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TC Council Packet 09-09-2014 TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, SEPTEMBER 9, 2014 AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:00 PM REGULAR MEETING BEGINS AT 5:15 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, MATT GENNETT TOWN STAFF TOWN ATTORNEY: ERIC HEIL TOWN MANAGER: VIRGINIA 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 5:00 PM (SEE SEPARATE AGENDA PAGE 3) REGULAR MEETING BEGINS AT 5:15 PM 1. CALL TO ORDER & ROLL CALL 2. APPROVAL OF AGENDA 3. PUBLIC COMMENT 4. WORK SESSION 4.1. JOINT SESSION WITH AVON PLANNING AND ZONING COMMISSION (PLANNING MANAGER MATT PIELSTICKER) 4.2. REVIEW AND DIRECTION ON COMCAST FRANCHISE AGREEMENT TOPICS (TOWN MANAGER VIRGINIA EGGER) 5. ACTION ITEMS 5.1. PUBLIC HEARING SECOND READING OF ORDINANCE 14-13 APPROVING THE GRANT OF A REVOCABLE ENCROACHMENT LICENSE TO INSTALL, CONSTRUCT AND MAINTAIN PRIVATE IMPROVEMENTS ON TOWN- OWNED RIGHT-OF-WAY AND PROPERTY AT CHRISTY SPORTS FOR DEVELOPMENT OF A DDITIONAL PUBLIC PARKING – C ONTINUED FROM AUGUST 26, 2014 MEETING (PLANNING MANAGER MATT PIELSTICKER) 5.2. PUBLIC HEARING FIRST AMENDMENT TO DEVELOPMENT AGREEMENT FOR WYNDHAM TIME-SHARE PROJECT (PLANNING MANAGER MATT PIELSTICKER) 5.3. RESOLUTION NO. 14-22 ADOPTING THE AUTHORITY AGREEMENT AMENDING AND RESTATING THE AGREEMENT ESTABLISHING THE UPPER EAGLE REGIONAL W ATER AUTHORITY AND THE MASTER SERVICE CONTRACT (TOWN ATTORNEY ERIC HEIL) 5.4. RESOLUTION NO. 14-23 ADOPTION OF 2015-16 STRATEGIC PLAN (TOWN MANAGER VIRGINIA EGGER) 5.5. MINUTES FROM AUGUST 26, 2014 MEETING (TOWN CLERK DEBBIE HOPPE) 6. WORK SESSION 6.1. 2015-16 BUDGET WORK SESSION (ASSISTANT TOWN MANAGER SCOTT WRIGHT) 6.1.1. RECOMMENDATION FOR REVENUE PROJECTIONS, INCLUDING FEES AND CHARGES FOR SERVICES, IF ANY 6.1.2. FUND BALANCE, CONTINGENCY & STABILIZATION FUND R ECOMMENDATION 6.1.3. EMPLOYEE COMPENSATION: SALARY & HEALTH INSURANCE PROPOSAL TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, SEPTEMBER 9, 2014 AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:00 PM REGULAR MEETING BEGINS AT 5:15 PM AVON TOWN HALL, ONE LAKE STREET Page 2 6.2. REPORT ON P ROCUREMENT POLICY (ASSISTANT TO THE T OWN MANAGER PRESTON NEILL) 7. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 7.1. UERWA M EETING – COUNCILOR BUZ REYNOLDS 7.2. UPDATE ON WILD WEST RIDGE CONSTRUCTION ESTIMATE AND SCHEDULE – MAYOR RICH CARROLL 7.3. UPDATE ON STAGE – COUNCILOR JAKE WOLF 8. COUNCIL COMMENTS 9. MAYOR REPORT AND FUTURE AGENDA ITEMS 10. EXECUTIVE SESSION (THIS MEETING IS NOT OPEN TO THE PUBLIC) 10.1. FOR THE PURPOSE OF A CONFERENCE WITH THE TOWN ATTORNEY TO RECEIVE LEGAL ADVISE UNDER CRS 24-6-402(2)(B) AND TO DISCUSS THE PURCHASE, ACQUISITION, LEASE, TRANSFER OR SALE OF REAL, PERSONAL OR OTHER P ROPERTY INTEREST UNDER CRS 24-6-204(2)(A) 11. ADJOURNMENT TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, SEPTEMBER 9, 2014 AVON LIQUOR AUTHORITY MEETING BEGINS AT 5:00 PM AVON TOWN HALL, ONE LAKE STREET Page 3 PRESIDING OFFICIALS CHAIRMAN RICH CARROLL VICE CHAIRMAN TODD GOULDING BOARD MEMBERS DAVE DANTAS, CHRIS EVANS, JENNIE FANCHER ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF, MATT GENNETT 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 4.1. Applicant Name: Realm of Caring Event Name: Man on the Cliff Event Dates: September 27-28, 2014; 9:30 am until 7 pm Location: Nottingham Park Event Manager: Amanda Williams 5. RENEWAL OF LIQUOR LICENSES 5.1. Applicant: R& E Enterprise LLC d/b/a Gondola Pizza Location: 240 Chapel Place #13 Type: Hotel and Restaurant Manager: Claudia Popa 6. MINUTES FROM AUGUST 26, 2014 7. ADJOURNMENT Special Events Memo Man on the Cliff.docx 1 | Page REPORT FOR AVON LIQUOR LICENSING AUTHORITY To: Avon Liquor Licensing Authority From: Debbie Hoppe, Town Clerk Date: September 9, 2014 Agenda topic: SPECIAL EVENTS PERMIT APPLICATION – PUBLIC HEARING The Town Council serving as the Local Liquor Licensing Authority will consider a Special Events Permit Application for the upcoming Man on the Cliff Event. A public hearing is required before final action is taken. Applicant Name: Realm of Caring Event Name: Man on the Cliff Event Dates: September 27-28, 2014; 9:30 am until 7 pm Location: Nottingham Park Event Manager: Amanda Williams The applicant has submitted the appropriate materials required by the State of Colorado Liquor Enforcement Division and all materials are in order. Walking Mountains Science Center is applying for malt, vinous, spirituous liquor and fermented malt beverage(3.2% Beer) permit to serve/sell beverages at One Lake Street (Nottingham park) for the September 27 & 28th “Man on the Cliff Event”. The park premise has been posted with notice of the public hearing for this application. The event manager will be present to answer question about the application. There are local liquor licensing fees associated with the special event permit; the applicant has submitted the appropriate state & local fees. Special Events permits are issued by the Liquor Enforcement Division and the Local Licensing Authority to allow particular types of organizations, municipalities, and political candidates to sell, serve or distribute alcohol beverages in connection with public events. Because of their temporary nature, needs and desires (reasonable requirements of the neighborhood) are not considered by the licensing authorities as a condition of issuance. Applications are made directly with the local licensing authority having jurisdictions over the place of the event. Article 48 of Title 12 regulates the issuance of special events permits. Note that these permits may only be issued for prescribed hours during the day and for not more than 15 days in any one calendar year. SPECIAL EVENTS PERMIT APPLICATIONS ATTACHMENTS: The applicants for the special events permit have submitted the following materials:  Application for a Special Events Permits (State form DR 8439)  Alcohol Management Plan  Diagram where liquor will be served  Certificate of Good Standing  Police Report on Background Checks TOWN OF AVON, COLORADO AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, AUGUST 26, 2014 AVON TOWN HALL, ONE LAKE STREET FINAL ALB 08-26-2014 Minutes Page 1 1. CALL TO ORDER AND ROLL CALL Mayor Carroll called the meeting to order at 6:20 pm. A roll call was taken and Board members present were Dave Dantas, Buz Reynolds, Matt Gennett, Jennie Fancher, Chris Evans, and Jake Wolf. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant Town Manager Scott Wright, Planning Manager Matt Pielsticker, Executive Assistant Preston Neill 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. RENEWAL OF LIQOUR LICENSES 4.1. Applicant: Dillon Companies, Inc. d/b/a City Market #26 Location: 260 Beaver Creek Place Type: 3.2% Beer Retail Manager: Jeff Gentilini The application was presented with no concerns for the renewal application. Board member Fancher moved to approve the 3.2 % beer retail liquor license for Dillon Companies, Inc. d/b/a City Market #26; and Board member Evans seconded the motion and it passed unanimously with those present. 4.2. Applicant Name: Chair Four LLC d/b/a VIN 48 Address: 48 E. Beaver Creek Blvd. Type: Hotel and Restaurant Manager: Collin Baugh The application was presented with no concerns for the renewal application. Board member Fancher moved to approve the hotel and restaurant liquor license for Chair Four LLC d/b/a Vin 48; and Board member Evans seconded the motion and it passed unanimously with those present. 6. MINUTES FROM AUGUST 12, 2014 Board member Dantas moved to approve the Minutes from August 12, 2014; Board member Fancher seconded the motion and it passed unanimously with those present. TOWN OF AVON, COLORADO AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, AUGUST 26, 2014 AVON TOWN HALL, ONE LAKE STREET FINAL ALB 08-26-2014 Minutes Page 2 7. Adjournment There being no further business to come before the Board, the meeting adjourned at 6:25 pm. RESPECTFULLY SUBMITTED: ____________________________________ Debbie Hoppe, Town Clerk APPROVED: Rich Carroll ______________________________________ Dave Dantas ______________________________________ Chris Evans ______________________________________ Jennie Fancher ______________________________________ Albert “Buz” Reynolds ______________________________________ Jake Wolf ______________________________________ Matt Gennett ______________________________________ TOWN COUNCIL REPORT PAGE 1 OF 1 To: Mayor and Town Council From: Matt Pielsticker, AICP, Planning Manager Date: August 28, 2014 Agenda Topic: Planning and Zoning Commission: Bi-Annual Work Session The Planning and Zoning Commissioners will join Council in a work session to discuss the following topics as requested by the Planning and Zoning Commissioners. Forty-five (45) minutes has been planned for this discussion. A copy of the 2015-16 Strategic Plan will be provided to PZC members in advance of the meeting regarding Item 4. Agenda – Council/PZC Work Session 1. Design Review Process • Director review of Development Plans, with discretionary PZC review. Director makes decisions on Minor Development Plans with discretionary referrals to PZC. Minor Development plans include all exterior modifications to buildings or properties that do not result in 600 sq. ft. or more of additional space. • Drift toward prescriptive design standards. Current codes allow some room for interpretation by PZC. 2. Color Standards • Recent Code Amendments and direction moving forward with amendments to LRV. 3. Potential Landscaping Regulation Revisions • Garden Fencing. Current standards for Wildridge permit 4’ high, split rail design, enclosing not more than 2,000 sq. ft., and shall not delineate property lines. In all other zone districts, 42” – 6’ height with varying allowances for materials and colors compatible with principal buildings. • Quantity Requirements, with lack of Dispersion Requirements • Parking Lot perimeter Requirements. 4. Long-Range Planning Work • 2015-16 Strategic Plan review • Multi-model Parking and Transportation Plan prioritized • PZC desire to “marry” district plans with Comprehensive Plan 5. Affordable Housing • Employee Housing Mitigation. Currently triggered only when Development Plan exceeds maximum lot coverage requirements in Neighborhood Commercial (NC), Mixed-Use Commercial, and Town Center (TC) zone districts. Formula for number of units required is based on job generation data contained in §7.20.100, Employee Housing Mitigation, AMC. • Affordable Housing Fund Money prioritization 6. Timeliness of PZC/Council Decisions • Development Season and decisiveness required to meet deadlines • Cost of delays - Examples TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Preston Neill, Executive Assistant to the Town Manager Date: September 9, 2014 Agenda Topic: Franchise Agreement between the Town of Avon and COMCAST of Colorado BACKGROUND: The purpose of a cable Franchise Agreement is to grant to a franchisee, such as COMCAST, the right to access and use Town of Avon public ways (right-of-ways) for the installation and repair of wires and other equipment, such as pedestals, for the operation of a cable system. The Town is compensated for the use of public way through a franchise fee, which is currently 5% of COMCAST’s Gross Revenue within the Town. In addition to important requirements for how business activity is administered in the right-of-way, the Franchise also includes a requirement that two Public Education or Governmental (PEG) Access Channels be provided, with the Town having management authority to designate a provider, and certain requirements for use of the stations. The franchisee collects and provides to the Town a capital support fee for the PEG, which is currently fifty cents ($0.50) per month per individual residential subscriber and 25 cents ($0.25) per month per bulk-billing subscriber. The most recent Franchise Agreement between the Town of Avon and COMCAST of Colorado was a 15- year agreement originally approved with TCI Cablevision of the Rockies, Inc. and later assigned to COMCAST. It expired on December 31, 2010. Pursuant to the Federal Telecommunications Act, the expired Agreement continues on a month-to-month basis until both the Town and COMCAST agree to a new Franchise Agreement. After the expiration, the Town stated it wished to defer the negotiation of a new franchise until such time as Vail completed its review and approval of a new franchise. The Franchise Agreement between the Town of Vail and COMCAST of Colorado was completed in 2012 and commenced on January 1, 2013. NEW FRANCHISE AGREEMENT TERMS The Town of Avon was provided by COMCAST its “Model Agreement” for the purpose of entering into a Franchise Agreement with COMCAST of Colorado for the provision of cable services in the Town of Avon. A comparative analysis was conducted between the Model Agreement and the Vail-COMCAST Agreement for the purpose of identifying the differences and similarities. The comparative review was shared with COMCAST and their response is attached to this report. Unless otherwise noted below, staff concurs with the COMCAST responses. Town Manager Virginia Egger was provided comments from Public Access Television Channel 5 by letter dated August 23, 2014. The letter(“Channel 5”) is included with this report and reflected in the recommendations below. STAFF RECOMMENDATIONS Town staff has identified several key differences in the agreements. In addition, since Vail’s adoption of its Franchise Agreement, progressive changes have been made by Colorado communities in franchise negotiations. Recommendations for Avon’s renewal are as follows: • General Procedures: Where the Model-Vail differences are general procedures, the recommendation is to accept the more beneficial term to remain consistent with the Town of Vail terms. A typical example is the Vail-COMCAST Franchise Agreement states that Franchise Fee payments shall be due and payable no later than thirty (30) days after said dates, whereas the Model Agreement states sixty (60) days. If channels are changed, Vail would receive $2,000, Avon $1,000. The channel fee change is supported by Channel 5 in like amount to Vail. • Definition of Gross Revenue: The Vail-COMCAST Franchise Agreement finds that Franchise fees are not a tax and are therefore need to be included in “Gross Revenue”, while in the Model Agreement finds that “Gross Revenue” does not include Franchise fees. While including the fee in gross revenues will be a fee passed on to cable subscribers, the finding that a fee is not a tax is germane, and staff recommendation is to define the fee as has been done in Vail. • Franchise Term: In order to allow the termination date to coincide with the termination date established in the ten (10) year agreement between the Town of Vail and COMCAST of Colorado, staff recommends a term of eight (8) years, beginning on the effective date, January 1, 2015. • Franchise Fee: Similar to the most recent Franchise Agreement between the Town of Avon and COMCAST of Colorado, the Agreement will grant COMCAST a nonexclusive authorization to make reasonable and lawful use of the public ways in the Town of Avon. As compensation for the use of public ways, COMCAST shall make quarterly payments as a “Franchise Fee” to the Town an amount equal to five percent (5%) of COMCAST’s gross revenue. Staff recommends no change. • PEG Access Channels: Two (2) Public, Educational, or Governmental (PEG) Access Channels will be provided by COMCAST, at no charge. In addition, the Town of Avon would continue to receive from COMCAST, in quarterly payments, a “PEG Fee” in the amount equal to fifty cents ($0.50) per residential subscriber per month as capital support for PEG access. Staff recommended the Town retain during the term of the Agreement the right to reduce or increase this fee following a public hearing. Channel 5 is requesting consideration of increasing the fee up to $0.75 for residential subscribers to more adequately fund capital improvements. The current bulk subscribers’ fee of $0.25 is recommended to remain the same in the new contract and also have the potential to increase to $0.40. Staff believes a fee increase could lead to more Avon content being developed and played on Channel 5. These fees are direct pass through charges to subscribers. • Access Channel Trigger: As recommended by Channel 5, a trigger for when an additional access channel should be provided in the Franchise Agreement. • Insurance: While Vail’s insurance requirements exceed those of the Model Agreement, the levels proposed seem adequate unless Attorney Eric Heil recommends a different level. • Customer Service Standards: A significant new term found in other Colorado municipal franchises with COMCAST is the inclusion of a set of Customer Service Standards (CSS). standards establish uniform requirements for the quality of service that COMCAST is expected to offer to customers. In order to ensure the provision of quality customer service, the Town has received the standards created by the Colorado Communications and Utilities Alliance (CCUA) from COMCAST to implement. These standards have been adopted by numerous municipalities throughout Colorado. These standards include, but are not limited to, 24/7 local telephone access for service/repair requests and billing/service inquiries, 24/7 accessibility to dispatchers and technicians, a complaint procedure and an established window for problem resolution following a customer service call. • Regulatory Changes: Finally, staff recommends the Agreement include a stipulation that addresses a situation where one or more federal regulations, which would have a substantive rule(s) change that will affect the regulation of cable providers, that Avon reserve the right to renegotiate the terms of the Agreement. Federal regulators, with cable providers becoming the providers of new services, including phone and internet, can be expected to promulgate new rules for such providers prior to the expiration date of the Agreement. COUNCIL ACTION: Town staff requests direction from the Town Council regarding the terms for inclusion in the Franchise Agreement for preparation of First Reading materials. From: Davis, Andy [mailto:andy_davis@cable.comcast.com] Sent: Wednesday, September 03, 2014 2:50 PM To: Preston Neill; Virginia Egger Cc: porter@wharton-group.net Subject: Response to proposed changes... Virginia/Preston, Thanks to both of you for the feedback and proposed changes to the draft renewal. Below are my responses to the changes that you proposed. As I’ve mentioned previously, several of the provisions that you have highlighted were a by-product of the circumstances that existed in Vail at the time of the renewal. Those circumstances don’t exist in Avon. That being said, we can likely work with several of the proposed changes while a few others will require further discussion… Section 1 – Definitions • Gross Revenues: The initial language was intended to ensure revenue neutrality. While we can make the change that you have proposed to Gross Revenues, it will result in a fee increase on your constituents/our subscribers. • Institutional Network: INets are no longer part of our franchise agreements. If the city is interested in a network like this, it would need to contract that service with our Business Services team. Section 3 – Franchise Fee and Controls • 3.2 - Payments: While 30 days is in the Vail agreement, we have found that the timeline is very tight following the end of the quarter. We would propose 45 days as a compromise. Section 5 – Franchise Insurance Requirements • 5.3 Insurance: Nearly all of our most recent agreements are at the levels that we proposed, and this includes cities much larger than Avon. If it is important to the Town to include the same insurance levels as Vail, we can make this change. • 5.5 Performance Bond: This provision was related to specific issues that existed in Vail at the time of the renewal. Further, it has never been an issue in Avon. We’ll have to discuss this further to better understand the Town’s perspective and the need for this provision. Section 7 – Records • 7.1 Required Records: Again, the 2 reports that you have cited were related to specific issues in Vail that have not been issues previously in Avon. Additionally, the Town already receives annual reports from us, and I would be curious to know if those reports are utilized. The Town can request reports from us at any time if it wants the information. We would like to better understand the Town’s interest in and actual use of this information before agreeing to the proposed changes. Section 9 – Access • 9.2 Triggers for Additional Access Channels: We will need to better understand the Town’s future programming needs and how they justify the inclusion of this provision. The Vail Valley is serviced by PEG programming coming from Vail and Eagle County, so it will be difficult to add an additional channel – and the bandwidth it requires – to Avon specifically without stronger justification. • 9.2 (AFA) Underutilized Channel Access: We can agree to this proposed change. • 9.3 (AFA) Access Channel Location: Avon’s number of subscribers is roughly 1/3 the number in Vail. Arguably, the amount we proposed should be even less than $1,000. However, we can consider this increase if it’s important to the Town. • 9.4 (AFA) Access Channel Promotion: This provision no longer exists in most of our updated agreements, and notably, while this language exists in the Vail agreement, the Town has never used it. We believe that one insert is a reasonable compromise. • 9.5 (AFA) PEG Fee: First, Comcast already collects and provides to the Town a PEG fee of $0.50, so the changes regarding notification are not necessary. As for the ability to increase to $1.00, only one other community outside of Denver (that I’m aware of) has a PEG fee beyond $0.50, and while the increase language does exist in the Vail franchise, this change in the current context will be difficult to sell internally. We can’t agree to this without further discussion. Hopefully, you’ve also had a chance to look at the model CCUA Customer Service Standards that I shared with you on 8/21. Again, these were carefully negotiated over multiple years, and they are the standards being adopted across the Front Range and elsewhere in the state. Again, to be clear, deviations from this set of standards will be very difficult, if not impossible, to get approved internally. Thanks and let me know if you’d like to go over all of this on a phone call, or we could meet in person on Tuesday (9/9) before the Study Session. Let me know what you prefer. Andy Davis Director, Regulatory and Government Affairs Comcast | Mile High Region 8000 E. Iliff Avenue, Denver, CO 80231 E: andy_davis@cable.comcast.com O: 303.603.2424 M: 720.951.2868 LinkedIn Profile Learn more about Comcast’s Community Investments and their impact Vail Valley Community Television Corp. (DBA Public Access TV 5) 281 Metcalf Road, Unit 203 PO Box 5600 Avon, CO 81620 Aug. 23, 2014 Virginia Egger Town of Avon 1 Lake Street Avon, CO 81620 Virginia, Following Dan Wheery's suggestion to pursue an E-Metro connection in lieu of the fiber option, I spoke with Comcast representatives to determine the cost and implementation of an E-Metro connection for sending video from the municipal building to PATV5 for live broadcast of council meetings and other events on Channel 5. The cost for 10 MBPS of bandwidth (which may or may not be adequate for sending video and requires additional research) costs approximately $400 a month, which is beyond our means. The representatives are determining if there is any room to be more aggressive with pricing and will get back to me with a cost. I also suggested the possibility of Comcast trading sponsorship of live broadcast of council meetings in return for free use of the service. Their plan is to discuss this option with Andy Davis to determine if a partnership may be agreed upon. In regards to your analysis between the Avon and Vail franchise agreements, I have a few comments: Section 9. Access - We believe that a trigger for additional access channels should remain in the agreement, as we discussed at our meeting. It is important for this trigger to remain if programming grows beyond the bounds of one channel or a parallel station in high definition is required. Section 9.4 - We insist that any channel move incur the same amount as the Vail agreement. A move would require us to completely overhaul marketing materials, video graphics, print materials and would also require additional community outreach to inform the community of the move. Section 9.6 (9.5) PEG Fee - As we discussed at our meeting, we feel it would benefit the town to include a PEG fee up to $0.75 for residential subscribers to more adequately fund capital improvements. Also, we ask that the fee for bulk subscribers of $0.25, which was in the previous Avon agreement, remain in the new contract and also have the potential to increase to $0.40. Thank you, J.K. Perry Executive Director Public Access TV 5 970-949-5657 vailchan5@comcast.net publicaccess5.org TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Matt Pielsticker, Planning Manager Date: September 3, 2014 Re: Public Hearing Second Reading Ordinance 14-13 Revocable Encroachment License for Public Parking Lot BACKGROUND The Planning and Zoning Commission approved the design for development of a public parking lot west of Christy Sports at its April 24, 2014, meeting. The proposed site is Town-owned land, currently planted in grasses with several trees on the lot. Staff recommended the change as a better use of the land considering location near at the core of East Avon and onto Avon Road. The parking lot would be developed by Hoffmann Commercial Properties at its cost. Twenty-eight (28) parking spaces would be provided. The parking would remain open to the public. Development of the parking lot requires a License from the Town Council. Council has taken the following actions on the License: • Passed First Reading of Ordinance 14-13, with certain terms and conditions; • Council at its meeting of July 2, 204, continued action with direction to renegotiate the terms and conditions of the lease; • Continued Second Reading and the required Public Hearing to the August 26, 2014, meeting rather than taking action. The Council directed staff to inform the applicant that Council would not consider action for proposed uses on any Town property until all improvements being made or having been made on properties owned by Hoffmann Commercial Properties are brought into code compliance; • Continued Second Reading and required Public Hearing to September 9, 2014. Council reviewed “compliance” updates related to improvements being made on Hoffmann Commercial Properties and Town properties. CODE COMPLIANCE SUMMARY Per Council’s request, the following summary includes development work completed or in process on Town property and Hoffmann Commercial Properties lands and buildings and status of compliance with Town codes. While numerous actions have been taken by the company to come into compliance, this update identifies those areas still not in compliance. 1. Landscaping in the Chapel Square PUD, including landscaping on Hoffmann property and Town- owned property. STATUS: In Compliance. A Minor Development Plan application was submitted, approved by Staff on August 15, and conditioned upon the execution of a maintenance agreement be completed for landscaping on portions of Tract A, Town owned property. The Town Attorney has drafted a License/Maintenance agreement, and it is currently in review by Traer Creek and HCRE parties. 2. Painting of accessory building elements at the Chapel Square PUD without color approval. STATUS: In Compliance. A Minor Development Plan application was approved by Staff for this accent color on private property.  Page 2 3. Installation of monument sign at Nottingham Station without first submitting an application and gaining approval of a Master Sign Program Amendment application. STATUS: In Compliance. A Master Sign Program Amendment was approved by PZC on September 2, 2014. 4. Installation of monument sign at Christy Sports on Town Property without first submitting an application and gaining approval of Master Sign Program Amendment for Christy Sports or approval to work in right-of-way. STATUS: In Compliance/In Process. A Master Sign Program was submitted and was reviewed by PZC on September 2nd. The PZC continued the application in order for Christy Sports to revise the building mounted signs as part of the sign program. 5. Removal of light fixture and new construction of statue base and lighting, and installation the bronze sculpture, “Legend of Ulele Bust”, in Chapel Square PUD. Portions of the new improvements are located on Town-owned property. STATUS: In Compliance/In Process. A complete application was submitted, with necessary survey information. This item is scheduled for review with PZC on September 16th. If the application is approved, it will be conditioned upon the execution of a maintenance/license agreement. 6. Removal of Landscaping in Town Right-of-Way without Right-of-Way permit for construction in Town Right-of-Way or design approval. STATUS: In Compliance/In Process. A complete Minor Development Plan application was submitted and is currently under Staff review for processing. 7. Painting of Town-owned property including benches, railings, and trash receptacles without color approval or Right-of-Way permit for construction in Town Right-of-Way. STATUS: Not in Compliance. A letter was sent to HCRE on August 19th documenting the painting of eight (8) benches, three (3) fences, one (1) trash receptacle, and one (1) handrail on Town property without color or right-of-way approvals. The letter required repainting by August 29th; the work remains incomplete and was “delayed due to weather.” An update will be provided at the meeting. 8. Use of Town electric power for new Monument Sign at Christy Sports Building. STATUS: Not in Compliance. According to HCRE, an electrician is scheduled to work on this issue Friday, September 5th. An update will be provided at the meeting. REVOCABLE ENCROACHMENT LICENSE The Revocable Encroachment License presented in Ordinance 14-13 provides for: • A 99-year lease, with the Town having the ability at any time to pay for the actual costs of parking lot improvements. The developer will provide an accounting of the actual costs, however, total improvement purchase is capped at not to exceed $175,000, the developer’s estimated cost of construction.  Page 3 • The parking lot improvements must be completed by November 15, 2015. • A permanent Access Easement Area would be provided from the developer to the Town, prior to construction commencing, to ensure access to the parking lot should the Town acquire the improvements and want to continue use of the property as a parking lot. • Until such time as the Town acquires the improvements, all operations and maintenance of the parking lot is the responsibility of Hoffmann Commercial Properties. AVAILABLE ACTIONS: • Approve Ordinance 14-13 as drafted. • Approve Ordinance 14-13 with modifications • Continue Ordinance 14-13 to a future meeting MOTION: If Council wishes to proceed with the Ordinance after the Public Hearing, the recommended motion is: I move to approve Ordinance 14-13 [with or without modifications.] ATTACHMENT: Ordinance 14-13 Ord. No 14-13 Approving Revocable License Agreement September 9, 2014 Page 1 of 3 TOWN OF AVON ORDINANCE 14-13 SERIES of 2014 AN ORDINANCE APPROVING AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND HOFFMAN COMMERICAL PROPERTIES FOR THE GRANT OF A REVOCABLE ENCROACHMENT LICENSE TO INSTALL, CONSTRUCT, AND MAINTAIN PRIVATE IMPROVEMENTS ON TOWN- OWNED RIGHT-OF-WAY AND PROPERTY WHEREAS, the Town Council has authority to grant revocable encroachment licenses for Town owned public property and/or right-of-ways; WHEREAS, the Town Council conducted a public hearing on July 22, 2014, then continued such public hearing to August 26, 2014, then continued the public hearing to September 9, 2014; WHEREAS, the Town Council finds that the grant of a revocable encroachment license to construct parking open to the general public on a public property adjacent to the Christy Sports western parking lot and on a portion of Avon Road will promote the Avon Comprehensive Plan and promote economic vitality in the Avon commercial core and will thereby promote the healthy, safety and general welfare of the Avon community; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence regarding the application and that approval of this Ordinance on first reading does not constitute a representation that the Town Council, or any member of the Town Council, supports, approves, rejects, or denies this Ordinance. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF AVON, COLORADO, the following: Section 1. Recitals Incorporated. The above and foregoing recitals are incorporated herein by reference and adopted as findings and determinations of the Town Council. Section 2. Revocable License Agreement Approved. The attached Revocable License Agreement is hereby approved and accepted. Section 3. Mayor and Town Clerk Authorized to Execute Documents. The Mayor and Town Clerk are authorized to execute documents approved in this Ordinance and take such other actions as may be reasonably necessary to implement the actions in this Ordinance. Section 4. Severability. If any provision of this Ordinance, or the application of such provision to any person or circumstance, is for any reason held to be invalid, such invalidity shall not affect other provisions or applications of this Ordinance which can be given effect without Ord. No 14-13 Approving Revocable License Agreement September 9, 2014 Page 2 of 3 the invalid provision or application, and to this end the provisions of this Ordinance are declared to be severable. The Town Council hereby declares that it would have passed this Ordinance and each provision thereof, even though any one of the provisions might be declared unconstitutional or invalid. As used in this Section, the term “provision” means and includes any part, division, subdivision, section, subsection, sentence, clause or phrase; the term “application” means and includes an application of an ordinance or any part thereof, whether considered or construed alone or together with another ordinance or ordinances, or part thereof, of the Town. Section 5. Effective Date. This Ordinance shall take effect thirty days after public notice following final passage in accordance with Section 6.4 of the Avon Home Rule Charter. Section 6. Safety Clause. The Town Council hereby finds, determines and declares that this Ordinance is promulgated under the general police power of the Town of Avon, that it is promulgated for the health, safety and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The Town Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. Section 7. Publication by Posting. The Town Clerk is ordered to publish this Ordinance by posting notice of adoption of this Ordinance on final reading by title in at least three public places within the Town and posting at the office of the Town Clerk, which notice shall contain a statement that a copy of the ordinance in full is available for public inspection in the office of the Town Clerk during normal business hours. [Signature page follows] Ord. No 14-13 Approving Revocable License Agreement September 9, 2014 Page 3 of 3 INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for July 22, 2014 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado, on July 15, 2014. ____________________________ Rich Carroll, Mayor Published by posting in at least three public places in Town and posting at the office of the Town Clerk at least six days prior to final action by the Town Council. ATTEST: APPROVED AS TO FORM: ____________________________ ____________________________ Debbie Hoppe, Town Clerk Eric J. Heil, Town Attorney INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on September 9, 2014. ____________________________ Rich Carroll, Mayor Published by posting by title in at least three public places in Town and posting by title at the office of the Town Clerk. ATTEST: _______________________________ Debbie Hoppe, Town Clerk Avon Road Revocable Encroachment License Agreement for Parking Lot Improvements Page 1 of 6 AN AGREEMENT BY AND BETWEEN THE TOWN OF AVON AND HOFFMANN COMMERCIAL PROPERTIES FOR THE GRANT OF A REVOCABLE ENCROACHMENT LICENSE TO INSTALL, CONSTRUCT, AND MAINTAIN PRIVATE IMPROVEMENTS ON TOWN-OWNED RIGHT-OF-WAY and PROPERTY 1.0 PARTIES. The parties to this agreement (“Agreement”) are the TOWN OF AVON, COLORADO, a Colorado home rule municipality (“Town”) and HOFFMAN COMMERCIAL PROPERTIES (“Licensee”). This Agreement is effective upon execution by the Licensee and following execution by the Mayor on the date indicated below. 2.0 RECITALS AND PURPOSE. 2.1. The Town is the owner of certain property located in the Town of Avon, Eagle County, Colorado, commonly known as Avon Road. A portion of Avon Road that is subject to this Agreement is more specifically described on Exhibit to License: Private Improvements (“Exhibit”) and such portion of Avon Road shall be referred to as the “Town Property”. 2.2. The Licensee has expressed a desire to encroach upon and occupy the Town Property for the purpose of installing, constructing, and maintaining certain temporary landscape improvements. 2.3. Licensee agrees to construct public parking and landscaping (“Private Improvements”) on the Town Property, which the Town desires and acknowledges is a valuable public benefit that promotes goals of the Town’s Comprehensive Plan. Town further finds that the Private Improvements on Town Property provide benefits and value that equal or exceed the value of the Town Property that the Town is providing for use by Licensee. 2.4. The Town is willing to grant a revocable license to the Licensee under the terms and conditions as hereinafter specified in this Agreement provided that nothing in this Agreement shall waive or modify any obligation to seek building permits, right-of-way permits (including traffic control), variances, or other approval necessary to meet any obligation imposed by law. The Licensee remains obligated to apply for and obtain all necessary permits and approvals, pay all required fees, and comply with all applicable local laws, including but not limited to any applicable provisions in the Avon Municipal Code. 3.0 TERMS AND CONDITIONS. 3.1. The Town hereby grants to the Licensee a revocable license for the encroachment and occupation described as follows: landscape plantings (trees, shrubs, and ground cover), retaining walls, as such Private Improvements are depicted on the Exhibit; provided, however, that nothing in this Agreement is intended to waive, alter, modify, or permit any violation of any local law applicable within the Town of Avon. To the extent that the location or other specifications of this Agreement or any exhibit conflicts with local laws, the local law shall govern. Except for the encroachment and occupation of the Private Avon Road Revocable Encroachment License Agreement for Parking Lot Improvements Page 2 of 6 Improvements identified in this ¶ 3.1 and depicted on the Exhibit, no other encroachment, structure, improvement, vehicle, fence, wall, landscaping, or any other real or personal property shall be erected, installed, constructed, parked, stored, kept, or maintained in any way or fashion on the Town Property. As a condition to the license granted in this Agreement, Licensee shall construct the Private Improvements as depicted on the Exhibit , which Private Improvements shall be constructed according to Town’s standards and which shall be completed by November 15, 2015 and Licensee hereby conveys a perpetual access easement (“Access Easement”) across the area depicted as the “Access Easement Area” on the Exhibit , which Access Easement shall run with the land and shall survive the termination or expiration of this Agreement. 3.2. The encroachment and occupation of Private Improvements as specified in ¶ 3.1 above shall continue from the date of this Agreement for a period of NINETY- NINE (99) YEARS, until August 11, 2113, unless earlier terminated in accordance with the terms of this Agreement. Town may terminate this Agreement at any time, with or without cause, upon tendering reimbursement payment in full for the cost (“Cost”) of the Private Improvements without any depreciation. The Cost of Private Improvements shall be determined as follows: Upon completion of the Private Improvements and no later than December 31, 2015, Licensee shall submit to the Town documentation of Cost associated with completion of the Private Improvements. Cost may include construction, engineering, design, testing, inspection, survey and legal expenses. Town shall have thirty (30) days from the date of receiving documentation of Cost to submit a written objection, which objection shall be limited to inadequacy of the documentation or costs not directly related to the Private Improvements. If Town does not submit a written objection then the Cost of the Private Improvements as submitted by Licensee shall be deemed accepted by the Town. If Town objects, then Licensee shall submit additional documentation to evidence the Cost of the Private Improvements within thirty (30) days. Notwithstanding the foregoing, Town and Licensee agree that Town’s obligation to tender a reimbursement payment of Costs as a condition of early termination shall not exceed TWO HUNDRED THOUSAND DOLLARS ($175,000.00). 3.3. The Licensee agrees to construct, maintain, and repair the Private Improvements placed or located on the Town Property by the Licensee or its lessees, agents, employees, or other persons under the control or direction of the Licensee pursuant to this Agreement at the cost and expense of the Licensee and at no cost or expense to the Town. The Licensee agrees that the Private Improvements shall be accessible and open to parking by the general public without charge and that overnight parking shall not be permitted without consent of the Town. Limiting parking to periods of time shall be allowed (e.g. a 2-hour parking limit). The Licensee agrees to erect and maintain appropriate signage for parking. The Licensee agrees to provide private enforcement of parking regulations consistent with this Agreement and acknowledges that Town may provide parking enforcement assistance in a manner consistent with, and according to, Town policies as is provided for other private commercial parking areas open to the general public. Avon Road Revocable Encroachment License Agreement for Parking Lot Improvements Page 3 of 6 3.4. The Licensee agrees to remove or cover graffiti or other damage caused to the Private Improvements within a reasonable time following notice or knowledge of such damage or within forty-eight (48) hours of delivery to the Licensee of a written demand by the Town, whichever is earlier. The Licensee shall not erect, cause to be erected or permit the erection of any sign, advertising object, or illustration upon any improvement, structure, fence, or wall placed or located by the Town Property pursuant to this Agreement and shall promptly remove any such sign or advertising. 3.5. The Licensee agrees to maintain the landscaping in a healthy condition at all times during this Agreement and shall be responsible for ensuring the proper pruning or replacement as necessary to present a healthy landscape condition. 3.6. The Licensee expressly agrees to, and shall, indemnify and hold harmless the Town and any of its officers, agents, or employees from any and all claims, damages, liability, or court awards, including costs and attorney’s fees that are or may be awarded as a result of any loss, injury or damage sustained or claimed to have been sustained by anyone, including but not limited to, any person, firm, partnership, or corporation, in connection with or arising out of any omission or act of commission by the Licensee or any of its employees, agents, partners, or lessees, in encroaching upon the Town Property. In particular and without limiting the scope of the foregoing agreement to indemnify and hold harmless, the Licensee shall indemnify the Town for all claims, damages, liability, or court awards, including costs and attorney’s fees that are or may be awarded as a result of any loss, injury or damage sustained or claimed to have been sustained by anyone, including but not limited to, any person, firm, partnership, or corporation, in connection with or arising out of any claim in whole or in part that all or any portion of the Private Improvements and encroachment permitted by this Agreement constitutes a dangerous and/or unsafe condition within a public right-of-way. 3.7. The Licensee agrees that it will never institute any action or suit at law or in equity against the Town or any of its officers or employees, nor institute, prosecute, or in any way aid in the institution or prosecution of any claim, demand, or compensation for or on account of any damages, loss, or injury either to person or property, or both, known or unknown, past, present or future, arising as a result of or form the revocable license granted to the Licensee by this Agreement. This provision includes but is not limited to claims relating to road maintenance, snow removal or other public works activities performed by or on behalf of the Town. 3.8. The Licensee agrees that the Town is not liable, and will not assume any liability, responsibility, or costs for any damage, maintenance, or repair of any Private Improvements erected or maintained by the Licensee under this Agreement. 3.9. The Licensee agrees to repair and reconstruct any damage to the Town Property upon termination of this Agreement or removal of the Private Improvements described in ¶ 3.1 and any other improvements erected by the Licensee on the Town Property and the Licensee shall return the Town Property to its original condition at the cost and expense of the Licensee and at no cost or expense to Avon Road Revocable Encroachment License Agreement for Parking Lot Improvements Page 4 of 6 the Town. In the event that Licensee does not remove the Private Improvements and repair and restore Town Property to the condition prior to this Agreement within the time period determined in ¶ 3.2 above, then Licensee shall be deemed to have abandoned the Private Improvements and any rights thereto and the Town may proceed to remove the Private Improvements. The Town may seek recovery of all costs incurred for the removal of Private Improvements from Town Property, repair of damages to Town Property, and restoration of Town Property, including legal costs and reasonable attorney fees. 3.10. The Licensee agrees to procure and maintain, at its own cost, a policy or policies of insurance protecting against injury, damage or loss occurring on the licensed premises in the minimum amount of $1,000,000.00 per occurrence. Such policy or policies shall name the Town as an “additional insured”. However, the Licensee’s failure to take such steps to insure the premises shall not waive, affect, or impair any obligation of the Licensee to indemnify or hold the Town harmless in accordance with this Agreement. 3.11. The Licensee shall be deemed to have intentionally and irrevocably abandoned and relinquished rights and interest in the Private Improvements in the event that the Licensee conveys all the Licensee’s interest in the property or properties obtaining access or receiving benefit from the improvements and encroachments described in this Agreement. The Town shall be entitled to rely upon the public records of ownership maintained by the office of either the Eagle County Clerk and Recorder or the Eagle County Assessor in rendering a determination that the Licensee has abandoned and relinquished the Licensee’s rights and interests as provided by this paragraph. In such event, the Town may remove and demolish such improvements without notice to the Licensee. 4.0 TERMINATION FOR DEFAULT. Town may elect to terminate this Agreement and revoke the license for encroachment on Town Property in the event that Licensee defaults under any provision of this Agreement provided that Town first provides written notice describing the default and Licensee fails to cure by 5:00 p.m. Mountain Time on the third business day after the date of the written notice of default if such default involves a failure to permit parking by the general public in accordance with ¶ 3.3 or a failure to provide and maintain insurance required by ¶ 3.10 or fails to cure within thirty (30) days after the date of a written notice of default for all other defaults in this Agreement. 5.0 ASSIGNMENT. This Agreement shall not be assigned by the Licensee without the prior written consent of the Town which may withhold its consent for any reason; provided that the Town encourages the Licensee to inform any purchaser of the Licensee’s property or interests of the existence of this Agreement and the Town will promptly consider any request by the Licensee for assignment of this Agreement to such subsequent purchaser. 6.0 NOTICES. Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if personally served or if sent by certified mail or registered mail, postage and fees prepaid, addressed to the party to whom such notice is to be given at the address set forth on the signature page below, or at such other address as has been previously furnished in writing, to the other Avon Road Revocable Encroachment License Agreement for Parking Lot Improvements Page 5 of 6 party or parties. Such notice shall be deemed to have been given when deposited in the United States Mail. 7.0 INTEGRATION AND AMENDMENT. This Agreement represents the entire agreement between the parties and there are no oral or collateral agreements or understandings. This Agreement may be amended only by an instrument in writing signed by the parties. If any other provision of this Agreement is held invalid or unenforceable, no other provision shall be affected by such holding, and all of the remaining provisions of this Agreement shall continue in full force and effect. Invalidation of the Agreement in its entirety shall revoke any authorization, whether explicit or implied to the continuing use and occupancy of the Town Property for the Private Improvements. 8.0 GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the State of Colorado and venue for any action arising under this agreement shall be in the appropriate court for Eagle County, Colorado. 9.0 WAIVER OF BREACH. A waiver by any party to this Agreement of the breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party. 10.0 BINDING EFFECT. This Agreement shall inure to the benefit of, and be binding upon, the parties, their respective legal representatives, successors, heirs, and assigns; provided, however, that nothing in this paragraph shall be construed to permit the assignment of this Agreement except as otherwise expressly authorized herein. 11.0 UNDERLYING INTENT AND SCOPE. It is the intent of this Agreement that the Town shall incur no cost or expense attributable to or arising from the construction, maintenance, or operation of the Private Improvements and encroachment permitted by this Agreement and that, in all instances, the risk of loss, liability, obligation, damages, and claims associated with the encroachment shall be borne by the Licensee. This Agreement does not confer upon the Licensee any other right, permit, license, approval, or consent other than that expressly provided for herein and this Agreement shall not be construed to waive, modify, amend, or alter the application of any other federal, state, or local laws, including laws governing zoning, land use, property maintenance, or nuisance. 12.0 AUTHORITY TO BIND PARTY. The undersigned persons represent that they are expressly authorized to execute this Agreement on behalf of the Parties and to bind their respective Parties and that the Parties may rely upon such representation of authority. 13.0 LEGAL FEES AND COSTS. In the event the Town seeks legal action to enforce this Agreement or to recover reimbursement costs for removal of Private Improvements from, repair of any damages, and/or restoration of Town property subject to this Agreement, Town shall be entitled to recover any and all legal costs and attorney’s fees incurred. [SIGNATURE PAGE FOLLOWS] Avon Road Revocable Encroachment License Agreement for Parking Lot Improvements Page 6 of 6 DATED AUGUST 12, 2014. TOWN OF AVON: By: ________________________________ Rich Carroll, Mayor ATTEST: Approved as to Form: _________________________________ ______________________________ Debbie Hoppe, Town Clerk Eric Heil, Town Attorney LICENSEE: By: _________________________________ Name:_______________________________ Title:________________________________ Address: PO Box 1980 Avon, CO 81620 STATE OF COLORADO ) ) COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ________ day of ____________________, 20____, personally by _______________________________. ___________________________________ Notary Public (SEAL) Commission expires: _____________ TOWN COUNCIL REPORT 1st Amendment to Wyndham Development Agreement PAGE 1 OF 4 To: Mayor and Town Council From: Matt Pielsticker, AICP, Planning Manager Date: September 3, 2014 Agenda Topic: First Amendment to Wyndham Resort Development Agreement – PUBLIC HEARING Introduction The Town Council approved the Wyndham project on Lot 61 (aka 75 Benchmark Road) along with a Development Agreement by Ordinance No. 13-03 in February of 2013. Since that time some of the public improvements contemplated in the Development Agreement on Lettuce Shed lane have changed. Town staff has proposed amendments to the Development Agreement. Wyndham’s successor to the Development Agreement is 75 Benchmark LLC. The First Amendment to Development Agreement is attached to this memorandum. Per the original Development Agreement, the Council is required to conduct a public hearing for an amendment but may approve the amendment by motion. 75 Benchmark LLC has reviewed and approved the proposed amendments. . Summary Following is a summary of the three (3) amendments: • Existing Section 5.2(a) Proposed Section 5.2(a) (a) Area A of Exhibit B: Owner agrees to install all landscaping, hardscape and other similar improvements, consistent with the 2014 Mall Improvement Plan, withing Area A of Exhibit B as called out in the Development Plan and agrees to pay Town $25,693.34 for the installation of bollard lighting within Area A of Exhibit B. Rationale: Area A of Exhibit B is the area between the Wyndham timeshare building and the edge of the Lettuce Shed Lane Path. The current wording anticipated that Wyndham would purchase and construct five (5) light fixtures in this area and the rest of the Wyndham landscaping. During the design process for the updated (2104) Mall Improvement Plans, the lighting was modified to include five (5) bollard style lights and step lighting in a seating wall along the entire stretch of the path. Since the construction of the light fixtures is integral to the rest of the Town’s improvements in the area, including electrical work, it was determined that having the Town’s contractor purchase and install the lights would be more efficient for both Town and 75 Benchmark LLC. TOWN COUNCIL REPORT 1st Amendment to Wyndham Development Agreement PAGE 2 OF 4 • Existing Section 5.2(b) Proposed Section 5.2(b) (b) Area B of Exhibit B: Town agrees to install Area B of Exhibit B (the LSL Path) as called out in the Development Plan. The Town agrees to complete all construction within Area B of Exhibit B on or before the date that construction of the Development is complete, as evidenced by Owner’s application to the Town for a certificate of occupancy for the Development. Rationale: The Town Staff determined that extending the heat recovery infrastructure down the length of the mall would be cost prohibitive compared to the cost of snow removal by contract, by hand in the same areas. • Existing Section 5.2(h) Proposed Section 5.2(h) -STRUCK IN ITS ENTIRETY- Rationale: After further reviewing the feasibility of this snow melt system during the 2013 redesign phase, the system was removed from the project. The heat recovery system will instead be earmarked for future expansion of municipal buildings as environed in the Town’s Master Plan documents (i.e. future town hall, recreation center expansion). TOWN COUNCIL REPORT 1st Amendment to Wyndham Development Agreement PAGE 3 OF 4 Staff Recommendation Approve the “First Amendment to Development Agreement” as drafted and attached hereto. Proposed Motion “I move to approve the First Amendment to Development Agreement as attached to Matt Pielsticker’s memorandum dated September 3, 2014.” Attachments Public Property Improvement Plan from Development Agreement First Amendment to Development Agreement TOWN COUNCIL REPORT 1st Amendment to Wyndham Development Agreement PAGE 4 OF 4 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT WHEREAS, the Town of Avon (“Town”) and Wyndham Vacation Resorts, Inc. (“Wyndham”) entered into a Development Agreement dated February 26, 2013, (“Development Agreement”) concerning Lot 1, a Resubdivision of a Replat of Lot 61, Block 2, Benchmark at Beaver Creek, according to the Plat thereof filed February 23, 2004 at Reception no. 868662, County of Eagle, State of Colorado (“Property”); and, WHEREAS, Wyndham conveyed the Property to 75 Benchmark LLC (“Owner”), on October 22,2013, and as such, Wyndham assigned the Development Agreement to Owner in that certain Assignment and Assumption of Development Agreement, dated October 22, 2013. WHEREAS, the Town and Owner desire to amend the Development Agreement in writing in accordance with Section 9.7, and the Town has posted notice and conducted public hearings as required. NOW, THEREFORE, the Town and Owner agree to the amend Sections 5.2(a), 5.2(b) and 5.2(h) to the Development Agreement as follows: Section 5.2(a) of the Development Agreement is amended by replacing Section 5.2(a) in its entirety to read as follows: (a) Area A of Exhibit B: Owner agrees to install all landscaping, hardscape and other similar improvements, consistent with the 2014 Mall Improvement Plan, within Area A of Exhibit B as called out in the Development Plan and agrees to pay Town $25,693.34 for the installation of bollard lighting within Area A of Exhibit B. Section 5.2(b) is amended by deleting the second sentence, so that Section 5.2(b) shall read in its entirety as follows: (b) Area B of Exhibit B: Town agrees to install Area B of Exhibit B (the LSL Path) as called out in the Development Plan. The Town agrees to complete all construction within Area B of Exhibit B on or before the date that construction of the Development is complete, as evidenced by Owner’s application to the Town for a certificate of occupancy for the Development. Section 5.2(h) is deleted in its entirety. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, Town and Owner have executed this Agreement as of the date first written above. TOWN: TOWN OF AVON By:__________________________________ Rich Carroll, Mayor ATTEST ___________________________________ Debbie Hoppe, Town Clerk STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Subscribed before me this _______ day of _________________, 20__, by _________________ as Mayor and ___________________ as Town Clerk of Town of Avon, a Colorado municipal corporation. My commission expires: _______________________ __________________________________________ Notary Public OWNER: 75 Benchmark LLC, a Colorado limited liability company By:____________________________________ Its:____________________________________ STATE OF __________ ) ) ss. COUNTY OF ___________ ) Subscribed before me this _______ day of _________________, 20__, by ________________________ as _________________________________ of 75 BENCHMARK LLC, a Colorado limited liability company. My commission expires: _______________________ __________________________________________ Notary Public FIRST AMENDMENT TO DEVELOPMENT AGREEMENT WHEREAS, the Town of Avon (“Town”) and Wyndham Vacation Resorts, Inc. (“Wyndham”) entered into a Development Agreement dated February 26, 2013, (“Development Agreement”) concerning Lot 1, a Resubdivision of a Replat of Lot 61, Block 2, Benchmark at Beaver Creek, according to the Plat thereof filed February 23, 2004 at Reception no. 868662, County of Eagle, State of Colorado (“Property”); and, WHEREAS, Wyndham conveyed the Property to 75 Benchmark LLC (“Owner”), on October 22,2013, and as such, Wyndham assigned the Development Agreement to Owner in that certain Assignment and Assumption of Development Agreement, dated October 22, 2013. WHEREAS, the Town and Owner desire to amend the Development Agreement in writing in accordance with Section 9.7, and the Town has posted notice and conducted public hearings as required. NOW, THEREFORE, the Town and Owner agree to the amend Sections 5.2(a), 5.2(b) and 5.2(h) to the Development Agreement as follows: Section 5.2(a) of the Development Agreement is amended by replacing Section 5.2(a) in its entirety to read as follows: (a) Area A of Exhibit B: Owner agrees to install all landscaping, hardscape and other similar improvements, consistent with the 2014 Mall Improvement Plan, within Area A of Exhibit B as called out in the Development Plan and agrees to pay Town $25,693.34 for the installation of bollard lighting within Area A of Exhibit B. Section 5.2(b) is amended by deleting the second sentence, so that Section 5.2(b) shall read in its entirety as follows: (b) Area B of Exhibit B: Town agrees to install Area B of Exhibit B (the LSL Path) as called out in the Development Plan. The Town agrees to complete all construction within Area B of Exhibit B on or before the date that construction of the Development is complete, as evidenced by Owner’s application to the Town for a certificate of occupancy for the Development. Section 5.2(h) is deleted in its entirety. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, Town and Owner have executed this Agreement as of the date first written above. TOWN: TOWN OF AVON By:__________________________________ Rich Carroll, Mayor ATTEST ___________________________________ Debbie Hoppe, Town Clerk STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) Subscribed before me this _______ day of _________________, 20__, by _________________ as Mayor and ___________________ as Town Clerk of Town of Avon, a Colorado municipal corporation. My commission expires: _______________________ __________________________________________ Notary Public OWNER: 75 Benchmark LLC, a Colorado limited liability company By:____________________________________ Its:____________________________________ STATE OF __________ ) ) ss. COUNTY OF ___________ ) Subscribed before me this _______ day of _________________, 20__, by ________________________ as _________________________________ of 75 BENCHMARK LLC, a Colorado limited liability company. My commission expires: _______________________ __________________________________________ Notary Public 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: September 4, 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 14-22 which would adopt the Authority Agreement. Also attached is a Letter Agreement concerning any changes to the Traer Creek water rights which is to be considered and approved in conjunction with the Authority Agreement. Finally, three REDLINE sheets are included to show specific revisions from the Authority board meeting on August 28, 2014. SUBSTANTIVE CHANGES: Paragraph 12. Language regarding the leasing and conveyance of water rights by Contracting Parties to the Authority has been combined and updated to define the right of Contracting parties to participate as a co-applicant in any water court proceeding involving water rights leased to the Authority. The Authority’s obligation to administer each Contracting Party’s leased augmentation plans or water transfer decrees is better defined in accordance with local government law by stating the Authority will “use its best efforts to protect leased Water Rights from injury.” Fees: Fee increases that required unanimous consent in the original agreements still require unanimous consent; however, the Authority Agreement refers to “consent of all the Authority Board Members” rather than unanimous consent of the Contracting Parties. This provides a simplified procedure for the Authority record keeping because it only requires verifying that each Authority Board member has approved the rate increase rather than also obtaining resolutions and certifications from the governing body of each Contracting Party. At the Authority Board meeting on August 28, 2014, there was significant discussion and difference of opinion on whether fee increases should require unanimous consent versus a majority plus one (currently 5 out of 6 votes). The Authority Agreement as included with this memorandum is the version submitted by the Authority staff to the Contracting Parties for consideration. The Authority Agreement includes additional definition of various fees for capital improvements and operations. Pursuant to statutory authority and general local government law, the Authority has broad implied authority to establish fees related to improvements and authority. The additional definition of specific fees improves administration by defining and documenting existing practices. Debt Service Fee: The Authority Agreement includes a new fee provision for Debt Service Fee, which is a fee that was presented and approved by unanimous consent of Contract Parties last spring. Any additional, new or increased Debt Service Fee would require unanimous consent of all Authority Board Members. Differential Service Charge: The Authority Agreement includes a new potential fee referred to as a Differential Service Charge. The Differential Service Charge can be approved by a majority vote of the Authority Board members; however, the affected Contracting Party can prevent the imposition of a Differential Service Charge by objecting within 30 days of notice of such charge. M EMORANDUM & PLANNING, LLC Avon Town Council Amended Upper Eagle River Water Authority Agreement September 4, 2014 Page 2 of 2 Plant Investment Fee: The Plant Investment Fee language has been updated to reference the state statute regarding development charges for capital expenditures. The existing agreements allowed the Authority Board to increase Plant Investment Fees up to the inflationary index by a simple majority vote and required unanimous consent for any increases above the inflationary index. The new language requires unanimous consent of all the Authority Board Members for any increase. Treated Water Storage Fee: The existing agreements do not expressly address a Treated Water Storage Fee although the Authority has imposed a fee for this purpose. 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 conveyance 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. 14-22 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”) AND APPROVING A LETTER AGREEMENT REGARDING TRAER CREEK WATER RIGHTS (“Letter Agreement”) Thank you, Eric ATTACHMENTS: A: Resolution No. 14-22 with Authority Agreement and Letter Agreement B: Three Redline Pages indicating language changes approved at August 28, 2014 Upper Eagle River Water Authority board meeting. Resolution No. 14-22 Approving the Authority Agreement September 9, 2014 TOWN OF AVON, COLORADO RESOLUTION NO. 14-22 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”) AND APPROVING A LETTER AGREEMENT REGARDING TRAER CREEK WATER RIGHTS (“Letter 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; and, 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; and, WHEREAS, the Avon Town Council finds that the Letter Agreement clarifies and confirms the Town of Avon’s rights with regard to the Traer Creek water rights conveyed to the Authority and is an essential supplemental and complimentary agreement to the Authority Agreement. 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 and approves the Letter Agreement attached hereto as Exhibit B; authorizes the Mayor to execute the Authority Agreement and Letter Agreement; and authorizes the Mayor, Town Manager and Town Attorney to review and approve any additional amendments to Authority Agreement and Letter 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 September 9, 2014. AVON TOWN COUNCIL BY:_______________________________ Attest:_____________________________ Rich Carroll, Mayor Debbie Hoppe, Town Clerk ATTACHMENT A 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 1st day of October, 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 (referred to individually as a “Contracting Party” and collectively as the “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 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”); since its establishment, the Authority has been and shall continue to 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; and the Authority is now 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; and WHEREAS, the Contracting Parties entered into an Amended and Restated Master Service Contract (“MSC”) made as of January 1, 1998. The Contracting Parties and the Authority desire to amend and restate the MSC and replace it by this Authority 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; EXHIBIT A: AUTHORITY AGREEMENT 3 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. 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 Authority Agreement shall be January 1, 2014. As of the effective date of this Authority Agreement, the EA and the MSC are hereby superseded and all water rights activities and formal Board actions, consents and approvals 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. Such Board actions, consents and approvals shall include all formal actions of the Board and all contracts, stipulations, settlements, decrees and other water rights activities approved on behalf of the Authority by an authorized representative (including without limitation the Authority general manager or legal counsel), which actions were noticed to the Board in Authority Board meeting minutes or public Authority board meeting packets, or where copies of the contracts, stipulations, settlements, decrees or other water rights activities were given to the Authority Board and no objection was raised. 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. EXHIBIT A: AUTHORITY AGREEMENT 4 2. Term. This Authority 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 Authority 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 Authority 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 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. 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 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 Authority 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 EXHIBIT A: AUTHORITY AGREEMENT 5 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 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 Authority 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 Authority 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 Authority Agreement. EXHIBIT A: AUTHORITY AGREEMENT 6 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. 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 EXHIBIT A: AUTHORITY AGREEMENT 7 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. 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 or any bond, note or other borrowing executed and delivered to refund same. 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. EXHIBIT A: AUTHORITY AGREEMENT 8 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 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 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 EXHIBIT A: AUTHORITY AGREEMENT 9 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 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. EXHIBIT A: AUTHORITY AGREEMENT 10 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 Authority Agreement. b. To acquire, own, construct, manage, maintain, or operate water systems, facilities, works, or improvements, or any interest therein. 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. EXHIBIT A: AUTHORITY AGREEMENT 11 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 use as rights-of-way only if such property is not owned by any public utility and devoted to public use pursuant to State authority. 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. EXHIBIT A: AUTHORITY AGREEMENT 12 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 Authority Agreement as an additional Contracting Party at the discretion of the Board of Directors, subject to fulfilling any and all conditions or requirements of the Authority 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 Authority 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 Authority 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. EXHIBIT A: AUTHORITY AGREEMENT 13 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. 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 Authority 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 EXHIBIT A: AUTHORITY AGREEMENT 14 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. 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. EXHIBIT A: AUTHORITY AGREEMENT 15 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. 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 Authority 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 EXHIBIT A: AUTHORITY AGREEMENT 16 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 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 Officers. 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. EXHIBIT A: AUTHORITY AGREEMENT 17 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 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. EXHIBIT A: AUTHORITY AGREEMENT 18 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. The Contracting Parties and other parties served by contract have previously conveyed to the Authority their individual water systems, except for certain golf course water systems, raw water storage and raw water irrigation systems, subject to existing agreements between the Authority and any Contracting Party. The 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. The conveyance of water systems effected by the MSC is hereby ratified and confirmed. 12. Water Rights. The Contracting Parties have leased and/or conveyed to the Authority all of the Contracting Parties’ right, title and interests in and to the Contracting Parties’ water rights and may lease, convey or assign additional water rights in the future (“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 provisions of such leases, as they have been and may be amended from time to time, or any conveyances or assignments are not intended to be modified by this Authority Agreement. 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, provided that the respective Contracting Party shall have the right, but not the obligation, to participate in any proceeding in which its leased Water Rights are involved as a co-applicant for the purpose of monitoring such proceedings and to protect the respective Contracting Party’s leased Water Rights. In the event a EXHIBIT A: AUTHORITY AGREEMENT 19 Contracting Party elects to participate as a co-applicant in any proceeding in which its leased Water Rights are involved, the Authority agrees that the filing, any pleadings, and any stipulation shall be subject to consent of the co-applicant Contracting Party, which consent shall not be unreasonably withheld. The election by a Contracting Party not to participate as a co-applicant in any adjudication, change or diligence proceeding involving leased Water Rights after receiving notice of such application or proceeding shall be deemed to constitute affirmative consent to the Authority’s adjudication of any changes to the Water Rights that are deemed appropriate by the Authority including, but not limited to, the type of use, place of use, points of diversion, and quantification of historic use. The Authority also agrees to administer each Contracting Party’s leased augmentation plans or water transfer decrees according to the terms of the decrees, and use its best efforts to protect those leased Water Rights from injury, including the filing of statements of opposition in Water Courts as deemed appropriate by the Authority. 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 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 EXHIBIT A: AUTHORITY AGREEMENT 20 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. 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 EXHIBIT A: AUTHORITY AGREEMENT 21 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. Upon dissolution without conveyance of all Water Rights (as defined herein) and assets to a successor entity, the interests in Unallocated Water Rights (as defined herein) and net assets of the Authority shall be distributed to each Contracting Party in proportion to the average annual amount of treated water sold within the boundaries of each Contracting Party to the total annual amount of treated water sold to all Contracting Parties. 17. Adding or Deleting Parties. No party may be added to this Authority 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 Authority 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 and shall remain liable for its proportionate share of outstanding Obligations on the date of withdrawal, as defined in Section 16. 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. 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 EXHIBIT A: AUTHORITY AGREEMENT 22 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 or by the withdrawing Contracting Party’s predecessor for the purpose of providing water service to that Contracting Party’s water service area, 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. The foregoing are hereinafter the “Allocated Water Rights.” 18. Water Rights Report. The foregoing categories of water rights shall be identified in the water rights report entitled the “Analysis of Water Rights, Future Water Use, and Related Water Rights Issues” prepared for each Contracting Party and updated immediately and thereafter every two years by the Authority’s water EXHIBIT A: AUTHORITY AGREEMENT 23 counsel and water resource engineer (the “Water Rights Reports”). The Water Rights Reports shall also identify any other direct flow water rights that are owned 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. If the Contracting Party’s Allocated Water Rights significantly change in type or quantity during the interim between such updates, the Authority will revise the list of water rights allocated to that Party and provide a copy of such revised list to the 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 EXHIBIT A: AUTHORITY AGREEMENT 24 condition at all times. It is the intent of this Authority 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 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 Authority 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 Authority 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 Authority 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 Authority 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 Authority Agreement, and such payments EXHIBIT A: AUTHORITY AGREEMENT 25 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 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 unanimous vote or consent of all of the Authority Board Members 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 EXHIBIT A: AUTHORITY AGREEMENT 26 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; (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. Any new Debt Service Fee shall require unanimous vote or consent of all Authority Board Members. Once established, the Board of Directors of the Authority shall calculate the 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. EXHIBIT A: AUTHORITY AGREEMENT 27 d. Differential Service Charge. The Board of Directors of the Authority may establish and 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; and no such Differential Service Charge shall be effective if the affected Contracting Party objects within thirty (30) days of receipt of such notice. e. Surcharges. A charge may be unilaterally imposed by a Contracting Party 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 by unanimous vote or consent 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 capital components of the Water System, and shall be calculated and accounted for as required by C.R.S. § 29-1-801, et seq. related to development charges for capital expenditures. Specifically, the Plant Investment Fee shall be based upon capital improvements necessitated by the use to be connected to the Water System, or the change in use of an existing service. 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 all of the Authority Board Members at the time of introduction. Adoption of the increased Plant Investment Fee shall require a unanimous vote or consent of all the Authority Board Members. 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. EXHIBIT A: AUTHORITY AGREEMENT 28 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 will be collected by and remitted to that Contracting Party by the Authority to fund expenditures by such local government on water 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 EXHIBIT A: AUTHORITY AGREEMENT 29 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 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 Authority Agreement and legal and regulatory requirements and at levels which EXHIBIT A: AUTHORITY AGREEMENT 30 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 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 Authority 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 EXHIBIT A: AUTHORITY AGREEMENT 31 (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 of the Contracting Party in this Authority 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 Authority 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 Authority 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 Authority 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 Authority 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 EXHIBIT A: AUTHORITY AGREEMENT 32 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 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 Authority 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 Authority 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 Authority 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 EXHIBIT A: AUTHORITY AGREEMENT 33 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; 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 EXHIBIT A: AUTHORITY AGREEMENT 34 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 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 Authority 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 Authority Agreement constitutes the entire agreement among the parties, except as to water rights leases, 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 Authority 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 Authority Agreement, but it shall be construed as though not containing that particular provision, or part EXHIBIT A: AUTHORITY AGREEMENT 35 thereof, and the rights and obligations of the parties shall be construed and in force accordingly. 46. Amendments. This Authority 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. 47. Assignment; Successors and Assigns. This Authority 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 Authority 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 Authority 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 Authority 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 Authority Agreement, in whole or in part, is held to be unenforceable, as to that provision deemed unenforceable; or c. a Contracting Party withdraws from the Authority and any outstanding Obligations are not addressed herein, then the provisions of the EA and MSC shall apply to the extent necessary to avoid violation of any such covenant, default of an Obligation, or to establish the relationship, rights and obligations of the withdrawing Contracting Party and the Authority. IN WITNESS WHEREOF, the Contracting Parties have caused this Authority Agreement to be executed effective the date first above written. [EXECUTION PAGES FOLLOW] EXHIBIT A: AUTHORITY AGREEMENT 36 EXHIBIT A: AUTHORITY AGREEMENT 37 ARROWHEAD METROPOLITAN DISTRICT By: _______________, President Attest: _____________, Secretary STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing Authority 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 EXHIBIT A: AUTHORITY AGREEMENT 38 TOWN OF AVON, COLORADO, successor to the Avon Metropolitan District By: _______________, Mayor Attest: _____________, Town Clerk STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing Authority 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 39 BEAVER CREEK METROPOLITAN DISTRICT By: _______________, President Attest: _____________, Secretary STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing Authority 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 EXHIBIT A: AUTHORITY AGREEMENT 40 BERRY CREEK METROPOLITAN DISTRICT By: _______________, President Attest: _____________, Secretary STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing Authority 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 41 EAGLE-VAIL METROPOLITAN DISTRICT By: _______________, President Attest: _____________, Secretary STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing Authority 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 EXHIBIT A: AUTHORITY AGREEMENT 42 EDWARDS METROPOLITAN DISTRICT, formerly known as the Edwards Water District By: _______________, President Attest: _____________, Secretary STATE OF COLORADO ) ) ss. COUNTY OF EAGLE ) The foregoing Authority 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     [LETTERHEAD  of  the  Upper  Eagle  River  Water  Authority]       September  9,  2014     RE:       Letter  Agreement  regarding  Traer  Creek  Water  Rights     Dear  Mayor  Carroll,     Please  accept  this  Letter  Agreement  that  clarifies  and  confirms  the  Town  of  Avon’s  right   to  participate  as  a  co-­‐applicant  in  any  water  court  proceeding  involving  the  water  rights   conveyed  to  the  Upper  Eagle  River  Water  Authority  by  the  Town  of  Avon  to  serve  the   Village  (at  Avon)  by  Special  Warranty  Deed,  dated  December  19,  2012,  recorded  on  August   1,  2014  at  Reception  No  201412789  (“Traer  Creek  Water  Rights”),  for the purpose of monitoring such proceedings and to protect such Traer Creek Water Rights. In the event the Town of Avon elects to participate as a co-applicant in any proceeding in which the Traer Creek Water Rights are involved, the Authority agrees that the application, any pleadings initiated by the Authority, and any stipulations shall be subject to consent of the Town of Avon, which consent shall not be unreasonably withheld. The election by a Contracting Party not to participate as a co-applicant in any adjudication, change or diligence proceeding involving Traer Creek Water Rights after receiving notice of such application or proceeding shall be deemed to constitute affirmative consent to the Authority’s adjudication of any changes to the Water Rights that are deemed appropriate by the Authority including, but not limited to, the type of use, place of use, points of diversion, and quantification of historic use. By:________________________________________ [Name, Title on behalf of Authority] AGREED AND ACCEPTED by Town of Avon: By:_________________________________________              Rich  Carroll,  Mayor       Attest:____________________________________________________  Date:_______________________    Debbie  Hoppe,  Town  Clerk   EXHIBIT B A T T A C H M E N T B A T T A C H M E N T B A T T A C H M E N T B TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Virginia C. Egger, Town Manager Date: September 3, 2014 Agenda Topic: Resolution No. 14-23 Adopting Town of Avon 2015-16 Strategic Plan SUMMARY Resolution No. 14 – 23 is the adopting action for the Town of Avon 2015-16 Strategic Plan. The Strategic Plan is the result of Council discussions at its August 12th and 23rd retreat work sessions, when accomplishments over the last two years were reviewed; work was summarized for completion by the end of this year; and, the strategic direction for 2015-16 deliberated. The Strategic Plan focuses on the key investments needed for the Town to meet the document’s Overview Statement and other adopted plans of the Town and, thereby, serves as a lead document in developing Avon’s first time two-year budget. The two-year strategic program is expected to result in the Town of Avon becoming a model local government in terms of fiduciary responsibility, communication with citizens and stakeholders, and in its support of businesses, with improved infrastructure and an array of special cultural and recreational events which attract both local residents and visitors. Once the Strategic Plan is adopted, the staff will develop a detailed Work Plan for implementation. RECOMMENDED MOTION I move to adopt Resolution No. 14-23, [with or without amendments]. Attachment: Resolution No. 14-23, Resolution Adopting the Town of Avon 2015-16 Strategic Plan TOWN OF AVON, COLORADO RESOLUTION NO. 14-23 SERIES OF 2014 RESOLUTION ADOPTING TOWN OF AVON 2015-2016 STRATEGIC PLAN WHEREAS, the Avon Town Council participated in retreat sessions on August 12 and 23, 2014, in order to discuss and identify the priorities, strategic work and future direction for the Town over the next two years; and WHEREAS, the Avon Town Council agreed to commit to the highest level of fiduciary responsibility, effectiveness and efficiency in providing government services, and an attentive practice to open and transparent governance to lead the successful implementation of strategic plans for the growth and development of Avon; and WHEREAS, the Avon Town Council has set forth its direction in the attached 2015-2016 Strategic Plan, which establishes priorities and actions, with attention to be given first to the following topics: - Develop and Support Business-like Practices and a High Performance Culture of Town Hall - Civic Engagement & Participation - Stakeholder & Regional Partnerships - Infrastructure, Parks, Preserves, Trails and Sustainability - Economic Development - Land Use & Development - Water Issues - Grab the Bull by the Horns Opportunities; and WHEREAS, the Avon Town Council has reviewed this document at its regular Town Council meeting on September 9, 2014, in order to provide opportunities for the public to participate in the effort to identify both Town priorities and direction for 2015 and 2016. NOW, THEREFORE, BE IT RESOLVED the Avon Town Council adopts the Town of Avon 2015-2016 Strategic Plan as a critical implementation tool to help guide the Town in achieving a successful and vibrant vision for the growth and development of Avon. ADOPTED AND APPROVED by the Avon Town Council 9th day of September. By: _________________________________ Attest:____________________________ Rich Carroll, Mayor Debbie Hoppe, Town Clerk 2015-16 STRATEGIC PLAN September 9, 2014 Pa g e 1 TOWN OF AVON 2015-2016 STRATEGIC PLAN Adopted by the Avon Town Council Resolution 14-23, Series of 2014 September 9, 2014 2015-16 STRATEGIC PLAN September 9, 2014 Pa g e 2 Overview The Town of Avon, surrounded by natural beauty, is today a strong community that will build on its strengths to become a nationally and internationally recognized year-round mountain resort community. Committed to providing a high level of municipal services for our citizens and visitors, and the stewardship of our natural resources, Avon will expand its cultural, recreational and educational offerings in partnership with our broader community and regional public and private sector agencies, thereby ensuring sustained economic vitality and a vibrant community experience. Recent resort-oriented accommodations projects in Avon are of a higher standard than the Town attracted at its founding and in its early years. It is this superior level of quality development that Avon believes will be its comparative advantage in the future, and, therefore, will work to attract and promote these types of developments by ensuring Town plans and incentives are constructed in a manner which provides the development community clear and timely information; and by steadfastly maintaining a professional and solution-oriented municipal business. The Town will continue to value and support our full-time and part-time resident population by providing an exceptional level of municipal services and by working to retain existing businesses as the Town seeks to expand its retail and commercial base, while fostering our sense of community through both our spirit and the built environment. The importance of vibrancy and activity within the Town will be supported by attracting an array of new and diverse cultural and recreational events to Avon which are in concert with the values of our community and serve to nurture a cohesive sense of place and public. It is the Town of Avon’s elected officials and staff commitment to fiduciary responsibility, effectiveness and efficiency in providing government services and a practiced belief in open and transparent governance that will lead the successful implementation of this vision for the growth and development of Avon. 2015-16 STRATEGIC PLAN September 9, 2014 Pa g e 3 Strategic Plan Fiscal Years 2015-16 Develop and Support Business-like Practices and a High Performance Culture at Town Hall Ensure that Town government is managed and operated as a “competitive” business and in a manner which is client-focused and solution-oriented, meeting the highest standards of fiduciary responsibility, implementing best practices, and using Town resources effectively and efficiently in each department. Strategies:  Invest in a Leadership Training Program for Town Council  Hold a Council Retreat twice a year  Develop annual Work Plans in all departments to implement the Strategic Plan  Elected officials and staff will lead by example in conducting its operations, including but not limited to abiding by Town codes, plans and initiatives for the private sector  Develop and distribute every two years an external Community Survey should be conducted in early 2015 to assess satisfaction with Town services and to gather public input about improvement priorities and future development  Develop and distribute an annual internal Town Hall survey to ensure staff is meeting high service expectations, efficiencies where possible, and its stated cultural values and objectives  Continue to review all Town departments to assess the necessity of tasks and functions, effectiveness and efficiency in meeting department responsibilities, staffing levels, and future needs; evaluate effectiveness of organizational changes  Schedule at least two (2) staff training sessions on “competitive” business practices and fiduciary responsibility  Provide supervisor training; and “guest” service training for all employees  Ensure Town staff practices competitive pricing in purchasing resources for the Town 2015-16 STRATEGIC PLAN September 9, 2014 Pa g e 4 Strategic Plan Fiscal Years 2015-16 Civic Engagement & Participation The Town of Avon believes that citizen participation is essential to good governance, constructive performance evaluation, public decision-making, innovation, facility investment and guided economic development programs. Over the next two years, the Town of Avon will work to foster and support civic engagement by encouraging citizen, visitor and youth participation. Strategies:  Practice open and transparent government to maintain citizen trust  Conduct a comprehensive review of how municipalities are meeting the communication needs of constituents to expand outreach efforts. This includes the use of social media (pro/con), website and print (newspaper). All segments of the population should be included: younger generation and Hispanic population.  Update Town of Avon website to serve as the most important information center for government services and actions, Town activities, including but not limited to special events, multi-use trails, online forms, timely news and important links  Avon will strive to be a regional and statewide leader, taking positions on boards and participating at meetings  Establish ad hoc community boards to assist with major projects, such as but not limited to the playground design, special event identification and development, street markets, code changes  Establish standing committees for on-going government programs such as the Trails Advisory Group and Creative Arts Commission  Encourage volunteerism 2015-16 STRATEGIC PLAN September 9, 2014 Pa g e 5 Strategic Plan Fiscal Years 2015-16 Stakeholder & Regional Partnerships Meet with owners and representatives of the Village (at Avon), Traer Creek Metropolitan District, Hoffmann Commercial Properties, East-West Partners/Starwood Capital Group and Beaver Creek Resort to develop good communication, timely understandings and the trust necessary for the future development of the Town of Avon. This outreach and communication is the responsibility of all elected and appointed officials and the employees of the Town of Avon. In addition, strong relationships are needed with regional governments. Most prominent are the interests shared with the Town of Vail, Eagle-Vail, Edwards and Eagle County in fostering smart growth and a sustainable economy. Strategies:  Throughout the year, Liaison Appointees and Town Manager will meet with respective principals for developments in the Town of Avon to discuss current issues, development needs and opportunities  Annual or bi-annual sessions will be held in joint meeting settings with government partners  Throughout the year, fully participate and collaborate in regional transportation planning, service expansion, identification consistency and transit efficiencies, as well as I-70 Corridor Demand Management work and advocacy for an AGS station in Avon  Ensure Avon representatives apply for regional boards, including trails, affordable housing and transit  A peer group will be initiated of land use planners for tri-annual meetings 2015-16 STRATEGIC PLAN September 9, 2014 Pa g e 6 Strategic Plan Fiscal Years 2015-16 Infrastructure, Parks, Preserves, Trails & Sustainability Provide for the development of capital projects, which support the community-resort economy, and promote the Town brand through a five-year capital investment plan, utilizing appropriate funding mechanisms such as pay-as- you-go, new mill levy and/or current tax receipt long-term debt. Develop a strong foundation for the stewardship of Avon’s natural resources through regional clean water programs and appropriate development of these green and valuable resources. Promote sustainability of investments through the funding of maintenance and programs and events designed to enhance the Town’s energy efficiency and waste reduction efforts. Strategies:  Maintain Town infrastructure, including all buildings, roads, parks, preserves and trails; catch-up funding will be required  With the Water Authority, promote water conservation  Evaluate the Vail recycling/solid waste program for implementation in Avon  Continue to prepare a Five Year Capital Plan while considering the following :  The current Town Hall is dysfunctional, energy inefficient and in need of major structural repair. A renovated or new Town Hall should be considered a high priority  Identify the options for Town Hall future uses should the current civic services be relocated  Development of a Public Safety building with the Fire District  Bike climbing lane as part of Metcalf Road improvement  Regional support for meeting IMBA “Ride Center” status  Interim renovations and future expansion of the Recreation Center and investments in Town Park will build Avon as an important Recreation and Cultural Center with the Pedestrian Mall  Modification to the Cabin for bathrooms needed for the Pavilion (Stage) 2015-16 STRATEGIC PLAN September 9, 2014 Pa g e 7 Strategic Plan Fiscal Years 2015-16 Economic Development The Town will continue to value and support a strong and diverse economy by providing an exceptional level of municipal services for Avon businesses and by working to retain existing businesses as the Town seeks to expand its retail and commercial base. The importance of vibrancy and activity within the Town will be supported by partnering with existing special events and attracting an array of new and diverse cultural and recreational events to Avon, which meet the Town’s brand and are in concert with the values of our community and serve to nurture a cohesive sense of place and public. Strategies:  Summer revenue, when measured by sales tax, lags winter receipts. The investment in special events is needed to support restaurants and lodges – and is an important role for the Town. This is implicit with the construction of the new Pavilion. Events must be evaluated annually for both ROI and ROO (Return on Objectives), with financial success being achieved within three years.  Continue to solicit and fund signature events at the Nottingham Pavilion (Stage)  Outreach to Beaver Creek and VVF should be pursued to maximize regional event partnerships  Develop a marketing and management plan for the Pavilion (Stage) for private requests  With the completion of the Pedestrian Mall:  Funding and success of Après Avon is a high priority. Taking this success to Birds of Prey or other important weekend should be planned  The Creative District should be pursued; including formation of a Creative Arts Committee. A Creative Arts District Strategic Plan should be developed and adopted.  Town legislation to allow vendors on the Pedestrian Mall; with preference for local businesses should be enacted  Summer farmer’s and/or arts’ market(s) should be implemented  An effective marketing plan for Avon’s events, vacation amenities (including lake, beach, and trails) should be developed  With the investments in East Avon, attention should be given to lodging development in West Avon, District standards updated and potential district formation for façade upgrades  Formalize the organization of the Economic Development Group to actively engage businesses with Town government and for advice on special projects, such as branding was done in 2014 and to cultivate a strong non-profit business association for the important work of local shopping programs, local business promotion, etc.  Through regional partnerships, through the year, update website data base and revenue software/spreadsheet system to assist with statistical analysis of key metrics identification in collaboration with Avon businesses and regional economic development committees; understand the demographic characteristics of visitors to the region  Support regional efforts, with identification of Avon-specific benefits and measurable outcomes  Review and update the Town’s Private-Public Partnership Policy and investment Policy, as needed  Compile “Avon Business Summary Report”, which provides information about the characteristics of Avon’s various business sectors, including inventory of retail and commercial spaces occupancy and vacancy data, and leasing rates, to use as basis for partnering with the business community in attracting and expanding business in Avon  If requested by the Town Council, evaluate expansion of URA into other qualified areas of Avon; if URA expansion is desirable, solicit RFQ and identify budgetary needs 2015-16 STRATEGIC PLAN September 9, 2014 Pa g e 8 Strategic Plan Fiscal Years 2015-16 Land Use & Development The current redevelopment in Avon and preparing for future growth is essential to Avon’s on-going success as a resort community. Through a critical evaluation of and modifications to the Town’s planning documents, the Town has the opportunity to provide proper guidance and surety for future development and to attend to areas of health, safety and welfare. The Town’s proactive planning for future growth, an openness to new community-development trends and private property interests sets forth a dynamic relationship for the construction of the built environment and requires Avon’s Community Development Department and Planning and Zoning Commission to invest in professional development and information at the leading edge of resort growth. Strategies:  The development of an implementable multi-modal transportation and parking plan, in collaboration with stakeholders, is a high priority and should result in a program for supporting Avon as a pedestrian and bicycle friendly community, with seamless public transit and adequate parking  Work with the East Avon owner HCRE on a master development plan, district amendment and code revisions to facilitate a streamlined process for development approvals  Identify with the Planning and Zoning Commission 2014 Code amendments, including “clean-up” of definitions, charts, etc. identified through use of the Code over the past year and sections which should be updated, and sections which should be updated, such as the sign code. Evaluate whether Wildridge should be “zoned” rather than continuing to have a PUD Zone for the development.  Develop the scope, public process, schedule for commencement and completion of the Comprehensive Plan Update, including development of questions for the Community Survey, (Early 2015)  Revise the Sign Code  Process Annexation and Zoning applications, including surveying and public notification requirements, for the 85.99 acre “Village Parcel” deeded to Town trough the Eagle Valley Land Exchange of 2013  Take the lead in organizing mountain resort planning group to meet in different locations at least annually with shared agenda items  Select and tour a mountain resort community similar to Avon at least once a year for the purposes of studying transportation, design standards, affordable housing, main street improvements, etc.  Seek to finalize the County IGA/Joint Planning Area  Evaluate the Wildridge/Mountain Star/Singletree seasonal wild land fire program, including summer “hot shot” staffing and community outreach for current home to amend residential landscaping  Organize study session with the County Commissioners and area jurisdictions to assess the areas wildland fire program  Develop land use regulations for new development and major renovations to protect homes from wildland fire 2015-16 STRATEGIC PLAN September 9, 2014 Pa g e 9 Strategic Plan Fiscal Years 2015-16 Water Issues Identify and unresolved water issues and develop a timetable and approach for resolution over the next two years; manage what can be done against higher priorities. Strategies:  Schedule with Council and Water Authority representatives a program and policy for the accounting and dedicated use of unallocated water held by the Authority  Continue with the Water Authority, Avon representatives and Mountain Star residents to reach resolution of the Mountain Star water tank, fire flow, and system delivery issues  Resolve Avon Drinking Water Facility fenced area for ownership and/or lease to the Water Authority. Evaluate and remediate liability concerns, if any, for Avon Drinking Water Facility fenced area with the Water Authority.  Participate as a member of the Urban Run-off Group to understand activities and possible 2015 funding request for a Gore Creek Water Quality Improvement Plan. Seek to retain seat on the Executive Committee.  Draft and execute an agreement with the ERWSD for long term cost sharing and O&M responsibilities of the Heat Recovery System  Request evaluation and development of options for a lower monthly water rate for residences less than 3,500 square feet and for master water meters serving low income households  Organize water and wastewater documents and files at Town Hall; institutionalize knowledge. This project is 95% complete.  Develop Water Bank for Village (at Avon) water uses 2015-16 STRATEGIC PLAN September 9, 2014 Pa g e 10 Strategic Plan Fiscal Years 2015-16 Grab the Bull by the Horns Opportunities In the last two years, Avon has taken action on unforeseen opportunities. Most notable are the West Avon Preserve Multi-use Trails and design and construction of the Pavilion (Stage) and Pedestrian Mall continuation to Benchmark Road. In addition, Avon actively sought out successful producers to develop new special events in Nottingham Park, with Flavors of Colorado, WinterWonderGrass, Bravo!Vail and Man of the Cliff each seeing a first year of seed funding support. These opportunities acted on, required the financial support and staff availability and capability to be flexible and to shift work plan priorities. Avon desires to retain an alacrity to respond to unforeseen opportunities and, whenever possible, to proactively engage in endeavors for the good future of the Town. Strategies:  Council members need to be in the community to learn of opportunities which can be assessed and when viable acted upon  Maintain a fiscal position resilient to future economic fluctuations  Develop reserves for special events, recreation amenities and business development  Support a work culture that is flexible, innovative and resilient to change TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY AUGUST 26, 2014 AVON TOWN HALL, ONE LAKE STREET Page 1 1. CALL TO ORDER & ROLL CALL Mayor Pro Tem Fancher called the meeting to order at 4:00 pm at the Swift Gulch conference room. A roll call was taken and Council members present were Buz Reynolds, Matt Gennett, Dave Dantas, Jake Wolf and Chris Evans. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Assistant Town Manager Scott Wright, and Executive Assistant Preston Neill. (Mayor Carroll arrived late.) 2. WORK SESSION 2.1. DRAFT 2015-16 STRATEGIC PLAN 2.2. COMMUNICATION PROTOCOLS 3. ADJOURN TO AVON TOWN HALL COUNCIL CHAMBERS AT 6:00 PM 4. CALL TO ORDER & ROLL CALL Mayor Carroll called the meeting to order at 6:25 pm. A roll call was taken and Council members present were Jake Wolf, Buz Reynolds, Matt Gennett, Jennie Fancher, Chris Evans, and Dave Dantas. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Planning Manager Matt Pielsticker, Assistant Town Manager Scott Wright, Executive Assistant Preston Neill and Town Clerk Debbie Hoppe as well as members from the public. 5. AP PROVAL OF AGENDA There were no changes to the agenda. 6. PUBLIC COMMENT Michael Cacioppo, Wayne Hanson, Betty Todd and Tom Beaver commented. 7. ACTION ITEMS 7.1. PUBLIC HEARING ON APPEAL, IN ACCORDANCE WITH A VON MUNICIPAL CODE §7.16.160, APPEALS, FOR A PZC DECISION TO DENY A MINOR DEVELOPMENT PLAN APPLICATION FOR 230 AND 245 CHAPEL PLACE, CHAPEL SQUARE SUBDIVISION – HOFFMANN COMMERCIAL R EAL ESTATE (PLANNING MANAGER MATT PIELSTICKER) Mayor Carroll opened the Public Hearing and the following persons commented: Jeff Meier, Wayne Hanson, Bette Todd, and Todd Frye. Councilor Dantas moved to meet in Executive Session at 7:18 pm for a conference with the Town Attorney for the purpose of receiving legal advice under C.R.S. §24-6-402(2)(b) regarding the Hoffmann Commercial Real Estate Minor Development Plan appeal; Councilor Reynolds seconded the motion and it passed unanimously by those present. TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY AUGUST 26, 2014 AVON TOWN HALL, ONE LAKE STREET Page 2 Councilor Reynolds moved to end Executive Session; Councilor Wolf seconded the motion and it passed unanimously. Executive Session adjourned at 7:55 pm. Councilor Gennett moved to uphold the Planning and Zoning Commission Decision to deny the Appeal Application and made the following findings: 1. The Avon Town Council considered the Planning and Zoning Commission’s decision made on May 6, 2014; considered the application materials; considered all correspondence between the Applicant and Town Staff; considered written comments in the Council packet; and all public testimony at the public hearings; and 2. The Application does not comply with §7.16.090(f)(1), Design Review, which reads “The design relates the development to the character of the surrounding community; or, where redevelopment is anticipated, relates the development to the character of Avon as a whole”; 3. The Avon Town Council finds that the “surrounding community” includes Buildings A, B, and C of the Chapel Square PUD; and 4. The architectural style of this design element (shutters and exterior doors) is not representative of the contemporary architectural style of the buildings; and 5. By only adding this design element to Buildings A and C, Buildings A, B, and C would not have a consistent architectural style; and 6. The Avon Town Council has considered the applicable review criteria contained in §7.16.080(f), Development Plan, Avon Municipal Code, and finds that the application does not comply with §7.16.080(f)(4); specifically the building elevations as proposed are not “consistent with a previously approved…planned development, or any other precedent plan or land use approval for the property.” Councilor Wolf seconded the motion and it passed unanimously by those present. Councilor Dantas left meeting at 9:20 pm and did not return. 7.2. PUBLIC HEARING SECOND READING OF ORDINANCE 14-13 APPROVING THE GRANT OF A REVOCABLE ENCROACHMENT LICENSE TO INSTALL, CONSTRUCT AND MAINTAIN PRIVATE IMPROVEMENTS ON TOWN- OWNED RIGHT-OF-WAY AND PROPERTY AT CHRISTY SPORTS FOR DEVELOPMENT OF A DDITIONAL PUBLIC PARKING – C ONTINUED FROM AUGUST 12, 2014 MEETING (TOWN MANAGER VIRGINIA EGGER) Mayor Carroll opened the Public Hearing, no comments were made. Mayor Carroll moved to continue Public Hearing Second Reading of Ordinance 14-13 to the September 9th meeting; Councilor Evans seconded the motion and it passed unanimously by those present. (Councilor Dantas was absent.) 7.3. RESOLUTION NO. 14-20, SERIES OF 2014, REFERRING A B ALLOT QUESTION FOR THE RECREATION CENTER EXPANSION AND REFURBISHMENT AND ASSOCIATED SURFACE P ARKING (ASSISTANT TOWN MANAGER SCOTT WRIGHT) TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY AUGUST 26, 2014 AVON TOWN HALL, ONE LAKE STREET Page 3 Council Members are not in favor of a Ballot Question for the Recreation Center Expansion and Refurbishment and associated Surface Parking at this November’s election and no action was taken. 7.4. REVIEW AND DIRECTION ON RESPONSES TO PAVILION FINANCING TERM SHEET (ASSISTANT TOWN MANAGER SCOTT WRIGHT) 7.3. REVIEW OF FAIR CAMPAIGN PRACTICES (TOWN A TTORNEY ERIC HEIL) 7.6. ACTION ON PURCHASE AND SERVICE AGREEMENT FOR KRONOS TIME KEEPING SYSTEM (ASSISTANT TOWN MANAGER SCOTT WRIGHT) Mayor Pro Tem Fancher moved to approve Action on Purchase and Service Agreement for KRONOS Time Keeping System; Councilor Evans seconded the motion, and it was approved unanimously by those present. 7.7. MINUTES FROM AUGUST 12, 2014 MEETING (TOWN CLERK DEBBIE HOPPE) Mayor Carroll asked to make a change under Call to O rder and Roll Call to insert ‘at the Swift Gulch Conference R oom’. Councilor Evans moved to approve the M inutes as modified by Mayor Carroll; Councilor Wolf seconded the motion and it passed unanimously by those present. 8. WORK SESSION 8.1. UPDATE ON M ETCALF R OAD BIKE CLIMBING LANE CONSTRUCTION COSTS AND SCHEDULE (TOWN ENGINEER JUSTIN HILDRETH) 8.2. REVIEW AND DIRECTION REGARDING RULES AND REGULATIONS IN THE WEST AVON PRESERVE (PLANNING MANAGER MATT PIELSTICKER) Prentice & Carol O’Leary, Mary Ann Scherpf, and Lisa Curry commented. 9. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 10. COUNCIL COMMENTS 11. MAYOR REPORT AND FUTURE AGENDA ITEMS 12. WRITTEN REPORTS 12.1. FINANCIAL REPORT 13. E XECUTIVE SESSION 13.1. 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 TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY AUGUST 26, 2014 AVON TOWN HALL, ONE LAKE STREET Page 4 Mayor Pro Tem Fancher moved to meet in Executive Session at 10:41 pm for a 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. Councilor Gennett seconded the motion and it passed unanimously by those present. Councilor Evans moved to end Executive Session; Councilor Wolf seconded the motion and it passed unanimously. Executive Session adjourned at 10:59 pm. 14. ADJOURNMENT There being no further business to come before the Council, the regular meeting adjourned at 11:00 pm. RESPECTFULLY SUBMITTED: _________________________________ Debbie Hoppe, Town Clerk APPROVED: Rich Carroll ________________________________ Dave Dantas ________________________________ Chris Evans ________________________________ Jennie Fancher ________________________________ Albert “Buz” Reynolds ________________________________ Jake Wolf ________________________________ Matt Gennett ________________________________ TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Kelly Huitt, Budget Analyst Date: September 3, 2014 Agenda Topic: 2015-2016 Budget Work Session A PowerPoint presentation including a Situational Analysis will be provided during the budget work session. The information below is a summary of key facts. Revenue Projections General Fund Sales Tax  Up 7.13% over 2013 and 4.75% over budget through June 2014  Total year over year growth equals $223,988.02, of which 43.51% can be attributed to new business  Increase current 2014 budget by an additional 4%, or $260,227, to reflect actual increases in revenue collections  Project 4% year over year increase 2015-2016 Accommodations Tax  Up 7.69% over 2013 and 4.59% over budget through June 2014  Increase current 2014 budget by an additional 4%, or $36,611, to reflect actual increases in revenue collections  Project 4% year over year increase 2015-2016 Property Tax  Decrease in 2013 net assessed values caused a -9.35% decrease in 2014 property tax revenue  2014 net assessed values remain flat keeping revenue stable for 2015  Project 10% increase in 2016 as it is a reassessment year Building Fees  2014 saw a -61.35% decrease in Building Fees due to unusually high 2013 fees from the Wyndham building permits  Project zero change in building fees in 2015-2016 Avon Recreation Center Admission Fees  Decrease final revised 2014 budget by $52,226 to reflect actual revenue collections  Project 4% increase in 2015 and 2016 as a result of improving economic conditions Special Events Admission Fee  New fee in 2014- Budgeted $15,000 for Winter Wonder Grass ticket sales and actuals came in at $17,670. The 2014 revised budget was amended to reflect this increase.  Anticipate a 27.33% increase in 2016 Winter Wonder Grass ticket sales based on projections provided by the event producer and approved by staff. This estimate is provided that 3,750 tickets are sold daily.  Forecast 50% revenue increase in 2016. This is due to the contractual agreement by the producer to pay the Town $1,000 for every 100 tickets sold over 3,800 per day. This estimate includes a 10% increase in ticket sales to 4,125 daily and $3,000 per day for the 300 tickets estimated over 3,800. Village at Avon Retail Sales Fee  Added $625,000 in revenues related to this add-on fee during the first amendment to the General Fund budget  Project a 4% increase in 2015-2016  $150,000 will be transferred to CIP in 2015 and 2016 due to the requirement to fund the asphalt overlay account General Fund Summary  The 2014 original budget saw a ($103,123) decrease to major revenue sources in the General Fund due to decreases in net assessed values and building fees.  Changes to the 2014 final budget based on actuals to date and the addition of the VAA RSF will realize $872,372 in additional revenues  2015 budget projections equal a $368,541 increase in the Town’s major revenue sources  The 2016 budget anticipates another $537,084 in revenues over 2015 from a slight recovery in assessed values combined with a 4% increase in sales tax, accommodations tax, and recreation fees. Fleet Maintenance Shop Rates  Current Rates = $102/hr. for light duty vehicles and $110/hr. for heavy duty vehicles  The Town annually compares rates to private shops in order to stay competitive. Fleet rates were last changed in 2011 when the fee went from one blanket rate of $105 for all vehicles to separate rates for light duty vs. heavy duty vehicles.  A survey of regional private shops in 2014 produced an average of $118.33/hr. for light duty and $141.00/hr. for heavy duty.  Based on this survey the Town plans to increase 2015 shop rates to $105 for light duty and $115 heavy duty vehicles. This increase puts the Town’s rates more in line with other shops in the area while remaining competitive by maintaining a lower than average rate for both vehicle types.  The increase in rates will translate into approximately $25,000 in additional revenue Capital Projects – Real Estate Transfer Tax  Fund revenues are up 52.03% compared to 2013 and 157.44% compared to the budget through July 2014  Increase current 2014 budget by an additional 37.5%, or $600,000, to reflect actual increases in revenue collections. Most of this increase is due to the large purchase of Chapel Square.  2015 RETT revenues are projected to increase 73.88% or $1,625,312 due to the anticipated sale of Wyndham time shares.  2016 RETT collections are projected to go back down ($507,232) based on the 2015 liquidation of a large amount of Wyndham time shares. 2015 Budget – Personnel Benefits & Compensation PAGE 1 OF 2 TOWN COUNCIL REPORT To: Honorable Mayor and Avon Town Council From: Karyne Spadi, Human Resources Generalist Date: August 26, 2014 Agenda Topic: Budget 2015: Review Proposed Employee Compensation and Benefits Program Summary Over the course of the past year, the Benefits and Compensation Committee has met periodically to discuss various components which make up the compensation and benefits program of the Town. The Committee is comprised of a representative group of employees and its recommendations are provided to Department Heads for a final review and recommendation. Recommendations regarding changes to employee salaries and wellness benefits for 2015 are discussed below. There are no proposed changes to other compensation. Employee Salary Step Program A salary market survey was completed in July comparing Avon’s salary ranges to the Towns of Vail and Breckenridge, and to Eagle County. For recreation positions, the Western Eagle County Metropolitan Recreation District (WECMRD), and the Town of Silverthorne are used for the market analysis. The results of the survey are used to evaluate adjustments to salary ranges, where appropriate. The salary market survey from the above identified comparable markets reflects an average increase of 2.2%, which results in a .46% increase when applied to Avon’s Salary Step Program. Council last year brought salary pay ranges to the market, which has been effective in maintaining the Town’s compensation in comparison to other governmental organizations with whom the Town competes for employees. The Salary Step Program, launched in January 2014, is approaching the second year of implementation. The step structure, designed to reflect the increasing value of an employee over the years and to provide an unbiased approach for any employee to reach the top of the pay range, aligns with the employees’ stated culture of a “high performing ” with the “pay for performance” philosophy. Since implementation, the program has been enthusiastically accepted by employees and exceedingly successful in competitive hiring and retaining the best employees. Based on high performance, employees have received between a 3% and 6% increase on his or her evaluation date. A secondary objective, implemented recently by the Town Manager, endeavors to establish as the minimum entry level salary, a figure equivalent to 70% of the Eagle County Average Minimum Wage index (AMI), which is used for establishing income levels for acquiring affordable of housing within Eagle County. The minimum established for 2015 is a beginning salary of $41,580. Six entry level salaries of the Town have been adjusted up to this figure at an estimated total cost to the Town in 2015 of $4,694. In addition, four other salary ranges have been adjusted to reduce the total number of steps necessary to reach the top step, which again, has been established at a level of at least 70% of AMI. 2015 Budget – Personnel Benefits & Compensation PAGE 2 OF 2 Collaborative meetings continue to thoroughly review current staffing levels of each position within the parks, roads and bridges and transit divisions resulting in a new “rover” position and cross- training of staff to meet the workload demands of the three divisions. This process has resulted in a reduction of four full-time positions within these divisions and overall the Town has seen a reduction in the number of full-time employees from a projected staffing level of 83.75 to an actual of 78.75 for 2014. Critical analysis will continue to monitor and create efficiencies within all Town divisions. The changes to employee wages as proposed above result in the following expenditures: Total Town of Avon Salaries: 2014 $4,665,820 2015 $4,873,578 (Proposed) 2014 Estimated Cost for Step Program: (One step at successful performance evaluation anniversary date) $180,686 (3.73%) Estimated Cost for Salary Range Market Adjustments: $ 22,378 (0.46%) Estimated Cost for AMI Adjustment: $ 4,694 (0.10%) $207,758 (4.29%) Employee Health and Wellness Program No changes to the Town’s health insurance coverages or other benefits are being contemplated for 2015. This includes maintaining current staff contribution levels. Over the past couple of years, the Town’s medical benefits have been under review, highly focused on the changes occurring with National Health Care Reform and the Affordable Care Act (ACA). During this time, due to changes in the ACA definitions of a full-time employee, a due diligence assessment created the necessity to develop and define Employee Classification guidelines and hours associated with these classifications. Implementation of the timekeeping software, Kronos, will assist with tracking and calculating hours of regular and seasonal part-time employees. In addition to containing coverage costs associated with the ACA, the Benefits and Compensation Committee completed a thorough review of the benefits associated with implementing a Wellness Program. After much review and discussion by the committee it was decided the first tier of the three year Wellness Program be administered in house, a savings of $5,000. Originating from the goal of containing health care costs by reducing premiums and claims, the program was established to increase the well- being and productivity of all Town employees by creating a culture of health, whereby promoting health as a valued part of the normal workday environment. The Committee will continue to evaluate the Wellness Program and ways of reducing health care costs. It will remain the goal to contain the employee contribution costs to the amount in 2014 for 2015 and to continue to provide superior benefits and compensation as part of the total rewards package. Staff will present a PowerPoint presentation during the budget work session on Tuesday and look forward to your direction in effecting these changes in the 2015 budget TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Preston Neill, Executive Assistant to the Town Manager Date: September 9, 2014 Agenda Topic: Town of Avon Procurement Policy Update BACKGROUND: Based on discussion and direction regarding the Town’s current Procurement Policy at the July 22, 2014, Town Council meeting, staff has researched the procurement/purchasing policies of several comparable Colorado municipalities. The purpose is to identify what other municipality’s standards of conduct/restrictions for public employees and elected officials are in procuring work. The policies of the following Colorado cities and towns were analyzed: Aspen, Durango, Steamboat Springs, Telluride and Vail. TOWN OF AVON PROCUREMENT POLICY: Attached are the applicable sections from the Town of Avon Procurement Policy, which state the standards of conduct for public employees and Town Council members in procuring work for the Town. OTHER PROCUREMENT POLICIES – STANDARDS OF CONDUCT: City of Aspen, Colorado: Municipal Code: Title 4 – Procurement Code The City of Aspen’s Procurement Code defines “employee” as the following: “Employee means an individual drawing a salary from a government body.” The code includes a section regarding “Conflict of Interest” where it explains “unless a specific exemption is obtained…it shall be a breach of ethical standards for any employee to participate directly or indirectly in drafting or preparing specifications, obtaining or processing approvals, participating in source selection or contract formation or granting approval for any procurement” when the employee is aware that the employee, any member of the employee’s immediate family or a business or organization in which the employee or any member of the employee’s immediate family has a financial interest pertaining to the procurement. In the event a conflict exists, the code indicates “an employee shall promptly file a written statement of disqualification and shall withdraw from further participation in the transaction involved. The employee may, at the same time, apply to the City Attorney…for an advisory opinion as to what further participation, if any, the employee may have in the transaction.” City of Durango, Colorado: Purchasing Policy The City of Durango’s Purchasing Policy emphasizes the unethicality for any employee or public official “who is participating directly or indirectly in the purchasing process to become or to be, while such a City employee or officer, the employee of any person contracting with the City.” This policy includes a provision regarding waivers where a waiver from the conflict of interest may be granted by the City Manager upon determining that “the contemporaneous employment or financial interest of the City employee or officer has been publicly disclosed; the City employee or officer will be able to perform the purchasing functions without actual or apparent bias or favoritism; and the award will be in the best interests of the City.” City of Steamboat Springs, Colorado: Personnel and Administrative Regulations Manual: Title III – Procurement Regulations Unlike the Town of Avon Procurement Policy, the City of Steamboat Springs’ Procurement Regulations does not include a definition for “employee” to clarify who falls within the meaning. It does include a section regarding “Conflict of Interest” that prohibits an employee from participating in or attempting to influence a decision when a conflict of interest exists. Additionally, a conflict is described as “any procurement of goods or services over $1,000, and/or any contract over $1,000, from an employee, employee spouse or immediate family member.” In the event a conflict exists, it does not necessarily mean the City of Steamboat Springs may not do business with the individual or company identified with a conflict. Their policy requires that “disclosure be made to the City Manager with a recommendation that proceeding with the procurement where a conflict of interest exists, is in the ‘best interests’ of the city.” Town of Telluride, Colorado: Municipal Code: Chapter 4, Article 6 – Procurement Code The Town of Telluride’s Procurement Code only references the sale of town-owned property to employees. Town of Vail, Colorado: Policy: Town of Vail Purchasing (P-1) Nowhere in the Town of Vail Purchasing Policy does it reference how employees/elected officials may or may not participate in projects or work funded by the Town or anything related to Conflict of Interest. CONCLUSION: The current Town of Avon Procurement Policy is very clear in identifying who falls within the definition of “employee”: “Employee means an individual drawing a salary from the governmental body, whether elected or not and any non-compensated individual performing a personal service for any governmental body, including but not limited to members of the Town Council, members of volunteer and/or advisory boards.” The Town’s current Procurement Policy does not prohibit members of the Town Council from submitting bids to procure work from the Town. It simply prohibits a Town Council from participating in any part of the procurement process when such Town Council member is seeking to procure the work. This is similar to the policies of the City of Aspen, City of Durango and the City of Steamboat Springs. The policies of the Town of Telluride and Town of Vail are less rigid. COUNCIL ACTION: Town staff requests direction from the Town Council should you desire changes to the current Procurement Policy. ATTACHMENT: Standards of Conduct from the Town of Avon Procurement Policy