manager to execute any contracts approved by the Board of Directors in each Contract Log, or otherwise in a formal meeting. The Board of Directors may also engage the services of General Counsel, Water Counsel, Special Counsel, the Auditor, and any special consultants as necessary to the management and operations of the Authority. (6) Assistant Secretaries and Assistant Treasurers. The Board may appoint such assistants as it deems necessary and appropriate. (7) Miscellaneous. The duties and functions of the Secretary and the Treasurer may be performed by a single individual who shall be a principal member of the Board. If the individual performing the duties of Secretary is not a member of the Board of Directors, such individual may receive such compensation as is deemed appropriate by the Board of Directors. d. Bonds of Offices. The Treasurer and any other Officer or agent of the Authority charged with the responsibility for the custody of any of its funds or property shall give bond in such sum and with such surety as the Board of Directors shall determine. The Board of Directors, in its discretion, may also require any other Officer, agent or employee of the Authority to give bond in such amount and with such surety as shall be determined. The cost of such bond shall be an expense payable by the Authority. 10. Indemnification of Directors, Officers and Employees. a. Directors, Officers and Employees: Each Director, Officer or Employee of the Authority, whether or not then in office, and his or her personal representatives, shall be indemnified by the Authority to the extent permitted by law against all costs and expenses actually and necessarily incurred by him or her in connection with the defense of any action, suit or proceeding in which he or she may be involved or to which he or she may be made a party by reason of his or her being, or having been, such Director, Officer or Employee, except in relation to matters as to which he or she shall be finally adjudged in such action, suit or proceeding to be liable for willful negligence or misconduct in the performance of his or her duties. The Authority shall pay the costs and expenses actually and EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 17 reasonably incurred by a Director, Officer or Employee in connection with the defense of any allegation, action and proceeding arising out of an act or omission of such person during the performance of such person’s duties within the scope of such person’s service or appointment, including reasonable attorneys’ fees, where the action lies or could lie in tort, including any such action brought pursuant to Federal law in any court of this State, in accordance with the Colorado Governmental Immunity Act. As a prerequisite to such payment, the Director, Officer or Employee must furnish the District with an affidavit stating that the action against him or her is not purely personal; that, to his or her reasonable belief, the act or omission upon which the claim is based reasonably relates to the business affairs of the Authority; and that the Director, Officer or Employee acted in good faith and in a manner which a reasonable person would have acted under the circumstances and which was not opposed to the best interests of the Authority. However, the Authority shall not pay such judgment or settlement and shall seek reimbursement from the Director, Officer or Employee for the actual costs of his or her defense, including actual attorneys’ fees, where it is determined by a court of competent jurisdiction (a) that the injuries did not arise out of an act or omission of the Director, Officer or Employee occurring during his or her term of appointment or employment with the Authority and within his or her scope of duties or employment, or (b) that, unless otherwise expressly authorized by the Board of Directors of the Authority, the Director’s, Officer’s or Employee’s act or omission was willful and wanton. Such costs and expenses shall include amounts reasonably paid in settlement for the purpose of curtailing the cost of litigation in the reasonable discretion of the Board. The foregoing right of indemnification shall not be exclusive of other rights to which the Director, Officer or Employee may be entitled as a matter of law or by agreement. b. Payment: All claims to be paid as a result of the indemnification provided hereunder shall be paid by the Authority or its insurer up to, but not to exceed the applicable limitations under the Colorado Governmental Immunity Act. The Authority specifically reserves any defenses which are available to any Director, Officer or Employee under the Colorado Governmental Immunity Act or by common law. The Authority may pay judgments and settlements in accordance with the Colorado Governmental Immunity Act even if sovereign immunity bars the action against the Authority. 11. Prior Conveyances of Water Systems. Except for certain golf course water systems, the Contracting Parties and other parties served by contract have previously conveyed to the Authority their individual water systems. The EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 18 customers of the Contracting Parties thereby became Water Service Customers of the Authority. The Authority shall make Rules and Regulations concerning the operation of the Authority’s Water System, except as to the amount of the Water Tap Fees and Surcharges. These Water Systems were accepted by the Authority in “as is” condition and (subject to any contract obligations) all future maintenance, repair and upgrade expenses became the obligations of the Authority, and not the obligations of the Contracting Parties or the third party served by contract. 12. Water Rights. The Contracting Parties have leased to the Authority all of the Contracting Parties’ right, title and interests in and to the Contracting Parties’ water rights (“Water Rights”), including the right to use all diversion ditches, pipelines, headgates and structures, reservoirs or other storage structures, pumps, casings, and other improvements and easements associated or used in connection with the Water Rights (the “Associated Improvements”), for the Authority’s use in carrying out its functions and providing Water Service in accordance with the terms hereof. The Authority shall maintain the Associated Improvements. The Contracting Parties shall have the right to continue to own their individual water rights and Associated Improvements, or to convey them to the Authority. The Authority shall be solely responsible for future adjudication and diligence proceedings for the Water Rights. The Contracting Parties affirmatively consent to the Authority’s adjudication of any changes to the Water Rights that are deemed appropriate by the Authority upon prior notice to the Contracting Parties, including, but not limited to, the type of use, place of use, points of diversion, and quantification of historic use. 13. Assets Held in Trust. All assets and properties of the Authority shall be held in trust by the Authority for the Contracting Parties for the purposes herein mentioned, including the payment of liabilities of the Authority. 14. Financial Obligations of the Authority. The bonds, notes, and other obligations issued by the Authority shall not be the debts, liabilities, or obligations of the Contracting Parties because the Contracting Parties have provided for payment to the Authority of funds from proprietary revenues for water services rendered by the Authority; from proprietary revenues or other public funds as contributions to defray the costs of any its purposes; and from proprietary revenues or other public funds as advances for any purpose subject to repayment by the Authority. The Authority is authorized to issue bonds, notes, or other obligations payable solely from the revenues derived from the function, service, system or facility or the combined functions, services, systems, or facilities of the Authority or from any other available funds of the Authority. The terms, conditions and details of any bonds, notes, and other obligations of the Authority, the procedures related thereto, and the refunding thereof shall be set EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 19 forth in the resolution authorizing said bonds, notes, or other obligations and, as nearly as may be practicable, shall be substantially the same as those provided in part 4 of article 35 of title 31, C.R.S., relating to water and sewer revenue bonds; except that the purposes for which the same may be issued shall not be so limited and except that said bonds, notes, and other obligations may be sold at public or private sale. Bonds, notes, or other obligations so issued by the Authority shall not constitute an indebtedness of any Contracting Party within the meaning of any constitutional or statutory limitations or other provision. Each bond, note, or other obligation so issued by the Authority shall recite in substance that said bond, note, or other obligation, including the interest thereon, is payable solely from the revenues and other available funds of the Authority pledged for the payment thereof and that said bond, note, or other obligation does not constitute a debt of the Authority or the Contracting Parties within the meaning of any constitutional or statutory limitation or provision. Notwithstanding any statutory provision to the contrary, such bond, notes, and other obligations of the Authority may be issued to mature at such times not beyond forty years from their respective issue dates, shall bear interest at such rates, and shall be sold at, above, or below the principal amount thereof, all as shall be determined by the Board of Directors of the Authority. The resolution, trust indenture, or other security agreement under which any bonds, notes, or obligations of the Authority are issued shall constitute a contract with the holders thereof, and it may contain such provisions as shall be determined by the Board of Directors of the Authority to be appropriate and necessary in connection with the issuance thereof and to provide security for the payment thereof, including, without limitation, any mortgage or other security interest in any revenues, funds, rights, or properties of the Authority. To the extent permitted by law, the bonds, notes, and other obligations of the Authority and the income therefrom shall be exempt from taxation by the State of Colorado, except inheritance, estate, and transfer taxes. 15. Consolidation of Two or More Contracting Parties. If any two (2) or more of the Contracting Parties consolidate either their water service function or all of their respective functions, then, in that event, the entity in existence, after court approval of such consolidation, shall be the successor in interest to all those Contracting Parties which have been so consolidated. Upon issuance of a court order establishing a consolidated entity, those Contracting Parties consolidating shall no longer be entitled to separate representation on the Authority’s Board of Directors. Instead, the consolidated entity shall be entitled to one (1) principal member on the Board of Directors whose selection and term shall be as provided herein. As successor in interest, the consolidated entity shall have all rights, powers, duties, and obligations hereunder as the original Contracting Parties. EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 20 16. Dissolution of the Authority. Dissolution (including any sale of Authority Assets) shall require the unanimous consent of the Contracting Parties and provision for a successor entity or entities that will continue to provide service to the Water Service Customers. If the Authority then has financial obligations or outstanding bonds, any provision for dissolution shall specifically provide either that all such financial obligations shall be paid in full by the Authority or that funds or securities meeting the investment requirements established in part 6 of article 75 of title 24, C.R.S., shall be placed in escrow, prior to dissolution, in a state or national bank within this state having trust powers and which is a member of the federal deposit insurance corporation and stating that such funds or securities will be sufficient for the payment of the financial obligations and outstanding bonds of the Authority and all expenses related thereto, including charges of any escrow agent. 17. Adding or Deleting Parties. No party may be added to this Agreement as a Contracting Party without the unanimous consent of all Contracting Parties authorized by a written document formally approved by the governing body of each Contracting Party. A party added as a Contracting Party shall be subject to such terms and conditions as the Board of Directors, in its sole discretion, may determine; provided, however, that a new Contracting Party shall be assessed a capital investment fee to cover its pro rata share of the costs of those capital assets previously purchased or constructed by the Authority for joint use by all Contracting Parties. A Contracting Party may withdraw from this Agreement by written document authorized by the governing body of such Contracting Party, which shall be presented to the Authority not earlier than June 1st or later than July 15th of any calendar year; provided, however, such withdrawing Contracting Party shall remain liable for any and all financial obligations and all indebtedness incurred pursuant to any contract between the Authority and the Contracting Party pursuant to which the Authority provides service to the Contracting Party. If a withdrawing Contracting Party wishes to no longer receive water service from the Authority and to reacquire the components of its individual Water System not used to provide water service to Customers of the Authority residing outside the jurisdictional boundaries of the withdrawing Contracting Party, the Authority and the withdrawing Contracting Party shall agree on terms regarding the re- conveyance of such components to the withdrawing Contracting Party and the ownership, use and maintenance of any components of the withdrawing Contracting Party's individual Water System used to provide water service to Customers of the Authority residing outside the jurisdictional boundaries of the withdrawing Contracting Party. EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 21 Upon withdrawal, a withdrawing Contracting Party shall have no further interest, right or title in or to any assets or equity of the Authority, and shall forfeit its status as a “Contracting Party” with regard to its Board of Directors position and voting rights inherent therein, unless there is a specific agreement to the contrary; provided, however, that the following shall immediately vest in such withdrawing Contracting Party: a. Any water rights conveyed, assigned, leased or otherwise contributed to the Authority by such withdrawing Contracting Party which shall vest in the withdrawing Contracting Party by the Authority reconveying or reassigning such water rights to the withdrawing Contracting Party or terminating the lease to such water rights. b. Any direct flow or storage water rights that are owned by the Authority and originally conveyed, assigned or otherwise contributed or paid for by a third party or otherwise allocated by the Authority to any withdrawing Contracting Party in return for a commitment to provide water service to a given parcel or parcels of property located within the boundaries of the withdrawing Contracting Party shall immediately vest in the withdrawing Contracting Party. Such vesting shall occur by the Authority reconveying or reassigning such water rights to the withdrawing Contracting Party. c. The amount of Eagle Park Reservoir water owned by the Authority and allocated to any withdrawing Contracting Party in the Eagle Park Reservoir Agreement dated October 23, 1996, among the Authority and the Contracting Parties shall immediately vest in any withdrawing Contracting Party. Such vesting shall occur by the Authority assigning the shares of stock in the Eagle Park Reservoir Company for such amount of Eagle Park Reservoir water to the withdrawing Contracting Party. d. The amount of Green Mountain Reservoir water available to the Authority under a valid contract with the Bureau of Reclamation and allocated to any withdrawing Contracting Party, if any, in the decree of the District Court in and for Water Division No. 5 in Case No. 92CW291 shall be assigned by the Authority to the withdrawing Contracting Party. The Authority shall request such assignment and implement the effect of such assignment as soon as possible after the date of withdrawal. 18. Water Right Report. The foregoing categories of water rights shall be identified in the water right report entitled the “Analysis of Water Rights, Future Water Use, and Related Water Rights Issues” prepared for each Contracting Party and updated every two years from the effective date of this Agreement by the Authority’s water counsel and water resource engineer (the “Water Right Reports”). The Water Right Reports shall also identify any other direct flow water rights that are owned EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 22 by the Authority and not originally conveyed by a Contracting Party, and any other storage water rights that are owned or leased by the Authority and not originally conveyed or assigned by a Contracting Party (the “Unallocated Water Rights”). The Unallocated Water Rights shall not be conveyed or assigned to a withdrawing Contracting Party and shall be retained by the Authority for its use and for the benefit of the remaining Contracting Parties. WATER SERVICE BY THE AUTHORITY 19. Water Service. The Authority agrees to sell and furnish to persons and entities which are present and future customers of the Water System, all Water Service as these Water Service Customers shall reasonably require, subject to any use limitations then in effect and to the extent that the Authority shall have the capacity to provide such Water Service. The Water Service Customers shall pay the Authority the Base Charge, Debt Service Charge and Service Charges for all Water Service provided by the Authority; provided, however, that the obligation to pay for all such Water Service shall be and is an obligation of the Water Service Customers during the term hereof and, except as provided in Paragraph 49, is not a lien, charge or liability against the Contracting Parties or against any property or funds of the Contracting Parties, and the obligations to pay the Authority for all Water Service furnished hereunder does not constitute a debt, liability or obligation of the Contracting Parties and the Contracting Parties are not required to pay such obligation. The Water Service Customers shall make and pay for all connections to the Authority’s Water System. The Contracting Parties shall have the obligation continuously to provide rights to raw water to the Authority, in amounts which are adequate to allow provision of Water Service to present and future customers of the Authority who connect to the portion of the Authority’s Water System within each Contracting Party’s jurisdictional boundaries. It is mutually understood the Authority will acquire or design and construct such Authority Assets and all necessary appurtenances thereto, so as to enable it reasonably to provide all Water Service to its Water Service Customers, present and future as part of an integrated water supply system. 20. Covenants and Representations of the Authority and the Contracting Parties. a. The Authority shall use reasonable diligence to provide Water Service hereunder and shall maintain the Authority’s Water System in good condition at all times. It is the intent of this Agreement that the Authority provide water to the present and future Water Service Customers of the Authority and third parties which is treated to meet State and/or Federal Safe Drinking Water Standards and in compliance with environmental laws and regulations. If operation of the Water System shall be interrupted, or EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 23 become defective by reason of force majeure, the Authority shall not be liable therefor or for damages caused thereby. b. The Authority shall diligently enforce and take all reasonable steps, actions and proceedings necessary for the enforcement of all terms, covenants and provisions of this Agreement. c. The Authority covenants and agrees that it will operate, maintain and manage the Authority’s Water System or cause the same to be operated, maintained and managed in an efficient and economical manner, consistent with sound municipal utility practice and in accordance with standards normally used by municipal utilities owning like properties to provide efficient, effective, and reliable water service. d. The Contracting Parties covenant to provide to the Authority adequate rights to raw water from their Water Rights or any other source, to allow continuous provisions of adequate Water Service to the present and future Water Service Customers of the Authority, and to meet Authority’s obligations under this Agreement. The Contracting Parties represent that their Water Rights and related interests are free and clear of all liens and encumbrances and, subject to physical availability of water, are sufficient to provide for all water needs of the Contracting Parties within their present boundaries, but recognize the Authority may use their water rights throughout the Authority’s integrated water service system. e. The provisions of this Agreement are covenants of the Contracting Parties and the Authority for the benefit and protection of the Authority, the Contracting Parties and the owners and holders of Obligations, it being recognized that the owners and holders of such Obligations shall be third- party beneficiaries of such covenants, and it is understood by the Contracting Parties that the initial purchaser of any issue of Obligations has and will agree to the purchase of Obligations conditioned upon these covenants. f. For and in consideration of the payments to be made by the present and future Water Service Customers of the Authority under this Agreement, the Authority agrees to use reasonable diligence to provide Water Service to the present and future Water Service Customers of the Authority under the terms of this Agreement, and such payments by the present and future Water Service Customers of the Authority shall be in consideration for the Authority’s agreement to provide such Water Service. 21. Rate Covenant. The Board of Directors of the Authority shall establish, maintain and collect from present and future Water Service Customers of the Authority and EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 24 third parties, reasonable Plant Investment Fees, Water Storage Fees, Base Fees and Service Charges for the Water Service provided which shall produce revenues at least sufficient, together with other revenues legally available to the Authority, to enable the Authority to provide Water Service to present and future Water Service Customers of the Authority and third parties and to comply with any rate maintenance covenants of Obligations. 22. Water Use Fees. Periodic fees and charges imposed by the Authority for the use of water may include the following: a. Base Charge. The Board of Directors of the Authority shall establish the Base Charge to be paid monthly by every Water Service Customer and which shall mean the amount charged each SFE irrespective of quantity of water used. The Base Charge is subject to increases by the Board of Directors of the Authority, provided that such increases do not exceed the increase(s) in the Denver-Boulder-Greeley Consumer Price Index since December 31 of the calendar year in which the Base Charge was previously increased. If the proposed increase exceeds the increases in the Denver- Boulder-Greeley Consumer Price Index since December 31 of the calendar year in which the Base Charge was previously increased, such increase must be approved by a majority plus one (currently at least five of the six) of the governing bodies of the Contracting Parties to be effective. b. Service Charge. The Service Charge of the Authority to its Water Service Customers shall be: (1) non-discriminatory; (2) fair and reasonable; and (3) adequate (after taking into consideration other moneys available or anticipated to be received) in each Contract Year so that the Service Charges in each Contract Year shall be at least equal to: (i) Operation and Maintenance Expenses; (ii) An amount equal to 110% of the debt service requirements for such Contract Year on or with respect to the outstanding Obligations payable from the revenue of the Authority unless the debt service is otherwise provided for; (iii) An amount equal to any payments required to be made to any reserve fund, on or with respect to the outstanding Obligations payable from the revenues of the Authority; EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 25 (iv) An amount equal to current costs of improvements to the Authority’s Water System, excluding major capital additions, made in the ordinary course of business; and (v) Any amounts required to meet then existing deficiencies pertaining to any fund or account relating to any outstanding Obligations, including any deficiencies in any bond reserve funds and any operations reserve funds. (4) The Service Charge shall be determined by dividing the estimated Annual Costs to treat and deliver water by the estimated annual amount of water treated and delivered to all the Parties and third parties served by the Authority. The resulting average water cost is then used to establish the rates to be charged for each tier in the Authority’s tiered rate structure where the rate charged for water use increases as more water is used. The objective is to recover the Annual Costs through the sale of water to all customers. (5) If the Board of Directors of the Authority proposes to establish a new Service Charge, other than in connection with an Annual Budget, it shall give the Contracting Parties and third parties written notice that it is establishing a new Service Charge for Water Service, setting forth such Charge, on a date certain which shall not be less than thirty (30) days from the mailing of the notice of each Contracting Party and third party, all such notices to be mailed simultaneously. c. Debt Service Fees. The Board of Directors of the Authority shall establish a debt service billing rate that when applied to the Customer account’s SFE factor, results in collection of the charges due from the Customer to the Authority for its proportionate share of the Authority’s Debt Service. Revenues collected by the Authority from Debt Service Fees shall be used by the Authority specifically to pay debt service on borrowed funds. d. Differential Service Charge. The Board of Directors of the Authority may establish and unilaterally impose a Differential Service Charge on a customer or an area served by the Authority to accommodate a differential cost of service or capital facility needs of said area. Notice of such Differential Service Charge shall be given in writing to the Contracting Party whose territory includes the area in which the Differential Service Charge shall be imposed. EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 26 e. Surcharges. A charge may be unilaterally imposed by a Contracting Party or the Authority on a customer within that Contracting Party’s jurisdictional boundaries that is to be collected by the Authority. 23. New Development / Facility Expansion Fees. Fees and charges imposed or collected by the Authority may include the following: a. Plant Investment Fee. The Board of Directors of the Authority shall establish a Plant Investment Fee which shall be the one time charge per SFE to each property served by the Authority required to be paid to connect to the Authority’s Water System. The Plant Investment Fee is imposed for recovery of capital investments associated with major components of the Water System. The assessment is based on the particular impact of the facility being connected. The Plant Investment Fee is subject to increases by the Board of Directors of the Authority, provided that such increases do not exceed the increase(s) in the Denver-Boulder-Greeley Consumer Price Index since December 31 of the calendar year in which the Plant Investment Fee was previously increased. If the proposed increase exceeds the increases in the Denver-Boulder-Greeley Consumer Price Index since December 31 of the calendar in which the Plant Investment Fee was previously increased, such increase must be approved by a majority plus one (currently at least five of the six) of the directors of the Authority to be effective; provided, however, any proposal to increase the Plant Investment Fee shall be introduced at least forty-five (45) days prior to the date of its approval by the Board of Directors and written notice of such change shall be given to the governing body of each Contracting Party at least thirty (30) days prior to approval by the Board of Directors. b. Treated Water Storage Fees. The Contracting Parties have adopted a system of assessing Treated Water Storage Fees. Such Fees shall be assessed by and collected and retained by the Authority as provided by the Rules and Regulations of the Authority. c. Cash-in-Lieu of Water Rights Fee. A Cash-in-Lieu of Water Rights Fee may be established by the Board of Directors as a payment of cash in lieu of the dedication of water rights, in the discretion of the Authority’s Board of Directors, sufficient to serve the proposed water demands and uses of an applicant for water service from the Authority. d. Water Tap Fee. A Water Tap Fee may be established unilaterally by a Contracting Party as herein provided (see Definitions) for a specific period of time and may be collected by and remitted to that Contracting Party by the Authority to fund expenditures by such local government on water EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 27 capital facilities needed to serve new development within its jurisdictional boundaries. e. Line Extensions and System Additions. Extensions of existing lines and construction of System additions may be approved by the Authority and the cost of the extension or construction may be passed on to developers. When constructed and accepted by the Authority, such line extensions and system additions shall become part of the Authority’s Water System. 24. Easements. The Contracting Parties mutually agree that the Authority or its agent shall have full access to or over any easement, right-of-way or property granted to or held by the Contracting Parties for purposes of water mains and all appurtenances thereto if, and to the extent, required by the Authority for any and all purposes required for the Authority Assets. 25. Annual Budget. In compliance with the provisions of Part 1 (Local Government Budget Law of Colorado), Part 5 (Local Government Uniform Accounting Law) and Part 6 (Local Government Audit Law) of Article 1, Title 29 of C.R.S., as amended, a. The Authority shall prepare, or cause to be prepared, an Annual Budget which shall itemize estimates of Annual Costs and all revenues, income or other funds to be applied to such Annual Costs for and applicable to each Contract Year. The Authority shall prepare such Annual Budget in a timely fashion, which will allow the Contracting Parties and the Authority to comply with applicable budget laws. b. The Authority, prior to the beginning of each Contract Year, shall adopt the Annual Budget for such Contract Year, and the Service Charges for such Contract Year, and shall cause copies of such Annual Budget and the schedule of Service Charges to be promptly delivered to the Contracting Parties. c. If at any time or from time to time after the adoption of the Annual Budget in accordance with subparagraphs a. and b. of this paragraph, the Authority estimates that the actual Annual Costs or revenues for the Contract year, or any part thereof for which such Annual Budget applies, will be greater or less than the Annual Costs or revenues set forth in the Annual Budget, then the Authority may prepare an amended Annual Budget. The amended Annual Budget shall be timely adopted by the Authority and promptly transmitted to the Contracting Parties. d. In the event the Annual Budget for the ensuing Contract Year has not been adopted on or before the first day of any Contract Year, the total amount EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 28 budgeted for the preceding Contract Year shall be the total amount of the temporary budget for such purposes for the ensuing Contract Year. Such temporary budget shall be effective only until such time as a permanent Annual Budget has been finally adopted and approved. The Board of the Authority shall be responsible for the allocation for expenditure of the total amount of the temporary budget until a permanent budget is adopted and approved. 26. Billing. The Contracting Parties hereby delegate to the Authority all rights to collect fees, charges, penalties and interest payable to the Authority. The Authority shall directly read the meters and bill the present and future Water Service Customers of the Authority and third parties for Service Charges, Surcharges if applicable, and other charges monthly. 27. Records and Accounts. The Authority shall keep accurate records and accounts of Authority Assets and of the transactions relating thereto, as well as of the operations of the Authority, in accordance with generally accepted accounting principles as applied to governmental units. Within one hundred twenty (120) days after close of each Contract Year, the Authority shall cause such records and accounts, and all transactions of the Authority with respect to such Contract Year to be subject to an annual audit by an independent certified public accountant. A copy of each such annual audit shall be sent by the Authority to the Contracting Parties. The Authority shall comply with the provisions of Part 1 (Local Government Budget Law of Colorado), Part 5 (Local Government Uniform Accounting Law) and Part 6 (Local Government Audit Law) of Article 1, Title 29 of C.R.S., as amended. OPERATIONS AND ADMINISTRATION 28. Operations Agreement. The Board of Directors of the Authority may enter into an Operations Agreement with any third party water utility operator, including but not limited to the Eagle River Water and Sanitation District, to provide management, annual capital plan management, engineering, operations and preventive, predictive and corrective maintenance, meter reading and billing, accounting and financial requirements, laboratory activities, and quality assurance necessary to manage and operate Authority's Facilities in compliance with this Agreement and legal and regulatory requirements and at levels which meet or exceed those generally accepted standards customary to the industry. In lieu of an Operations Agreement with a third party utility operator, the Board of Directors of the Authority may determine to provide some or all of the foregoing services by hiring and employing sufficient highly-trained, qualified and experienced personnel, including management, engineering, maintenance, financial, accounting, customer service and billing, technical, laboratory and administrative staff who meet applicable State of Colorado certification and/or licensing EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 29 requirements, to manage, operate, maintain and otherwise administer the Authority's Facilities. An Operations Agreement shall not be required and the Board of Directors may choose to provide for operations and administration of the Authority solely through Authority employees and consultants. 29. Execution of Contracts. Except as otherwise provided by law, the Board of Directors may authorize any officer or officers, agent or agents, or the General Manager to enter into any contract, or execute and deliver any instrument in the name and on behalf of the Authority. 30. Negotiable Instruments. All checks, drafts or other orders for payment of money and all notes, bonds, or other evidences of indebtedness issued in the name of the Authority shall be signed by such officer or officers, agent or agents, employee or employees of the Authority, and in such manner as, from time to time, shall be determined by resolution of the Board of Directors. 31. Deposits. All funds of the Authority shall be deposited, from time to time, to the credit of the Authority, pursuant to law, in such bank or banks as the Board of Directors may select. 32. Fiscal Year. The fiscal year of the Authority shall be the calendar year. 33. Principal Place of Business. The principal place of business of the Authority shall be 846 Forest Road, Vail, CO 81657, unless changed. Annually, on or before the 1st day of February of each year, and within thirty (30) days following any change, the Authority shall file with the Division of Local Government the name of the agent for service of process on the Authority, and the address of the principal place of business of the Authority. 34. Debt Not That of Contracting Parties. Pursuant to Section 29-1-204.2(5), C.R.S., the bonds, notes and other obligations of the Authority shall not be the debts, liabilities or obligations of the Contracting Parties or parties which may be future Contracting Parties. 35. Notices. Any formal notice, demand or request provided for in this Agreement shall be in writing and shall be deemed properly served, given or made if delivered in person or sent by registered or certified mail, postage prepaid (provided that bills sent hereunder may be sent by first class mail) to the Contracting Parties. 36. Default. a. It is an event of default by a Contracting Party hereunder if: (1) the Contracting Party defaults in the punctual performance or observation of any covenants, agreements, or conditions on the part EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 30 of the Contracting Party in this Agreement for a period of thirty (30) days after the notifying Party or the Authority shall have given the Contracting Party notice thereof in the manner provided in paragraph 35; (2) a voluntary or involuntary petition under federal or state bankruptcy laws by or against a Contracting Party is filed or a receiver for any of the Contracting Party’s assets is appointed; or (3) a Contracting Party is dissolved and this Agreement is not assigned by the Party in accordance with paragraph 47. b. It is an event of default by the Authority hereunder if the Authority fails or defaults in the punctual performance or observation of the covenants, agreements or conditions on the part of the Authority in this Agreement, except that the Authority will only be in default of its covenants to use reasonable diligence to provide Water Services contained in paragraph 20 if it has totally failed to provide any Water Services for a period of two (2) days or more after the notifying Contracting Party shall have given the Authority notice thereof in the manner provided in paragraph 35. 37. Remedies Upon Default. a. Upon the occurrence and continuance of an event of default by any party to this Agreement, the non-defaulting party or parties may take one or more of the following remedial actions: (1) utilize the defaulting party’s water rights to provide the Water Service contemplated under this Agreement. (2) proceed against the defaulting party, its governing body, and its agents, officers, and employees to protect the rights of the non- defaulting party or parties hereunder by mandamus or other suit, action or special proceedings in equity or at law, in any court of competent jurisdiction, either for appointment of a receiver (the consent to such appointment being expressly hereby granted by the defaulting party) or for the specific performance of any covenant or agreement contained herein or an award of execution of any power herein granted for the enforcement of any proper legal or equitable remedy as the non-defaulting party or parties may deem most effectual to protect and enforce the rights aforesaid, or thereby to enjoin any act or thing which may be unlawful or in violation of any right of the non-defaulting party or parties, or to require the EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 31 governing body of the defaulting party to act as if it were the trustee of an express trust, or any combination of such remedies. b. Upon the occurrence and continuance of an event of default by a party, the non-defaulting party or parties or any receiver appointed in any proceedings to protect the rights of the non-defaulting party or parties hereunder may prescribe fees, rates and other charges and may collect, receive and apply all amounts arising thereafter in the same manner as the defaulting party itself might do. c. Upon the occurrence and continuance of an event of default by a party to this Agreement, the non-defaulting party or parties shall have all of the rights and remedies provided at law and in equity, except that in no event shall the defaulting party or parties be relieved of their obligations hereunder. d. The failure of a party to this Agreement to proceed in any manner herein provided shall not relieve any other party or any of its officers, agents or employees of any liability for failure to perform or carry out any duty, obligation or other commitment. Each right or privilege of each party is in addition and is cumulative to any other right or privilege, and the exercise of any right or privilege by or on behalf of such party. 38. Existing Debt of Contracting Parties. Any debt of any Contracting Party for construction of the Water System of the Contracting Party shall remain and be the obligation of that Contracting Party and not of the Authority. 39. Force majeure. a. If for any reason of force majeure any of the Contracting Parties hereto or the Authority shall be rendered unable, wholly or in part, to carry out its obligations under this Agreement and, subject to physical availability of water, to provide rights to raw water to the Authority as herein provided, then if such party shall give notice, and the full particulars of such reasons in writing to the Contracting Parties and the Authority within a reasonable time after the occurrence of the event or cause relied on, the obligations of the party giving such notice, so far as it is affected by such force majeure, shall be suspended during the continuance of the inability then claimed, but for no longer period, and such party shall endeavor to remove or overcome such inability with all reasonable dispatch. The term force majeure, as employed herein, shall mean acts of God; strikes; lockouts, or other industrial disturbances; acts of the public enemy; orders or actions of any kind of the government of the United States or of the State of Colorado or any civil or military authority; insurrections; riots; epidemics; landslides; EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 32 lightning; earthquakes; fires; hurricanes; storms; floods; washouts; droughts; arrests; restraints of government and people; civil disturbances; explosions; breakage or accident to dams, machinery, pipelines, or canals or other structures or machinery; on account of any other cause not reasonably within the control of the party claiming such inability. It is understood and agreed that the settlement of strikes and lockouts shall be entirely within the discretion of the party having the difficulties, and that the above requirement that any force majeure shall be remedied with all reasonable dispatch shall not require the settlement of strikes and lockouts by acceding to the demand of the opposing parties when such settlement is unfavorable in the judgment of the party having the difficulty. b. No damage shall be recoverable from the Authority or any Contracting Party by reason of the causes above mentioned. 40. Insurance. a. The Authority shall maintain, or cause to be maintained in force for the benefit of the Authority, such insurance as shall be reasonably available and as is usually carried by municipal water utilities constructing and operating water treatment, storage and transmission facilities. In addition, the Authority shall maintain general liability insurance coverage in an amount not less than $350,000 per person/$990,000 per occurrence, and $1,000,000 aggregate, or any such higher amounts as may be called for under the Colorado Governmental Immunities Act, Section 24-10-101, et seq., C.R.S.; provided, however, in any event, the Authority shall maintain, or cause to be maintained, in force, insurance in such amounts and against such risks as required by any bond resolution. b. The Authority will secure and maintain fidelity insurance or bonds in the amount of at least Twenty-Five Thousand Dollars ($25,000.00) on the treasurer and any officer or agent of the Authority charged with the responsibility for the custody of any of its funds or property. The Board of Directors, in its discretion, may also require any other officer, agent, or employee of the Authority to give bond in such amount and with such surety as shall be determined. Costs of such bond shall be an expense payable by the Authority. c. The Authority may establish and create a special fund for the purpose of providing a self-insurance fund. Amounts to be deposited in, or credited to, such fund in any Contract Year shall be accounted for as Operation and Maintenance Expenses. To the extent that moneys are deposited in such fund, if created, such moneys shall be invested in Investment Securities, as EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 33 defined in any bond resolution. To the extent of the amounts held in such fund, the face amount of appropriate insurance policies may be reduced. 41. Reports. The Authority shall prepare and issue to the Contracting Parties the following reports for each Contract Year: a. financial and operating statements relating to Authority Assets; b. status of construction of Authority Assets during construction; and c. analysis of operations relating to the Authority. 42. Access. The Contracting Parties shall at all times have reasonable access to examine any and all books and records of the Authority and to inspect the Authority’s Water System. The Authority and the Contracting Parties each give the other the right to enter the premises of the other at all reasonable times for the purpose of repairing or removing facilities and performing work incidental to delivery and receipt of Water Service furnished hereunder. 43. Governmental Rates, Regulations and Laws. This Agreement shall be subject to all valid rules, regulations and laws applicable thereto, as promulgated by the United States of America, the State of Colorado, or any other governmental body or agency having lawful jurisdiction or any authorized representative or agency of any of them, which rules, regulations and laws shall not impair the obligation of contracts, including this Authority Agreement. 44. Merger. This Agreement constitutes the entire agreement among the parties, and all prior and contemporaneous conversations, negotiations, possible alleged agreements, representations, covenants, and warranties concerning the subject matter hereof are merged herein, except as provided in paragraph 49. 45. Severability. The parties hereto agree that if any provision, or part of a provision, of this Agreement should contravene or be held invalid under the laws of the State of Colorado by any court having competent jurisdiction, such contravention or invalidity shall not invalidate the whole Agreement, but it shall be construed as though not containing that particular provision, or part thereof, and the rights and obligations of the parties shall be construed and in force accordingly. 46. Amendments. This Agreement may be amended only by written document approved by formal authority of the governing bodies of all of the Contracting Parties; provided, however, that such amendment will not affect other Obligations outstanding of the Authority unless provision for full payment of such Obligations, by escrow or otherwise, has been made pursuant to such Obligations. EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 34 47. Assignment; Successors and Assigns. This Agreement shall not be assignable by a Contracting Party unless the Authority consents in writing to such assignment, provided that such assignment does not materially and adversely affect the rights or security of owners of the Authority’s Obligations, and shall not be assignable by the Authority without the written consents of all the Contracting Parties. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the successors, assigns and legal representatives of the parties hereto. 48. Original Counterparts. This Agreement may be executed in counterparts, each of which will be an original, but all of which together shall constitute one and the same instrument. 49. Savings Provision. In the event that, a. any provision of this Agreement shall violate any covenant in or constitute a default under any document authorizing Obligations of the Authority or the Contracting Parties’ existing bond resolutions; b. this Agreement, in whole or in part, is held to be unenforceable; or c. if a Contracting Party withdraws from the Authority, then the provisions of the Agreement Establishing the Upper Eagle Regional Water Authority made on September 18, 1984 and as amended on April 1, 1985, and the Amended and Restated Master Service Contract made and entered into as of January 1, 1998, shall apply to the extent necessary to avoid violation of any such covenant or constituting such default and to establish the relationship and rights and obligations of the withdrawing Contracting Party and the Authority. IN WITNESS WHEREOF, the Contracting Parties have caused this Agreement to be executed effective the date first above written. ARROWHEAD METROPOLITAN DISTRICT By: _______________, President EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 35 Attest: _____________, Secretary TOWN OF AVON, COLORADO, successor to the Avon Metropolitan District By: _______________, Mayor Attest: _____________, Town Clerk BEAVER CREEK METROPOLITAN DISTRICT By: _______________, President Attest: _____________, Secretary BERRY CREEK METROPOLITAN DISTRICT EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 36 By: _______________, President Attest: _____________, Secretary EAGLE-VAIL METROPOLITAN DISTRICT By: _______________, President Attest: _____________, Secretary EDWARDS METROPOLITAN DISTRICT, formerly known as the Edwards Water District By: _______________, President Attest: _____________, Secretary EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 37 STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing Agreement was acknowledged before me this _____ day of _____________, 2014 by _______________________________ as President and _________________________ as Secretary of the ARROWHEAD METROPOLITAN DISTRICT. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing Agreement was acknowledged before me this _____ day of _____________, 2014 by _______________________________ as Mayor and _________________________ as Town Clerk of the TOWN OF AVON, COLORADO. Witness my hand and official seal. My commission expires: Notary Public EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 38 STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing Agreement was acknowledged before me this _____ day of _____________, 2014 by _______________________________ as President and _________________________ as Secretary of the BEAVER CREEK METROPOLITAN DISTRICT. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing Agreement was acknowledged before me this _____ day of _____________, 2014 by _______________________________ as President and _________________________ as Secretary of the BERRY CREEK METROPOLITAN DISTRICT. Witness my hand and official seal. My commission expires: Notary Public EXHIBIT A: AUTHORITY AGREEMENT {00219485.DOC / 19} 39 STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing Agreement was acknowledged before me this _____ day of _____________, 2014 by _______________________________ as President and _________________________ as Secretary of the EAGLE-VAIL METROPOLITAN DISTRICT. Witness my hand and official seal. My commission expires: Notary Public STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing Agreement was acknowledged before me this _____ day of _____________, 2014 by _______________________________ as President and _________________________ as Secretary of the EDWARDS METROPOLITAN DISTRICT. Witness my hand and official seal. My commission expires: Notary Public EXHIBIT A: AUTHORITY AGREEMENT     MOSES, WITTEMYER, HARRISON AND WOODRUFF, PC MEMORANDUM TO: Avon Town Council FROM: Jay Montgomery, Anne Bensard RE: Recreational In-Channel Diversion Water Right DATE: June 20, 2014 DISCUSSION: The Town of Avon’s water right for in-channel use of water for recreational boating through the Town’s Whitewater Park is a conditional water right, which can be made absolute upon a finding by the Water Court that the decreed flows have been used for the decreed purposes associate with recreational boating. The decree that was entered six years ago also requires that the Town obtain a finding that it has been reasonably diligent in placing the decreed amounts of flows to beneficial use. An application for finding of diligence or to make the water right absolute must be filed by the last day of June 2014 or the water rights will be cancelled. We have prepared an application requesting both a finding of diligence and decree making the water rights absolute for all the various flow rates described in the decree. We have evidence that the decreed flow rates have been fully used and that, therefore, the Town is entitled to a decree making the water rights absolute. If there is opposition to the claim to make absolute, or if the court were to find that the Town did not fully and beneficially use the full amount of decreed flows, the Town should nonetheless be entitled to a decree continuing the water rights as conditional for another six years. Therefore the application we have drafted contains alternative claims for finding of diligence and to make absolute. RECOMMENDATION: Because the conditional water rights decreed for the Whitewater Park would be lost if an application is not filed by the June 30 deadline, and because ample evidence supports the alternative claims for finding of reasonable diligence and to make the water rights absolute, we recommend that Town Council authorize the filing of an application with the Water Court by the Town’s attorneys as outlined above. 00079981-3 { DISTRICT COURT, WATER DIVISION NO. 5, COLORADO 109 Eighth Street, Suite 104 Glenwood Springs, Colorado 81601 _______________________________________________ CONCERNING THE APPLICATION FOR WATER RIGHTS OF TOWN OF AVON IN EAGLE COUNTY James R. Montgomery, #10989 Richard Mehren, #32231 Anne D. Bensard, #45316 Moses, Wittemyer, Harrison and Woodruff, P.C. P. O. Box 1440 Boulder, Colorado 80306-1440 Telephone: (303) 443-8782 Facsimile: (303) 443-8796 jmontgomery@mwhw.com; rmehren@mwhw.com; abensard@mwhw.com ▲ COURT USE ONLY ▲ __________________________ Case No.: 14CW___ (05CW258) APPLICATION FOR FINDING OF REASONABLE DILIGENCE AND TO MAKE ABSOLUTE 1. Name, address, and telephone number of applicant: Town of Avon (“Avon”) c/o/ Virginia Egger, Town Manager P.O. Box 975 Avon, CO 81620 Telephone: (970) 748-4010 2. Name of structure: Avon Whitewater Course. 3. Description of conditional water right: A. General Description of Recreational In-Channel Diversion: The Avon Whitewater Course (“Course”), the approximate location of which is depicted in the map attached hereto as Exhibit A, contains three control structures known as Bob, Sr., Bob, Jr., and Baby Bob. The Course is approximately 348 feet in length from the Baby Bob invert (the upstream control structure) to the Bob, Sr. invert (the downstream control structure). The recreational in-channel diversion water right (“RICD”) is defined by the specific points between the control structures and not Town of Avon Case No. 14CW_____ Page 2 00079981-3 for the entire 348-foot reach. The Course is located in the channel of the Eagle River near the intersection of Avon Road and Hurd Lane where Avon Road crosses the Eagle River at the bridge named Bob (“the Bridge”). The approximate locations of the three control structures are depicted on the map attached hereto as Exhibit A. Each of the three control structures controls the entire flow within the river channel. The control structures are designed to perform at different rates of flow. Baby Bob has been constructed as a pour-over hole and is located the furthest upstream of the Bridge. Bob, Jr. has been constructed as a wave hole and is located 75 feet upstream of the upstream face of the Bridge. Bob, Sr. has been constructed as a constriction wave and is located 20 feet downstream of the downstream face of the Bridge. The three control structures are designed to divert, capture, control, and concentrate the flow of water in the Course between the specific points to create water features that allow the minimum stream flows for three distinct recreation experiences for different skill levels to be placed to beneficial use. B. Original Decree: Case No. 05CW258, District Court, Water Division No. 5, State of Colorado, entered on June 28, 2008. C. Legal description of each control structure: i. Baby Bob: Located in the NE 1/4 of the SE 1/4, Sec. 12, Township 5 S., R. 82 W., 6th P.M., 2,450 feet west of east section line and 2,400 feet north of south section line. ii. Bob, Jr.: Located in the SW 1/4 of the NE 1/4, Sec. 12, Township 5 S., R 82 W., 6th P.M., 2,600 feet west of the east section line and 2,350 feet south of the north section line. iii. Bob, Sr.: Located in the SE 1/4 of the NW 1/4, Sec. 12, Township 5 S., R. 82 W., 6th P.M., 2,550 feet east of west section line and 2,300 feet south of north section line. D. Source: Eagle River, tributary to the Colorado River. E. Appropriation date: December 31, 2005. F. Rates of flow: The rates of flow for different levels of recreational use are as follows: Town of Avon Case No. 14CW_____ Page 3 00079981-3 Level One Flows, for beginner freestyle kayaking Calendar Period Flow (cfs) April 20 - August 7 200 cfs, CONDITIONAL Level Two Flows, for intermediate freestyle kayaking Calendar Period Flow (cfs) May 1 - July 20 350 cfs, CONDITIONAL Level Three Flows, for advanced freestyle and competitive kayaking Calendar Period Flow (cfs) Eight Specified 12-hour 1,400 cfs, CONDITIONAL Days between May 25-July 7 (“High Flow Dates”) G. Use: Recreational in-channel boating purposes, including recreational boating, kayaking, and rafting. The use of the RICD for navigation by kayaks and rafts in and through the Course is a beneficial use. 4. Outline of work and expenditures during the diligence period towards completion of the appropriation and application of the water to beneficial use: During the period from June, 2008 until June 2014 (“Diligence Period”), Avon has worked diligently to develop the RICD, as demonstrated by the following activities: A. In summer 2008, Avon partnered with the Westin Riverfront Resort and the Vail Daily to hold a “Big Air Shootout Competition” at the Course, as part of its recreation center special events program, to promote the Course and RICD. Participants uploaded videos of themselves doing tricks in the Course to the Vail Daily. The Big Air Contest ran from May 15, 2008 to July 15, 2008. The prize for first place was $2,500, which was paid by the Westin Riverfront Resort. Avon staff and volunteers judged the event. B. The Avon Parks Department regularly maintains the Course during the summer kayaking and rafting season. Maintenance occurs in two primary areas: (1) the boat launch on the south shore, and (2) the north shore pedestrian access and overlook. Maintenance includes trash collection, noxious weed removal, fence repair, and graffiti removal. At the end of the season, the Parks Department and Engineering Department inspect the shoreline and control structures in the Course to determine if the shoreline or control structures require repairs after the spring Town of Avon Case No. 14CW_____ Page 4 00079981-3 runoff. They also schedule any necessary repair work. In 2010, the north shore experienced damage and the pedestrian overlook and shoreline were reconstructed. Avon spent approximately $10,690 on this work. Over the diligence period, Avon has expended approximately $10,000 in staff labor costs for maintenance of the Course. C. Avon has posted signs notifying users of the start and end of the Course. D. Avon expended approximately $______ in legal fees related to filing statements of opposition to Water Court cases for protection of its water rights, including the RICD that is the subject of this application. E. Avon has expended approximately $_____ in legal fees related to the diligence activities related to the RICD that is the subject of this application. 5. Claim to make absolute: A. Date of diversion in priority and application to beneficial use: i. Level One Flows: July 1, 2008. ii. Level Two Flows: July 15, 2008. iii. Level Three Flows: June 7, 2014. B. Amount: i. Level One Flows: 200 cfs ii. Level Two Flows: 350 cfs iii. Level Three Flows: 1,400 cfs C. Use: Recreational in-channel boating purposes, including recreational boating, kayaking, and rafting. The use of the RICD for navigation by kayaks and rafts in and through the Course is a beneficial use. D. Place of beneficial use: The Course, as described above in paragraph 3.C. E. Evidence that diversion was made in priority: Since its opening, the Course has been consistently used by both individual and commercial boaters, including kayakers and rafters, for recreational boating purposes. There is a consistent pattern of use of the Course for boating purposes. Based on measurements at Town of Avon Case No. 14CW_____ Page 5 00079981-3 USGS Gage No. 09067020, Avon requests to make Level One, Level Two, and Level Three Flows absolute as described below. The RICD is adequately measured by USGS Gage No. 09067020, which is located 3,200 feet downstream of the Course. i. Individual boaters used the Course from 2008 through the date of filing. During the high runoff in May and June of each year, several rafting companies float the park, including Saga and Nova Guides. Documentation of such use by individual and commercial boaters may include magazine and news publications, photographs, videos, blog posts, and statements by boating users of the Course. ii. In 2008, Avon held the Big Air Shootout, discussed above in paragraph 4.A. This event ran from May 15, 2008 until July 15, 2008. Both individual and commercial boaters used the Course during this period to make both the Level One and Level Two Flows absolute. (i) Level One Flows were put to beneficial use at various times during the diligence period. As an example, the minimum flow rate necessary for a reasonable recreational experience at Level One Flows (200 cfs) was met and exceeded on July 1, 2008.on this date. Between the RICD’s hours of 8:00 am and 8:00 pm, USGS Gage No. 09067020 measured a peak flow of 2,940 cfs at 8:45 am and a minimum flow rate of 2,450 cfs at 7:15 pm. At these flow rates, Baby Bob controlled, concentrated, and diverted, without waste, water to create waves, hydraulic holes, large changes in current direction, and whitewater features that were used by kayakers and other boaters for the intended recreational experiences. (ii) Level Two Flows were put to beneficial use at various times during the diligence period. As an example, the minimum flow rate necessary for a reasonable recreational experience at Level Two Flows (350 cfs) was met and exceeded on July 15, 2008. Between the RICD’s hours of 8:00 am and 8:00 pm, USGS Gage No. 09067020 measured a peak flow of 1,040 cfs at 8:00 am and a minimum flow of 871 cfs at 7:30 pm. At these flow rates, Baby Bob and Bob Jr. controlled, concentrated, and diverted, without waste, water to create waves, hydraulic holes, large changes in current direction, and whitewater features that were used by Town of Avon Case No. 14CW_____ Page 6 00079981-3 kayakers and other boaters for the intended recreational experiences. iii. Level Three Flows were put to beneficial use at various times during the diligence period. As an example, the minimum flow rate necessary for a reasonable recreational experience at Level Three Flows (1,400 cfs) was met and exceeded on June 7, 2014. Between the RICD’s hours of 8:00 am and 8:00 pm, USGS Gage No. 09067020 measured a peak flow of 3,130 cfs at 8:00 am and a minimum flow of 2,700 cfs at 3:15 pm. At this flow rate, Baby Bob, Bob Jr., and Bob Sr. controlled, concentrated, and diverted, without waste, water to create waves, hydraulic holes, large changes in current direction, and whitewater features that were used by kayakers and other boaters for the intended recreational experiences. As required by the decree entered in Case No. 02CW258, on June 5, 2014, Avon provided notice to the Division Engineer and Water Commissioner of its intent to designate its eight high flow dates for the purpose of putting Level Three Flows to beneficial use. These eight high flow dates were June 7, 2014 - June 14, 2014. 6. Names and addresses of owners or reputed owners of the land upon which any new diversion or storage structure, or modification to any existing diversion or storage structure is or will be constructed or upon which water is or will be stored, including any modification to the existing storage pool. [Confirm with Town that Avon owns this property] WHEREFORE, Avon requests that the Court enter a decree making the RICD absolute for recreational in-channel boating purposes, as described above, and/or finding that Avon has exercised reasonable diligence with respect to the RICD, and continuing in full force and effect, for an additional diligence period, any portion of the RICD that the Court finds remains conditional. Respectfully submitted this _____ day of June, 2014. MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. James R. Montgomery, #10989 Richard J. Mehren, #32231 Anne D. Bensard, #45316 Town of Avon Case No. 14CW_____ Page 7 00079981-3 ATTORNEYS FOR APPLICANT, TOWN OF AVON E-FILED PURSUANT TO C.R.C.P. 121. Duly signed original on file at the law offices of Moses, Wittemyer, Harrison and Woodruff, P.C. 00079981-3 { VERIFICATION AND ACKNOWLEDGMENT OF APPLICANT OR OTHER PERSON HAVING KNOWLEDGE OF THE FACTS STATED IN THIS APPLICATION FOR FINDING OF REASONABLE DILIGENCE AND TO MAKE ABSOLUTE Being first duly sworn, I hereby state that I have read this APPLICATION FOR FINDING OF REASONABLE DILIGENCE AND TO MAKE ABSOLUTE, that I have personal knowledge of the facts stated, and that I verify its contents to the best of my knowledge, information, and belief. Virginia Egger The foregoing instrument was acknowledged before me in the County of Eagle, State of Colorado, this ______ day of June, 2014, by the person whose signature appears above. Notary Public My commission expires: The person signing this verification is Town Manager for the Town of Avon.