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TC Council Packet 10-28-2014 TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, OCTOBER 28, 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, MATT GENNETT ALBERT “BUZ” REYNOLDS, JR., JAKE WOLF 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. ______________________________________________________________________________________________________________ OCTOBER 28TH - 4:00 P.M. – SITE WALK – MEET AT TOWN HALL THE MAIN STREET MALL – NEW TOWN HALL (SKIER BUILDING) - LETTUCE SHED LAND – POSSIBILITY PLAZA THREE OR MORE COUNCIL PERSONS MAY BE ATTENDING THE SITE WALK 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 3.1. PROCLAMATION HONORING EAGLE COUNTY GIVES (MICHELLE MALONEY) 4. ACTION ITEMS 4.1. PUBLIC HEARING ON SECOND READING OF ORDINANCE 14-15, SERIES OF 2014, COMCAST FRANCHISE AGREEMENT (ASSISTANT TO THE TOWN MANAGER PRESTON NEILL) 5. WORK SESSION 5.1. 2014 CAPITAL PROJECTS CONSTRUCTION UPDATE (TOWN MANAGER VIRGINIA EGGER) 5.2. DISCUSSION OF SKIER BUILDING INTERIOR FINISH PROCESS (MAYOR RICH CARROLL) 5.3. 2015-2016 BUDGET WORK SESSION - ALL FUNDS AND FIVE-YEAR CAPITAL IMPROVEMENTS PLAN (ASSISTANT TOWN MANAGER SCOTT WRIGHT) 5.4. PROCUREMENT POLICY DIRECTION TO AMEND (ASSISTANT TO THE TOWN MANAGER PRESTON NEILL) 5.5. TRAILS ADVISORY GROUP – PURPOSE, DUTIES AND PROCESS FOR SELECTION (PLANNING MANAGER MATT PIELSTICKER) TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, OCTOBER 28, 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. ACTION ITEMS 6.1. FIRST READING OF ORDINANCE 14 –19 AMENDING AVON MUNICIPAL CODE TITLE 6: ANIMALS TO ALLOW FOR DOGS TO BE PERMITTED OFF-LEASH AT ALL TIMES, UNDER VOICE CONTROL, WITH OWNERS REQUIRED TO CARRY LEASHES IN THE WEST AVON PRESERVE (PLANNING MANAGER MATT PIELSTICKER) 6.2. LETTERS OF SUPPORT FOR COLORADO PARKS AND WILDLIFE GRANT APPLICATIONS FOR TRAIL PLANNING AND MAINTENANCE WORK (PLANNING MANAGER MATT PIELSTICKER) 6.3.FIRST READING OF ORDINANCE 14-18 APPROVING ACQUISITION OF TRACT S, BLOCK 3, WILDRIDGE FOR HIKING AND BIKE TRAIL (PLANNING MANAGER MATT PIELSTICKER) 6.4. ACTION ON MOSES, WITTEMYER, HARRISON & WOODRUFF, P.C. REVISED AGREEMENT FOR LEGAL SERVICES AS WATER COUNSEL (TOWN MANAGER VIRGINIA EGGER) 6.5. MINUTES FROM OCTOBER 14, 2014 MEETING (TOWN CLERK DEBBIE HOPPE) 7. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 7.1. COUNCILOR JAKE WOLF UPDATES 7.1.1 ECRTA Board Meeting 7.1.2 Playground Committee 7.1.3 Harmony Park Musical Playground 7.1.4 Creative Industries Update 7.1.5 Community Gardens at Avon Elementary 7.1.6 Performance Pavilion Update 7.1.7 AED/CPR Training Reminder for November 11th 8. COUNCIL COMMENTS 9. MAYOR REPORT AND FUTURE AGENDA ITEMS 10. WRITTEN REPORTS 10.1. MONTHLY FINANCIALS (BUDGET ANALYST KELLY HUITT) 10.2. TOWN STAFF APPROVAL AUTHORIZATION FOR VILLAGE AT AVON PUBLIC IMPROVEMENTS AGREEMENT (ATTORNEY ERIC HEIL) 11. EXECUTIVE SESSION (THIS MEETING IS NOT OPEN TO THE PUBLIC) 11.1. MEET PURSUANT TO COLORADO REVISED STATUTE §24-6-402(4) (F) FOR THE PURPOSE OF DISCUSSING PERSONNEL MATTERS RELATED TO THE ANNUAL PERFORMANCE REVIEW OF THE TOWN ATTORNEY & TOWN MANAGER 12. ADJOURNMENT TOWN OF AVON, COLORADO TOWN OF AVON MEETINGS FOR TUESDAY, OCTOBER 28, 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 JENNIE FANCHER BOARD MEMBERS 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 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. RENEWAL OF LIQUOR LICENSES 4.1. Applicant: Vail Valley Mexican Foods, LLC d/b/a Agave Location: 1060 Beaver Creek Blvd. Type: Hotel and Restaurant Manager: Richard Wheelock 4.2. Applicant: Fork & Knife, Inc. d/b/a Blue Plate Location: 42 E. Beaver Creek Blvd. Type: Hotel and Restaurant Manager: Adam Roustom 4.3. Applicant: Avon Properties Leasing, LLC d/b/a Village Warehouse Wines Location: 101 Fawcett Road Type: Liquor Store Manager: Peter Cuccia 5. MINUTES FROM OCTOBER 14, 2014 6. ADJOURNMENT TOWN OF AVON, COLORADO AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, OCTOBER 14, 2014 AVON TOWN HALL, ONE LAKE STREET ALB 10-14-2014 Minutes.docx Page 1 1. CALL TO ORDER AND ROLL CALL Mayor Carroll called the meeting to order at 5:10 pm. A roll call was taken and Board members present were Dave Dantas, Chris Evans, Jennie Fancher, Matt Gennett, Buz Reynolds and Jake Wolf. Also present were Town Manager Virginia Egger, Town Attorney Eric Heil, Planning Manager Matt Pielsticker, Assistant to Town Manager 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: Nova Entertainment, LLC d/b/a Loaded Joes Location: 82 E. Beaver Creek Blvd. #104 Type: Hotel and Restaurant Manager: Kent Beidel The application was presented with no concerns for the renewal application. Board member Dantas moved to approve the Hotel and Restaurant Liquor License for Nova Entertainment, LLC d/b/a Loaded Joes; and Board member Evans seconded the motion and it passed unanimously with those present. 4.2. Applicant: Suncor Energy Sales, Inc. d/b/a Shell Location: 46 Nottingham Road Type: 3.2% Beer Retail Manager: Anakut Loya The application was presented with no concerns for the renewal application. Board member Dantas moved to approve the 3.2% Beer Retail Liquor License for Suncore Energy Sales, Inc. d/b/a Shell; and Board member Evans seconded the motion and it passed unanimously with those present. 4.3. Applicant: Pazzo’s Pizzeria, Inc. d/b/a Pazzo’s Pizzeria Location: 82 E. Beaver Creek Blvd. Type: Hotel and Restaurant Manager: Mark Colwell The application was presented with no concerns for the renewal application. Board member Dantas moved to approve the Hotel and Restaurant Liquor License for Pazzo’s Pizzeria, Inc. d/b/a Pazzo’s Pizzeria; and Board member Evans seconded the motion and it passed unanimously with those present. 6. MINUTES FROM SEPTEMBER 23, 2014 Board member Wolf moved to approve the Minutes from September 23, 2014; Board member Gennett seconded the motion and it passed unanimously with those present. TOWN OF AVON, COLORADO AVON LIQUOR LICENSING AUTHORITY MEETING MINUTES FOR TUESDAY, OCTOBER 14, 2014 AVON TOWN HALL, ONE LAKE STREET ALB 10-14-2014 Minutes.docx Page 2 7. Adjournment There being no further business to come before the Board, the meeting adjourned at 5:15 pm. RESPECTFULLY SUBMITTED: ____________________________________ Debbie Hoppe, Town Clerk APPROVED: Rich Carroll ______________________________________ Dave Dantas ______________________________________ Chris Evans ______________________________________ Jennie Fancher ______________________________________ Albert “Buz” Reynolds ______________________________________ Jake Wolf ______________________________________ Matt Gennett ______________________________________ TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Richelle Curran, Records Administrator/ Deputy Town Clerk Date: October 28, 2014 Agenda Topic: Proclamation Honoring Eagle County Gives Michelle Maloney with Vail Valley Charitable Fund, would like to present to the Avon Town Council information regarding the “Proclamation Honoring Eagle County Gives”. The Town Council is asked to consider adopting the attached Proclamation that supports Colorado Gives Day on Tuesday, December 9, 2014. According to its supporters this is a statewide day of philanthropy where citizens are encouraged to “Give Where You Live” by logging onto www.coloradogives.org and investing in local charitable organizations. The fourth annual Colorado Gives Day takes place midnight to midnight on Tuesday, December 9, 2014. This year, thirty-two Eagle County-based non-profits will be taking part in Colorado Gives Day on December 9, 2014. Colorado Gives Day is a project of an online resource created by Community First Foundation that profiles Colorado non-profits and encourages charitable giving within our state. The Colorado Gives website www.coloradogives.org provides comprehensive, objective, and up-to-date information about hundreds of Colorado non-profit organizations, along with an on-line donation system to support those organizations. Last year, Colorado Gives Day raised $20.5 million for Colorado charities in one 24-hour period, and $690,000 locally. COLORADO GIVES DAY: Suggested Proclamation Town of Avon WHEREAS, charitable giving in the Town of Avon, Colorado is critical to providing support that local nonprofit organizations need to make our community a desirable place to live; and WHEREAS, research shows an increase in online giving both locally and nationally, and many believe it is the future of philanthropy; and WHEREAS, Community First Foundation and FirstBank have partnered in an effort to increase charitable giving in our community through the online giving initiative Colorado Gives Day; and WHEREAS, Colorado Gives Day in 2013 raised $20.5 million in a single 24-hour period via online donations, $690,000 to Eagle County nonprofits, at coloradogives.org a website allowing donors to direct their contributions to one or more of the thirty (32) local, Eagle County, charities featured on the site, making it an ideal resource for facilitating charitable giving to our locally-based nonprofit organizations; and WHEREAS, Colorado Gives Day is December 9 this year, and all citizens are encouraged to participate because all donations, large or small, can make a difference to nonprofits in need. NOW, THEREFORE, BE IT PROCLAIMED BY Mayor Richard Carroll and the Town Council of the Town of Avon, Colorado THAT: Tuesday, December 9, 2014, will be known as Colorado Gives Day in our community. PAGE 1 OF 4 TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Preston Neill, Executive Assistant to the Town Manager Virginia Egger, Town Manager Date: October 28, 2014 Agenda Topic: Public Hearing Second Reading Ordinance 14-15 COMCAST Franchise Agreement Second Reading of Ordinance 14-15, which will approve the COMCAST Franchise Agreement, if adopted, has been noticed for a public hearing at Tuesday’s meeting. Attachment A summarizes the background of the Franchise Agreement and process for review. Approval of the Franchise Agreement is a two reading process. Council approved First Reading on September 23, 2014, and continued Second Reading, which had been scheduled for October 14, 2014, to the October 28, 2014 meeting. A total of three (3) display ads ran in the Vail Daily announcing the public hearing first for October 14th and then for the subsequent October 28th meeting. The ad also provided COMCAST’S contact information for citizen service concerns. One citizen comment has been received and is provided with this packet. KEY ELEMENTS: Since First Reading, the status of key elements of the Franchise Agreement is as follows. All elements have been agreed to by COMCAST except as noted. • General Procedures: The Franchise Agreement parallels the Town of Vail’s Franchise Agreement for all provisions except where noted below. • Definition of Gross Revenue: The Franchise Agreement finds that franchise fees are not a tax and are therefore need to be included in “Gross Revenue”. COMCAST has provided a syntactic improvement to clarify this definition and the edit is acceptable to staff and the Town Attorney Eric Heil. (Page xx) • 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, the Franchise Agreement has a term of eight (8) years, beginning on the effective date, January 1, 2015. • Franchise Fee: 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 gross revenue. • 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 PAGE 2 OF 4 subscriber per month as capital support for PEG access. The Franchise Agreement allows increasing the fee up to $0.75 for residential subscribers. For current bulk subscribers, a fee of $0.25 continues, and may be increased to $0.40. Both potential fee increases must be approved by Council through a public hearing process. Bulk subscribers are assessed on a per unit/per month basis. COMCAST POSITION: Town staff and Attorney Heil continue to recommend including the above provisions regarding the PEG Fee. This approach requires the Town to hold a public hearing prior to increasing the fee, but does not require COMCAST to also approve an increase. The attached letter from COMCAST states their position on the PEG Fee and describes that if either party believes that the PEG Contribution should be modified in a reasonable amount to address future needs, the parties shall share all relevant information supporting their positions and negotiate in good faith to determine if the PEG Contribution should be increased or decreased, and if so, in what amount. If the parties mutually agree that an increase in the PEG Fee is warranted, the Town shall conduct a public hearing prior to taking any action on any increase. COMCAST asks that this section read as follows: 9.5 PEG FEE (A) Comcast shall collect and provide to Town a monthly fee as capital support for PEG access ("PEG Fee") in an amount determined by the Town. As of the Effective Date of this Agreement the PEG FEE shall be fifty cents ($0.50) per subscriber per month for individual residential and commercial subscribers, and twenty-five cents ($0.25) per subscriber per month subject to bulk-billing. The PEG Fee shall be used solely for PEG access equipment and facilities. Comcast shall make PEG Fee payments quarterly, no later than forty-five (45) days following the end of the quarter. To evaluate whether the City’s PEG Access capital costs have increased or decreased with time, the Town and Grantee may meet to discuss whether to increase or to decrease the PEG Contribution. The primary purpose of such meetings will be for the parties to review prior expenditures and future capital plans to determine if the current PEG Contribution is reasonably appropriate to meet future needs. The Town and Grantee may suggest to each other, based upon their own assessments of reasonable past practices and future anticipated needs, whether the current level of PEG Contribution is appropriate. If either party believes that the PEG Contribution should be modified in a reasonable amount to address such future needs, the parties shall share all relevant information supporting their positions and negotiate in good faith to determine if the PEG Contribution should be increased or decreased, and if so, in what amount. Such discussions regarding potential adjustment to the PEG Contribution will be conducted pursuant to the Franchise amendment procedures in Section 14.4 of this Franchise. If the parties mutually agree that an increase in the PEG Fee is warranted, the Town shall conduct a public hearing prior to taking any action on any increase. The Town shall provide written notice to Comcast at least forty-five (45) days in advance of such public hearing which notice shall state the proposed PEG Fee increase to be considered. Any PEG Fee increase shall be approved by either ordinance or resolution. (B) To the extent permitted by law, the PEG Fee may be itemized on Customer billing statements and recovered from Customers over the term of this Agreement. Comcast shall not be responsible for paying the PEG Fee with respect to gratis or Bad Debt accounts. PAGE 3 OF 4 • Access Channel Trigger: No additional access channel (total would be three channels) is included in the Franchise Agreement. Staff discussed this with Channel 5 representative JK Perry, who concurred that the current two channels offered will be adequate through the term of the Franchise Agreement. • Customer Service Standards: The Town of Avon Customer Service Standards (CSS) has been added to the Franchise Agreement. These 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, and 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: Section 14.5 was included in the Franchise Agreement at First Reading. It subsequently has been redrafted to reflect COMCAST’s comment that changes to the Cable Act could reduce as potentially expand changes during the term of this Agreement which has the effect of increasing a municipality’s rights with regard to: the franchise fee or other fees, required minimum technology standards, minimum public access channels, minimum service standards, or regulation of combined or expanded cable based services, including but not limited to phone and internet. The re- write acknowledges, that should change(s) occur, either party, Town or COMCAST may initiate a re- negotiation of the Franchise Agreement, and may, through a period of time should re-negotiation not be successful allow for the termination of the Agreement, again, by either party. COMCAST POSITION: While Town staff continues to recommend the inclusion of Section 14.5, as is, COMCAST’s attached letter explains their belief that this section is unnecessary and unilateral. COMCAST’s recommendation is that in the event there is any change to the Cable Act during the term of the Agreement, which has the effect of expanding or reducing a municipality’s regulatory authority, then the Town or COMCAST may seek amendment of the Franchise, with modification only possible by written agreement between the Town and COMCAST. COMCAST asks that this section read as follows: 14.5 REGULATORY CHANGES In the event there is any change to the Cable Act during the term of this Agreement, which has the effect of expanding or reducing a municipality’s regulatory authority, then the Town or Grantee may seek amendment of this Franchise pursuant to the franchise amendment procedure provided under Section 14.4. MOTION: If Council wishes to proceed with the Agreement after the Public Hearing and Second Reading, the recommended motion is: I move to approve Ordinance 14-15 [with or without modifications]. ATTACHMENTS: ATTACHMENT A - FRANCHISE AGREEMENT BACKGROUND & REVIEW PROCESS COMCAST Letter Citizen Comment: Karl Krueger Email Ordinance 14-15 approving Avon-COMCAST Franchise Agreement, and including Town of Avon Customer Service Standards PAGE 4 OF 4 ATTACHMENT A FRANCHISE AGREEMENT BACKGROUND & REVIEW PROCESS 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. PROCESS: 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 COMCAST submitted a response to the Town. The Town Council met in Work Sessions to discuss Franchise Agreement renewal on the following dates: • Tuesday, April 22, 2014 • Tuesday, June 10, 2014 • Tuesday, September 9, 2014 At the September 9, 2014, Town Council meeting, Council provided direction to staff for preparing a franchise renewal with Comcast. Attached is Ordinance 14-15, which reflects Council’s direction. The Ordinance approves the Town of Avon-Comcast Franchise, and grants to 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. Approval of the Franchise Agreement requires two readings of the attached Ordinance. September 23, 2014, was First Reading. October 28, 2014 is the Public Hearing and Second Reading. October 13, 2014 Avon Town Council 1 Lake St Avon, CO 81620 Mayor Carroll and Council Members, Per our discussion, Town staff requested that we provide our perspective on the final issues remaining in our Franchise renewal negotiations that are yet to be resolved. As you well know, the Franchise is a bilateral agreement that requires not only the approval of Council but approval from the Comcast organization as well. As such, we will need to come to a compromise on the two issues listed below before we will be able to reach an agreement. However, before we address the provisions that require further negotiation, I am pleased to report that we did further digging into the issue of bulk-billing, and we learned that bulk subscribers in Avon are assessed a PEG fee on a per unit basis. While we have sought to reduce or eliminate the bulk PEG fee in most communities, we have agreed to continue it in the Town’s new Franchise. Below are the two provisions that require further negotiation: 9.5 PEG Fee: We have several concerns with the prior language, and those concerns stem from the current circumstances in Avon: a) the Town already charges $0.50 per subscriber, which represents the highest level PEG fee for a town of Avon’s size; b) the Town does not currently operate a PEG channel under the Town’s authority; and c) while the Town originally sought the ability to increase the PEG fee to match a similar provision in the Vail franchise, Vail’s authority only allows them to go from $0.25 to $0.50, and interestingly, Vail does not even assess a PEG fee currently. Therefore, we think it is premature to be discussing an increase in the PEG fee, and more importantly, any adjustment to the PEG fee will need to be mutually agreed upon, consistent with every other provision in the Franchise. In the latest draft that we have provided to the Town, we have struck the language describing the Town’s authority to unilaterally increase the fee from $0.50 to $0.75 following a public hearing, and we have replaced this with language we offered previously. The language we have proposed requires discussion between Comcast and the Town and mutual agreement via the amending process, if there is going to be a change. Our proposed changes do not prohibit an increase (or decrease), but merely provide for a more thorough examination by both parties and mutual agreement before any changes are made. 14.5 Regulatory Changes: As mentioned previously, we believe this section is entirely unnecessary. If Federal law changes, we will be required to comply with those changes. However, if the Town insists on including language related to changes in Federal law – changes that are highly speculative at this time – we will need to make significant adjustments to the Town’s proposed language. First, we are concerned with the unilateral nature of the Town’s proposed addition. This is a bilateral agreement, and as such, it must ensure that we both have the right to pursue changes to the document. Second, we cannot agree to include language that speculates on changes to Federal law and that further speculates on what those changes might hypothetically mean for the Town’s regulatory authority. Thus, we believe the most effective and simple compromise is to reference our amending process and utilize that process if/when the time comes and the circumstances warrant changes. That is precisely why we have an amending process, and we are open to making that language more robust if the Town so desires. While these two issues remain, we have reached agreement on all other provisions, and once we reach agreement on the remaining items, I am confident that we will have produced a document that represents a mutually beneficial compromise. We look forward to discussing these remaining issues, bringing negotiations to a close, and completing the renewal process. Sincerely, Andy Davis Director, Regulatory and Government Affairs Comcast cc: Virginia Egger, Town Manager Preston Neill, Executive Assistant to the Town Manager Ordinance 14-15 Approving a Franchise Agreement with Comcast of Colorado Page 1 of 3 TOWN OF AVON ORDINANCE 14-15 SERIES of 2014 AN ORDINANCE APPROVING A FRANCHISE AGREEMENT WITH COMCAST OF COLORADO VI, LLC FOR THE PROVISION OF CABLE SERVICES IN THE TOWN OF AVON WHEREAS, the Town of Avon, Colorado, (“Town”) and TCI Cablevision, the predecessor of Comcast Colorado VI, LLC (“Comcast”), entered into a Franchise Agreement on January 1, 1996, to allow TCI Cablevision to provide cable service to subscribers of such service in the Town of Avon, which Franchise Agreement expired on December 31, 2010, and then continued on a month by month basis in accordance with the Federal Telecommunications Act of 1996; WHEREAS, negotiations for a new Franchise Agreement have been on-going; WHEREAS, during negotiations the performance and technical issues of the expired Franchise Agreement were met within the Town; WHEREAS, no outstanding areas of noncompliance have been identified within the Town; WHEREAS Section 17.6 of the Avon Town Charter authorizes the Town Council to grant a franchise by ordinance and to establish the term, fees, compensation, conditions and any other matters related to the granting of franchises; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to provide public comment on this Ordinance 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, THAT: 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. Franchise Agreement Approved. The Franchise Agreement between the Town and Comcast is hereby approved in the form attached hereto, for a term of eight (8) years, commencing on January 1, 2015. Ordinance 14-15 Approving a Franchise Agreement with Comcast of Colorado Page 2 of 3 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 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] Ordinance 14-15 Approving a Franchise Agreement with Comcast of Colorado Page 3 of 3 INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING on September 23, 2014, and setting such public hearing for October 28, 2014, at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado. ____________________________ 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 October 28, 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: APPROVED AS TO FORM: _______________________________ ____________________________ Debbie Hoppe, Town Clerk Eric J. Heil, Town Attorney TOWN OF AVON - COMCAST FRANCHISE AGREEMENT October 28, 2014 COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 1 of 34 TABLE OF CONTENTS FRANCHISE AGREEMENT ................................................................................................................................. 5 SECTION 1. DEFINITIONS ..................................................................................................................................... 5 SECTION 2. GRANT OF FRANCHISE ...................................................................................................................... 8 2.1 Grant ...................................................................................................................................................... 8 2.2 Use of Public Ways ................................................................................................................................. 9 2.3 Term ....................................................................................................................................................... 9 2.4 Effective Date ....................................................................................................................................... 10 2.5 Competitive Equity ............................................................................................................................... 10 2.6 Familiarity with Agreement and Acceptance ....................................................................................... 10 SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS .................................................................................. 11 3.1 Franchise Fee ....................................................................................................................................... 11 3.2 Payments ............................................................................................................................................. 11 3.3 Audits ................................................................................................................................................... 11 3.4 Additional Commitments Not Franchise Fees ...................................................................................... 11 3.5 Payment on Termination ..................................................................................................................... 12 3.6 Service Packages .................................................................................................................................. 12 3.7 Tax Liability .......................................................................................................................................... 12 SECTION 4. ADMINISTRATION AND REGULATION ............................................................................................ 12 4.1 Rates and Charges ................................................................................................................................ 12 4.2 No Rate Discrimination ........................................................................................................................ 12 4.3 Time Limits Strictly Construed ............................................................................................................. 13 4.4 Performance Evaluations ..................................................................................................................... 13 4.5 Late Fees and Disconnection................................................................................................................ 13 SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS ............................................................................... 13 5.1 Indemnification .................................................................................................................................... 13 5.2 Indemnification Procedures and Defense ............................................................................................ 14 5.3 Insurance .............................................................................................................................................. 14 COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 2 of 34 5.4 Letter of Credit ..................................................................................................................................... 15 SECTION 6. CUSTOMER SERVICE ....................................................................................................................... 16 6.1 Service Availability ............................................................................................................................... 16 6.2 Customer Service Standards ................................................................................................................ 16 6.3 Customer Privacy ................................................................................................................................. 16 6.4 Customer Service Agreement and Manual .......................................................................................... 16 SECTION 7. RECORDS ......................................................................................................................................... 17 7.1 Required Records ................................................................................................................................. 17 7.2 Proprietary Information ....................................................................................................................... 18 7.3 Copies of Federal and State Reports .................................................................................................... 18 SECTION 8. PROGRAMMING ............................................................................................................................. 19 8.1 Broad Programming Categories ........................................................................................................... 19 8.2 Obscenity ............................................................................................................................................. 19 8.3 Services for the Disabled ...................................................................................................................... 19 8.4 Parental Control Device ....................................................................................................................... 19 8.5 Complimentary Cable Service .............................................................................................................. 19 SECTION 9. ACCESS ............................................................................................................................................ 20 9.1 Access Channels ................................................................................................................................... 20 9.2 Underutilized Access Channels ............................................................................................................ 20 9.3 Access Channel Location ...................................................................................................................... 20 9.4 Access Channel Promotion................................................................................................................... 21 9.5 PEG Fee ................................................................................................................................................ 21 9.6 Return Lines ......................................................................................................................................... 21 SECTION 10. USE OF PUBLIC WAYS ............................................................................................................................ 21 10.1 Construction and Maintenance ........................................................................................................... 22 10.2 Location and Movement of Facilities ................................................................................................... 22 10.3 Acquisition of Facilities ........................................................................................................................ 23 10.4 Reservation of Public Ways .................................................................................................................. 23 COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 3 of 34 10.5 Discontinued Facilities ......................................................................................................................... 23 10.6 Use of Conduit or Ducts ....................................................................................................................... 24 10.7 Undergrounding ................................................................................................................................... 24 10.8 Tree Trimming ...................................................................................................................................... 25 10.9 GIS Mapping ......................................................................................................................................... 25 SECTION 11. CABLE SYSTEM DESIGN AND TECHNICAL STANDARDS ......................................................................... 25 11.1 Technical Performance ........................................................................................................................ 25 11.2 Cable System Performance Testing ...................................................................................................... 25 11.3 Standby Power ..................................................................................................................................... 25 SECTION 12. VIOLATIONS AND REVOCATION ............................................................................................................ 25 12.1 Procedure for Remedying Violations ................................................................................................... 26 12.2 Alternative Remedies ........................................................................................................................... 26 12.3 Liquidated Damages ............................................................................................................................. 26 12.4 Revocation ........................................................................................................................................... 27 12.5 Purchase of the Cable System .............................................................................................................. 28 SECTION 13. TRANSFER .............................................................................................................................................. 28 13.1 Transfer of Ownership or Control ........................................................................................................ 28 SECTION 14. MISCELLANEOUS ................................................................................................................................... 30 14.1 Cumulative Rights ................................................................................................................................ 30 14.2 Costs to be Borne by Comcast ............................................................................................................. 30 14.3 Binding Effect ....................................................................................................................................... 30 14.4 Modification ......................................................................................................................................... 30 14.5 Regulatory Changes ............................................................................................................................. 30 14.6 Governing Law and Venue ................................................................................................................... 30 14.7 No Joint Venture .................................................................................................................................. 31 14.8 Waiver .................................................................................................................................................. 31 14.9 Severability ........................................................................................................................................... 31 14.10 Force Majeure…………………………………………………………………………………………………………………................ 31 COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 4 of 34 14.11 Entire Agreement……………………………………………………………………………………………………………................ 31 14.12 Notices………………………………………………………………………………………………………………………………............. 31 COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 5 of 34 FRANCHISE AGREEMENT This Franchise Agreement ("Agreement") is made between the Town of Avon, Colorado, a Colorado home rule municipality ("Town") and Comcast of Colorado VII, LLC ("Comcast"), on October 14, 2014. WHEREAS, the Town, having determined that the financial, legal, and technical ability of Comcast is reasonably sufficient to provide the services, facilities, and equipment necessary to meet the future cable-related needs of the community, desires to enter into this Agreement with Comcast for the operation and maintenance of a cable system on the terms and conditions set forth herein. NOW THEREFORE, the Town and Comcast agree as follows: SECTION 1. DEFINITIONS For purposes of this Agreement, the following terms shall have the following meanings, provided that terms not defined, or those defined, but not capitalized within the text, shall be given their common and ordinary meaning, and the word "shall" is always mandatory: "Access" includes Public Access, Educational Access and Governmental Access, collectively and means the availability for Noncommercial use by various governmental and educational agencies, institutions and organizations in the community of particular channels on the Cable System to receive and distribute Video Programming to subscribers as permitted under applicable law. "Access Channel" means any Channel designated for Access purposes or otherwise made available to facilitate Access programming. "Affiliate" when used in connection with Comcast means any Person who owns or controls, is owned or controlled by, or is under common ownership or control of Comcast. "Bad Debt" means amounts lawfully owed by a Customer and accrued as revenues on the books of Comcast, but not collected after reasonable efforts by Comcast. "Basic Service" means any Cable Service Tier that includes, at a minimum, the retransmission of local television Broadcast Signals and PEG Access Channels required in this Franchise and any additional programming added by the Town and made available to all Customers in the Franchise Area. "Broadcast Signal" means a television or radio signal transmitted over the air to a wide geographic audience, and received by a Cable System off-the-air by antenna, microwave, satellite dishes or any other means. "Cable Act" means the Cable Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act of 1992, as amended by the Telecommunications Act of 1996, and any amendments thereto. "Cable Operator" means any Person or group of Persons, including Comcast, who provides Cable Service over the Cable System and directly or through one or more Affiliates owns a COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 6 of 34 significant interest in such Cable System or who otherwise controls or is responsible for, through any arrangement, the management and operation of the Cable System. "Cable Service" means the one-way transmission to Customers of Video Programming, or other programming service and Customer interaction, if any, that is required for the selection or use of such Video Programming or other programming service. "Cable System" means Comcast's facility, consisting of a set of closed transmission paths and associated signal generation, reception and control equipment, designed to provide Cable Service that includes Video Programming and provided to Customers in the Franchise Area. "Channel" means a portion of the frequency band capable of carrying a Video Programming Service or combination of Video Programming Services, whether by analog or digital signal, on a twenty-four (24) hour per day basis or a portion thereof. "Customer" means a Person who lawfully receives Cable Service from the Cable System with Comcast's express permission. "Designated Access Provider" means an entity designated by the Town to manage or co-manage Public, Educational or Governmental Access Channels and facilities. The Town may be a Designated Access Provider. "Dwelling Unit" means any building or portion thereof that has independent living facilities, including provisions for cooking, sanitation and sleeping, and that is designed for residential occupancy. "Educational Access" means Access where Schools are the primary users having editorial control over programming and services. "Emergency" means any condition constituting a clear and present danger to life or property. "Expanded Basic Service" means cable programming services not included in the Basic Service and excluding premium or pay-per-view services. "FCC" means the Federal Communications Commission or its lawful successor. "Fiber Optic" means a transmission medium of optical fiber cable, along with all associated electronics and equipment capable of carrying electric lightwave pulses. "Franchise Area" means the area within the jurisdictional boundaries of the Town, including any areas hereafter annexed by Town. "Franchise Fee" includes any tax, fee or assessment of any kind imposed by the Town on Comcast or Customers, or both solely because of their status as such, but excluding: (i) any tax, fee or assessment of general applicability (including any such tax, fee, or assessment on both utilities and Cable Operators or their services, but not including a tax, fee, or assessment that is unduly discriminatory against Cable Operators or cable Customers); (ii) capital costs that are required by the Agreement to be incurred by Comcast for Access facilities; (iii) requirements or charges incidental to the awarding or enforcing of the Agreement, including but not limited to, payments for bonds, letters of credit, insurance, indemnification, penalties or liquidated damages; or (iv) any fee imposed under Title l7, United States Code. COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 7 of 34 "Governmental Access" means Access where governmental institutions or their designees are the primary users having editorial control over programming and services. "Gross Revenue" means all revenue derived directly or indirectly by Comcast or its Affiliates from the operation of the Cable System in the Franchise Area, including without limitation monthly and other fees charged Customers for Cable Service including Basic Service, Expanded Basic Service, any expanded Tiers of Cable Service, other Tiers of Cable Service, optional Premium Service, pay-per-view and per-program Channels, Cable Service installation, disconnection, reconnection and change-in-service fees, Leased Access Channel fees, remote control rental fees, late fees and administrative fees, consideration received by Comcast from programmers for carriage of Cable Service on the Cable System and recognized as revenue under generally accepted accounting principles ("GAAP"), revenues from rentals of converters or other Cable System equipment, advertising sales revenues (including local, regional and a pro rata share of national advertising carried on the Cable System in the Franchise Area but excluding commissions paid to an unaffiliated agency), revenues from program guides, additional outlet fees, revenue from the sale or carriage of other Cable Service, and revenues from home shopping. Franchise Fees are included in Gross Revenue. Gross Revenue does not include (i) to the extent consistent with GAAP, Bad Debt, provided, however, that any part of such Bad Debt that is written off but subsequently collected shall be included in Gross Revenue in the period collected; or (ii) any taxes on services furnished by Comcast that are imposed directly on any Customer or user by the State, Town or other governmental unit and that are collected by Comcast on behalf of said governmental unit; or (iii) capital costs or contributions required by this Franchise. "Headend" or "Hub" means a facility for signal reception and dissemination on a Cable System, including cable, antennas, wires, satellite dishes, monitors, switchers, modulators, processors for Broadcast Signals or other signals, and all other related equipment and Facilities. "Incremental Costs" means Comcast's direct and actual material and labor cost (excluding profit) of constructing, relocating or placing additional facilities for the Town, excluding the costs that Comcast would otherwise incur to construct, relocate or place facilities for Comcast including, but not limited to, trenching, pipe bedding, backfilling, compacting, restoring the surface, and other charges, costs or expenses. "Interconnect" or "Interconnection" means the provision of Access Channel programming to a geographically contiguous cable system, including technical, engineering, physical, and other necessary components to accomplish, complete and adequately maintain such provisioning. "Late fee" means and includes any assessment, charge, cost, fee or sum, however characterized, that Comcast imposes upon a Customer solely for late payment of a bill is a late fee. "Leased Access Channel" means any Channel or portion of a Channel commercially available for programming in accordance with Section 612 of the Cable Act. "Noncommercial" means, in the context of Access Channels, those particular products and services that are not promoted or sold in order to generate revenue that exceeds the costs of operations for the Town or any Designated Access Provider. This term shall not be interpreted to prohibit an Access Channel operator or programmer from soliciting and receiving contributions used to produce and transmit Video Programming on an Access Channel, or from acknowledging COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 8 of 34 a contribution, in the manner of the Corporation for Public Broadcasting or some similar manner, subject to applicable law. "Person" means any natural person, lawful trustee, successor, assignee, transferee, or personal representative, sole proprietorship, partnership, joint venture, association, or limited liability entity or corporation, or any other form of entity or organization. "Public Access" means Access where any member of the general public may be a programmer on a nondiscriminatory basis, subject to operating rules formulated by the Town or its designee. Such rules shall not be designed to control the content of public access programming. Such rules may also address the extent to which and manner in which members of the general public who are not residents of the Town may be programmers on the Access Channel. "Public Way" means land in the Franchise Area acquired for or dedicated to the public and maintained under public authority, including but not limited to public streets, roads, highways, avenues, lanes, alleys, bridges, sidewalks, easements, and similar public property. "Residential Subscriber" means any Person who receives Cable Service delivered to a Dwelling Unit, excluding such multiple Dwelling Units billed on a bulk-billing basis. "Standard Installation" means a one hundred twenty five (125) foot drop connecting to the exterior demarcation point. "State" means the State of Colorado. "Tier" means a category of Cable Service provided by Comcast for which a separate rate is charged. "Video Programming" means programming provided by, or generally considered comparable to programming provided by, a television broadcast station, or cable programming provider primarily consisting of full motion video and audio. SECTION 2. GRANT OF FRANCHISE 2.1 GRANT (A) The Town hereby grants to Comcast a nonexclusive authorization to make reasonable and lawful use of the Public Ways to construct, operate, maintain, reconstruct, repair and upgrade the Cable System for the purpose of providing Cable Service, subject to this Agreement and applicable law. Comcast shall provide Cable Service, as authorized by this Agreement, in the Franchise Area in accordance with line extension and density provisions as provided herein. The franchise granted by this Agreement is subject to all prior rights, interests, easements, or franchises granted by Town or its predecessors to any Person to any property or Public Way, including the right of the Town to use same for any purpose it lawfully deems fit. This Agreement conveys limited rights and interests in only those Public Ways in which the Town has an actual interest; it is not a warranty of title or interest in any property. (B) Comcast shall comply with the Avon Town Code and the lawful exercise of the Town’s police power. Subject to the Town’s lawful exercise of its police power, in the event of a conflict between the Avon Town Code and the Agreement, the Agreement shall govern. Comcast COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 9 of 34 acknowledges that the Town may enforce or modify its generally applicable regulatory policies by lawful exercise of the Town's police powers throughout the term of this Agreement, and Comcast agrees to comply with such lawful enforcement or modifications. Comcast reserves the right to challenge provisions of any ordinance, rule, regulation or other enactment of the Town that conflicts with its contractual rights under the Franchise, either now or in the future. This Agreement shall not be interpreted to prevent the Town from imposing other conditions, to the extent permitted by law. (C) No rights shall pass to Comcast by implication. Without limiting the foregoing, by way of example and not limitation, this Agreement shall not be a substitute for: any other permit or authorization required for the privilege of transacting and carrying on a business within the Town that is required by the Town; any permit, agreement or authorization required by the Town for Public Way users in connection with operations on or in Public Ways or public property; or any permits or agreements for occupying any other property to which access is not specifically granted by this Agreement. (D) This Agreement is an express authorization to provide Cable Service only. This Agreement is not a bar to the imposition of any lawful conditions on Comcast with respect to non-Cable Service, telecommunications services or information services, whether similar, different or the same as the condition specified herein. This Agreement does not relieve Comcast of any obligation it may have to obtain from the Town an authorization to provide non-Cable Service, telecommunications services or information services or relieve Comcast of its obligation to comply with any such authorization(s) that may be lawfully required. (E) This Agreement shall have no effect on any obligation of Comcast in effect prior to the effective date of this Agreement to indemnify or insure the Town against acts and omissions occurring during the period that the prior franchise agreement was in effect, nor shall it have any affect upon liability to pay Franchise Fees that were due and owed under a prior franchise. 2.2 USE OF PUBLIC WAYS (A) Subject to the Avon Town Code, as amended, Comcast may erect, install, construct, repair, replace, reconstruct, and retain in, on, over, under, upon, across, through, below and along the Public Ways, such wires, cables, conductors, ducts, conduit, vaults, manholes, amplifiers, appliances, pedestals, attachments and other property and equipment as are necessary and appurtenant to the operation of the Cable System. (B) Comcast shall install Cable System facilities in a manner that minimizes interference with the use of the Public Ways by others. To protect public health, safety and welfare, the Town may: require that Cable System facilities be installed at a particular time, at a specific place or in a particular manner as a condition of access to a particular Public Ways; deny access if Comcast is not willing to comply with Town's requirements; remove, or require removal of, any facility that is not installed in compliance with the requirements established by Town, or that is installed without prior Town approval of the time, place or manner of installation and charge Comcast for all the costs associated with removal; and require Comcast to cooperate with others to minimize adverse impacts on the Public Ways through joint trenching and other arrangements. 2.3 TERM COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 10 of 34 This Agreement shall have a term of eight (8) years, beginning on the Effective Date and shall expire on December 31, 2022, unless the term is reduced by the Town in accordance with Section 14.5 below. 2.4 EFFECTIVE DATE The Effective Date of this Agreement shall be January 1, 2015. 2.5 COMPETITIVE EQUITY (A) Comcast acknowledges and agrees that the Town reserves the right to grant additional franchises to provide Cable Service in the Franchise Area; provided that if any such franchise is granted by the Town which, in the reasonable opinion of Comcast, contains more favorable or less burdensome Material Terms and Conditions than this Agreement, the Town agrees that, within ninety (90) days of Comcast's request, the parties shall amend this Franchise to insure that the regulatory and financial burdens on each entity are materially equivalent. "Material Terms and Conditions" includes without limitation: Franchise Fees; insurance coverage amounts; System build-out requirements; Public, Education and Government Access Channels and support; customer service standards; required reports and related record keeping; and notice and opportunity to cure breaches. The parties agree that this Subsection does not require a word for word identical franchise or authorization for a competitive entity if the regulatory and financial burdens on each entity are materially equivalent. (B) If an application for a new cable franchise is filed with the Town proposing to serve the Franchise Area, in whole or in part, the Town shall make a good faith effort to provide notice of such application upon Comcast prior to acting on the application. (C) Notwithstanding any provisions to the contrary, at any time that a facilities-based Cable Services provider, legally authorized by state or Federal law, makes Cable Services or multiple Channels of Video Programming within the Franchise Area available for purchase by Customers without a franchise or other similar lawful authorization granted by the Town, then Comcast may seek modification pursuant to subsection (A) hereof, or the term of this Franchise shall, upon ninety (90) days written notice from Comcast, be shortened so that the Franchise shall be deemed to expire on a date six (6) months from the first day of the month following the date of Comcast's notice; provided, however, that if the provision of Cable Services or Video Programming by the other facilities-based Cable Services Provider within the Franchise Area is being legally challenged by the Town, the term of this Franchise shall remain unaffected until such legal challenge is concluded. 2.6 FAMILIARITY WITH AGREEMENT AND ACCEPTANCE (A) Comcast acknowledges and warrants that it has carefully read and fully comprehends the terms of this Agreement and that it has fully considered the requirements of this Agreement, and finds that the same are commercially practicable at this time and consistent with all local, State and federal laws and regulations currently in effect. (B) By executing this Agreement, Comcast: (1) acknowledges and accepts the Town's legal right to issue and enforce the Agreement; (2) agrees that it will not oppose the Town's lawful intervention in any legal or regulatory proceeding affecting the Cable System; (3) accepts and COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 11 of 34 agrees to comply with every provision of this Agreement; and (4) agrees that the Agreement was negotiated in compliance with applicable law, and that it will not raise any claim to the contrary. SECTION 3. FRANCHISE FEE AND FINANCIAL CONTROLS 3.1 FRANCHISE FEE As compensation for the use of the Public Ways, Comcast shall pay as a Franchise Fee to Town, for the duration of this Agreement, an amount equal to five percent (5%) of Comcast's Gross Revenue. 3.2 PAYMENTS (A) Franchise Fee payments to Town shall be computed quarterly for the preceding calendar quarter ending March 31, June 30, September 30, and December 31. Each quarterly payment shall be due and payable no later than forty-five (45) days after said dates. For untimely payments, Comcast shall pay, in addition to the payment or sum due, interest from the due date at the rate of eight percent (8%) per annum until the date the Town receives the payment. (B) No acceptance of payment shall be construed as an accord by Town that the amount paid is the correct amount, nor shall an acceptance of payment be construed as a release of any claim Town may have against Comcast. The period of limitation for recovery of Franchise Fees payable hereunder shall be three (3) years from the date on which payment by Comcast was due or such shorter period of time if so provided by law. (C) A report prepared by a representative of Comcast showing the basis for the computation of the Franchise Fees paid during that period shall either accompany the Franchise Fee payment or be provided under separate cover within ten days of the report. 3.3 AUDITS (A) On an annual basis, upon thirty (30) days' prior written notice, the Town may conduct an independent audit of Comcast's financial records necessary to ensure compliance with this Agreement. If Comcast cooperates in making all relevant records available upon request, the Town will in good faith attempt to complete each audit within six (6) months, and the audit period shall not be any greater than the previous three (3) years. (B) Additional amounts due to the Town as a result of the audit shall be paid within sixty (60) days following written notice to Comcast. If a Franchise Fee underpayment is discovered as the result of an audit, Comcast shall pay, in addition to the amount due, interest at the maximum allowed rate as provided under State law calculated from the date the underpayment was originally due until the date the Town receives the payment. (C) If the audit shows that Franchise Fees have been underpaid by five percent (5%) or more in a calendar year, Comcast shall pay the actual cost of the audit in a total amount not to exceed $10,000. 3.4 ADDITIONAL COMMITMENTS NOT FRANCHISE FEES No term of this Agreement shall affect Comcast's obligation to pay Franchise Fees. Although the total sum of Franchise Fee payments and additional commitments set forth elsewhere in this COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 12 of 34 Agreement may total more than five percent (5%) of Gross Revenue in any twelve-month period, Comcast agrees that the additional commitments regarding PEG funding and Access Channels are not Franchise Fees, nor are they to be offset or credited against Franchise Fee payments unless specifically provided by applicable law. 3.5 PAYMENT ON TERMINATION Within one hundred twenty (120) days of termination of this Agreement, Comcast shall file with the Town a financial statement, certified by an independent certified public accountant, showing the Gross Revenue received by Comcast since the end of the previous fiscal year. Within forty- five (45) days of the filing of the certified statement with the Town, Comcast shall pay any unpaid amounts as indicated. If Comcast fails to satisfy its remaining financial obligations as required in this Agreement, the Town may do so by utilizing the funds available in a Letter of Credit or other security provided by Comcast. 3.6 SERVICE PACKAGES If Comcast offers bundled Cable Service and non-Cable Service to Customers, Comcast shall fairly and reasonably allocate revenue with regard to Cable Service. 3.7 TAX LIABILITY The Franchise Fees shall be in addition to all taxes or other levies or assessments now or hereafter required to be paid by businesses by any applicable law including without limitation sales, use, utility and other taxes, and business license fees. SECTION 4. ADMINISTRATION AND REGULATION 4.1 RATES AND CHARGES (A) Comcast's rates and charges for Cable Service shall be subject to regulation by Town to the full extent authorized by applicable federal, State and local laws. Customer billing shall be itemized by service pursuant to FCC Regulation, 47 C.F.R. § 76.1619 or as amended. (B) Comcast will use best efforts to maintain with the Town a current schedule of applicable rates charged for Cable Service provided under this Agreement. The Town recognizes that such rates change periodically, and if the Town clerk has reason to believe that the schedule of rates on file is not up to date, then upon three (3) days advance request, Comcast shall provide the Town with a current and complete schedule of applicable rates and charges for Cable Service provided to Customers in the Town. Nothing in this Subsection shall be construed to require Comcast to file rates and charges under temporary reductions or waivers of rates and charges in conjunction with promotional campaigns. 4.2 NO RATE DISCRIMINATION All Comcast rates and charges shall be published (in the form of a publicly-available rate card), made available to the public, and shall be non-discriminatory as to all Persons of similar classes, under similar circumstances. Nothing herein shall be construed to prohibit: (1) The temporary reduction or waiving of rates or charges in conjunction with promotional campaigns; COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 13 of 34 (2) The offering of reasonable discounts to similarly situated Persons; or (3) The offering of bulk discounts for multiple Dwelling Units. 4.3 TIME LIMITS STRICTLY CONSTRUED When this Agreement sets forth a time for any act to be performed by Comcast, such time shall be deemed to be of the essence, and any failure of Comcast to perform within the allotted time may be considered a breach of this Agreement. 4.4 PERFORMANCE EVALUATIONS Special evaluation sessions may be held at any time upon written request and upon not less than thirty (30) days prior notice by the Town during the term of this Agreement. All such evaluation sessions shall be open to the public. Topics that may be discussed at any evaluation session may include those issues surrounding Comcast's failure to comply with the terms of the Agreement provided that nothing in this Subsection shall be construed as requiring the renegotiation of this Agreement or any term or provision therein and further provided that this Subsection need not be followed before other legal or equitable remedies within this Agreement. 4.5 LATE FEES AND DISCONNECTION Comcast's late fee and disconnection policies and practices shall be nondiscriminatory, and such policies and practices, and any fees imposed pursuant to this Subsection, shall apply equally throughout the Franchise Area without regard to the neighborhood or income level of the Customers. SECTION 5. FINANCIAL AND INSURANCE REQUIREMENTS 5.1 INDEMNIFICATION (A) Comcast, at its own expense, shall indemnify, defend and hold harmless the Town, its officers, officials, boards, commissions, agents, representatives and employees, from any action or claim for injury, damage, loss, liability, settlement, proceeding, judgment, or cost or expense, including court and appeal costs and attorney fees and expenses, arising from any casualty or accident to Person or property, including, without limitation, copyright infringement, defamation, and all other damages in any way arising out of, or by reason of, any construction, excavation, erection, operation, maintenance, repair or reconstruction, or any other act done under this Agreement, by or for Comcast, its authorized agents, or by reason of any neglect or omission of Comcast, its authorized agents or its employees. Comcast shall consult and cooperate with the Town while conducting its defense of the Town. (B) The provisions of this Section 5 shall survive the termination of this Agreement unless superseded by indemnification provisions in a new franchise or in federal or state law. (C) Subject to applicable law, Comcast shall indemnify the Town for any damages, including but not limited to damages incurred as a result of delay, payable by the Town related to Comcast's failure to properly install, remove, adjust or relocate any of its facilities in the Public Ways in accordance with any lawful relocation required by the Town. COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 14 of 34 (D) Comcast shall also indemnify, defend and hold the Town harmless for any claim for injury, damage, loss, liability, cost and expense, including court and appeal costs and attorney fees and expenses in any way arising out of any failure by Comcast to secure consents from the owners, authorized distributors or franchisees/licensors of programs to be delivered by the Cable System, provided however, that Comcast will not be required to indemnify the Town for any claims arising out of the use of Access Channels by the Town or its Designated Access Provider or use by the Town of the emergency alert system. 5.2 INDEMNIFICATION PROCEDURES AND DEFENSE (A) If a claim or action arises, the Town or any other indemnified party shall promptly tender the defense of the claim or action to Comcast, which defense shall be at Comcast's expense. The Town may participate in the defense of a claim and Comcast may not agree to any settlement of claims without the Town's written approval, which shall not be unreasonably withheld. (B) The fact that Comcast carries out any activities under this Agreement through independent contractors shall not constitute an avoidance of or defense to Comcast's duty of defense and indemnification. (C) If separate representation is necessary, such as a conflict of interest between the Town and the counsel selected by Comcast to represent the Town, Comcast shall select other counsel. 5.3 INSURANCE (A) Comcast shall maintain at all times in full force and effect at its own expense each of the following policies of insurance: (1) Commercial General Liability coverage for bodily injury, personal injury, and property damage with limits of no less than one million dollars ($1,000,000) per occurrence. The general aggregate limit shall be no less than two million dollars ($2,000,000). (2) Commercial Automobile Liability Insurance with minimum combined single limits of at least one million dollars ($1,000,000) each occurrence and two million dollars ($2,000,000) aggregate with respect to each of Comcast's owned, hired and non-owned, or any other vehicles assigned to or used in any activities authorized under or used in conjunction with this Agreement. (3) Employer's Liability with limits of at least one million dollars ($1,000,000). (4) Workers' Compensation insurance shall be maintained during the life of this Agreement to comply with State law for all employees. (B) Each policy shall provide that the insurance shall not be canceled or terminated so as to be out of compliance with these requirements without forty-five (45) days' prior written notice, and ten (10) days' notice for nonpayment of any premium. Comcast shall maintain continuous uninterrupted insurance coverage, in at least the amounts required, until all work required to be performed under the terms of this Agreement is satisfactorily completed and, in the case of Commercial General Liability Insurance, for at least one (1) year after termination of this Agreement. A failure of Comcast to comply with any claim reporting provisions or any breach COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 15 of 34 of an insurance policy warranty shall not affect coverage afforded under the policy to protect the Town. However, if coverage is not afforded under these circumstances, Comcast shall indemnify the Town for losses the Town otherwise would have been covered for as an additional insured. (C) All insurance policies, except Workers' Compensation, shall contain a waiver of transfer rights of recovery (subrogation) against the Town, its officers, officials, agents, and employees for any claims arising out of Comcast's work or service. Comcast shall be responsible for deductibles or self-insured retention. (D) All policies shall contain, or shall be endorsed so that: (1) The Town and its officers, officials, boards, commissions, agents, representatives, and employees are to be covered as, and have the rights of, additional insureds with respect to liability arising out of activities performed by, or on behalf of, Comcast under this Agreement or applicable law, or in the construction, operation, upgrade, maintenance, repair, replacement or ownership of the Cable System; (2) Comcast's insurance coverage shall be primary insurance with respect to the Town and its officers, officials, boards, commissions, agents, volunteers and employees. Any insurance or self insurance maintained by the Town or its officers, officials, boards, commissions, agents, representatives, volunteers or employees shall be in excess of Comcast's insurance and shall not contribute to it, provided the occurrence arises out of Comcast's negligence; and (3) Comcast's insurance shall apply separately to each insured against whom a claim is made or lawsuit is brought, except with respect to the limits of the insurer's liability. (E) Comcast shall furnish the Town with certificates of insurance and an endorsement reflecting additional insured status. The certificates for each insurance policy are to be on standard forms or such forms as are consistent with standard industry practices, and are to be received and approved by the Town at the time of acceptance of this Agreement by Comcast with existing insurance coverage to be maintained by Comcast until that date. Comcast hereby warrants that its insurance policies satisfy the requirements of this Agreement. (F) The insurance limits mandated for any insurance coverage required by this Agreement are not intended to be an indication of exposure nor are they limitations on liability or indemnification. 5.4 LETTER OF CREDIT (A) At any time during the term of this Agreement, if there is a claim by the Town of an uncured breach by Comcast of a provision of this Franchise, then the Town may require and Comcast shall establish and provide, as quickly as possible, but no later than thirty (30) days after a request from the Town, a letter of credit from a financial institution satisfactory to the Town in the amount of fifty thousand dollars ($50,000). (B) After completion of the procedures set forth in Section 12.1 or other applicable provisions of this Franchise, the letter of credit may be drawn upon by the Town for purposes that include, but are not limited to the following: COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 16 of 34 (1) Failure of Comcast to pay the Town sums due under this Agreement; (2) Reimbursement of costs borne by the Town to correct violations not corrected by Comcast; and (3) Liquidated damages assessed against Comcast as provided in this Agreement. (C) The Town shall give Comcast written notice of any withdrawal under this Subsection upon such withdrawal. Within ten (10) days following receipt of such notice, Comcast shall restore the letter of credit to the amount required under this Agreement. SECTION 6. CUSTOMER SERVICE 6.1 SERVICE AVAILABILITY (A) Except as otherwise provided herein, Comcast shall provide a standard aerial installation of Cable Service within seven (7) days of a request by any Person in the Franchise Area. Standard Installations shall be done within seven (7) days of a request for service. Comcast shall provide such service: (1) With no extension charge except as specifically authorized by this Agreement; (2) At a non-discriminatory installation charge for a Standard Installation and with additional charges for non-Standard Installations computed according to a non- discriminatory methodology for such installations; and (3) At non-discriminatory monthly rates for all Customers, excepting commercial Customers, Multiple Dwelling Unit Bulk Customers and other lawful exceptions to uniform pricing. (B) No Person shall be refused service arbitrarily. However, for non-Standard Installations or a density of less than twenty five (25) residences per 5280 aerial cable-bearing strand feet of trunk or distribution cable, or sixty (60) residences per 5280 underground trench feet of trunk or distribution cable, Cable Service may be made available on the basis of a capital contribution in aid of construction, including cost of material, labor and easements. Comcast may require that the payment of the capital contribution in aid of construction be borne by such potential Customers and be paid in advance. 6.2 CUSTOMER SERVICE STANDARDS (A) COMCAST SHALL COMPLY WITH THE CUSTOMER SERVICE STANDARDS (CSS), WHICH ARE ATTACHED TO THIS FRANCHISE AS EXHIBIT A. 6.3 CUSTOMER PRIVACY Comcast shall comply with privacy rights of Customers in accordance with applicable law. 6.4 CUSTOMER SERVICE AGREEMENT AND MANUAL (A) Comcast shall provide to Customers an accurate, comprehensive service agreement and customer installation packet for use in establishing Customer service. This material shall, at a minimum, contain the following: COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 17 of 34 (1) Comcast's procedure for investigation and resolution of Customer complaints; (2) Services to be provided and rates for such services; (3) Billing procedures; (4) Service termination procedure; (5) A complete statement of the Customer's right to privacy; (6) Equipment policy; and, (7) The name, address and phone number of the Customer service department that is responsible for handling questions and complaints for Comcast. (B) A copy of the current installation packet shall be available to each Customer: (1) at the time of initial installation and at any time the packet is requested by the Customer. SECTION 7. RECORDS 7.1 REQUIRED RECORDS (A) Comcast shall at all times maintain: (1) Access to a full and complete set of plans, records and maps showing the location of all Cable System facilities in Public Ways; (2) A copy of all FCC filings on behalf of Comcast, its parent corporations or Affiliates that relate to the operation of the Cable System in the Franchise Area; (3) A list of Comcast's rates and Channel line-ups; and, (4) Financial records as required by Section 3 hereof. (B) The Town, upon reasonable prior written notice to Comcast, may review Comcast's records regarding the operation of the Cable System and the provision of Cable Service in the Franchise Area which are reasonably necessary to monitor and enforce Comcast's compliance with this Agreement, including without limitation any records required to be kept in a public file by Comcast pursuant to FCC rules and regulations. All such records shall be retained by Comcast for at least three (3) years. Comcast shall not deny the Town access to any of Comcast's records on the basis that Comcast's records are under the control of any parent corporation, Affiliate or a third party. The Town may request in writing copies of such records that are reasonably necessary, and Comcast shall provide such copies within thirty (30) days at Comcast's sole expense. If the requested records are too voluminous, or for security reasons cannot be copied or removed, then Comcast may request, in writing within ten (10) days of receipt of such request, that the Town inspect them at Comcast's local offices or at one of Comcast's offices more convenient to Town or its duly authorized agent. If any records of Comcast are not kept in such office and not made available to the Town upon written request, and if the Town determines that an examination of such records is necessary for the enforcement of this Agreement, then all reasonable travel expenses incurred in making such examination shall be paid by Comcast. (C) Comcast shall maintain at its business office, in a file available for public inspection during regular business hours, those documents required pursuant to FCC rules and regulations. COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 18 of 34 (D) Comcast shall keep an accurate and comprehensive compilation of any and all Customer complaints received and Comcast's actions in response to those complaints, in a manner consistent with the privacy rights of Customers. Comcast shall provide an executive summary report to the Town on an annual basis within one hundred twenty (120) days of the end of each year that shall include the following information: (1) Nature, date and type of Customer complaints escalated to Comcast by the Town in writing and date complaints were resolved; (2) Average response time for service calls; (3) Phone activity report; (4) A summary of the previous year's activities regarding the development of the Cable System, including, beginning and ending plant miles constructed; (5) An annual report of the company on Form 10-K that is filed with the U.S. Securities and Exchange Commission; and, (6) A copy of all Comcast's rules and regulations applicable to Customers. 7.2 PROPRIETARY INFORMATION If Comcast provides records to the Town, the Town agrees to keep confidential any proprietary information to the extent permitted by law. Comcast shall be responsible for clearly and conspicuously identifying the work proprietary, and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under applicable law. 7.3 COPIES OF FEDERAL AND STATE REPORTS Within thirty (30) days of the Town's written request, Comcast shall submit to the Town copies of any pleading, application, notification, communication or document of any kind, submitted by Comcast or an Affiliate to any federal, State or local court, regulatory agency or other government body if such documents relate to the operations of the Cable System. Comcast shall not claim confidential, privileged or proprietary rights to such documents, unless under federal, State, or local law such documents have been determined to be confidential by a court of competent jurisdiction, or a federal or State agency. With respect to all other reports, documents and notifications provided to any federal, State or local regulatory agency as a routine matter in the due course of operating the Cable System, Comcast shall make such documents available to the Town upon the Town's written request. SECTION 8. PROGRAMMING 8.1 BROAD PROGRAMMING CATEGORIES (A) Comcast shall provide at least the following initial broad categories of programming to the extent such categories are reasonably available. • Educational programming; • News, weather and information; • Sports; COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 19 of 34 • General entertainment including movies; • Foreign language programming; • Children’s programming; • Family oriented programming; • Arts, culture, performing arts programming; • Science and documentary programming; • National/international news; and • Local/regional news. (B) Comcast shall not delete or so limit as to effectively delete any broad category of programming within its control without prior written notice to the Town. (C) In the event of a modification proceeding under federal law, the mix and quality of Cable Service provided by Comcast shall follow the guidelines of Federal law. 8.2 OBSCENITY Comcast shall not transmit, or permit to be transmitted, over any Channel subject to its editorial control any programming which is obscene under applicable federal, State or local laws. 8.3 SERVICES FOR THE DISABLED In providing Cable Service to the disabled, Comcast shall comply with the Americans With Disabilities Act, as amended. 8.4 PARENTAL CONTROL DEVICE Upon request by any Customer, Comcast shall make available at no charge a parental control device to enable a Customer to control access to both the audio and video portions of any Channels. Comcast shall inform its Customers of the availability of the device at the time of their initial subscription and upon request. 8.5 COMPLIMENTARY CABLE SERVICE Comcast, upon request, shall provide without charge, a Standard Installation and one outlet of Basic Service to those buildings now existing, acquired or hereafter constructed that are either owned and occupied or leased and occupied by the Town, its designee or other governmental entity, including without limitation fire stations, police stations, libraries, schools and the Access studio, provided that they are already served or are within one hundred twenty-five (125) feet of the Cable System. The Cable Service provided shall not be distributed beyond the originally installed outlet without authorization from Comcast, which shall not be unreasonably withheld. In the case of leased facilities, the recipient of service is responsible for securing approval for appropriate right of entry suitable to Comcast in its reasonable discretion. The Cable Service provided shall not extend to areas of Town buildings where the Comcast would normally enter into a commercial contract to provide such Cable Service (e.g., golf courses, airport restaurants and concourses, and recreation center work out facilities) or be used for commercial purposes. For new hookups, Comcast shall not provide an outlet to such buildings where a non-Standard COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 20 of 34 Installation is required, unless the Town or building owner/occupant agrees to pay the cost of the non-Standard Installation. SECTION 9. ACCESS 9.1 ACCESS CHANNELS (A) Comcast shall provide, at no charge, two (2) Public, Educational or Governmental (PEG) Access Channels. (B) The Town may delegate management of the PEG Access Channels to a Designated Access Provider. (C) All PEG Access Channels provided for in this Agreement shall be carried system-wide in the Franchise Area, and shall be provided on the Basic Service tier unless otherwise agreed to by the parties. (D) The technical quality of the PEG Access Channels shall not be lower than the quality of other Channels on the same tier of service, at the same technical quality that programming is provided to Comcast by the Town or its Designated Access Provider. (E) The Town shall establish and enforce rules for use of the PEG Access Channels to assure nondiscriminatory access to the Channels to similarly situated users; and to promote use and viewership of the channels, consistent with applicable law. PEG Access Channels may not be used for commercial purposes. (F) Comcast may not exercise any editorial control over the content of programming on the PEG Access Channels. 9.2 UNDERUTILIZED ACCESS CHANNELS Comcast and the Town agree that it is their mutual goal to fully and efficiently use the Channel capacity of the Cable System, which may include allowing Comcast to use underutilized Access Channels. If Comcast believes that any Access Channel is underutilized, Comcast may file a request with the Town to use that Access Channel. The Town shall in its sole discretion render a decision regarding the matter within six (6) months of receiving the request. Should the Town find that the Access Channel may be used by Comcast, then Comcast may begin using such Channel thirty (30) days after receipt of the decision. In the event the Town determines, in Town’s sole discretion, that Town needs to use an Access Channel or Channels that Town has previously determined that Comcast may use as an underutilized Access Channel, Town may rescind Town’s permission to allow Comcast to utilize an Access Channel or Channels which rescission shall be effective ninety (90) days after tendering written notice Comcast. 9.3 ACCESS CHANNEL LOCATION (A) Comcast shall use its best efforts to minimize the movement of Access Channel assignments. Comcast shall provide to the Town a minimum of ninety (90) days prior written notice, prior to any relocation of its Access Channels, unless the change is required by federal law, in which case Comcast shall give the Town the maximum notice possible. Comcast shall pay the Town two thousand dollars ($2,000) per Access Channel, per move. COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 21 of 34 (B) Comcast, at Comcast's expense, shall include notice of Access Channel changes in its regular monthly billing. 9.4 ACCESS CHANNEL PROMOTION Comcast shall provide the Town the opportunity to include promotional notices on paper and electronic bills on not more than two occasions per year. Comcast shall be provided an opportunity to review all such promotional notices. The Town shall be responsible for any costs associated with the provision of such notices. 9.5 PEG FEE (A) Comcast shall collect and provide to Town a monthly fee as capital support for PEG access ("PEG Fee") in an amount determined by the Town. As of the Effective Date of this Agreement the PEG FEE shall be fifty cents ($0.50) per subscriber per month for individual residential and commercial subscribers, and twenty-five cents ($0.25) per subscriber per month subject to bulk-billing. The PEG Fee shall be used solely for PEG access equipment and facilities. Comcast shall make PEG Fee payments quarterly, no later than forty-five (45) days following the end of the quarter. The Town has the right to reduce or increase to PEG Fee up to a maximum of seventy-five cents ($0.75) per Residential Subscriber, and forty cents ($0.40) per Bulk-Billing Subscriber. The Town shall discuss with Comcast any proposed fee before posting and conducting a required Town public hearing prior to taking action on any increase to the PEG Fee. Town shall provide written notice to Comcast at least forty-five (45) days in advance of such public hearing which notice shall state the proposed PEG Fee increase to be considered. Any PEG Fee increase shall be approved by either ordinance or resolution. (B) To the extent permitted by law, the PEG Fee may be itemized on Customer billing statements and recovered from Customers over the term of this Agreement. Comcast shall not be responsible for paying the PEG Fee with respect to gratis or Bad Debt accounts. 9.6 RETURN LINES (A) Comcast shall continue to maintain the return lines from all existing Access broadcast facilities to the Headend in order to enable the distribution of programming to Customers on the Access Channels. Comcast shall continuously maintain these return lines throughout the term of the Agreement, unless any of these locations are no longer used in the future to originate Access programming. (B) Within eighteen (18) months of written request by the Town, Comcast shall construct and maintain additional return lines to other locations in the Franchise Area; provided however, that Comcast's construction costs shall be paid by the Town or its Designated Access Provider. (C) Return Lines shall be maintained by Comcast in the same manner as the rest of the Cable System so that Access Channels may be viewed at the same quality that is provided by the Town or its Designated Access Provider. SECTION 10. USE OF PUBLIC WAYS COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 22 of 34 10.1 CONSTRUCTION AND MAINTENANCE (A) The Cable System shall be constructed and maintained so as not to interfere with sewers, water pipes, or any other property of Town, or with any other pipes, wires, conduits, pedestals, structures or other facilities installed in Public Ways. (B) In its maintenance and construction of the Cable System, Comcast shall comply with the Avon Town Code. All construction and maintenance of Comcast's facilities within Public Ways shall, regardless of who performs the construction, be and remain Comcast's responsibility. (C) Comcast's contractors and subcontractors shall be licensed and bonded in accordance with the Town's ordinances, regulations and requirements. Work by contractors and subcontractors is subject to the same restrictions, limitations and conditions as if the work were performed by Comcast. Comcast shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf as if the work were performed by it, and shall ensure that all such work is performed in compliance with this Agreement and other applicable law, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is Comcast's responsibility to ensure that contractors, subcontractors or other Persons performing work on Comcast's behalf are familiar with the requirements of this Agreement and other applicable laws governing the work performed by them. (D) Comcast shall give reasonable notice to private property owners of construction work in adjacent Public Ways. (E) If Comcast disturbs, alters, or damages any public or private property, Comcast shall at its own expense replace and restore any such Public Way or property to a condition equal to the condition of the property existing immediately prior to the disturbance. (F) The Town may inspect any of Comcast's facilities or construction upon at least twenty- four (24) hours' notice, or, in case of emergency, without prior notice, and the Town may charge Comcast generally applicable inspection fees therefor. If an unsafe condition is found, the Town, in addition to taking any other action permitted under applicable law, may order Comcast to make necessary repairs and alterations to correct the unsafe condition by a time the Town establishes. The Town may correct, inspect, administer and repair the unsafe condition if Comcast fails to do so, and to charge Comcast therefor. (G) On notice from Town that any work is being conducted contrary to this Agreement, or in violation of the terms of any applicable law or permit, the work may immediately be stopped by Town. The stop work order shall: be in writing; be given to the Person doing the work or posted on the work site; be sent to Comcast by mail; indicate the nature of the alleged violation or unsafe condition; and establish conditions under which work may be resumed. 10.2 LOCATION AND MOVEMENT OF FACILITIES (A) After the Town or any franchisee or permittee of the Town notifies Comcast of a proposed Public Way excavation, or design of any project impacting facilities in the Public Way, Comcast shall, at Comcast's expense, mark on the surface all of its located underground facilities within the area of the proposed excavation in accordance with applicable law. COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 23 of 34 (B) The Town may remove or disconnect Comcast's facilities and equipment located in the Public Way or on any other property of the Town in the case of an emergency. Except in an emergency, the Town shall provide reasonable notice to Comcast prior to taking such action and shall provide Comcast with the opportunity to perform such action. Following notice by the Town, Comcast shall remove, replace, relocate, modify or disconnect any of its facilities in a Public Way or on any other property of the Town, except that the Town shall provide at least ninety (90) days written notice of any major capital improvement project that would require the removal, relocation, replacement, modification or disconnection of Comcast's facilities or equipment. If Comcast fails to complete this work within the time prescribed and to the Town's satisfaction, the Town may cause such work to be done at Comcast's expense. Comcast shall remit payment to Town within thirty (30) days of receipt of an itemized list of those costs. (C) If the Town requires Comcast to relocate its facilities located in a Public Way, the Town shall make a reasonable effort to provide Comcast with an alternate location within the Public Way. If funds are generally made available to users of the Public Way for such relocation, Comcast shall be entitled to its pro rata share of such funds. (C) At the request of any Person holding a valid permit and upon reasonable advance notice, Comcast shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The cost of such temporary change may be charged by Comcast to the permit holder, and Comcast may require the estimated payment in advance. Such payment is an exchange between Comcast and the permittee, and the Town will not be the administrator of these transactions. 10.3 ACQUISITION OF FACILITIES Upon Comcast's acquisition of Cable System related facilities in any Public Way, or upon the addition or annexation to the Town of any area in which Comcast owns or operates any facility, such facilities shall be subject to the terms of this Agreement. The Town acknowledges that inclusion of revenue from Customers affected by annexation to the Town will require ninety (90) days to make changes in the billing system affecting those Customers. 10.4 RESERVATION OF PUBLIC WAYS Nothing in this Agreement shall prevent the Town from constructing any public improvement, or from permitting other utilities the use of the Public Ways. If the Cable System interferes with the construction, maintenance or repair of any Public Way or public improvement, the Cable System shall be removed or relocated in the area the Town directs. If the Town requires Comcast to relocate its facilities located within the Public Way, the Town shall make a reasonable effort to provide Comcast with an alternate location within the Public Way. All such removal or relocation shall be preceded by sixty (60) days written notice or such additional time as may be provided by Town. Should Comcast fail to remove, adjust or relocate its facilities by the date established by the Town, the Town may effect such removal, adjustment or relocation at Comcast's sole expense. If funds are generally made available to users of the Public Way for such relocation, Comcast shall be entitled to its pro rata share of such funds. 10.5 DISCONTINUED FACILITIES COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 24 of 34 (A) When Comcast intends to discontinue using any facility within a Public Way, Comcast shall submit to Town a complete description of the facility and the date on which Comcast intends to discontinue using the facility. Comcast may remove the facility or request that the Town allow it to remain in place. Notwithstanding Comcast's request that any such facility remain in place, the Town may require Comcast to remove the facility from the Public Way or modify the facility to protect the public health, welfare, safety and convenience. The Town may require Comcast to perform a combination of modification and removal of the facility. (B) Comcast shall complete such removal or modification in accordance with a schedule set by the Town. Until Comcast removes or modifies the facility as directed by the Town, or until the rights to and responsibility for the facility are accepted by another Person having authority to construct and maintain such facility, Comcast shall be responsible for the facility, as well as maintenance of the Public Way, in the same manner and degree as if the facility were in active use, and Comcast shall retain all liability for such facility. (C) If Comcast abandons any facilities, the Town may choose to use such facilities for any purpose whatsoever. 10.6 USE OF CONDUIT OR DUCTS (A) The Town may install or affix and maintain wires and equipment owned by the Town for Town purposes in or upon any of Comcast's ducts or conduits in the Public Ways, without charge to the Town, to the extent space therein or thereon is reasonably available, and pursuant to all applicable ordinances and codes. For purposes of this Subsection, "Town purposes" includes, but is not limited to, the use of the structures and installations for fire, police, traffic, water, telephone, or signal systems, but not for Cable Service in competition with Comcast. Comcast shall not deduct the value of such use of its facilities from its Franchise Fee payments or from other fees payable to the Town. (B) Comcast acknowledges that the Public Ways have a finite capacity for containing conduit and facilities. Therefore, Comcast agrees that when the Town determines it is impracticable to permit construction of an underground conduit system by any other Person which may at the time have authority to construct or maintain conduits or ducts in the Public Ways, but excluding Persons providing Cable Service in competition with Comcast, the Town may require Comcast to afford to such Person the right to use Comcast's surplus ducts or conduits in common with Comcast, pursuant to the terms and conditions of an agreement for use of surplus ducts or conduits entered into by Comcast and the other Person. Nothing herein shall require Comcast to enter into an agreement with such Person if, in Comcast's reasonable determination, such an agreement will compromise the integrity of the Cable System. 10.7 UNDERGROUNDING Where electric and telephone utility wiring is underground, all Cable System lines, wiring and equipment shall also be placed underground with other wireline service at no expense to the Town. Related equipment, such as pedestals, shall be placed in accordance with applicable Town requirements. In areas where either electric or telephone utility wiring are aerial, Comcast may install aerial cable, except when a property owner or resident requests underground installation and agrees to bear the additional cost in excess of aerial installation. COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 25 of 34 10.8 TREE TRIMMING Comcast may prune or cause to be pruned, using proper pruning practices, any tree in any Public Way which interferes with the Cable System. Comcast shall comply with all Town requirements regarding tree trimming. Except in emergencies, Comcast may not prune trees at a point below thirty (30) feet above sidewalk grade without seven (7) days prior written notice to the owner or occupant of the premises abutting the Public Way in or over which the tree is growing. The owner or occupant of the abutting premises may prune such tree at his or her own expense during this one (1) week period. If the owner or occupant fails to do so, Comcast may prune such tree at its own expense. For purposes of this Subsection, emergencies exist when it is necessary to prune to protect the public or Comcast's facilities from imminent danger only. 10.9 GIS MAPPING Comcast shall provide the Town with records of Comcast's trunk and distribution facilities in the Franchise Area in a standard geographic information (GIS) format within thirty (30) days of receipt of written request or longer if agreed to by the parties. SECTION 11. CABLE SYSTEM DESIGN AND TECHNICAL STANDARDS 11.1 TECHNICAL PERFORMANCE The technical performance of the Cable System shall meet or exceed all applicable technical standards authorized or required by law, including FCC technical standards as they may be amended from time to time, regardless of the transmission technology utilized. The Town shall have the authority provided by law to enforce compliance with these technical standards. 11.2 CABLE SYSTEM PERFORMANCE TESTING (A) Comcast shall, at its expense, perform all tests on the Cable System required by the FCC (including FCC required test points located in the Franchise Area) and shall maintain written records of its test results in accordance with FCC requirements. Copies of such test results shall be provided to the Town upon request. (B) All required tests may be witnessed by representatives of the Town. Upon request, Comcast will notify the Town before any required technical proof-of-performance or other testing occurs. (C) Comcast shall promptly take all necessary measures to correct any performance deficiencies and prevent their recurrence. Sites shall be re-tested within five (5) days following correction until correction has been confirmed and satisfactory results are obtained. 11.3 STANDBY POWER Comcast shall provide standby power generating capacity at the Cable System Headend capable of providing at least twelve (12) hours of emergency operation. Comcast shall maintain standby power supplies that will supply back-up power of at least two (2) hours duration throughout the distribution networks, and four (4) hours duration at all nodes and hubs. SECTION 12. VIOLATIONS AND REVOCATION COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 26 of 34 12.1 PROCEDURE FOR REMEDYING VIOLATIONS (A) If the Town believes that Comcast has failed to perform any material obligation of this Agreement, the Town shall notify Comcast in writing, stating with specificity, the nature of the alleged violation. Comcast shall have thirty (30) days from the receipt of such notice to: (1) Respond to the Town, contesting the Town's assertion that a violation has occurred, or notifying the Town that violation cannot be cured within thirty (30) days because of the nature of the alleged violation, and requesting a hearing in accordance with Subsection (B), below; or (2) Cure the violation. (B) If Comcast does not cure the violation within thirty (30) days, or denies the violation and requests a hearing, the Town shall set a public hearing on the violation. The Town shall provide not less than seven (7) days prior written notice of the hearing. At the hearing, Comcast shall be provided an opportunity to be heard, to present and question witnesses, and to present evidence in its defense. (C) If, after considering the evidence presented at the public hearing, the Town Council determines that a violation exists, the Town may order Comcast to remedy the violation within fourteen (14) days or within such other reasonable timeframe agreed to by the parties. If Comcast does not remedy the violation within such time to the Town's reasonable satisfaction, the Town may: (1) Assess and collect monetary damages in accordance with this Agreement; (2) Terminate this Agreement; and/or, (3) Pursue any other legal or equitable remedy available under this Agreement or applicable law. 12.2 ALTERNATIVE REMEDIES (A) No provision of this Agreement shall bar the right of either party to seek or obtain judicial relief from a violation of any provision of the Agreement or any rule, regulation, requirement or directive promulgated thereunder. Neither the existence of other remedies identified in this Agreement nor the exercise thereof shall be deemed to bar or otherwise limit the right of either party to recover monetary damages, as allowed under applicable law, or to seek and obtain judicial enforcement of obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. (B) The Town does not waive any right, immunity, limitation or protection otherwise available to the Town, its officers, officials, Boards, commissions, agents, or employees under any law, including without limitation Section 635A of the Cable Act. Comcast shall not have any monetary recourse against the Town, or its officers, officials, Board, commissions, agents or employees for any loss, costs, expenses or damages arising out of any provision of this Agreement or the enforcement thereof, subject to applicable law. 12.3 LIQUIDATED DAMAGES COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 27 of 34 (A) The Town and Comcast recognize the delays, expense and unique difficulties involved in proving in a legal proceeding the actual loss suffered by the Town as a result of a violation by Comcast of this Agreement. Accordingly, instead of requiring such proof of actual loss, the Town and Comcast agree that Comcast shall pay to the Town the sums set forth in this Subsection. Such amounts are agreed by both parties to be a reasonable estimate of the actual damages the Town would suffer in the event of Comcast's violation. (B) In addition to any other remedy, the Town in its sole discretion may, after following the procedures as provided in this Section 12.1, charge to and collect from Comcast the following liquidated damages per day, for each day, or part thereof, the violation continues: (1) For failure to provide data, documents, reports or information or to cooperate with the Town during an application process or Cable System review or as otherwise provided herein: one hundred fifty dollars ($150). (2) For failure to make timely PEG Fee or Franchise Fee payments: two hundred fifty dollars ($250). (3) For failure to comply with any other provision of this Agreement or Customer Service Standards or the Avon Town Code: one hundred fifty dollars ($150). (C) Each violation shall be considered a separate violation for which separate liquidated damages can be imposed. In no event shall liquidated damages be imposed for a period greater than 120 days. (D) Comcast shall have thirty (30) days to pay the liquidated damages. If not so paid, the Town may draw on any bond or Letter of Credit. The Town shall give Comcast written notice of any such draw, and within seven (7) days of such notice, Comcast shall restore the bond or Letter of Credit to the amount required under this Agreement. 12.4 REVOCATION (A) The franchise provided by this Agreement may be revoked and all rights and privileges rescinded if a material breach of the Agreement is not cured, or in the event that: (1) Comcast attempts to evade any material provision of this Agreement or to practice any fraud or deceit upon the Town or Customers; (2) Comcast makes a material misrepresentation of fact in the negotiation of this Agreement; (3) Comcast abandons the Cable System, or terminates the Cable System's operations; (4) Comcast fails to restore service to the Cable System after three (3) consecutive days of an outage or interruption in service; except in the case of an emergency or during a force majeure occurrence, or when approval of such outage or interruption is obtained from the Town; or (5) Comcast becomes insolvent, unable or unwilling to pay its debts, or is adjudged bankrupt, there is an assignment for the benefit of Comcast's creditors, or all or part of COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 28 of 34 Cable System is sold under an instrument to secure a debt and is not redeemed by Comcast within thirty (30) days from said sale. (B) Additionally, the franchise granted in this Agreement may be revoked one hundred twenty (120) days after the appointment of a receiver or trustee to conduct the business of Comcast, at the option of the Town and subject to applicable law, whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless directed otherwise by a court of competent jurisdiction. (C) If there is a foreclosure or other involuntary sale of the whole or any part of the plant, property and equipment of Comcast, the Town may serve notice of revocation on Comcast and to the purchaser at the sale, and the rights and privileges of Comcast under this Agreement shall be revoked thirty (30) days after service of such notice, unless: (1) The Town has approved the transfer of the Agreement, in accordance with the procedures set forth in this Agreement and as provided by law; and (2) The transferee has agreed to assume and be bound by all terms of this Agreement. 12.5 PURCHASE OF THE CABLE SYSTEM If at any time this Agreement lawfully terminates, the Town shall have the option to purchase the Cable System; provided that nothing in this Agreement shall limit or expand the Town’s right of eminent domain under State law. SECTION 13. TRANSFER 13.1 TRANSFER OF OWNERSHIP OR CONTROL (A) The Cable System and this Agreement shall not be sold, assigned, transferred, leased or disposed of, either in whole or in part, either by involuntary sale or by voluntary sale, merger or consolidation; nor shall title thereto, either legal or equitable, or any right, interest or property therein pass to or vest in any Person or entity without the prior written consent of the Town, which consent shall be by the Town Council, acting by ordinance or resolution. (B) Comcast shall promptly notify the Town of any actual or proposed change in control of Comcast. The word "control" as used herein is defined as an acquisition of 51% or greater ownership interest in Comcast. Such change of control of Comcast shall make this Agreement subject to cancellation unless and until the Town has consented in writing. (C) The parties to the transfer shall make a written request to the Town for its approval of a sale or transfer or change in control and shall furnish all information required by law. (D) In seeking the Town's consent to any transfer, the proposed transferee or controlling entity shall indicate whether it: (1) Has ever been convicted or held liable for acts involving deceit including any violation of federal, State or local law or regulations, or is currently under an indictment, investigation or complaint charging such acts; (2) Has ever had a judgment in an action for fraud, deceit, or misrepresentation entered against the proposed transferee by any court of competent jurisdiction; COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 29 of 34 (3) Has pending any material legal claim, lawsuit, or administrative proceeding arising out of or involving a Cable System or the provision of Cable Services; (4) Is financially solvent, by submitting financial data including financial statements that are audited by a certified public accountant who may also be an officer of the transferee or controlling entity, along with any other data that is lawfully required; and (5) Has the financial, legal and technical capability to enable it to maintain and operate the Cable System for the remaining term of the Agreement. (E) The proposed transferee shall provide complete information regarding any potential impact of the transaction on Customer rates and service, as well as any other documentation reasonably related to the proposed transaction and consistent with applicable law which, in the reasonable discretion of the Town are necessary to understand the proposed transaction. (F) The Town shall act on the request within one hundred twenty (120) days of receipt of the FCC Form 394 application and all information expressly required by this Agreement and applicable law, provided it has received a complete application. Subject to the foregoing, if the Town fails to render a final decision on the request within one hundred twenty (120) days, such request shall be deemed granted unless the requesting party and the Town agree to an extension of time. (G) Within thirty (30) days of any transfer, Comcast shall file with the Town a copy of the deed, agreement, lease or other written instrument evidencing such transfer, certified correct by Comcast and the transferee, and the transferee shall file its written acceptance agreeing to be bound by all terms of this Agreement, subject to applicable law. In the event of a change in control in which Comcast is not replaced by another entity, Comcast will continue to be bound by all terms of the Agreement, subject to applicable law, and will not be required to file an additional written acceptance. The approval of any transfer shall not waive any rights of Town to subsequently enforce noncompliance issues relating to this Agreement. If a change of control involves an entity that was not an Affiliate prior to the contemplated transaction, the Town's consent shall be required for such change in control. (H) In reviewing a transfer request, the Town may inquire into the legal, technical and financial qualifications of the transferee, and Comcast shall assist the Town in so inquiring. The Town may condition said transfer upon such terms as it deems reasonably appropriate, consistent with applicable law and reasonably related to the qualifications of the prospective transferee to comply with this Agreement or the resolution of outstanding and unresolved issues of noncompliance with this Agreement by Comcast. (I) Notwithstanding anything to the contrary in this Subsection, the prior approval of the Town shall not be required for any sale, assignment or transfer of the Agreement or the Cable System to an intra-company entity controlling, controlled by or under the same common control as Comcast, provided that the proposed assignee or transferee shall show financial responsibility as may be determined necessary by the Town and shall agree in writing to comply with all provisions of the Agreement. Further, Comcast may pledge the assets of the Cable System for the purpose of financing without the consent of the Town; provided that such pledge of assets shall not mitigate Comcast's responsibilities to meet its obligations under this Agreement. COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 30 of 34 SECTION 14. MISCELLANEOUS 14.1 CUMULATIVE RIGHTS Subject to applicable law, all rights and remedies given to the Town or retained by the Town in this Agreement shall be in addition to and cumulative with any and all other rights and remedies, existing or implied, now or hereafter available to the Town, at law or in equity, and such rights and remedies shall not be exclusive, but every right and remedy given by this Agreement or otherwise existing may be exercised as often and in such order as deemed expedient by the Town, and the exercise of one right or remedy shall not be deemed a waiver of the right to exercise at the same time or thereafter any other right or remedy. 14.2 COSTS TO BE BORNE BY COMCAST Comcast shall pay for all costs of publication of this Agreement, and any and all notices prior to any public meeting or hearing provided for pursuant to this Agreement in accordance with the Avon Town Code or Charter. 14.3 BINDING EFFECT This Agreement shall be binding upon the parties hereto, their permitted successors, transferees and assigns. 14.4 MODIFICATION This Agreement may be modified only by written agreement between the parties. 14.5 REGULATORY CHANGES In the event there is any change to the Cable Act during the term of this Agreement which has the effect of expanding or reducing a municipality’s regulatory authority, with regard to: the franchise fee or other fees, required minimum technology standards, minimum public access channels, minimum service standards, or regulation of combined or expanded cable based services, including but not limited to phone and internet, then the Town or Comcast may initiate re-negotiation of this Agreement to incorporate such changes into this Agreement as may be mutually determined by the parties. Town or Comcast shall initiate re-negotiation by tendering written notice to the other party, which written notice shall describe the specific changes to be incorporated into the Agreement. In the event that Town and Comcast do not successfully conclude a renegotiation by the end of one (1) year after the date of the written notice to initiate renegotiation, or such longer time for renegotiation as the parties may mutually agree, then the Town or Comcast may elect to terminate this Agreement, provided that the Town or Comcast shall provide at least one (1) additional year’s prior written notice to the other party of the early termination of this Agreement in accordance with this Section 14.5. 14.6 GOVERNING LAW AND VENUE This Agreement shall be governed, construed and enforced in accordance with the laws of the State of Colorado, the Cable Act, as amended, any applicable rules, regulations and orders of the FCC, as amended, and any other applicable local, State and federal laws, rules, and regulations. The venue for any dispute related to a violation of this Agreement shall be in an appropriate state court of competent jurisdiction in Eagle County, Colorado. COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 31 of 34 14.7 NO JOINT VENTURE Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner that would indicate any such relationship with the other. 14.8 WAIVER The failure of either party at any time to require performance by the other of any provision hereof shall in no way affect the right of the other party hereafter to enforce the same. Nor shall the waiver by either party of any breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such provision, or as a waiver of the provision itself or any other provision. 14.9 SEVERABILITY If any provision of this Agreement is determined to be illegal, invalid or unconstitutional by any court or agency of competent jurisdiction, such determination shall have no effect on the validity of any other provision of this Agreement. 14.10 FORCE MAJEURE Comcast shall not be held in violation of this Agreement for any act caused by circumstances reasonably beyond the ability of Comcast to anticipate and control, including war, riots, civil disturbances, floods, severe adverse weather conditions or other natural catastrophes, labor stoppages or power outages exceeding back-up power supplies. 14.11 ENTIRE AGREEMENT This Agreement represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersede all prior oral and written negotiations between the parties. 14.12 NOTICES Each party shall maintain and file with the other a local address for the service of notices by mail. All notices shall be sent to such respective address, and such notices shall be effective upon the date of mailing. On the Effective Date, the following are the addressed on file: Comcast: With a copy to: Comcast Comcast 8000 East Iliff Avenue 281 Metcalf Road, Suite 110 Denver, CO 80231 Avon, CO 81620 Attn: Government Affairs Attn: General Manager COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 32 of 34 Town: With a copy to: Town of Avon Town of Avon 1 Lake Street 1 Lake Street Avon, CO 81620 Avon, CO 81620 Attn: Town Manager Attn: Town Attorney COMCAST OF COLORADO VII, LLC/ TOWN OF AVON ORDINANCE NO. 14-15 Page 33 of 34 IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. TOWN OF AVON, COLORADO _______________________________ Mayor ATTEST: __________________________________ Town Clerk APPROVED AS TO FORM: __________________________________ Town Attorney COMCAST OF COLORADO VII, LLC __________________________________ By: _______________________________ Its: _______________________________ 1 TOWN OF AVON CUSTOMER SERVICE STANDARDS I. POLICY The Cable Operator should resolve citizen complaints without delay and interference from the Franchising Authority. Where a given complaint is not addressed by the Cable Operator to the citizen's satisfaction, the Franchising Authority should intervene. In addition, where a pattern of unremedied complaints or noncompliance with the Standards is identified, the Franchising Authority should prescribe a cure and establish a reasonable deadline for implementation of the cure. If the noncompliance is not cured within established deadlines, monetary sanctions should be imposed to encourage compliance and deter future non-compliance. These Standards are intended to be of general application, and are expected to be met under normal operating conditions; however, the Cable Operator shall be relieved of any obligations hereunder if it is unable to perform due to a region-wide natural emergency or in the event of force majeure affecting a significant portion of the franchise area. The Cable Operator is free to exceed these Standards to the benefit of its Customers and such shall be considered performance for the purposes of these Standards. These Standards supercede any contradictory or inconsistent provision in federal, state or local law (Source: 47 U.S.C. § 552(a)(1) and (d)), provided, however, that any provision in federal, state or local law, or in any original franchise agreement or renewal agreement, that imposes a higher obligation or requirement than is imposed by these Standards, shall not be considered contradictory or inconsistent with these Standards. In the event of a conflict between these Standards and a Franchise Agreement, the Franchise Agreement shall control. These Standards apply to the provision of any Cable Service, provided by a Cable Operator over a Cable System, within the Town of Avon. II. DEFINITIONS When used in these Customer Service Standards (the "Standards"), the following words, phrases, and terms shall have the meanings given below. "Adoption" shall mean the process necessary to formally enact the Standards within the Franchising Authority's jurisdiction under applicable ordinances and laws. "Affiliate" shall mean any person or entity that is owned or controlled by, or under common ownership or control with, a Cable Operator, and provides any Cable Service or Other Service. “Applicable Law” means, with respect to these standards and any Cable Operator’s privacy policies, any statute, ordinance, judicial decision, executive order or regulation having the force and effect of law, that determines the legal standing of a case or issue. 2 "Cable Operator" shall mean any person or group of persons (A) who provides Cable Service over a Cable System and directly or through one or more affiliates owns a significant interest in such cable system, or (B) who otherwise controls or is responsible for, through any arrangement, the management and operation of such a Cable System. Source: 47 U.S.C. § 522(5). “Cable Service” shall mean (A) the one-way transmission to subscribers of (i) video programming, or (ii) other programming service, and (B) subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service. Source: 47 U.S.C. § 522(6). For purposes of this definition, “video programming” is programming provided by, or generally considered comparable to programming provided by a television broadcast station. Source: 47 U.S.C. § 522(20). “Other programming service” is information that a Cable Operator makes available to all subscribers generally. Source: 47 U.S.C. § 522(14). “Cable System” shall mean a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide Cable Service which includes video programming and which is provided to multiple subscribers within a community, but such term does not include (A) a facility that serves only to retransmit the televisions signals of one or more television broadcast stations, or (B) a facility that serves subscribers without using any public right of way. Source: 47 U.S.C. § 522(7). “Contractor” shall mean a person or entity that agrees by contract to furnish materials or perform services for another at a specified consideration. "Customer" shall mean any person who receives any Cable Service from a Cable Operator. "Customer Service Representative" (or "CSR") shall mean any person employed with or under contract or subcontract to a Cable Operator to assist, or provide service to, customers, whether by telephone, writing service or installation orders, answering customers' questions in person, receiving and processing payments, or performing any other customer service-related tasks. “Escalated complaint” shall mean a complaint that is referred to a Cable Operator by the Franchising Authority. "Franchising Authority" shall mean the Town of Avon. "Necessary" shall mean required or indispensable. "Non-cable-related purpose" shall mean any purpose that is not necessary to render or conduct a legitimate business activity related to a Cable Service or Other Service provided by a Cable Operator to a Customer. Market research, telemarketing, and other marketing of services or products that are not related to a Cable Service or Other Service provided by a Cable Operator to a Customer shall be considered Non-cable-related purposes. “Normal business hours” shall mean those hours during which most similar businesses in the community are open to serve customers. In all cases, “normal business hours” must include at least some evening hours one night per week, and include some weekend hours. Source: 47 C.F.R. § 76.309. 3 “Normal operating conditions” shall mean those service conditions which are within the control of a Cable Operator. Conditions which are not within the control of a Cable Operator include, but are not necessarily limited to, natural disasters, civil disturbances, power outages, telephone network outages, and severe or unusual weather conditions. Conditions which are ordinarily within the control of a Cable Operator include, but are not necessarily limited to, special promotions, pay-per-view events, rate increases, regular peak or seasonal demand periods and maintenance or upgrade to the Cable System. “Other Service(s)” shall mean any wire or radio communications service provided using any of the facilities of a Cable Operator that are used in the provision of Cable Service. "Personally Identifiable Information" shall mean specific information about an identified Customer, including, but not be limited to, a Customer's (a) login information for the use of Cable Service and management of a Customer’s Cable Service account, (b) extent of viewing of video programming or Other Services, (c) shopping choices, (d) interests and opinions, (e) energy uses, (f) medical information, (g) banking data or information, or (h) any other personal or private information. "Personally Identifiable Information" shall not mean any aggregate information about Customers which does not identify particular persons, or information gathered by a Cable Operator necessary to install, repair or service equipment or Cable System facilities at a Customer’s premises. “Service interruption” or “interruption” shall mean (i) the loss or substantial impairment of picture and/or sound on one or more cable television channels. “Service outage” or “outage” shall mean a loss or substantial impairment in reception on all channels. “Subcontractor” shall mean a person or entity that enters into a contract to perform part or all of the obligations of another's contract. "Town" shall mean the Town of Avon, Colorado. “Writing” or “written” as the term applies to notification shall include electronic communications. Any terms not specifically defined in these Standards shall be given their ordinary meaning, or where otherwise defined in applicable federal law, such terms shall be interpreted consistent with those definitions. III. CUSTOMER SERVICE A. Courtesy Cable Operator employees, contractors and subcontractors shall be courteous, knowledgeable and helpful and shall provide effective and satisfactory service in all contacts with customers. B. Accessibility 1. A Cable Operator shall provide customer service centers/business offices (“Service Centers”) which are conveniently located, and which are open during Normal Business Hours. Service Centers shall be fully staffed with Customer Service Representatives offering the following services to Customers who 4 come to the Service Center: bill payment, equipment exchange, processing of change of service requests, and response to Customer inquiries and request. Unless otherwise requested by the Town, a Cable Operator shall post a sign at each Service Center, visible from the outside of the Service Center, advising Customers of its hours of operation and of the telephone number at which to contact the Cable Operator if the Service Center is not open at the times posted. The Cable Operator shall use commercially reasonable efforts to implement and promote “self-help” tools and technology, in order to respond to the growing demand of Customers who wish to interact with the Cable Operator on the Customer’s own terms and timeline and at their own convenience, without having to travel to a Service Center. Without limitation, examples of self-help tools or technology may include self-installation kits to Customers upon request; pre-paid mailers for the return of equipment upon Customer request; an automated phone option for Customer bill payments; and equipment exchanges at a Customer’s residence in the event of damaged equipment. A Cable Operator shall provide free exchanges of faulty equipment at the customer's address if the equipment has not been damaged in any manner due to the fault or negligence of the customer. 2. A Cable Operator shall maintain local telephone access lines that shall be available twenty-four (24) hours a day, seven (7) days a week for service/repair requests and billing/service inquiries. 3. A Cable Operator shall have dispatchers and technicians on call twenty-four (24) hours a day, seven (7) days a week, including legal holidays. 4. If a customer service telephone call is answered with a recorded message providing the customer with various menu options to address the customer’s concern, the recorded message must provide the customer the option to connect to and speak with a CSR within sixty (60) seconds of the commencement of the recording. During Normal Business Hours, a Cable Operator shall retain sufficient customer service representatives and telephone line capacity to ensure that telephone calls to technical service/repair and billing/service inquiry lines are answered by a customer service representative within thirty (30) seconds or less from the time a customer chooses a menu option to speak directly with a CSR or chooses a menu option that pursuant to the automated voice message, leads to a direct connection with a CSR. Under normal operating conditions, this thirty (30) second telephone answer time requirement standard shall be met no less than ninety (90) percent of the time measured quarterly. 5. Under normal operating conditions, a customer shall not receive a busy signal more than three percent (3%) of the time. This standard shall be met ninety (90) percent or more of the time, measured quarterly. C. Responsiveness 1. Guaranteed Seven-Day Residential Installation a. A Cable Operator shall complete all standard residential installations or modifications to service requested by customers within seven (7) business days after the order is placed, unless a later date for installation is requested. "Standard" residential installations are those located up to one hundred twenty five (125) feet from the existing distribution system. If the customer requests a nonstandard residential installation, or the Cable Operator determines that a nonstandard residential installation is 5 required, the Cable Operator shall provide the customer in advance with a total installation cost estimate and an estimated date of completion. b. All underground cable drops to the home shall be buried at a depth of no less than twelve inches (12"), or such other depth as may be required by the Franchise Agreement or local code provisions, or if there are no applicable Franchise or code requirements, at such other depths as may be agreed to by the parties if other construction concerns preclude the twelve inch requirement , and within no more than one calendar week from the initial installation, or at a time mutually agreed upon between the Cable Operator and the customer. 2. Residential Installation and Service Appointments a. The “appointment window” alternatives for specific installations, service calls, and/or other installation activities will be either a specific time, or at a maximum, a four (4) hour time block between the hours of 8:00 a.m. and 6:00 p.m., six (6) days per week. A Cable Operator may schedule service calls and other installation activities outside of the above days and hours for the express convenience of customers. For purposes of this subsection “appointment window” means the period of time in which the representative of the Cable Operator must arrive at the customer’s location. b. A Cable Operator may not cancel an appointment with a customer after the close of business on the business day prior to the scheduled appointment, unless the customer’s issue has otherwise been resolved. c. If a Cable Operator is running late for an appointment with a customer and will not be able to keep the appointment as scheduled, the Cable Operator shall take reasonable efforts to contact the customer promptly, but in no event later than the end of the appointment window. The appointment will be rescheduled, as necessary at a time that is convenient to the customer, within Normal Business Hours or as may be otherwise agreed to between the customer and Cable Operator. d. A Cable Operator shall be deemed to have responded to a request for service under the provisions of this section when a technician arrives within the agreed upon time, and, if the customer is absent when the technician arrives, the technician leaves written notification of arrival and return time, and a copy of that notification is kept by the Cable Operator. In such circumstances, the Cable Operator shall contact the customer within forty-eight (48) hours. 3. Residential Service Interruptions a. In the event of system outages resulting from Cable Operator equipment failure, the Cable Operator shall correct such failure within 2 hours after the 3rd customer call is received. b. All other service interruptions resulting from Cable Operator equipment failure shall be corrected by the Cable Operator by the end of the next calendar day. c. Records of Complaints. i. A Cable Operator shall keep an accurate and comprehensive file of any complaints regarding the cable system or its operation of the cable system, in a manner consistent with the privacy rights of customers, and the Cable Operator's actions in response to 6 those complaints. These files shall remain available for viewing by the Franchising Authority during normal business hours at the Cable Operator’s business office, and shall be retained by the Cable Operator for a period of at least three (3) years. ii. Upon written request a Cable Operator shall provide the Franchising Authority an executive summary quarterly, which shall include information concerning customer complaints referred by the Franchising Authority to the Grantee and any other requirements of a Franchise Agreement but no personally identifiable information. These summaries shall be provided within fifteen (15) days after the end of each quarter. Once a request is made, it need not be repeated and quarterly executive summaries shall be provided by the Cable Operator until notified in writing by the Franchising Authority that such summaries are no longer required. iii. Upon written request a summary of service requests, identifying the number and nature of the requests and their disposition, shall also be completed by the Cable Operator for each quarter and submitted to the Franchising Authority by the fifteenth (15th) day of the month after each calendar quarter. Once a request is made, it need not be repeated and quarterly summary of service requests shall be provided by the Cable Operator until notified in writing by the Franchising Authority that such summaries are no longer required. Complaints shall be broken out by the nature of the complaint and the type of Cable service subject to the complaint. d. Records of Service Interruptions and Outages. A Cable Operator shall maintain records of all outages and reported service interruptions. Such records shall indicate the type of cable service interrupted, including the reasons for the interruptions. A log of all service interruptions shall be maintained and provided to the Franchising Authority quarterly, upon written request, within fifteen (15) days after the end of each quarter. Such records shall be submitted to the Franchising Authority with the records identified in Section 3.c.ii above if so requested in writing, and shall be retained by the Cable Operator for a period of three (3) years. e. All service outages and interruptions for any cause beyond the control of the Cable Operator shall be corrected within thirty-six (36) hours, after the conditions beyond its control have been corrected. 4. TV Reception a. A Cable Operator shall provide clear television reception that meets or exceeds technical standards established by the United States Federal Communications Commission (the "FCC"). A Cable Operator shall render efficient service, make repairs promptly, and interrupt service only for good cause and for the shortest time possible. Scheduled interruptions shall be preceded by notice and shall occur during periods of minimum use of the system, preferably between midnight and six a.m. (6:00 a.m.). b. If a customer experiences poor video or audio reception attributable to a Cable Operator's equipment, the Cable Operator shall: i. Assess the problem within one (1) day of notification; ii. Communicate with the customer regarding the nature of the problem and the expected time for repair; 7 iii. Complete the repair within two (2) days of assessing the problem unless circumstances exist that reasonably require additional time. c. If an appointment is necessary to address any video or audio reception problem, the customer may choose a block of time described in Section III.C.2.a. At the customer's request, the Cable Operator shall repair the problem at a later time convenient to the customer, during Normal Business Hours or at such other time as may be agreed to by the customer and Cable Operator. A Cable Operator shall maintain periodic communications with a customer during the time period in which problem ascertainment and repair are ongoing, so that the customer is advised of the status of the Cable Operator’s efforts to address the problem. 5. Problem Resolution A Cable Operator's customer service representatives shall have the authority to provide credit for interrupted service, to waive fees, to schedule service appointments and to change billing cycles, where appropriate. Any difficulties that cannot be resolved by the customer service representative shall be referred to the appropriate supervisor who shall contact the customer within four (4) hours and resolve the problem within forty eight (48) hours or within such other time frame as is acceptable to the customer and the Cable Operator. 6. Billing, Credits, and Refunds a. In addition to other options for payment of a customer’s service bill, a Cable Operator shall make available a telephone payment option where a customer without account irregularities can enter payment information through an automated system, without the necessity of speaking to a CSR. b. A Cable Operator shall allow at least thirty (30) days from the beginning date of the applicable service period for payment of a customer's service bill for that period. If a customer's service bill is not paid within that period of time the Cable Operator may apply an administrative fee to the customer's account. The administrative fee must reflect the average costs incurred by the Cable Operator in attempting to collect the past due payment in accordance with applicable law. If the customer's service bill is not paid within forty-five (45) days of the beginning date of the applicable service period, the Cable Operator may perform a "soft" disconnect of the customer's service. If a customer's service bill is not paid within fifty-two (52) days of the beginning date of the applicable service period, the Cable Operator may disconnect the customer's service, provided it has provided two (2) weeks notice to the customer that such disconnection may result. c. The Cable Operator shall issue a credit or refund to a customer within 30 days after determining the customer's entitlement to a credit or refund. d. Whenever the Cable Operator offers any promotional or specially priced service(s) its promotional materials shall clearly identify and explain the specific terms of the promotion, including but not limited to manner in which any payment credit will be applied. 7. Treatment of Property To the extent that a Franchise Agreement does not contain the following procedures for treatment of property, Operator shall comply with the procedures set forth in this Section. 8 a. A Cable Operator shall keep tree trimming to a minimum; trees and shrubs or other landscaping that are damaged by a Cable Operator, any employee or agent of a Cable Operator during installation or construction shall be restored to their prior condition or replaced within seven (7) days, unless seasonal conditions require a longer time, in which case such restoration or replacement shall be made within seven (7) days after conditions permit. Trees and shrubs on private property shall not be removed without the prior permission of the owner or legal tenant of the property on which they are located. This provision shall be in addition to, and shall not supersede, any requirement in any franchise agreement. b. A Cable Operator shall, at its own cost and expense, and in a manner approved by the property owner and the Franchising Authority, restore any private property to as good condition as before the work causing such disturbance was initiated. A Cable Operator shall repair, replace or compensate a property owner for any damage resulting from the Cable Operator's installation, construction, service or repair activities. If compensation is requested by the customer for damage caused by any Cable Operator activity, the Cable Operator shall reimburse the property owner one hundred (100) percent of the actual cost of the damage. c. Except in the case of an emergency involving public safety or service interruption to a large number of customers, a Cable Operator shall give reasonable notice to property owners or legal tenants prior to entering upon private premises, and the notice shall specify the work to be performed; provided that in the case of construction operations such notice shall be delivered or provided at least twenty-four (24) hours prior to entry, unless such notice is waived by the customer. For purposes of this subsection, “reasonable notice” shall be considered: i. For pedestal installation or similar major construction, seven (7) days. ii. For routine maintenance, such as adding or dropping service, tree trimming and the like, reasonable notice given the circumstances. Unless a Franchise Agreement has a different requirement, reasonable notice shall require, at a minimum, prior notice to a property owner or tenant, before entry is made onto that person’s property. iii. For emergency work a Cable Operator shall attempt to contact the property owner or legal tenant in person, and shall leave a door hanger notice in the event personal contact is not made. Door hangars must describe the issue and provide contact information where the property owner or tenant can receive more information about the emergency work. Nothing herein shall be construed as authorizing access or entry to private property, or any other property, where such right to access or entry is not otherwise provided by law. d. Cable Operator personnel shall clean all areas surrounding any work site and ensure that all cable materials have been disposed of properly. D. Services for Customers with Disabilities 1. For any customer with a disability, a Cable Operator shall deliver and pick up equipment at customers' homes at no charge unless the malfunction was caused by the actions of the customer. In the 9 case of malfunctioning equipment, the technician shall provide replacement equipment, hook it up and ensure that it is working properly, and shall return the defective equipment to the Cable Operator. 2. A Cable Operator shall provide either TTY, TDD, TYY, VRS service or other similar service that are in compliance with the Americans With Disabilities Act and other applicable law, with trained operators who can provide every type of assistance rendered by the Cable Operator's customer service representatives for any hearing-impaired customer at no charge. 3. A Cable Operator shall provide free use of a remote control unit to mobility-impaired (if disabled, in accordance with Section III.D.4) customers. 4. Any customer with a disability may request the special services described above by providing a Cable Operator with a letter from the customer's physician stating the need, or by making the request to the Cable Operator's installer or service technician, where the need for the special services can be visually confirmed. E. Cable Services Information 1. At any time a customer or prospective customer may request, a Cable Operator shall provide the following information, in clear, concise written form, easily accessible and located on Cable Operator’s website (and in Spanish, when requested by the customer): a. Products and services offered by the Cable Operator, including its channel lineup; b. The Cable Operator's complete range of service options and the prices for these services; c. The Cable Operator's billing, collection and disconnection policies; d. Privacy rights of customers; e. All applicable complaint procedures, including complaint forms and the telephone numbers and mailing addresses of the Cable Operator, and the FCC; f. Use and availability of parental control/lock out device; g. Special services for customers with disabilities; h. Days, times of operation, and locations of the service centers; 2. At a Customer’s request, a Cable Operator shall make available either a complete copy of these Standards and any other applicable customer service standards, or a summary of these Standards, in a format to be approved by the Franchising Authority, which shall include at a minimum, the URL address of a website containing these Standards in their entirety; provided however, that if the Franchising Authority does not maintain a website with a complete copy of these Standards, a Cable Operator shall be under no obligation to do so; 10 If acceptable to a customer, Cable Operator may fulfill customer requests for any of the information listed in this Section by making the requested information available electronically, such as on a website or by electronic mail. 3. Upon written request, a Cable Operator shall meet annually with the Franchising Authority to review the format of the Cable Operator’s bills to customers. Whenever the Cable Operator makes substantial changes to its billing format, it will contact the Franchising Authority at least thirty (30) days prior to the time such changes are to be effective, in order to inform the Franchising Authority of such changes. 4. Copies of notices provided to the customer in accordance with subsection 5 below shall be filed (by fax or email acceptable) concurrently with the Franchising Authority. 5. A Cable Operator shall provide customers with written notification of any change in rates for nondiscretionary cable services, and for service tier changes that result in a deletion of programming from a customer’s service tier, at least thirty (30) days before the effective date of change. For purposes of this section, “nondiscretionary” means the subscribed tier and any other Cable Services that a customer has subscribed to, at the time the change in rates are announced by the Cable Operator. 6. All officers, agents, and employees of the Cable Operator or its contractors or subcontractors who are in personal contact with customers and/or when working on public property, shall wear on their outer clothing identification cards bearing their name and photograph and identifying them as representatives of the Cable Operator. The Cable Operator shall account for all identification cards at all times. Every vehicle of the Cable Operator shall be clearly visually identified to the public as working for the Cable Operator. Whenever a Cable Operator work crew is in personal contact with customers or public employees, a supervisor must be able to communicate clearly with the customer or public employee. Every vehicle of a subcontractor or contractor shall be labeled with the name of the contractor and further identified as contracting or subcontracting for the Cable Operator. 7. Each CSR, technician or employee of the Cable Operator in each contact with a customer shall state the estimated cost of the service, repair, or installation orally prior to delivery of the service or before any work is performed, and shall provide the customer with an oral statement of the total charges before terminating the telephone call or before leaving the location at which the work was performed. A written estimate of the charges shall be provided to the customer before the actual work is performed. F. Customer Privacy 1. Cable Customer Privacy. In addition to complying with the requirements in this subsection, a Cable Operator shall fully comply with all obligations under 47 U.S.C. Section 551. 2. Collection and Use of Personally Identifiable Information. a. A Cable Operator shall not use the Cable System to collect, monitor or observe Personally Identifiable Information without the prior affirmative written or electronic consent of the Customer unless, and only to the extent that such information is: (i) used to detect unauthorized reception of cable communications, or (ii) necessary to render a Cable Service or Other Service provided by the Cable Operator to the Customer and as otherwise authorized by applicable law. 11 b. A Cable Operator shall take such actions as are necessary using then-current industry standard practices to prevent any Affiliate from using the facilities of the Cable Operator in any manner, including, but not limited to, sending data or other signals through such facilities, to the extent such use will permit an Affiliate unauthorized access to Personally Identifiable Information on equipment of a Customer (regardless of whether such equipment is owned or leased by the Customer or provided by a Cable Operator) or on any of the facilities of the Cable Operator that are used in the provision of Cable Service. This subsection F.2.b shall not be interpreted to prohibit an Affiliate from obtaining access to Personally Identifiable Information to the extent otherwise permitted by this subsection F. c. A Cable Operator shall take such actions as are necessary using then-current industry standard practices to prevent a person or entity (other than an Affiliate) from using the facilities of the Cable Operator in any manner, including, but not limited to, sending data or other signals through such facilities, to the extent such use will permit such person or entity unauthorized access to Personally Identifiable Information on equipment of a Customer (regardless of whether such equipment is owned or leased by the Customer or provided by a Cable Operator) or on any of the facilities of the Cable Operator that are used in the provision of Cable Service. 3. Disclosure of Personally Identifiable Information. A Cable Operator shall not disclose Personally Identifiable Information without the prior affirmative written or electronic consent of the Customer, unless otherwise authorized by applicable law. a. A minimum of thirty (30) days prior to making any disclosure of Personally Identifiable Information of any Customer for any Non-Cable related purpose as provided in this subsection F.3.a, where such Customer has not previously been provided the notice and choice provided for in subsection III.F.9, the Cable Operator shall notify each Customer (that the Cable Operator intends to disclose information about) of the Customer's right to prohibit the disclosure of such information for Non-cable related purposes. The notice to Customers may reference the Customer to his or her options to state a preference for disclosure or non-disclosure of certain information, as provided in subsection III.F.10. b. A Cable Operator may disclose Personally Identifiable Information only to the extent that it is necessary to render, or conduct a legitimate business activity related to, a Cable Service or Other Service provided by the Cable Operator to the Customer. c. To the extent authorized by applicable law, a Cable Operator may disclose Personally Identifiable Information pursuant to a subpoena, court order, warrant or other valid legal process authorizing such disclosure. 4. Access to Information. Any Personally Identifiable Information collected and maintained by a Cable Operator shall be made available for Customer examination within thirty (30) days of receiving a request by a Customer to examine such information about himself or herself at the local offices of the Cable Operator or other convenient place within the Town designated by the Cable Operator, or electronically, such as over a website. Upon a reasonable showing by the Customer that such Personally Identifiable Information is inaccurate, a Cable Operator shall correct such information. 5. Privacy Notice to Customers a. A Cable Operator shall annually mail or provide a separate, written or electronic copy of the privacy statement to Customers consistent with 47 U.S.C. Section 551(a)(1), and shall provide a 12 Customer a copy of such statement at the time the Cable Operator enters into an agreement with the Customer to provide Cable Service. The written notice shall be in a clear and conspicuous format, which at a minimum, shall be in a comparable font size to other general information provided to Customers about their account as it appears on either paper or electronic Customer communications. b. In or accompanying the statement required by subsection F.5.a, a Cable Operator shall state substantially the following message regarding the disclosure of Customer information: "Unless a Customer affirmatively consents electronically or in writing to the disclosure of personally identifiable information, any disclosure of personally identifiable information for purposes other than to the extent necessary to render, or conduct a legitimate business activity related to, a Cable Service or Other Service, is limited to: i. Disclosure pursuant to valid legal process authorized by applicable law. ii. Disclosure of the name and address of a Customer subscribing to any general programming tiers of service and other categories of Cable Services provided by the Cable Operator that do not directly or indirectly disclose: (A) A Customer's extent of viewing of a Cable Service or Other Service provided by the Cable Operator; (B) The extent of any other use by a Customer of a Cable Service; (C) The nature of any transactions made by a Customer over the Cable System; or (D) The nature of programming or websites that a Customer subscribes to or views (i.e., a Cable Operator may only disclose the fact that a person subscribes to a general tier of service, or a package of channels with the same type of programming), provided that with respect to the nature of websites subscribed to or viewed, these are limited to websites accessed by a Customer in connection with programming available from their account for Cable Services.” The notice shall also inform the Customers of their right to prohibit the disclosure of their names and addresses in accordance with subsection F.3.a. If a Customer exercises his or her right to prohibit the disclosure of name and address as provided in subsection F.3.a or this subsection, such prohibition against disclosure shall remain in effect, unless and until the Customer subsequently changes their disclosure preferences as described in subsection F.9 below. 6. Privacy Reporting Requirements. The Cable Operator shall include in its regular periodic reports to the Franchising Authority required by its Franchise Agreement information summarizing: a. The type of Personally Identifiable Information that was actually collected or disclosed by Cable Operator during the reporting period; b. For each type of Personally Identifiable Information collected or disclosed, a statement from an authorized representative of the Cable Operator certifying that the Personally Identifiable Information collected or disclosed was: (A) collected or disclosed to the extent Necessary to render, or conduct a legitimate business activity related to, a Cable Service or Other Service provided by the Cable Operator; (B) used to the extent Necessary to detect unauthorized reception of cable communications: (C) disclosed pursuant to valid legal process authorized by applicable law; or (D) a disclosure of Personally Identifiable Information of particular subscribers, but only to the extent affirmatively consented to by such subscribers in writing or electronically, or as otherwise authorized by applicable law. 13 c. The standard industrial classification (SIC) codes or comparable identifiers pertaining to any entities to whom such Personally Identifiable Information was disclosed, except that a Cable Operator need not provide the name of any court or governmental entity to which such disclosure was made pursuant to valid legal process authorized by applicable law; d. The general measures that have been taken to prevent the unauthorized access to Personally Identifiable Information by a person other than the Customer or the Cable Operator. A Cable Operator shall meet with Franchising Authority if requested to discuss technology used to prohibit unauthorized access to Personally Identifiable Information by any means. 7. Nothing in this subsection III.F shall be construed to prevent the Franchising Authority from obtaining Personally Identifiable Information to the extent not prohibited by Section 631 of the Communications Act, 47 U.S.C. Section 551 and applicable laws. 8. Destruction of Personally Identifiable Information. A Cable Operator shall destroy any Personally Identifiable Information if the information is no longer necessary for the purpose for which it was collected and there are no pending requests or orders for access to such information under subsection 4 of this subsection III.F, pursuant to a court order or other valid legal process, or pursuant to applicable law. 9. Notice and Choice for Customers. The Cable Operator shall at all times make available to Customers one or more methods for Customers to use to prohibit or limit disclosures, or permit or release disclosures, as provided for in this subsection III.F. These methods may include, for example, online website “preference center” features, automated toll-free telephone systems, live toll-free telephone interactions with customer service agents, in-person interactions with customer service personnel, regular mail methods such as a postage paid, self-addressed post card, an insert included with the Customer’s monthly bill for Cable Service, the privacy notice specified in subsection III.F.5, or such other comparable methods as may be provided by the Cable Operator. Website “preference center” features shall be easily identifiable and navigable by Customers, and shall be in a comparable size font as other billing information provided to Customers on a Cable Operator’s website. A Customer who provides the Cable Operator with permission to disclose Personally Identifiable Information through any of the methods offered by a Cable Operator shall be provided follow-up notice, no less than annually, of the Customer’s right to prohibit these disclosures and the options for the Customer to express his or her preference regarding disclosures. Such notice shall, at a minimum, be provided by an insert in the Cable Operator’s bill (or other direct mail piece) to the Customer or a notice or message printed on the Cable Operator’s bill to the Customer, and on the Cable Operator’s website when a Customer logs in to view his or her Cable Service account options. The form of such notice shall also be provided on an annual basis to the Franchising Authority. These methods of notification to Customers may also include other comparable methods as submitted by the Cable Operator and approved by the Franchising Authority in its reasonable discretion. G. Safety A Cable Operator shall install and locate its facilities, cable system, and equipment in compliance with all federal, state, local, and company safety standards, and in such manner as shall not unduly interfere with or endanger persons or property. Whenever a Cable Operator receives notice that an unsafe condition exists with respect to its equipment, the Cable Operator shall investigate such condition immediately, and shall take such measures as are necessary to remove or eliminate any unsafe condition. 14 H. Cancellation of New Services In the event that a new customer requests installation of Cable Service and is unsatisfied with their initial Cable Service, and provided that the customer so notifies the Cable Operator of their dissatisfaction within 30 days of initial installation, then such customer can request disconnection of Cable Service within 30 days of initial installation, and the Cable Operator shall provide a credit to the customer’s account consistent with this Section. The customer will be required to return all equipment in good working order; provided such equipment is returned in such order, then the Cable Operator shall refund the monthly recurring fee for the new customer’s first 30 days of Cable Service and any charges paid for installation. This provision does not apply to existing customers who request upgrades to their Cable Service, to discretionary Cable Service such as PPV or movies purchased and viewed On Demand, or to customer moves and/or transfers of Cable Service. The service credit shall be provided in the next billing cycle. IV. COMPLAINT PROCEDURE A. Complaints to a Cable Operator 1. A Cable Operator shall establish written procedures for receiving, acting upon, and resolving customer complaints, and crediting customer accounts and shall have such procedures printed and disseminated at the Cable Operator's sole expense, consistent with Section III.E.1.e of these Standards. 2. Said written procedures shall prescribe a simple manner in which any customer may submit a complaint by telephone or in writing to a Cable Operator that it has violated any provision of these Customer Service Standards, any terms or conditions of the customer's contract with the Cable Operator, or reasonable business practices. If a representative of the Franchising Authority notifies the Cable Operator of a customer complaint that has not previously been made by the customer to the Cable Operator, the complaint shall be deemed to have been made by the customer as of the date of the Franchising Authority’s notice to the Cable Operator. 3. At the conclusion of the Cable Operator's investigation of a customer complaint, but in no more than ten (10) calendar days after receiving the complaint, the Cable Operator shall notify the customer of the results of its investigation and its proposed action or credit. 4. A Cable Operator shall also notify the customer of the customer's right to file a complaint with the Franchising Authority in the event the customer is dissatisfied with the Cable Operator's decision, and shall thoroughly explain the necessary procedures for filing such complaint with the Franchising Authority. 5. A Cable Operator shall immediately report all customer Escalated complaints that it does not find valid to the Franchising Authority. 6. A Cable Operator's complaint procedures shall be filed with the Franchising Authority prior to implementation. 15 B. Complaints to the Franchising Authority 1. Any customer who is dissatisfied with any proposed decision of the Cable Operator or who has not received a decision within the time period set forth below shall be entitled to have the complaint reviewed by the Franchising Authority. 2. The customer may initiate the review either by calling the Franchising Authority or by filing a written complaint together with the Cable Operator's written decision, if any, with the Franchising Authority. 3. The customer shall make such filing and notification within twenty (20) days of receipt of the Cable Operator's decision or, if no decision has been provided, within thirty (30) days after filing the original complaint with the Cable Operator. 4. If the Franchising Authority decides that further evidence is warranted, the Franchising Authority shall require the Cable Operator and the customer to submit, within ten (10) days of notice thereof, a written statement of the facts and arguments in support of their respective positions. 5. The Cable Operator and the customer shall produce any additional evidence, including any reports from the Cable Operator, which the Franchising Authority may deem necessary to an understanding and determination of the complaint. 6. The Franchising Authority shall issue a determination within fifteen (15) days of receiving the customer complaint, or after examining the materials submitted, setting forth its basis for the determination. 7. The Franchising Authority may extend these time limits for reasonable cause and may intercede and attempt to negotiate an informal resolution. C. Security Fund or Letter of Credit A Cable operator shall comply with any Franchise Agreement regarding Letters of Credit. If a Franchise Agreement is silent on Letter of Credit the following shall apply: 1. Within thirty (30) days of the written notification to a Cable Operator by the Franchising Authority that an alleged Franchise violation exists, a Cable Operator shall deposit with an escrow agent approved by the Franchising Authority fifty thousand dollars ($50,000) or, in the sole discretion of the Franchising Authority, such lesser amount as the Franchising Authority deems reasonable to protect subscribers within its jurisdiction. Alternatively, at the Cable Operator’s discretion, it may provide to the Franchising Authority an irrevocable letter of credit in the same amount. The escrowed funds or letter of credit shall constitute the "Security Fund" for ensuring compliance with these Standards for the benefit of the Franchising Authority. The escrowed funds or letter of credit shall be maintained by a Cable Operator at the amount initially required, even if amounts are withdrawn pursuant to any provision of these Standards, until any claims related to the alleged Franchise violation(s) are paid in full. 2. The Franchising Authority may require the Cable Operator to increase the amount of the Security Fund, if it finds that new risk factors exist which necessitate such an increase. 16 3. The Security Fund shall serve as security for the payment of any penalties, fees, charges or credits as provided for herein and for the performance by a Cable Operator of all its obligations under these Customer Service Standards. 4. The rights reserved to the Franchising Authority with respect to the Security Fund are in addition to all other rights of the Franchising Authority, whether reserved by any applicable franchise agreement or authorized by law, and no action, proceeding or exercise of a right with respect to same shall in any way affect, or diminish, any other right the Franchising Authority may otherwise have. D. Verification of Compliance A Cable Operator shall establish its compliance with any or all of the standards required through annual reports that demonstrate said compliance, or as requested by the Franchising Authority. E. Procedure for Remedying Violations 1. If the Franchising Authority has reason to believe that a Cable Operator has failed to comply with any of these Standards, or has failed to perform in a timely manner, the Franchising Authority may pursue the procedures in its Franchise Agreement to address violations of these Standards in a like manner as other franchise violations are considered. 2. Following the procedures set forth in any Franchise Agreement governing the manner to address alleged Franchise violations, if the Franchising Authority determines in its sole discretion that the noncompliance has been substantiated, in addition to any remedies that may be provided in the Franchise Agreement, the Franchising Authority may: a. Impose assessments of up to one thousand dollars ($1,000.00) per day, to be withdrawn from the Security Fund in addition to any franchise fee until the non-compliance is remedied; and/or b. Order such rebates and credits to affected customers as in its sole discretion it deems reasonable and appropriate for degraded or unsatisfactory services that constituted noncompliance with these Standards; and/or c. Reverse any decision of the Cable Operator in the matter and/or d. Grant a specific solution as determined by the Franchising Authority; and/or e. Except for in emergency situations, withhold licenses and permits for work by the Cable Operator or its subcontractors in accordance with applicable law. V. MISCELLANEOUS A. Severability Should any section, subsection, paragraph, term, or provision of these Standards be determined to be illegal, invalid, or unconstitutional by any court or agency of competent jurisdiction with regard thereto, such determination shall have no effect on the validity of any other section, subsection, 17 paragraph, term, or provision of these Standards, each of the latter of which shall remain in full force and effect. B. Non-Waiver Failure to enforce any provision of these Standards shall not operate as a waiver of the obligations or responsibilities of a Cable Operator under said provision, or any other provision of these Standards. Revised 6/18/13. From: "Krueger, Karl" <Kruegerarchitect@comcast.net> To: "Carroll, Rich" <richcarroll4@comcast.net> Cc: vailchan5@comcast.net Sent: Monday, October 6, 2014 9:26:52 AM Subject: Local access TV and Comcast Hi Mayor Rich, Though I live in Eagle-Vail rather than in neighboring Avon, your constituency, I wanted to mention how important Channel 5 and other local channels are to me. I listen to these channels while I work as an architect and at home, for professional and personal understanding of what is happening in the entire valley. As I listen today 10-6-14 I cannot agree more with Mr. Cacciopo (crazy as that sounds) that the most frustrating aspect of these channels as they appear on my TV are the audio problems that reappear often and intermittently. I have tried changing modum boxes but this fails to correct the problem. The problems are buzzing on Eco 13, occasional lip syncing problems on Channel 5 as well as intermittent audio on Channel 5. The intermittent audio on channel 5 lets you hear only 3 out of 5 words any one says and renders town council meetings completely unintelligible. I hope you and the Avon town council can put appropriate pressure on Comcast to solve these problems before you vote on continuing service with them. Regards, Karl Krueger PAGE 1 OF 1 TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Virginia Egger, Town Manager Date: October 28, 2014 Agenda Topic: 2014 Capital Projects Construction Update Town staff will present a PowerPoint at Tuesday’s meeting updating Council on the major capital projects completed, under construction this year or planned in 2015. The projects include: AVON ROAD TOTAL COST: 1,447,760 FUNDING SOURCE: CAPITAL PROJECTS FUND ROAD OVERALY: $763,760 STREETLIGHTS: $200,000 2014 STREETSCAPE IMP.: $184,000 2015 LANDSCAPE IMP.: $300,000 POST BLVD TOTAL COST: $446,000 FUNDING SOURCE: CAPITAL PROJECTS FUND LANDSCAPE, FLAGS, SCULPTURE; $368,000 STREETLIGHTS UPGRADE: $78,000 EAGLE VALLEY TRAIL AVON ROAD TO BEAVER CREEK TOTAL COST: $1,133,000 FUNDING SOURCES: GOCO Grant: $498,000 ECO Trails: $522,000 Town Match: $113,000 WEST AVON PRESERVE HIKING/MOUNTAIN BIKING TRAILS CONSTRUCTION & SIGNAGE TOTAL COST: $97,950 FUNDING SOURCES: Singletree Property Owners Association: $11,000 Berry Creek Metropolitan District: $11,000 Eagle County: $15,450 Mr. John Shipp: $ 5,000 CAPITAL PROJECTS FUND: $55,000 ROAD & STREET IMPROVEMENTS TOTAL COST: $3,800,000 FUNDING SOURCE: CAPITAL PROJECTS FUND - COP AVERAGE ANNUAL DEBT SERVICE: $304,000 PEDESTRIAN MALL TOTAL COST: $1,970,000 FUNDING SOURCES: URBAN RENEWAL AUTHORITY: $700,000 COMMUNITY ENHANCEMENT FUND: $608,000 CAPITAL PROJECT FUND: $662,000 NOTTINGHAM PARK PAVILION TOTAL BUDGET: $3,700,000 CURRENT ESTIMATE: $3,400,000 CONTINGENCY: $300,000 FUNDING SOURCE: CAPITAL PROJECTS FUND THE SKIER BUILDING – NEW TOWN HALL TOTAL COST: BUILDING PURCHASE: $3,200,000 CONSTRUCTION FINISH & FFE: $2,500,000 FUNDING SOURCE: CAPITAL PROJECTS FUND - COP AVERAGE ANNUAL DEBT SERVICE: $395,000 TOWN COUNCIL REPORT To: Town Council From: Mayor Rich Carroll Date: October 28, 2014 Agenda Topic: Skier Building – Interior Finishes Process As stated by Virginia Egger in the October 14 meeting, Avon Town staff has successfully managed numerous and varied construction projects to a successful conclusion; on time and on budget. The new Town Hall or Skier Building is high profile and an important project to the continued revitalization and vibrancy of Avon. Combined with the lessons learned from the Pavilion, the following outline is presented for discussion and review by Council. The outcome of the discussion may be varied such as: - A recommendation to the new Council on a method/process to build out the Skier Building - How much Council participation in the process is desired to achieve a successful project Step 1: Rough Programming and Design - general thinking and ideas can be provided by a combination of: - Town Staff - Council - Public Conceptual ideas on are given for what is on Ground Floor, Second Floor, Third Floor. Work Sessions could be conducted with Council to review concepts and give input. Does it make sense to identify the full range of desired functionality, then hire designer to begin with comprehensive direction of desired functionality? Topics such as meeting rooms, bathrooms, public bathrooms the Main St. Mall, kitchen facilities, public spaces, security, etc. will be reviewed. Step 2: Develop an RFP for Architect/Interior Designer/Contractor/Price estimator services. Is an architect really needed? It is crucial that the RFP accurately describe the skill set(s) needed and provide a method for evaluation. Skills such as: - References and a track record of bringing projects in on budget and on time. - The proper level of collaborative performance - Skill in listening then designing to fit the requirements and budget - Price estimation so the designs stay within budget - Experience with successful government projects - Other Council to provide input, review and approve the RFP. Step 3: Conduct RFP - Council to interview and select Designer/Price Estimator. Step 4: Complete Designs along with interior furnishing specifications - Council to review and approve. Step 5: Solicit bids: Council to review and approve bids. Council to award contract and approve contract with a Guaranteed Maximum Price. The interior finish will be within budget. Step 6: Construction of Interior Finish: Any Change Orders require Council approval [Few if any Change Orders should be required]. The level of Council involvement described above is outside the norm. While more Council involvement may make for a project that is paced differently, i.e. slower; is there value given the high profile nature of the new Town Hall? I believe there is significant value for both Council, staff and the public. 2015 Proposed Budget Work Session Page 1 of 2 Town Council Report To: Honorable Mayor Rich Carroll and Avon Town Council From: Kelly Huitt, Budget Analyst Date: October 23, 2014 Re: 2015 Proposed Budget Work Session – All Funds PURPOSE OF THE BUDGET WORK SESSION The 2015 Proposed Budget has been prepared in accordance with the Town Charter and all applicable Town ordinances. In addition to the 2015 Budget, Town staff has prepared projections for a Five Year Capital Improvements Plan for investment planning in the Capital Projects Fund. Staff has also developed 2016 budget forecasts for all remaining funds to provide for future planning and to measure the sustainability of 2015 budget decisions. Council asked at the October 14th meeting to have a question and answer session, which has been provided for in the October 28th budget work session. SUMMARY OF CHANGES SINCE PREVIOUS BUDGET WORK SESSION: GENERAL FUND General Fund Budget: 2014 2015 2016 Budget Book Net Source (Use) of Funds ($ 1,428,237) $ 1,420,354 $ 284,482 Total Changes ($ 109,975) ($ 106,713) ($8,584) New Net Source (Use) of Funds ($1,538,212) $1,313,641 $275,898 2014 Changes - $12,000 for Flavors of Colorado Contingency - $87,700 appropriated for Apres Avon out of 2015 AWSC reserved fund balance - $9,000 to replace fleet shop lights in 2014 instead of 2015 2015 Changes - $25,000 appropriated for Apres Avon out of 2015 AWSC reserved fund balance - $9,000 increase in trail maintenance - $15,000 for Eagle County Trails Group - $50,000 increase to Town Attorney fees - $16,713 in miscellaneous payroll adjustments - ($9,000) to replace fleet shop lights in 2014 instead of 2015 2016 Changes - $8,584 in miscellaneous payroll adjustments 2015-16 Budget Work Session ALL TOWN FUNDS Page 2 of 2 CAPITAL PROJECTS FUND CIP Budget: 2014 2015 2016 Budget Book Net Source (Use) of Funds $2,970,638 ($3,615,713) ($1,069,707) Total Changes ($ 47,953) $40,000 ($35) New Net Source (Use) of Funds $2,922,685 ($3,575,713) ($1,069,742) - Addition of $22,703 in expense and $14,750 in related revenue for the mural on the Season’s Building - Move $40,000 from 2015 to 2014 for the Recreation Center remodel Catastrophe Fund Staff will be researching the possibilities of establishing a catastrophe fund for unforeseen emergencies and will report back to council after the 2015 budget adoption. Section III, Page 1 Fund Summary Original or Final Prev. Amend.Revised Proposed Proposed Actual Budget Budget Budget Budget 2013 2014 2014 2015 2016 REVENUES Taxes 9,590,230$ 10,138,185$ 10,416,007$ 10,820,041$ 11,293,368$ Licenses and Permits 336,548 172,500 153,500 153,500 153,400 Intergovernmental 905,213 964,199 964,699 948,956 993,400 Charges for Services 1,321,078 1,326,446 1,302,220 1,276,195 1,304,357 Fines and Forfeitures 104,736 110,275 128,173 101,900 101,900 Investment Earnings 5,413 15,000 15,000 15,000 25,000 Other Revenue 309,085 308,569 331,991 309,119 364,900 Total Operating Revenues 12,572,303 13,035,174 13,311,590 13,624,711 14,236,325 Other Sources Capital Lease Proceeds 26,367 - - - - Sales of Capital Assets 1,151 - - - - Transfer-In From Capital Projects Fund 201,006 207,121 207,121 1,538,335 219,735 Total Other Sources 228,524 207,121 207,121 1,538,335 219,735 TOTAL REVENUES 12,800,827$ 13,242,295$ 13,518,711$ 15,163,046$ 14,456,060$ EXPENDITURES General Government 2,593,954$ 3,006,824$ 3,005,264$ 2,826,912$ 2,881,225$ Community Development 536,483 484,448 487,786 1,060,377 1,144,356 Public Safety 2,539,475 2,739,674 2,756,957 2,992,877 3,158,799 Public Works 1,571,764 1,597,224 1,530,300 3,005,561 2,996,443 Parks and Recreation 3,328,177 3,919,856 4,040,116 2,191,678 2,274,339 Total Operating Expenditures 10,569,853 11,748,026 11,820,423 12,077,405 12,455,162 Contingency - 62,500 6,500 100,000 100,000 Other Uses Transfers-Out to Town Center West Fund 15,000 45,000 45,000 150,000 200,000 Transfers-Out to Capital Projects Fund - 700,000 2,025,000 120,000 120,000 Transfers-Out to Transit 776,000 825,000 860,000 1,102,000 1,030,000 Transfers-Out to Fleet Maintenance 150,000 150,000 300,000 300,000 275,000 Total Other Uses 941,000 1,720,000 3,230,000 1,672,000 1,625,000 TOTAL EXPENDITURES 11,510,853 13,530,526 15,056,923 13,849,405 14,180,162 NET SOURCE (USE) OF FUNDS 1,289,974 (288,231) (1,538,212) 1,313,641 275,898 FUND BALANCES, Beginning of Year 3,563,274 4,853,248 4,853,248 3,315,036 4,628,677 FUND BALANCES, End of Year 4,853,248$ 4,565,017$ 3,315,036$ 4,628,677$ 4,904,575$ FUND BALANCES: Nonspendable 7,442$ -$ -$ -$ -$ Restricted For: 3% TABOR Emergency Reserve 476,619 476,619 476,619 476,619 476,619 Assigned For: Special Events - 44,114 300,000 300,000 300,000 2015 World Alpine Ski Championships - 87,700 25,000 - - Unassigned: 25% Minimum Reserve Balance 2,877,713 3,382,632 3,764,231 3,462,351 3,545,041 Stabilitzation Balance 1,491,474 573,953 (1,250,814) 389,707 582,916 TOTAL FUND BALANCES 4,853,248$ 4,565,017$ 3,315,036$ 4,628,677$ 4,904,575$ MUNICIPAL SERVICES General Fund #10 Section IV, Page 1 Fund Summary Original or FinalPrev. Amend.Revised Proposed Proposed Actual Budget Budget Budget Budget 2013 2014 2014 2015 2016REVENUES Taxes 1,574,502$ 1,600,000$ 2,100,000$ 3,825,312$ 3,318,080$ Intergovernmental 7,419,767 1,210,344 1,180,344 30,000 1,605,000 Investment Earnings 11,595 9,003 9,003 3,741 13,372 Other Revenue 528 1,500 68,943 - - Total Operating Revenues 9,006,392 2,820,847 3,358,290 3,859,053 4,936,452 Other Sources: Bond Proceeds - - 9,829,000 - - Operating Transfers-In 1,150,488 2,574,786 3,899,786 120,000 320,000 Total Other Sources 1,150,488 2,574,786 13,728,786 120,000 320,000 TOTAL REVENUES 10,156,880 5,395,633 17,087,076 3,979,053 5,256,452 EXPENDITURES Capital Improvements: Facilities 8,885,980 1,583,290 7,468,290 2,705,000 80,000 Land and Land Improvements 1,043,943 140,000 120,000 - 500,000 Roads and Streets 633,623 4,775,760 4,987,089 2,381,679 4,343,378 Utilities - - - - - Water Fund Projects 1,150,488 239,535 139,535 - 100,000 Communications and Technology 85,581 135,000 135,000 - - Strategic Planning 3,500 5,000 5,000 - - Debt Service: Bond Issuance Costs - - 216,975 - - Capital Leases - 153,006 153,006 121,265 121,265 Total Capital Improvements 11,803,115 7,031,591 13,224,895 5,207,944 5,144,643 Other Uses Operating Transfer-Out - General Fund 201,006 207,121 207,121 1,538,335 219,735 Operating Transfer-Out - Debt Service Fund 714,666 712,829 732,375 808,487 961,817 - - Total Other Uses 915,672 919,950 939,496 2,346,822 1,181,552 TOTAL EXPENDITURES 12,718,787 7,951,541 14,164,391 7,554,766 6,326,195 NET SOURCE (USE) OF FUNDS (2,561,907) (2,555,908) 2,922,685 (3,575,713) (1,069,742) FUND BALANCE, Beginning of Year 6,186,560 3,624,653 3,624,653 6,547,338 2,971,625 FUND BALANCE, End of Year 3,624,653$ 1,068,745$ 6,547,338$ 2,971,625$ 1,901,883$ Fund Balances Restricted For: Capitalized Interest -$ -$ 245,162$ -$ -$ Town Hall Tenant Finish - - 2,520,000 - - Street Improvements - - 3,706,200 1,624,521 626,143 Asphalt Overlay - - - 120,000 240,000 Unassigned: Unreserved 3,624,653 1,068,745 75,976 1,227,104 1,035,740 Total Fund Balances 3,624,653$ 1,068,745$ 6,547,338$ 2,971,625$ 1,901,883$ MUNICIPAL SERVICES Capital Projects Fund #41 TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Preston Neill, Executive Assistant to the Town Manager Date: October 28, 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 RECREATIONAL TRAILS ADVISORY GROUP FORMATION – WORK SESSION PAGE 1 OF 2 TOWN COUNCIL REPORT To: Honorable Mayor and Avon Town Council From: Matt Pielsticker, AICP, Planning Manager Date: October 20, 2014 Agenda Topic: Trails Advisory Committee Work Session: Purpose, Duties and Process for Selection Summary During Open Houses held in May for trails planning on the West Avon Preserve, a formal trails advisory committee was discussed. This trails advisory committee is found in the Town of Avon Recreational Trails Master Plan (2009). The Town of Avon Recreational Trails Master Plan, or “Trails Plan,” is an advisory document that is a sub-plan of the Avon Comprehensive Plan. It recommends the formation of a Recreational Trails Advisory Group to “direct trail planning, design, construction, and maintenance.” The Trails Plan goes on to recommend the make-up of the Advisory Group and their general functions. An excerpt from the Trails Master Plan is attached hereto (Attachment A). At the July 15th and October 14th meetings this topic was discussed and Council provided additional feedback on the group’s composition. It was agreed to come back with more information on the functional role of the committee and a more diverse range of members, including solicitation from: Traer creek, residents with trail building experience, hiker representation, motorized users, mountain biker representation, and possibly an International Mountain Bike Association (IMBA) specialist or liaison. This Memorandum summarizes Town staff’s recommended process for solicitation and Council appointment of a Recreational Trails Advisory Group. Recommendations 1. Council reviews and affirms the need for the Recreational Trails Advisory Group, and duties as described in the Trails Master Plan and sets November 11th as the date to take action on a resolution establishing the Recreational Trails Advisory Group. Two-year staggered terms are recommended. 2. Town Staff solicits through the Vail Daily newspaper, website, and social media a seven (7) member, volunteer Recreational Trails Advisory Group composed of the following: a. One (1) member to represent Beaver Creek Resort Company b. One (1) full-time resident of Singletree Community c. One (1) full-time resident of the Wildridge or Mountain Star Community d. One (1) representative from Village (at Avon) e. One (1) member representing the Vail Valley Mountain Bike Association (VVMBA) f. One (1) member to represent hiking community g. One (1) member to represent the motorized community (i.e. Rocky Mtn Sport Riders) The advertisement (sample attached as Attachment B) will highlight the role of the Committee and desire for community members who are avid hikers, and also those with demonstrated experience working with the IMBA organization. RECREATIONAL TRAILS ADVISORY GROUP FORMATION – WORK SESSION PAGE 2 OF 2 3. Interested applicants should provide a detailed letter of interest and statement of residency by not later than November 5th, 5:00 p.m. 4. Town Council interviews applicants at its November 11th meeting; appointing the top four applicants to two-year terms; and two applicants to one-year terms. Thereafter, all Recreational Trails Advisory Group members will be appointed to a two-year term. 5. Recreational Trails Advisory Group, assisted by Community Development staff, begin meeting and develop work plan to carry out duties in early 2015. Attachments A – Trails Plan excerpt B – Draft Advertisement Avon Recreational Trails Master Plan     Page 2  Vision Statement The vision guiding the Town of Avon’s Recreational Trails Master Plan was developed from input provided through public consultations held in August 2006 and August 2008. At a general level, the vision expresses what people agree needs to be protected or retained and what may be accomplished. The vision for the Town of Avon is fundamentally one of sustainability – of respecting natural systems and managing uses of the trails in ways that enhance the resident and guest experiences and protect the ability of future generations to enjoy this wonderful endowment. By adopting an approach that protects the local ecology while providing recreational, social and health benefits, the local trail system can become a model of sustainable recreational trails management. At the heart of achieving this vision is a commitment to balancing environmental protection with recreational uses and activity. This commitment will be shared by all who are responsible for this asset – individuals using the area, partnering government agencies, surrounding private land owners, and other stakeholders. Common, sustainable strategies should emphasize awareness, education, safety and stewardship. Management approaches will be shaped by a desire to minimize negative impacts on the environment and local residents, while maximizing opportunities for positive outcomes such as community partnerships, education, habitat protection, or other opportunities. The Town has a collaborative and systematic vision for implementing this new Recreational Trails Program. An Avon Recreational Trails Advisory Group should be formed to direct trail planning, design, construction, and maintenance. This Group should consist of five members, with at least one full-time resident from Wildridge and one from Mountain Star participating. Participants who are not on Town staff should be nominated or self-volunteered and be confirmed by the Planning and Zoning Commission or the Town Council. The Trails Advisory Group will have the key responsibility to develop and manage a volunteer program for trail construction and maintenance. The Trails Advisory Group will also be responsible for updating this Recreational Trails Master Plan periodically (e.g. every 2-3 years) and presenting the update to Town leadership for formal adoption. Town staff will lead project implementation activities (including development of mapping and design details, review of deliverables from consultants, annual budget planning, bidding and assignment of trail construction contracts), public relations, and communications with outside stakeholders (e.g. USDA Forest Service, Singletree HOA, Eagle County). Statement of Principles The principles listed below were developed in conjunction with the vision statement, with input provided from Town of Avon staff and through the public consultation process. The principles express the range of basic concepts which are crucial to the development of a successful recreational trails management program and the realization of the vision. 1. Sustainable Planning Framework The mountain environment is important asset requiring careful management to preserve and sustain it for future generations. This requires a framework that supports a harmonious balance between long-term social, economic, and environmental values. Balancing the biophysical and physical capacity of the area to accommodate recreational use is a key consideration. 2. Public Health, Safety and Risk Management To enhance the healthy outdoor lifestyles found on the western slope, users require a challenging, yet safe and maintained outdoor mountain recreational trail system within a risk management framework that includes standards and regulations for trail use. Risks of use should be clearly communicated to trail RECREATIONAL TRAILS ADVISORY GROUP FORMATION – WORK SESSION PAGE 1 OF 1 DRAFT - Trail Advisory Group Advertisement What is it? The Trail Advisory Group will be a committee of engaged citizens to help direct recreational trail planning including the design, construction and maintenance of existing and new trails. Participants are volunteers with a strong interest in supporting and enhancing the recreational trails program. Trail Advisory Group Goals • Protect local ecology while providing recreational, social, and health benefits • Balancing environmental protection with recreational uses and activity • Become a model of sustainable recreational trails management • Foster positive working relationships with outside stakeholders (i.e. Vail Valley Mountain Bike Association, BLM, United States Forest Service, Beaver Creek Resort Co.) Who We’re Looking For: • Our ideal Group Composition looks like… o One (1) member to represent Beaver Creek Resort Company o One (1) full-time resident of Singletree Community o One (1) full-time resident of the Wildridge or Mountain Star Community o One (1) representative from Village (at Avon) o One (1) member representing the Vail Valley Mountain Bike Association (VVMBA) o One (1) member to represent hiking community o One (1) member to represent the motorized community (i.e. Rocky Mtn Sport Riders) Applicants with the following experience will receive preference: * Working knowledge of International Mountain Biking Association (IMBA). * Grant writing experience. * Sustainable trail-building experience What is Expected? • Update the Trails Plan (2009) periodically (e.g. ~2-3 years), beginning in 2015 with major update • Develop and manage a volunteer program for trail construction and maintenance • Work with Town Staff toward implementation activities • Represent the Trail Advisory Group at Planning Commission, Town Council, and other regional trails planning (i.e. IMBA Ride Center committee) meetings Frequency of Meetings • The Trails Advisory Group will be tasked to determine an appropriate meeting frequency • Frequency may change depending on current projects and needs • Initial frequency is anticipated to be every 1-2 months How do I Get Involved? • Volunteers need to submit a detailed letter of interest not later than November 5th, 2014, 5pm. • Selection will be made by Town Council on November 11th, 2014 ORDINANCE 14-19, TITLE 6, ANIMALS, AMC – LEASH LAWS ON WEST AVON PRESERVE PAGE 1 OF 2 TOWN COUNCIL REPORT To: Honorable Mayor and Avon Town Council From: Matt Pielsticker, AICP, Planning Manager Date: October 20, 2014 Agenda Topic: 1st Reading of Ordinance 14-19, an Ordinance Amending Title 6, Animals, AMC Regulations affecting Leash Laws on the West Avon Preserve Summary Attached to this report is Ordinance 14-19, an Ordinance amending Title 6, Animals, Avon Municipal Code (“AMC”). First and foremost, this Ordinance provides added flexibility to pet owners who use the West Avon Preserve (“the Preserve”) who wish to walk pets off leash. Currently, all animals in the Town of Avon must be leashed at all times. This code change stems from the recent acquisition of the Preserve and the enforcement duties assigned to the Town through a Conservation Easement and Town Code. Through the process of public open houses for new trail discussion, and discussing the content of signage for the Preserve with residents and trail users, the topic of walking dogs came to light. Council will consider 1st Reading of Ordinance 14-19 at the October 28th, 2014 meeting. Details of the Ordinance are summarized herein. Context The Preserve is a 478 acre property that was acquired in May, 2013, with significant conservation values. The Preserve serves as wildlife habitat and scenic open space, with recently renowned recreational values that are realized by significant trail construction in 2014. Residents have historically used the Preserve for the casual enjoyment of walking pets to “Beaver Creek Point” and some of the other social trails. Since the Preserve was acquired in 2013 and technically subject to all aspects of the AMC, including Title 6, Animals, no changes to the enforcement of pets off leash has resulted. Ordinance 14-19 would allow pets off leash, under voice control. Additionally, authority would be granted to the Town Manager to provide additional management discretion (i.e. seasonal closures) to help protect the conservation values. Ordinance Highlights • Pets would be allowed off-leash on entire 478-acre Preserve, including adjacent open space tracts part of the WIldridge Subdivision. This includes Tract P, a parcel that connect the O’Neal Spur pocket park to the Preserve. • Pets must be under voice control, as defined, and owners must carry leashes. • Town Manager receives discretionary authority to further manage and modify rules. o Initially from Dec 15 – Apr 15 annually all trails on Preserve closed, except for PB&J, Our Backyard, and Beaver Creek Point. • Leash law remains in effect in all other areas of Town. Recommendation ORDINANCE 14-19, TITLE 6, ANIMALS, AMC – LEASH LAWS ON WEST AVON PRESERVE PAGE 2 OF 2 Attachments A – Draft Ordinance 14-19 B – Strikethrough of Title 6, Animals, AMC C – West Avon Page 1 of 4 Ord No. 14-19 Amending Title 6, Animals, Avon Municipal Code TOWN OF AVON, COLORADO ORDINANCE 14-19 SERIES of 2014 AN ORDINANCE AMENDING TITLE 6, ANIMALS, AVON MUNICIPAL CODE, ADDING NEW REGULATIONS REGARDING LEASH LAWS ON THE WEST AVON PRESERVE PROPERTY RECITALS WHEREAS, the Town of Avon acquired the West Avon Preserve property for open space and recreational purposes in 2013; and, WHEREAS, the Town Council of the Town of Avon finds that the West Avon Preserve property has historically been utilized by dog owners without leashes; and, WHEREAS, the Town Council of the Town of Avon finds that seasonal wildlife closures and other restrictions can be properly managed by the Town Manager with consultation from outside agencies and land managers; and, WHEREAS, the Town Council of the Town of Avon finds that amendments to Title 6, Animals, Avon Municipal Code, will promote the health safety and welfare of the Avon community; and, WHEREAS, the Town Council of the Town of Avon conducted a public hearing on November 11, 2014 in accordance with Section 6.5 of the Avon Home Rule Charter; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with state law, the Avon Municipal Code and Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to present testimony and evidence 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 the proposed amendment to the Avon Municipal Code. 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. Amendment to Title 6, Animals. Title 7, Animals, Avon Municipal Code, is amended as follows: Section 6.04.020, Definitions, with the following additions: Page 2 of 4 Ord No. 14-19 Amending Title 6, Animals, Avon Municipal Code Leash control means firmly attached to a secured tether or leash which is being held by a person who is thereby in fact able to prevent the dog from charging, chasing or otherwise disturbing or interfering with any person, domestic animal or wildlife, irrespective of the presence of any distraction or provocation. Preserve is the Town-owned 478-acre parcel of property located between Wildridge and Interstate 70 also known as the “West Avon Preserve” and includes property designated as “open space” and/or “park” and/or “planned unit development open space” as established by the Avon zoning districts. Voice control means immediate and reliable obedience to any voice or sound command given by the owner or handler who is thereby in fact able to prevent the dog from charging, chasing or otherwise disturbing or interfering with any person, domestic animal or wildlife, irrespective of the distance involved or the presence of any distraction or provocation. Section 6.04.060, Control, is renamed “Leash Control” and amended as follows: (a) With the exception of the Preserve property as herein defined, it is the duty of any owner or keeper of a dog or cat to keep such dog or cat under leash control, as herein defined, so as to prevent the dog or cat from: (1) Running at large; (2) Becoming a danger to persons or property; (3) Trespassing on the property of another; (4) Being a public nuisance as defined in Section 6.04.230; (5) Chasing or threatening wildlife. Section 6.04.060, Control, is amended with the following regulation: (l) Any dog on the Preserve property shall be under voice control as defined in section 6.04.020 herein and furthermore the owner or keeper of a dog shall have in their possession at all times a leash. A dog is presumed to be running at large if injury, damage or trespass has occurred even if said dog is under voice control. Section 6.04.290, Town Manager Authority, is added as follows: The Town Manager retains the authority to further manage and modify rules for the Preserve including but not limited to wildlife closures: Between December 15 and April 15 annually, all portions of the West Avon Preserve shall be closed to all uses to protect the Town’s investment in sensitive wildlife species, Page 3 of 4 Ord No. 14-19 Amending Title 6, Animals, Avon Municipal Code except that PB&J, Our Backyard, and Beaver Creek Point trails will be open year round. Closures may be adjusted by the Town Manager in writing as required to protect the conservation values of the property. Additional posted closures may be pursued by the Town Manager at any time for good cause. Section 3. Correction of Errors. The codifier of the Town’s Municipal Code, Colorado Code Publishing, is hereby authorized to make such numerical and formatting changes as may be necessary to incorporate the provisions of this Ordinance within the Avon Municipal Code. The Town Clerk is authorized to correct, or approve the correction by the codifier, of any topographical error in the enacted regulations, provided that such correction shall not substantively change any provision of the regulations adopted in this Ordinance. Such corrections may include spelling, reference, citation, enumeration, and grammatical errors. 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 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 (30) days after final adoption 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 at the Avon Town Hall, Avon Recreation Center and Avon Public Library, 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. The Town Clerk is further ordered to publish a notice stating a vested property right has been created in accordance with Section. 7.16.140(d)(2) of the Avon Municipal Code. [EXECUTION PAGE FOLLOWS] Page 4 of 4 Ord No. 14-19 Amending Title 6, Animals, Avon Municipal Code INTRODUCED, APPROVED, PASSED ON FIRST READING AND ORDERED POSTED on October 28, 2014 and a public hearing on this ordinance shall be held at the regular meeting of the Town Council on November 11, 2014, at 5:30 P.M. in the Council Chambers, Avon Municipal Building, One Lake Street, Avon, Colorado. ____________________________ 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 seven days prior to final action by the Town Council. ATTEST: APPROVED AS TO FORM: ____________________________ ____________________________ Debbie Hoppe, Town Clerk Eric Heil, Town Attorney INTRODUCED, FINALLY APPROVED, AND PASSED ON SECOND READING, AND ORDERED PUBLISHED BY POSTING on the 11th day of November, 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 TITLE 6 Animals Chapter 6.04 Animal Control 6.04.010 Title 6.04.020 Definitions 6.04.030 Annual cat vaccination required 6.04.040 Attachment of cat tag to collar or harness 6.04.045 Dog license required 6.04.050 Kennel regulations 6.04.060 Control 6.04.070 Impounding of dogs and cats 6.04.080 Dangerous and potentially dangerous dogs 6.04.090 Quarantine of dogs and cats 6.04.100 Disposition of unclaimed, diseased or dead animals 6.04.110 Quarantine and destruction of rabid domestic animals 6.04.120 Affirmative defense 6.04.130 Interference with Community Service Officer 6.04.140 Threatening of wildlife and livestock 6.04.150 Dog or cat bite 6.04.160 Violations and penalty assessments 6.04.170 Charges and fees 6.04.180 Destruction of dangerous dogs 6.04.190 Failure to appear 6.04.200 Failure to redeem, comply or pay fines or fees 6.04.210 Muzzling and confinement 6.04.220 Liability for accident or subsequent disease from impoundment 6.04.230 Public nuisance 6.04.235 Habitual offender 6.04.240 Unlawful taking or release 6.04.250 Abandonment, cruelty to animals or neglected dogs 6.04.260 Enforcement 6.04.270 Hot pursuit 6.04.280 Community Service Officer 6.04.290 Town Manager Authority 6.04.290300 Captions Chapter 6.04 Animal Control 6.04.010 Title. This Chapter shall be known as the "Town Animal Control Ordinance of 1994." (Ord. 94-17 §1(part)) 6.04.020 Definitions. For the purpose of this Chapter, the following definitions shall apply: Abandon(ed) means to deposit, leave, drop off or otherwise dispose of any living domestic animal without providing immediate humane care on any public or private property. Animal means any living vertebrate creature, domestic or wild, including cats and dogs, but excluding estray animals as defined in Section 35-44-101, C.R.S. Animal Control means the Community Service Officer of the Town or his or her designated representative. Bite means to seize with the teeth or jaws so that a person or animal has been nipped, gripped, wounded or the skin pierced. Cat shall refer to any animal of the feline species, regardless of sex. Construction site means any lot, parcel or tract of land on which, according to this Code, work is being performed by persons required to register as a contractor with the Town. Control means physical restraint or influence over a cat or dog by means of a leash, cord or chain no longer than ten (10) feet in length. Conviction means a finding of guilt by a court or acknowledgement of guilt by payment of a fine pursuant to the penalty assessment procedure. Council is the Town Council. County means the county of Eagle, state of Colorado. Cruelty occurs when a person knowingly or with criminal negligence overdrives, overloads, overworks, tortures, torments, deprives of necessary sustenance, unnecessarily or cruelly beats, needlessly mutilates, needlessly kills, carries in or upon any vehicles in a cruel manner, or otherwise mistreats or neglects any animal, or causes or procures it to be done, or, having the charge or custody of any animal, fails to provide it with proper food, drink, socialization or protection from the weather or abandons it. Damage means loss or harm resulting from injury to person or property. Dangerous dog means any dog that according to the records of the appropriate authority: a. Has inflicted serious bodily injury upon a human being, without provocation, while on public or private property; b. Has killed a domestic animal without provocation while off the owner's property; c. Whose owner has been convicted of a violation of Section 6.04.140, or the equivalent in another jurisdiction; d. Has been previously found to be potentially dangerous, the owner having received notice of such, and the dog again bites, attacks or endangers the safety of humans or domestic animals; provided, however, that dogs shall not be deemed dangerous if the threat, injury or damage was sustained by a person who, at the time, was committing a willful trespass or other tort upon the premises occupied by the owner of the dog, or was abusing or assaulting the dog or was committing or attempting to commit a crime; or e. Has engaged in or been trained for animal fighting as described and prohibited in Section 18- 9-204, C.R.S. Dog refers to any animal of the canine species, regardless of sex, including dogs of wolf extraction, and a dog that is of any hereditary part related to wild canines, such as but not limited to the wolf family (canis lupus) and the coyote family (canis latrans). a. Female dog means a dog of the female gender on which no alternative surgery (e.g. ovariectomy or ovariohysterectomy) has been performed. (Intact) b. Spayed female dog means a female dog on which an ovariectomy or hysterectomy has been performed by a licensed veterinarian. c. Male dog means a dog of the male gender which has not been castrated. (Intact) d. Neutered male dog is a male dog which has been castrated. Dog or cat owner means a person, or any parent, guardian or legal custodian of any unemancipated child under eighteen (18) years of age who owns, co-owns, possesses, controls, maintains, keeps or harbors a dog or cat or knowingly permits, or intends to permit, a dog or cat to remain for seven (7) consecutive days on or about property or premises owned, controlled or occupied by him or her; a kennel is not a dog or cat owner within the purview of this definition. Dog or cat tag means a metal tag stating vaccination against rabies, serial numbered and bearing the year of issuance. Habitual offender means any pet animal owner/keeper whose pet has been found, by the court, to have been kept in violation of this Title of this Code three (3) times within any twelve-month period. Harbor or keep means to feed and care for any dog or cat upon the premises or to permit any dog or cat to be fed and cared for on the premises. The occupant of any premises to which a dog or cat is kept or to which the animal customarily returns daily for food, shelter and/or care is presumed to be harboring said animal within the meaning of this Chapter, and said person shall be subject to the applicable provisions of this Chapter. No person is deemed to harbor or keep any animal that has been reported to the Community Service Officer and is actively assisting in efforts to impound or confine said animal. Keeper means any person who keeps or harbors a dog or cat for less than seven (7) days. Kennel means a person, entity or operation which is required to be licensed or permitted by the State and/or Eagle County, pursuant to applicable laws and regulations, and which keeps and maintains dogs or cats for sale, resale, boarding, breeding, show, hunting or other commercial or recreational purposes. Leash control means firmly attached to a secured tether or leash which is being held by a person who is thereby in fact able to prevent the dog from charging, chasing or otherwise disturbing or interfering with any person, domestic animal or wildlife, irrespective of the presence of any distraction or provocation. Mistreatment includes every act or omission which causes or unreasonably permits the continuation of, unnecessary or unjustifiable pain or suffering. Neglect means failure to provide food, water, protection from the elements, opportunity for exercise, socialization or other care normal, usual and proper for an animal's health and well-being. Potentially dangerous dog means any dog that when unprovoked: a. Inflicts a bites on a human or a domestic animal either on public or private property; b. Chases or approaches a person upon the streets, sidewalks or any public grounds in a menacing fashion or apparent attitude of attack; or c. Chases or approaches a person upon private property other than the owner's in a menacing fashion or apparent attitude of attack. Premises means property owned, leased or expressly permitted to be used by an owner; or, any confined area or locality like a residence, business, room, shop, building or motor vehicle in which the animal's presence is authorized by the owner of the premises. The term premises includes the open space bed of a truck. Proper enclosure of a dangerous dog means while on the owner's property, a dangerous dog shall be securely confined indoors or in a securely enclosed and locked pen or structure, suitable to prevent the entry of young children and designed to prevent the animal from escaping. Such pen or structure shall have secure sides and a secure top, a locked gate and shall also provide protection from the elements. There shall be posted signs, which are legible to passersby, warning of the dangerous dog's presence. Proper restraint of a potentially dangerous dog means: a. While on the owner's property, a potentially dangerous dog shall be restrained by chain, leash or other confinement suitable to prevent the animal from leaving the owner's property; or b. While off the owner's property, a potentially dangerous dog shall be under physical restraint of the owner or other responsible person. Formatted: Font: Italic Preserve is the Town- owned 478- acre parcel of property located between Wildridge and Interstate 70 also known as the “West Avon Preserve” and includes property designated as “open space” and/or “park” and/or “planned unit development open space” as established by the Avon zoning districts. Provocation means harassment, teasing, threatening, striking or attacking an animal or its owner in the animal's presence, by either a person or another animal. Public nuisance means an animal infected with rabies, or stray cat, or a barking dog which disturbs the peace of humans, or a dangerous or potentially dangerous dog, an unconfined dog in estrus or a dog or cat that deposits excrement in public or private property that is not subsequently and promptly removed by the responsible party. Rabies means a communicable disease of both wild and domestic animals transmittable to humans, as defined by the United States Department of Agriculture. Running at large means when a dog or cat enters the property of another person without authorization of that person, or when it enters public property, and is not under the control of the dog or cat owner, other responsible person or an employee or agent of the owner, either by leash, cable or chain not more than ten (10) feet in length. Secure animal enclosure means a structure which is suitable to humanely keep and to prevent the escape of an animal, and has a top, bottom and all sides, which shall not be construed to mean the open bed of a truck. Severe injury means any physical injury that results in broken bones or disfiguring lacerations requiring multiple sutures or cosmetic surgery. Town means the Town of Avon, State of Colorado. Voice control means immediate and reliable obedience to any voice or sound command given by the owner or handler who is thereby in fact able to prevent the dog from charging, chasing or otherwise disturbing or interfering with any person, domestic animal or wildlife, irrespective of the distance involved or the presence of any distraction or provocation. Vaccination, inoculation or vaccination for rabies means the inoculation of a dog with an anti-rabies vaccine approved by the Colorado State Department of Public Health and Environment and administered by a licensed veterinarian for use in the prevention of rabies, which is deemed current by reference to the expiration date noted on the vaccination certificate or published duration as indicated by the manufacturer. (Ord. 98-3 §I; Ord. 96-14 §1; Ord. 94-17 §1(part)) 6.04.030 Annual cat vaccination required. (a) It is unlawful for a cat owner to fail to have currently vaccinated or inoculated against rabies each cat which he or she maintains, keeps or harbors within the Town for more than thirty (30) consecutive days. (b) A license is not required for cats; however, every cat so maintained, kept or harbored within the Town for more than thirty (30) consecutive days must be currently vaccinated against rabies, and a certificate as to the date administered and expiration, identifying the type of vaccine, administering veterinarian and business address, must be presented for inspection upon the request of any duly authorized Formatted: Font: Not Italic, Font color: Red person. (Ord. 07-02 §1; Ord. 94-17 §1(part)) 6.04.040 Attachment of cat tag to collar or harness. No cat owner shall fail to place upon his or her cat a collar or harness to which a cat tag is attached. Said collar or harness must be worn by the cat at all times, except when the cat is securely confined within any enclosure on the property of the owner, possessor or keeper of such an animal. (Ord. 07-02 §2; Ord. 94-17 §1(part)) 6.04.045 Dog license required. (a) It shall be unlawful for any owner of a dog harbored, kept or maintained in the Town to fail to have the dog currently licensed. (b) All dogs over the age of three (3) months shall have a valid Eagle County Pet Animal license after the dog has been kept, maintained or harbored in the Town for any consecutive thirty-day period or immediately upon citation for any violation of this Code. (c) A valid dog license tag shall be attached to a collar or harness and shall be worn by the dog at all times. It shall be a defense to prosecution under this Subsection that the owner or responsible party can produce a certification by a veterinarian that the dog cannot wear a collar or harness because of a permanent medical condition or that the dog was working in a capacity that made the wearing of a collar or harness hazardous to the dog. (Ord. 07-02 §3) 6.04.050 Kennel regulations. Dogs or cats kept or maintained by a licensed kennel shall be required to be inoculated against rabies pursuant to the provisions of this Chapter while they are within the confines of the kennel premises; however, current rabies vaccinations and applicable certificates for each dog or cat over four (4) months of age shall be presented for inspection upon request of an authorized officer. (Ord. 94-17 §1(part)) 6.04.060 Leash Control. (a) With the exception of the Preserve property as herein defined, iIt is the duty of any owner or keeper of a dog or cat to keep such dog or cat under leash control, as herein defined, so as to prevent the dog or cat from: (1) Running at large; (2) Becoming a danger to persons or property; (3) Trespassing on the property of another; (4) Being a public nuisance as defined in Section 6.04.230; . (5) Chasing or threatening wildlife. (b) Animal Control has the authority to and shall deem any animal that displays any characteristics of a dangerous or potentially dangerous dog, and shall notify the owner through posted notices. (c) It is unlawful for: (1) A dog or cat to not be under control at all times. (2) A dog to not be under control in instances which shall include, but not be limited to, when said dog bites or damages a person or property of anyone other than the owner. Animal Control has the authority to and shall deem any dog that bites a human or domestic animal as potentially dangerous and shall notify the owner through posted notice. (3) A dog to not be under control in instances which shall include, but not be limited to, when said dog inflicts severe bodily injury or damage to the person or property of anyone other than the owner. Animal Control shall deem any dog that inflicts severe bodily injury to a human or domestic animal as a dangerous dog and shall notify the owner through posted notice. (d) No dog owner shall fail to confine any female dog in the state of estrus (heat). The dog shall be confined during estrus in a house, building or secure enclosure constructed so that no other dog may gain access to the confined animal. Owners who do not comply with this Subsection may be ordered to remove the dog to a boarding kennel, veterinary hospital or the county Animal Control center. All expenses incurred as a result of such confinement shall be paid by the owner. Failure to comply with the removal order of the Animal Control officer shall be a violation of this Chapter, and any unspayed female dog in estrus may be summarily impounded in the event of noncompliance with such removal order. (e) It is unlawful for a dog owner to leave within the open portion of a vehicle parked on public property a dog which is creating a danger to persons or property, or both, in the immediate vicinity thereto. (f) It is unlawful to leave any domestic companion animal confined within a vehicle so as to place said animal in undue stress or danger of extremes in temperatures. Any authorized officer finding such to be existent may take whatever reasonable means necessary to remove said animal from the vehicle and place said animal into "protective custody." (g) It is unlawful for a person to abandon or leave unattended an animal owned by him or her or which has been under his or her control or in his or her possession. An animal which has been left unattended for more than twenty-four (24) hours after posted notice of abandonment by Animal Control shall be considered abandoned and may be impounded by Animal Control, exercising whatever reasonable means necessary to accomplish such impoundment. (h) Procedure for notice of abandoned animals. Animal Control shall post a warning notice in a conspicuous place such as the entry area to the property, door or near the animal. It shall state: animal type; sex and color; time and date of posting; Animal Control's phone number; and the deadline for notifying Animal Control. Time shall begin to elapse at the time Animal Control posts notice. Animal Control may provide food and water for said animals. (i) Dogs in common and public areas. No dog or cat owner shall fail to prevent his or her dog or cat from running at large in the yard of any multiple occupancy building which is occupied by other persons; or in the common areas of mobile home complexes, apartments or condominium developments; or in open space areas of subdivisions; or in public or Town parks or fairgrounds, unless permission is posted by the Town or public authorities allowing dogs or cats at large on said property. (j) Any animal obtained by Animal Control through a request from a governmental agency shall be deemed not under control and may be impounded and subject to disposition as provided by Section 6.04.070. (k) It is unlawful for a dog owner or keeper to allow his or her dog to enter or remain on a construction site unless it is restrained by a leash, chain or cable of no more than ten (10) feet in length, or it is contained in a secure animal enclosure. (Ord. 96-14 §2; Ord. 94-17 §1(part)) (l) Any dog on the Preserve property shall be under voice control as defined in section 6.04.020 herein and furthermore the owner or keeper of a dog shall have in their possession at all times a leash. A dog is presumed to be running at large if injury, damage or trespass or threatening of wildlife has occurred even if said dog is under voice control. 6.04.070 Impounding of dogs and cats. (a) It shall be the duty of Animal Control to apprehend any dog or cat running at large or not under control as defined in the provisions of Section 6.04.020 hereof, or not duly vaccinated, and upon receiving any dog or cat, to make a complete registry entering breed, sex and color of such dog or cat, and whether it is licensed. If licensed, he or she shall enter the name and address of the owner and the date and number of the dog or cat tag. (b) When any dog or cat has been impounded, Animal Control shall as soon as feasible give notice in person, by letter sent to the owner's last known address, telephone or service of a summons upon the owner, of the dog's or cat's impoundment and dispositional alternatives. If the dog or cat owner's identity or whereabouts are unknown at the time of impoundment, Animal Control shall take all reasonable steps to identify the owner and provide such notification. If the dog or cat owner's identity or whereabouts still cannot be established, Animal Control may proceed with any disposition authorized by this Chapter. Animal Control shall maintain records of the time, dates and manner of any such notification, and such records shall constitute prima facie evidence of notification or attempted notification. The owner of said impounded dog or cat may reclaim said dog or cat upon payment of all costs and charges incurred by the Town for impounding and maintenance of said dog or cat and upon presentation of a copy of the Town summons alleging the Animal Control violation. The charges and fees as listed in Section 6.04.170 shall be paid to Animal Control for impounding any dog or cat. (c) All impoundments will be kept on record for a period of twenty-four (24) months from the date of the first impoundment. (Ord. 94-17 §1(part)) 6.04.080 Dangerous and potentially dangerous dogs. (a) Impoundment and court appearance; locked premises. (1) Any dangerous dog that has been found running at large may be impounded, and the owner is subject to a mandatory court appearance. If the dangerous dog injures a human or other domestic animal more than once, Animal Control has the authority to impound the dog at the owner's expense, until the owner appears on a mandatory court appearance (protective custody). The court may order the dog to be destroyed. (2) It is unlawful for any owner of a dangerous dog to keep the same unless it is confined in a locked premises and does not interfere with the public thoroughfares, including sidewalks, bike paths and public easements. The premises must be sufficiently constructed to contain said dog and must post at each entrance and exit of the enclosure, "Beware of Dog," or similar advisement. (b) Any potentially dangerous dog that has caused no human injury or domestic animal injury and has been found running at large shall be impounded. (c) It shall be the duty of any police officer or the Community Service Officer to impound any such animal that is in violation of this Section, which shall constitute a separate offense in addition to a violation of Section 6.04.060. A violation of this Section shall require a mandatory court appearance. (d) Any dog that has been previously deemed dangerous by appropriate notification and while in violation of this Section is found to have caused bodily injury to a person or animal, or threatened or endangered wildlife or livestock, or both, and repeats such incident or commits another violation of this Chapter, shall automatically constitute a directive for impoundment and protective custody and a petition for a court order for the destruction of said dog under the supervision of the Community Service Officer. (e) It shall be the duty of any police officer or the Community Service Officer to seize and impound any dangerous or potentially dangerous dog. After making every reasonable attempt to seize and impound such animal, including the solicitation of assistance from the owner if said owner is known and available, if the officer determines that said animal cannot be seized without exposing the officer or other persons to danger or personal injury and if the officer or other person is in apparent immediate danger, it shall be lawful for the officer to destroy said animal without notice to the animal's owner, keeper or possessor. (Ord. 94-17 §1(part)) 6.04.090 Quarantine of dogs and cats. (a) A dog or cat that does not have a current rabies vaccination and is known to have bitten or injured any person so as to cause a puncture or abrasion of the skin shall be quarantined for no less than ten (10) days from the date of the bite at the expense of the owner. The place of confinement of said animal shall be the county shelter or a licensed veterinarian hospital at the expense of the owner. (b) A dog or cat that is currently vaccinated and is known to have bitten or injured any person so as to cause a puncture or abrasion of the skin shall be quarantined for no less than ten (10) days from the date of the bite at the expense of the owner. The place of confinement shall be the county animal shelter or a licensed veterinarian hospital, or, if the owner has an enclosure on the owner's property that would adequately contain the animal at all times of the required quarantine period, the Community Service Officer, at his or her discretion, may place said animal under quarantine on the owner's property; provided that the owner keeps said animal confined without exposure to any other animals and the Community Service Officer shall from time to time check the animal's health and behavior; and if, at any time, the owner of said animal does not comply with the provisions of the confinement of said animal, the Community Service Officer shall move the animal to the Town animal shelter for the remainder of the quarantine period at the owner's expense. (c) If at any time during the quarantine of a vaccinated or an unvaccinated animal, said animal becomes ill or displays symptoms of rabies, said animal shall immediately be examined by a licensed veterinarian and may be destroyed and a medical test conducted to determine if the animal was rabid, having thus exposed the bite victim to rabies. If said animal dies while under quarantine, a medical test shall be conducted to determine whether the subject animal was suffering from rabies at the time of death. All tests are conducted at the expense of the animal's owner. (d) If the owner of an animal referred to in Subsection (c) of this Section cannot be determined or located, then the Community Service Officer shall confine said animal at the county animal control shelter for a quarantine period of not less than ten (10) days from the date of bite. If the owner of said animal is not determined or located, or if the animal is unclaimed by the end of the quarantine period, the Community Service Officer may order said animal destroyed. If said animal is suspected by a licensed veterinarian to be suffering from rabies, said animal shall immediately be destroyed. (Ord. 94-17 §1(part)) 6.04.100 Disposition of unclaimed, diseased or dead animals. (a) With respect to an animal which has been impounded or quarantined pursuant to the provisions of Section 6.04.080 or 6.04.090 hereof and has not been claimed, released or disposed of in accordance with said sections, the Community Service Officer shall keep those animals in the county animal shelter or other suitable place for not less than five (5) days, and cats for not less than seventy-two (72) hours, after which said officer may have said animal destroyed, except as herein provided. (b) Release; sterilization. (1) After the required time period, in lieu of having said animals destroyed, the Community Service Officer may release any such animal, if unclaimed and not diseased, to a bona fide humane society; or with respect to a stray animal, to a person having no previous interest in said animal in accordance with the provisions of this Chapter. Upon release of said animal, the recipient shall pay all required fees. (2) All animals adopted from the county animal shelter are required to be sterilized at the time of adoption. Transfer of absolute ownership of the dog or cat shall not be effected until sterilization has occurred, unless such surgery would be dangerous to the animal due to its age or physical condition, as determined by the selected veterinarian of record. In said circumstances the terms of the adoption contract shall specify a date by which sterilization is performed. Nothing hereinabove shall place responsibility or liability for the animal's actions upon the Town or County for any incident arising during that period of delay in transfer of absolute ownership. Failure of the person adopting a dog or cat to sterilize it is a violation of this Chapter. (c) An impounded animal which is sick, injured, in pain or contagious to other animals, and which is not identifiable to an owner, is not subject to a minimal impoundment period and may immediately be euthanized. If a sick or injured animal which is in pain or contagious to other animals is identifiable to an owner, the Community Service Officer shall diligently attempt to contact the owner within twenty-four (24) hours after impoundment, after which time the animal may be euthanized if still unclaimed. (d) No animals that become property of the Town shall be released for animal research or experimentation. (e) When recovering or disposing of dead animals, Animal Control shall take whatever reasonable and appropriate action is required to protect the health, safety and welfare of the community, including but not limited to disposal of the dead animal without unnecessary delay. If the dead animal has a current license tag intact, the Community Service Officer shall make reasonable efforts to notify the owner before disposing of the animal. Reasonable fees for time and expenses may be charged to an owner of such deceased animal. (f) Nothing in this Section shall be construed to prevent the Community Service Officer from taking whatever action is reasonably necessary to protect his or her person or members of the public from injury by any animal. (Ord. 94-17 §1(part)) 6.04.110 Quarantine and destruction of rabid domestic animals. (a) Where, in the reasonable discretion of the Community Service Officer or any police officer, an animal suspected of rabies is endangering the life or person of another, or inflicting death or injury to livestock or wildlife, said animal may be immediately destroyed. (b) Isolation; unvaccinated dog or cat bitten by rabid animal must be destroyed or quarantined. (1) When bitten by a rabid animal or exposed to a rabid animal, an unvaccinated dog or cat shall be destroyed immediately, unless the owner objects, in which case the animal shall be placed in strict isolation for a period of six (6) months and vaccinated for rabies one (1) month before being released from isolation. The isolation shall be supervised by a veterinarian licensed in the State. All expenses of said quarantine are to be borne entirely by the animal's owner. (2) It is unlawful for any dog or cat owner to fail to have any unvaccinated dog or cat, bitten by a rabid animal, so destroyed or quarantined. Each day said owner fails to comply with the provisions of this Section shall constitute a separate offense. (c) Revaccination; confinement. (1) In any case where a rabid animal bites a dog or cat with a current rabies vaccination, the owner of the dog or cat shall obtain the immediate revaccination of said dog or cat by a licensed veterinarian and shall see that said animal is confined for a period of ninety (90) days. (2) It is unlawful to fail to have a dog or cat, bitten by a rabid animal, revaccinated or to fail to confine said dog or cat for ninety (90) days. Each day said owner fails to comply with the provisions of this Section shall constitute a separate offense. (Ord. 94-17 §1(part)) 6.04.120 Affirmative defense. An affirmative defense to the violation of dangerous dog or potentially dangerous dog attacking shall be: (1) That at the time of said attack by the dog which causes injury or death of a domestic animal, such domestic animal was at large and entered upon the property of the owner of subject dog where the attack began; (2) That, at the time of said attack by the dog which causes injury or death of a domestic animal, said domestic animal was biting or otherwise attacking the dog or its owner or responsible companion and the dog was otherwise conforming to the requirements of law as pertains to control; (3) If a dog is provoked into biting or inflicting bodily injury or damage to the person or property of anyone other than the owner, such provocation shall constitute an affirmative defense that may be pled by an owner who is in violation of this Chapter on account of said biting; (4) Any other conditions or defenses as outlined in Section 18-9-204, 5(3)(h), C.R.S., known as "The Dangerous Dog Law." (Ord. 94-17 §1(part)) 6.04.130 Interference with Community Service Officer. It is unlawful for any person to interfere with, molest, hinder, prevent or obstruct the Community Service Officer in the discharge of his or her duties under this Chapter. Anyone so interfering, molesting or hindering is subject to arrest for obstructing a peace officer pursuant to Section 9.04.060 of this Code. (Ord. 94-17 §1(part)) 6.04.140 Threatening of wildlife and livestock. (a) It is unlawful to allow a dog to run after, chase, pursue, bite, snap at, worry, attack or otherwise threaten wildlife or livestock, or both. In the event any dog is found to be threatening wildlife or livestock or both as described, said dog may immediately be destroyed at the discretion of any police officer or the Community Service Officer. In the event said dog cannot be immediately destroyed, it shall be the duty of any police officer or the Community Service Officer to impound such dog. A violation of this Section, whether or not said dog has been destroyed or claimed from impound, shall constitute a mandatory court appearance of the owner; and if convicted of a violation of this Section, the owner will be required to pay restitution for any animal or animals harmed by said dog, in addition to court fines and court costs. If the dog was not destroyed at the time of the incident, the court may order the dog destroyed under the supervision of the Community Service Officer. If the dog is not ordered destroyed, the court may deem said dog dangerous and the owner may thereby be permitted to keep the dog as provided in Section 6.04.080(a). (b) Upon a second conviction of a violation of this Section the court may enter an order commanding the destruction of said dog under the supervision of the Community Service Officer. (Ord. 94-17 §1(part)) 6.04.150 Dog or cat bite. In the event any dog or cat is found to have caused bodily injury to any human, said dog or cat will be impounded as described in Section 6.04.070 and the owner will be in violation of this Chapter. The Community Service Officer may petition the Municipal Court for an order for destruction of the dog or cat and for an appropriate rabies examination at the dog or cat owner's expense. (Ord. 94-17 §1(part)) 6.04.160 Violations and penalty assessments. (a) Any person who violates any provisions of this Chapter, upon conviction thereof, shall be punished for such offense in accordance with the provisions of Section 1.08.010 of this Code, plus the customary court costs as applicable. (b) The Municipal Court may establish a penalty assessment procedure and make provision for a schedule of penalty assessments. (c) For purposes of determining the proper fine (penalty assessment) for violations of this Chapter which do not result in bodily injury to any person, only those convictions (admissions of guilt) occurring within twelve (12) months of the date of the offense for which the fine (penalty assessment) is now being imposed shall be considered. This twelve-month limitation shall not apply to what evidence may be introduced in aggravation of any sentencing for any violation of this Chapter which does result in bodily injury to any person nor shall any time limitation apply to the provisions of Section 6.04.140 of this Chapter. (Ord. 94-17 §1(part); Ord. 04-05 §1) 6.04.170 Charges and fees. Charges and fees of seizure, impoundment, boarding, licensing, veterinarian care and adoption of an animal shall be cumulatively assessed to any animal owner based upon the actual amount of such fees incurred by the Town pursuant to contracts entered into by it. (Ord. 94-17 §1(part)) 6.04.180 Destruction of dangerous dogs. (a) In addition to any other penalty, if it is found by the court or a jury that any dog complained of is a dangerous dog, the court may, if it finds it is in the best interest of the public, order the dog destroyed at the owner's expense. Such destruction shall not occur prior to the completion of observation of the dog for rabies when necessary. (b) In the event the dog owner is twice convicted of an offense relating to the same dog, the court may order the dog destroyed and require that the owner, as a condition of probation, refrain from owning or harboring any dog at any premise for a period of one (1) year. (Ord. 94-17 §1(part)) 6.04.190 Failure to appear. If a person upon whom a summons and complaint (penalty assessment notice) fails to appear in person or by counsel at the time and place specified therein and has not paid the specified fine in person or by mail at the place and within the time specified in the penalty assessment notice, the Municipal Court may issue a bench warrant for his or her arrest. (Ord. 94-17 §1(part)) 6.04.200 Failure to redeem, comply or pay fines or fees. (a) If a person "duly notified" fails to make arrangements for the redemption or surrender of any animal under his or her care, custody or control, regardless of ownership, said person shall be charged with a violation of this Section and brought before the court which shall at such time assess the fine provided and recover all costs accumulated. (b) Any violation under this Chapter that involves failure to comply, pay fines, meet stipulations of contract, payment schedules or as otherwise outlined will constitute a violation under this Section. (Ord. 94-17 §1(part)) 6.04.210 Muzzling and confinement. Whenever it becomes necessary to safeguard the public from the dangers of rabies, the Town Council, if it deems necessary, shall issue a proclamation ordering every person owning or keeping a dog or cat to confine it securely on his or her property or premises, and any such dog shall have a muzzle of sufficient strength to prevent it from biting any person. Any dog or cat running at large during the time of proclamation shall be seized and impounded, and if displaying propensities which are an apparent immediate danger to the Community Service Officer or any other person, shall be destroyed by the Community Service Officer. Any dog or cat impounded during such proclamation is considered to have been exposed to a rabid animal, and said impoundment and release shall fall under the provisions of Section 6.04.070. (Ord. 94-17 §1(part)) 6.04.220 Liability for accident or subsequent disease from impoundment. The Town, its employees or agents, or persons authorized herein to enforce the provisions of this Chapter shall not be held responsible for any accident or subsequent disease which may be suffered by a dog or cat as a result of the administration or implementation of this Chapter. (Ord. 94-17 §1(part)) 6.04.230 Public nuisance. (a) It is unlawful and declared to be a public nuisance for any dog or cat owner or other responsible person to allow his or her dog or cat to excrete body waste upon public or private property and when the responsible person does not promptly remove same. (b) It is unlawful and declared to be a public nuisance for any dog owner to fail to prevent his or her dog from disturbing the peace of any other person or neighborhood by loud, habitual, untimely and persistent barking, howling, yelping or whining, whether the dog is on or off the dog owner's premises. It shall be the duty of the Community Service Officer and his or her deputies to impound said dog if the officer is unable to contact the owner, and determines that the barking is disturbing the peace of the neighbors, and said officer has a signed complaint. (c) Provocation of a dog whose noise is complained of is an affirmative defense to any charge for violation of this Section. (d) Complainant rights and responsibilities. If a violation of this Section is charged, the complainant shall verify in writing the allegations of the complaint prior to its service upon the owner. (Ord. 94-17 §1(part)) 6.04.235 Habitual offender. Upon the conviction of an owner/keeper as a habitual offender, the court shall order the animal involved in the violations to be permanently removed from the Town. (Ord. 98-3 §II) 6.04.240 Unlawful taking or release. (a) It is unlawful for any person to take any dog or cat from an enclosed lot, vehicle, premises or other building and deliver the dog or cat to the impoundment facility unless authorized to do so by the owner or the keeper of the dog or cat or as authorized by this Chapter. (b) It is unlawful for any person to open or cause to be opened any closed vehicle, premises or building or release from a chain any dog or cat for the purpose of allowing said dog or cat to run at large. (c) It is unlawful for any person to remove any animal from any Town vehicle, or from the custody of the Community Service Officer, without the consent of the Community Service Officer. Such action will be considered as an obstruction and charged accordingly. (Ord. 94-17 §1(part)) 6.04.250 Abandonment, cruelty to animals or neglected dogs. No person shall physically or cruelly mistreat or neglect to provide proper amounts of food and water, or neglect to provide proper shelter to any animal. (Ord. 94-17 §1(part)) 6.04.260 Enforcement. The provisions of this Chapter shall be enforced by the Police Department, the Community Service Officer or his or her authorized representative, or by both. (Ord. 94-17 §1(part)) 6.04.270 Hot pursuit. (a) The Community Service Officer or any police officer in hot pursuit of any dog or cat in apparent violation of this Chapter may enter onto private property for the purposes of enforcing this Chapter, including the impoundment of the dog or cat, removal of the dog or cat, ascertaining the identity of the dog or cat, the currency or existence of dog or cat tags or issuing a citation. (b) This Section does not grant the Community Service Officer or any police officer any additional authority to enter into any dwelling or other building designed for human occupancy other than that authority which may now exist under Colorado law. Any warrant requirements for entry into any dwelling or other building designed for human occupancy is observed. (Ord. 94-17 §1(part)) 6.04.280 Community Service Officer. Personnel engaged in animal control, however titled or administratively assigned, may issue citations or summonses and complaints enforcing this Chapter. Personnel so engaged shall be included in the definition of "peace officer or fireman" in Section 18-3-201 (2), C.R.S., and, to the extent such personnel are empowered to do so by the laws governing the state bureau of animal protection, are authorized to carry out the enforcement of the laws for the prevention of cruelty to animals pursuant to Sections 35-42-101, C.R.S., et seq. (Ord. 94-17 §1(part)) 6.04.290 Town Manager Authority. The Town Manager retains the authority to further manage and modify rules for the Preserve including but not limited to wildlife closures: Between December 15 and April 15 annually, all portions of the West Avon Preserve shall be closed to all uses to protect the Town’s investment in sensitive wildlife species, except that PB&J, Our Backyard, and Beaver Creek Point trails will be open year round. Closures may be adjusted by the Town Manager in writing as required to protect the conservation values of the property. Additional posted closures may be pursued by the Town Manager at any time for good cause. 6.04.290300 Captions. The captions and paragraph headings used throughout this Chapter are for the convenience of reference only, and the words contained therein shall in no way be held or deemed to define, limit, describe, explain, modify, amplify or add to the interpretation, construction or meaning of any provision to or the scope of this Chapter. (Ord. 94-17 §1(part)) PAGE 1 OF 1 TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Matt Pielsticker, AICP, Planning Manager Date: October 28, 2014 Agenda Topic: CPW Grant Letters of Support Town staff is preparing two grants to the Colorado Parks and Wildlife (CPW) Department concerning the West Avon Preserve. As part of the grant, letters of support for the applications are required from the “decision makers” because of the legally binding nature of a grant contract if awarded. The first grant is for monies provided through CPW’s Trail Planning category. The Town will seek funding of a use study and analysis of the entire 478-acre parcel for purpose of creating a maintenance program and improving the existing trail network - or in some cases evaluating the closure of “social” trail(s) or annual seasonal closures. The second part of the Planning grant is to fund an inventory and mapping of the threatened Harrington’s Penstemon plant in June/July 2015 by a qualified biologist. A second grant is being prepared under the CPW’s Trail Construction and Maintenance category. With eight miles of new trails completed this past summer, while well-constructed, the development of soft trails are known to require a second year of work to address areas such as drainage improvements, remediation of slopes and cuts, and washboarding. The Construction and Maintenance grant would pay for this second year of final construction on the new trails and also provide for the same environmental restoration and maintenance construction improvements on the remaining 3.5 miles of trails in the Preserve as well as assessing whether any trails should be closed. Funding is also being sought for interpretive signage related to the Harrington’s Penstemon (rare, threatened native plant species to the property) as well as additional informative closure signs. Goals: 1. Sustainably built trails. 2. Reduction in erosion caused from improperly created/designed social trails. 3. Increased awareness of threatened, unique plant species to better inform future trail reroutes or new trail routes. 4. Well designed, long lasting interpretive signage at key locations. 5. Long term plan for maintenance of trails including budget projections and upkeep schedule Town Council is asked to approve the attached two letters of support for submission with the grant applications. October 28, 2014 Colorado Parks and Wildlife State Trails Committee and Staff 13787 S. Hwy 85 Littleton, CO 80125 Re: West Avon Preserve Planning Grant Dear Committee Members and Staff: Attached you will find the Town of Avon’s application for the 2014-2015 Planning Grant program through the Community Development Department. The Town of Avon is seeking this grant in order to complete a use study and analysis of a recently acquired 478-accre parcel called the West Avon Preserve (“the Property”). In addition to the use analysis, funding for the inventory and mapping of the threatened Harrington’s Penstemon plant on the Property is being pursued. Support: This letter documents the full support of the Avon Town Council for the accompanying Trail Planning grant application. The conservation easement on the Property was made possible through The Eagle Valley Land Exchange, a global land swap project involving the full support of numerous agencies including: the United States Forest Service, Colorado State Land Board, Eagle County, Upper Eagle Regional Water Authority, Eagle River Water and Sanitation District, the Nottingham Family, and the Eagle Valley Land Trust. Ownership: The West Avon Preserve is located on land owned by the Town of Avon. The Property is permanently conserved as open space through a Deed of Conservation between the Town of Avon and the Eagle Valley Land Trust. We are very fortunate to have the Colorado State Recreational Trails Grant Program as a resource. A grant from State Trails would enable us to leverage our local funds and continue the exceptional recreational and open space values of the West Avon Preserve property for residents and visitors alike. We appreciate your consideration of this application. Sincerely, Rich Carroll Mayor October 28, 2014 Colorado Parks and Wildlife State Trails Committee and Staff 13787 S. Hwy 85 Littleton, CO 80125 Re: West Avon Preserve Construction and Maintenance Grant Dear Committee Members and Staff: Attached you will find the Town of Avon’s application for the 2014-2015 Construction and Maintenance Grant program through the Community Development Department. The Town of Avon is seeking this Non-Motorized Recreational Trails Construction and Maintenance grant in order to complete the construction of maintenance improvements to approximately 11.5 miles of soft trails on the West Avon Preserve property. Funding is necessary for “second year” work on approximately 8 miles of newly constructed trails to address areas such as drainage improvements, remediation of slopes and cuts, and wash-boarding. This grant is also being sought for interpretive signage related to the Harrington’s Penstemon flower as well as information on trail closures for wildlife. Support: The Avon Town Council is in full support of the accompanying Trail Construction grant application. The conservation easement on the Property was made possible through The Eagle Valley Land Exchange, a global land swap project involving the full support of numerous agencies including: the United States Forest Service, Colorado State Land Board, Eagle County, Upper Eagle Regional Water Authority, Eagle River Water and Sanitation District, the Nottingham Family, and the Eagle Valley Land Trust. Ownership: The West Avon Preserve is located on land owned by the Town of Avon. The Property is permanently conserved as open space through a Deed of Conservation between the Town of Avon and the Eagle Valley Land Trust. We are very fortunate to have the Colorado State Recreational Trails Grant Program as a resource. A grant from State Trails would enable us to leverage our local funds and further support the exceptional recreational and open space values of the West Avon Preserve property for residents and visitors alike. We appreciate your consideration of the attached application and supporting documentation. Sincerely, Rich Carroll Mayor   Heil Law & Planning, LLC Office: 303.975.6120 3445 S. Clermont St. Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com H EIL L AW TO: Honorable Mayor Carroll and Town Council members FROM: Eric J. Heil, Town Attorney RE: Ordinance No. 14-18 Approving Acquisition of Tract S DATE: October 23, 2014 Summary: Ordinance No. 14-18 is presented to Council for consideration on first reading. Ordinance No. 14-18 would authorize the acquisition of Tract S from the Twin Bears Townhomes Common Area. During the construction of the recreational trails on the West Avon Preserve, the preferred alignment of one trail encroached slightly on the Twin Bears Townhomes common area. Town has worked closely with the Twin Bears Townhomes owners to address this trail encroachment. Tract S is .015 acres, or 652 square feet. The consideration for the acquisition would be $8,000 ($12.2 per square foot), which Town staff believes is a reasonable and market based price considering the circumstances. Acquisition of a fee simple interest by the Town was determined to be preferred over a license agreement or permanent easement because the Town’s liability and maintenance responsibility for the trail would be more clear and would be consistent with Town property management as a Town property. A formal purchase agreement has not been prepared due to the small amount of property involved and modest amount of consideration proposed. Town staff has negotiated the acquisition price and agreed to pay the costs of preparing a subdivision plat to create Tract S for conveyance. Approval of the subdivision plat to create Tract S would be administrative and would be finalized only after Council approves Ordinance 14-18 on second and final reading. The form of the deed for conveyance is currently under discussion with the Twin Bears Townhomes owners association and will be presented to Council for second and final reading. Proposed Motion: “I move to approve Ordinance No. 14-18 Approving Acquisition of Tract S of the Twin Bears Townhomes, Town of Avon, Colorado.” Attachment A: Ordinance No. 14-18 Attachment B: Subdivision Depiction of Tract S M EMORANDUM & PLANNING, LLC Ord. No 14-18 Approving Acquisition of Tract S, Twin Bears Townhomes October 23, 2014 Page 1 of 3 TOWN OF AVON ORDINANCE 14-18 SERIES of 2014 AN ORDINANCE APPROVING THE ACQUISITION OF TRACT S OF THE TWIN BEARS TOWNHOMES, TOWN OF AVON, COLORADO WHEREAS, the Town of Avon and Twin Bears Townhome Owners Association, have mutually agreed to the sale and conveyance to the Town of Avon of a portion of the Twin Bears Townhome common area, described as Tract S of the AMENDED FINAL PLAT, A RESUBDVISION OF TWIN BEARS TOWNHOMES, Lot 3, Block 2, Wildridge Subdivision, Town of Avon, County of Eagle, Colorado (“Property”); WHEREAS, Section 2.1 of the Avon Home Rule Charter provides that the Town Council may acquire real property interests and Colorado Revised Statutes section 31-15-101(1)(d) provides that municipalities may acquire and hold real property; WHEREAS, the Town Council finds that acquisition of this Property supports Avon Comprehensive Plan by adding recreational trails for use and enjoyment by the Avon community and securing property that allows a better trail that minimizes excavation and disturbance of native vegetation; WHEREAS, the Town Council finds that acquisition of the Property shall promote the health, safety, prosperity, convenience and general welfare of the Avon community by; and, WHEREAS, approval of this Ordinance on first reading is intended only to confirm that the Town Council desires to comply with the requirements of the Avon Home Rule Charter by setting a public hearing in order to provide the public an opportunity to provide public comment on this Ordinance 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. Acquisition Approved. The acquisition of the Property for $8,000.00 is hereby approved. The form of the deed shall be subject to review and approval by the Town Attorney. Section 3. Mayor and Town Clerk Authorized to Execute Documents. The Mayor and Town Clerk are authorized to execute and attest to documents related to acquisition of the Property in accordance with this Ordinance and take such other actions as may be reasonably necessary to implement the actions in this Ordinance. ATTACHMENT A: ORD NO. 14-18 Ord. No 14-18 Approving Acquisition of Tract S, Twin Bears Townhomes October 23, 2014 Page 2 of 3 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 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 the date of 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 only 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] ATTACHMENT A: ORD NO. 14-18 Ord. No 14-18 Approving Acquisition of Tract S, Twin Bears Townhomes October 23, 2014 Page 3 of 3 INTRODUCED, APPROVED, PASSED ON FIRST READING, ORDERED POSTED AND REFERRED TO PUBLIC HEARING and setting such public hearing for November 11, 2014 at the Council Chambers of the Avon Municipal Building, located at One Lake Street, Avon, Colorado, on October 28, 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 November 11, 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: APPROVED AS TO FORM: _______________________________ ____________________________ Debbie Hoppe, Town Clerk Eric J. Heil, Town Attorney ATTACHMENT A: ORD NO. 14-18 ATTACHMENT B: TRACT S DEPICTION PAGE 1 OF 1 TOWN COUNCIL REPORT To: Honorable Mayor and Town Council From: Virginia Egger, Town Manager Date: October 28, 2014 Agenda Topic: Letter of Engagement with Moses Wittemyer as Special Counsel Action is scheduled on Tuesday’s agenda on a Revised Agreement for Legal Services to retain Moses, Wittemyer, Harrison and Woodruff, P.C. (MWHW) as water counsel to the Town and the terms for these services. With Patricia DeChristopher leaving the firm, the Town has been represented by MWHW partner Richard Mehren and Anne Bensard, with Jay Montgomery who is of-counsel to the firm. Mayor Pro Tem Jennie Fancher joined Town Attorney Eric Heil and me on September 12th to interview all three of the attorneys for continued water counsel services. From the interview and experience in working with these attorneys since early 2014, the recommendation to Council is to continue with MWHW as special water counsel, including Jay Montgomery. Town Council may on its own motion or upon request of the Town Attorney employ special counsel pursuant to Section 10.1 of Avon’s Charter. Proposed Motion: I move to approve the Revised Agreement for Legal Services, Town of Avon, with Moses, Wittemyer, Harrison and Woodruff, P.C., dated October 21, 2014. Attachments: Revised Agreement for Legal Services Resumes MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. LAW OFFICES 1002 WALNUT STREET, SUITE 300 RAPHAEL J. MOSES TIMOTHY J. BEATON BOULDER, COLORADO 80302 (1913-2011) RICHARD J. MEHREN CHARLES N. WOODRUFF CAROLYN R. STEFFL TELEPHONE: (303) 443-8782 (1941-1996) _______ FAX: (303) 443-8796 INTERNET: www.mwhw.com COUNSEL ANNE D. BENSARD JOHN WITTEMYER JENNIFER M. DILALLA ADDRESS CORRESPONDENCE TO: DAVID L. HARRISON ALISON D. GORSEVSKI P. O. BOX 1440 JAMES R. MONTGOMERY ANDREA A. KEHRL BOULDER, COLORADO 80306-1440 00089096-3 October 2, 2014 BY EMAIL Town of Avon c/o Virginia Egger, Town Manager P. O. Box 975 Avon, CO 81620 Re: Revised Agreement for Legal Services, Town of Avon Dear Virginia: The purpose of this letter is to outline the terms on which the Town of Avon (the “Town”) agrees to continue retention of Moses, Wittemyer, Harrison and Woodruff, P.C. to provide water-related legal services and the terms on which the firm agrees to provide those services. The scope of the engagement is to provide legal services on an as-needed basis as water counsel to the Town. We understand that the work will involve assisting you as Town Manager and advising you and the Town Council on transactional matters that are water-related, such as dealings with the Upper Eagle Regional Water Authority and other members of the Authority, contracts and negotiations with developers, acquisition of water rights, and related matters. Specifically, we understand that this work will include negotiations with the Upper Eagle Regional Water Authority regarding the unallocated water as well as creation of a “water bank” for allocation of water within the Town. In addition, we will continue to review the monthly resume of water court applications, advise you of any applications that may affect the Town or its water rights, and represent the Town as needed in Water Court cases, including pending Case No. 14CW3022 (Nottingham Reservoir) and Case No. 14CW3079 (RICD). Any recommended Water Court activity would be coordinated with the Upper Eagle Regional Water Authority because the primary responsibility for Water Court work associated with the Town’s leased and otherwise allocated water rights lies with the Authority. Our previous engagement letter dated January 9, 2014, identified work that we have done for other clients that might have been considered by the Town to present the potential of a conflict. We are aware of no additional conflicts or potential conflicts with work for other clients of the firm that have arisen during the course of our representation of the Town. Sometimes conflicts arise that were not foreseen when we undertook the new representation. In MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. Town of Avon October 2, 2014 Page 2 00089096-3 that event, our firm’s policy is to cease representing the newer client and to continue representing the older client to the extent that ethical considerations permit us to do so. Sometimes, based on ethical considerations, it may be necessary for our firm to cease representing both the newer and the older client in a particular matter if a conflict of interest arises. As we have discussed with you and with Town Attorney Eric Heil, the responsible attorney for the Town’s water matters including, but not limited to, review of monthly water court filings, participation in water court cases, if any, and assistance to the Town with water rights and use matters will be Richard Mehren with support from Anne Bensard. Richard and Anne will also assist with the creation of the “water bank” with assistance where appropriate from Jay Montgomery, who is of-counsel to the firm and has represented the Town since 2007. Jay will continue at least through 2015 to be primarily responsible for matters involving implementation of, changes to, or re-negotiation of, the various agreements with the Upper Eagle Authority and matters related to the Traer Creek settlement, such as the water rights for Nottingham Reservoir. Jay is also available to provide background information on any Town matters, where appropriate. If, after consultation, with you and/or the Town Attorney, we determine that all or part of a particular matter will be most efficiently handled by Jay, his time will be billed to the Town at his current hourly billing rate. We will review Jay’s involvement annually. Where appropriate and after consultation with the Town and with the Town’s consent, we will delegate work to associate attorneys, paralegals and law clerks in order to keep the costs as low as reasonably possible. Time spent by others at the firm on the Town’s water matters will be billed only to the extent their work on the matter is in addition to, and not duplicative of, any work performed by Richard or Jay. Additionally, as we discussed, we will continue to coordinate all work among Richard, Anne and Jay to assure that there is no unnecessary duplication of effort. When non-chargeable time is spent on a matter, the time will be indicated as “No Charge” on the monthly itemized bill. Our hourly rates are listed on the fee schedule attached. We typically review and adjust the hourly billing rates on an annual basis, and we will advise the Town in writing of any changes in our billing rates before undertaking any work at rates different from those described herein. Our monthly bills will indicate the hourly charges by attorney or other staff member, as well as any additional fees or out-of-pocket expenses incurred in connection with your legal services. Mileage is presently billed at 56¢ per mile, color photocopies are billed at 50¢, photocopies are billed at 10¢ per page, and faxes are billed at 25¢ per page. Payment is due within 30 days and it is our firm’s policy to charge interest at a rate of 1% per month on any principal balance that is not paid within 30 days. MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. LAW OFFICES 1002 WALNUT STREET, SUITE 300 RAPHAEL J. MOSES TIMOTHY J. BEATON BOULDER, COLORADO 80302 (1913-2011) RICHARD J. MEHREN CHARLES N. WOODRUFF CAROLYN R. STEFFL TELEPHONE: (303) 443-8782 (1941-1996) _______ FAX: (303) 443-8796 INTERNET: www.mwhw.com COUNSEL ANNE D. BENSARD JOHN WITTEMYER JENNIFER M. DILALLA ADDRESS CORRESPONDENCE TO: DAVID L. HARRISON ALISON D. GORSEVSKI P. O. BOX 1440 JAMES R. MONTGOMERY ANDREA A. KEHRL BOULDER, COLORADO 80306-1440 00058374-4 This is to advise that effective January 1, 2014 our hourly rates for professional services rendered will be as follows: David L. Harrison $275.00 per hour James R. Montgomery $270.00 per hour Timothy J. Beaton $260.00 per hour Richard J. Mehren $235.00 per hour Carolyn R. Steffl $210.00 per hour Jennifer M. DiLalla $195.00 per hour Andrea A. Kehrl $185.00 per hour Alison D. Gorsevski $165.00 per hour Anne D. Bensard $165.00 per hour Paralegal $ 90.00 per hour Senior Law Clerks $ 85.00 per hour Interest at the rate of 1.0% per month accrues on amounts not paid within 30 days of billing. The firm reserves the right to charge on other than an hourly rate basis, or to charge a fee in addition to hourly rates, for work involving special risks, effort or time constraints including, without limitation, opinions relating to title, bonds and similar matters. MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. LAW OFFICES 1002 WALNUT STREET, SUITE 300 RAPHAEL J. MOSES TIMOTHY J. BEATON BOULDER, COLORADO 80302 (1913-2011) RICHARD J. MEHREN CHARLES N. WOODRUFF CAROLYN R. STEFFL TELEPHONE: (303) 443-8782 (1941-1996) _______ FAX: (303) 443-8796 INTERNET: www.mwhw.com COUNSEL ANNE D. BENSARD JOHN WITTEMYER JENNIFER M. DILALLA ADDRESS CORRESPONDENCE TO: DAVID L. HARRISON ALISON D. GORSEVSKI P. O. BOX 1440 JAMES R. MONTGOMERY ANDREA A. KEHRL BOULDER, COLORADO 80306-1440 00031181-4 BIOGRAPHICAL INFORMATION AND AREAS OF PRACTICE Moses, Wittemyer, Harrison and Woodruff, P.C. Background of the Firm Raphael J. Moses (1913-2011) actively practiced water law in the West for more than 60 years. The law firm of Moses, Wittemyer, Harrison and Woodruff, P.C. was founded by Raphael J. Moses, John Wittemyer and David Harrison in 1973. Charles N. Woodruff (1941-1996) joined them as a partner in 1974. The firm was named a Tier 1 water law firm on U.S. News & World Report’s “Best Law Firms” list for 2013. Throughout its history the firm’s practice has emphasized water-related fields of law, including water rights, water quality, environmental regulation, and local government and special district law. The firm conducts both transactional work and litigation related to water rights adjudication; water rights title and conveyancing; interstate apportionment of water; changes of senior water rights to instream flow uses; water quality control and permitting; compliance with state and federal water quality regulations, standards and effluent limitations; design and construction of water collection, storage, treatment and distribution systems and wastewater treatment systems; the development of water and water rights master plans; state and federal permitting of natural resources and water development projects, and compliance with federal environmental laws, including the federal Endangered Species Act, National Environmental Policy Act and Clean Water Act. The firm also serves as general counsel for water and sanitation districts. The firm’s clients are diverse, including municipal water suppliers, special districts, conservancy districts, irrigation districts, energy and land development entities, small ditch companies, the State of Wyoming, and national land conservation organizations. Additional information on the background and areas of practice of the individual attorneys of the firm follows: MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. 00031181-4 2 Members TIMOTHY J. BEATON is a graduate of Colorado College and obtained his law degree from the University of Colorado School of Law (1980). He began his practice as a lawyer with the firm of Moses, Wittemyer, Harrison and Woodruff, P.C. in 1980, working on issues concerning development fees, service charges and tap fees, general special district matters, (including conflicts of interest), and water supply matters. Mr. Beaton has participated in litigation concerning the authority of special districts in the Colorado state district courts, the Colorado Court of Appeals, the Colorado Supreme Court, the United States District Court and the United States Supreme Court. In 1989 he joined the firm of Collins & Cockrel as a partner, and returned to the Moses, Wittemyer firm in 1994. He is a fourth-generation Coloradoan, with experience on the family farm and ranch generating his interest in public water and sewer entities. Mr. Beaton currently provides legal counsel to the South Adams County Water and Sanitation District, Genesee Water & Sanitation District, Three Lakes Water and Sanitation District, Cottonwood Water and Sanitation District, and Westlake Water and Sanitation District. He also acts as special counsel to the cities of Gunnison and Walsenburg, and Pitkin County in Colorado. Mr. Beaton’s representation includes counsel on fees charged by these local governments, public financing and bond matters, conflicts of interest, intergovernmental agreements, general public governmental matters, water supply and wastewater treatment matters. He has presented case authority papers and speeches at a number of local government and legal education conferences. RICHARD J. MEHREN joined the firm in 2000 with a Bachelor of Arts degree (1995) and a law degree (2000) from the University of Colorado. Before joining the firm, Mr. Mehren worked as a law clerk for the United States Department of Agriculture and the National Wildlife Federation. Mr. Mehren has also worked for the Natural Resources Law Center at the University of Colorado School of Law and for the State of Colorado Department of Public Health and Environment. Mr. Mehren represents public and private clients in all manner of complex water transactions and water court litigation, including adjudication of new surface and groundwater rights, changes to water rights, augmentation plans, exchanges, groundwater regulation disputes, and interstate compact issues. Mr. Mehren’s practice also focuses on special district law. Mr. Mehren was a speaker at (1) Legislation and Litigation Update – Developments in Colorado, New Mexico and Texas, CLE International, Law of the Rio Grande, March 2012; and (2) Conejos Water Conservancy District Direct Flow Storage Program on the Conejos River, CLE in Colorado, Inc., Water Resources, Issues and Administration of the San Luis Valley, September 2011. He has also been involved in complex water rights acquisition, adjudication and financing for the Lower Arkansas Water Management Association, a well augmentation organization in the Arkansas River basin. Mr. Mehren also serves as water counsel for the Conejos Water Conservancy District, South Adams County Water and Sanitation District, Genesee Water & Sanitation District, Inverness Water and Sanitation District and the Town of Creede. MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. 00031181-4 3 CAROLYN R. STEFFL earned a Bachelor of Science in International Relations: Managing the Global Commons from the University of Wisconsin in 1999 and a law degree from the University of Colorado in 2002, where she was inducted into the Order of the Coif. She joined the firm in October 2009. Ms. Steffl acts as general counsel to a number of special districts, including Cottonwood Water and Sanitation District and Colorado City Metropolitan District. Her practice focuses on special district, water, municipal, local government and land use law. After law school, Ms. Steffl served as a clerk for Justice Gregory J. Hobbs of the Colorado Supreme Court. Then, she practiced law with the firm Icenogle, Norton, Smith, Gilida and Pogue from 2003 through September 2009. She has represented several clients through the process of organizing special districts and advised a city and a county on the formation of new special districts. Ms. Steffl has also served as general counsel to multiple special districts, advising them on issues including open records requests, public meetings law, bond financing, elections, budgeting, inclusions, intergovernmental agreements, land purchase and sale, acquisition of easements and the Taxpayer’s Bill of Rights (TABOR). Additionally, Ms. Steffl has served as an assistant city attorney for three cities, a municipal prosecutor for the City of Woodland Park, a prosecutor for the E-470 Public Highway Authority and the liquor prosecutor for the City of Greenwood Village. Ms. Steffl has advised clients regarding zoning, subdivision and other land use issues, urban renewal, downtown development authorities and project financing. During law school, Ms. Steffl worked for the Natural Resources Law Center, the National Wildlife Federation, Holland and Hart LLP and the Law Center for Women Prisoners. She was a symposium editor for the Colorado Journal of International Environmental Studies and a Morris K. Udall National Environmental Policy Foundation Scholar. She has authored articles on a dispute over a mine in British Columbia, redevelopment of brownfields and reform of the United States Forest Service. Associates JENNIFER M. DILALLA joined the firm in March 2011. She holds a Bachelor of Arts in English from the University of Virginia, an M.A. and a Ph.D. in English and American Literature from Johns Hopkins University, and a law degree from the University of Colorado School of Law, where she graduated second in her class, was elected to Order of the Coif, and won a number of awards for her writing and her work on the University of Colorado Law Review. Her practice focuses on water rights, plans for augmentation, groundwater issues, and special district and municipal water issues. Following law school, Ms. DiLalla clerked for the Honorable David M. Ebel on the United States Court of Appeals for the Tenth Circuit. She then practiced with the Denver office of Morrison and Foerster, where she gained valuable experience in complex civil litigation. Before attending law school, Ms. DiLalla spent eleven years as a college English professor. She is a former co-chair of the Denver Bar Association's Community Action Network. ALISON D. GORSEVSKI joined Moses, Wittemyer, Harrison and Woodruff, P.C. in April 2013. Her practice focuses on water rights and special district matters. In 2003, Ms. Gorsevski earned a B.A. from Gustavus Adolphus College (St. Peter, Minnesota), where she graduated Phi Beta Kappa, and, in 2008, a J.D. from the University of Colorado School of Law. Before law school, Ms. Gorsevski was a Peace Corps volunteer in Skopje, Macedonia, where her work MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. 00031181-4 4 focused on developing a local non-profit organization’s project management capacity and teaching English to adult learners. In her free time, Ms. Gorsevski enjoys traveling, running, learning new languages and chasing after her three sons. ANNE D. BENSARD joined Moses, Wittemyer, Harrison and Woodruff, P.C. in 2012 as an associate after working with the firm as a law clerk. Ms. Bensard holds a law degree from the University of Colorado School of Law. During law school, Ms. Bensard was a research assistant at the Natural Resources Law Center at the University of Colorado School of Law and a law clerk for Denver Water. Prior to law school, Ms. Bensard worked at the Colorado State Capitol as a legislative aide where she assisted with agriculture, oil and gas, and water-related legislation. Ms. Bensard holds a Bachelor of Arts degree from the University of Colorado, where she graduated summa cum laude and Phi Beta Kappa. Ms. Bensard’s practice focuses on water transactions and litigation, special district law, and special district water and wastewater issues. ANDREA ASEFF KEHRL joined Moses, Wittemyer, Harrison and Woodruff, P.C. in May 2014. Her practice focuses on water rights and special district matters. After graduating from the University of Colorado Law School in 2010, Ms. Kehrl represented American Indian tribes at the law firm Fredericks, Peebles & Morgan, LLP, focusing on environmental and natural resources matters. She then practiced Colorado water law and municipal law with the Denver firm Trout, Raley, Montaño, Witwer & Freeman, P.C. Ms. Kehrl currently serves as co-chair of the Young Lawyers Section of the Boulder County Bar Association and volunteers as a Water Speaker for the Colorado Foundation for Water Education and a Restorative Justice facilitator for the City of Boulder Community Mediation Service. During law school, Ms. Kehrl received the American Bar Association Environment and Natural Resources Diversity Fellowship for her work at KAHEA: The Hawaiian-Environmental Alliance. She also clerked with the U.S. Environmental Protection Agency, Region 8, Office of Regional Counsel for a year and worked for the City of Boulder Community Mediation Service, the National Wildlife Federation, and then-Associate Dean for Research Sarah Krakoff. She holds a B.A. in Publication Management (Journalism and Business) from the University of Georgia, where she graduated summa cum laude with Highest Honors from the Honors program, and a J.D. from the University of Colorado Law School, where she received awards for her commitment to public service in alternative dispute resolution. Counsel JOHN WITTEMYER holds a Bachelor of Science degree in civil engineering (1962), a Bachelor of Science degree in finance (1962) and a law degree (1965), all from the University of Colorado. After serving as district attorney in Juneau, Alaska, Mr. Wittemyer joined Mr. Moses and Mr. Harrison to found the firm of Moses, Wittemyer and Harrison in 1973. He has practiced extensively in the areas of water law and public utility law, including serving as both general counsel and special water counsel for the Platte River Power Authority. Mr. Wittemyer continues to serve in the capacity of counsel to the firm. MOSES, WITTEMYER, HARRISON AND WOODRUFF, P.C. 00031181-4 5 DAVID L. HARRISON a founding member of the firm, received his Bachelor of Science degree in civil engineering, hydraulics (1968) and his law degree (1971) from the University of Colorado. Mr. Harrison has been deeply involved in the development of Colorado law concerning complex water rights transfers and plans for augmentation. On behalf of individual water users he was involved in the early development of rules and regulations for the conjunctive administration of ground water and surface water in the South Platte River, Arkansas River and Rio Grande River basins in Colorado. Mr. Harrison was a member of the Board of Governors of the Nature Conservancy from 1980-1990 and continues to serve as a legal consultant to the Nature Conservancy internationally. From 1990 through 1997, he was a member of the Colorado Water Conservation Board, which is responsible for the State’s policy on interstate water allocation, instream flows and water conservation. Mr. Harrison has authored several professional articles on water resource matters focusing on ground water-surface water issues and instream flows and ecosystem management matters. JAMES R. MONTGOMERY joined the firm in 1980 with a Bachelor of Arts degree from the Athenaeum of Ohio (1973) and a law degree from the University of Colorado (1980). His law practice has emphasized municipal water supply planning and implementation, interstate water apportionment, special district law, federal reserved water rights, and federal endangered species and environmental protection. He served the State of Wyoming for more than 20 years as Special Assistant Attorney General for interstate water matters. In that role he was instrumental in preparing the State’s case for trial in Nebraska v. Wyoming (No. 108, Original, U.S. Supreme Court) and in negotiating and implementing a settlement of that case involving an equitable apportionment of the North Platte River among the States of Nebraska, Wyoming and Colorado. On behalf of Union Oil Company of California, he negotiated the successful settlement of the United States’ claims for federal reserved water rights for use on the Naval Oil Shale Reserves and continues to advise that company and its successors with respect to extensive water rights holdings in western Colorado. He serves as general counsel to water and sanitation districts in Colorado and his clients also include municipal water suppliers, industrial water users, individual agricultural water users, a nationwide land conservation organization and other public and private entities. He has delivered presentations for continuing legal education seminars on basic water rights and interstate water issues. RICHARD JOHN MEHREN rmehren@msn.com 1602 Hallett Peak Drive ♦ Longmont, Colorado 80503 ♦ (303) 772-3651 EDUCATION University of Colorado School of Law, Boulder, Colorado Juris Doctor degree awarded May 2000 University of Colorado, Boulder, Colorado Bachelor of Arts in Political Science and minor in Philosophy awarded May 1995 • Dean’s List (cumulative GPA – 3.52) • Member Golden Key National Honor Society EXPERIENCE Moses, Wittemyer, Harrison and Woodruff, P.C. Boulder, CO Shareholder 2007 through Present Associate Attorney October 2000 through 2006 Provide legal counsel to public and private clients in water related fields of law, including surface and ground water rights, transactional and litigation work related to water rights adjudication and augmentation plans, water rights title and conveyancing, municipal water supply planning, water quality, environmental regulation, special district, endangered species and natural resources law. State of Colorado, Department of Public Health and Environment Denver, CO Special Counsel September 2000 to October 2000 Drafted rules and regulations for state compliance with EPA regulations under the Safe Drinking Water Act. Served as legal counsel to the Water and Wastewater Operators Certification Board and Water Quality Control Division staff regarding adoption of the above-stated regulations. National Wildlife Federation Boulder, CO Legal Intern September 1999 to September 2000 Conducted legal and factual research and drafted a detailed legal memorandum for National Wildlife Federation staff attorneys, the Eastern Shoshone Tribe and the Northern Arapahoe Tribe analyzing potential claims under Sections 402, 404 and 303 of the federal Clean Water Act and under federal Indian law arising out of environmental damage to the Wind River. Natural Resources Law Center, University of Colorado School of Law Boulder, CO Research Assistant May 1999 to September 1999 Researched and assisted in the drafting of an academic report evaluating environmental and wildlife issues related to growth and development of rural areas of the interior western states. United States Department of Agriculture, General Counsel Office Lakewood, CO Law Clerk October 1998 to May 1999 Conducted legal research, drafted legal memoranda and advised staff attorneys regarding easements for water conveyances and for public access for the United States Forest Service. PERSONAL INTERESTS Fly-Fishing, Whitewater Rafting, Backpacking, Hiking, Telemark Skiing 00088783-1 Anne Dulany Bensard Moses, Wittemyer, Harrison & Woodruff P.C. EXPERIENCE Moses, Wittemyer, Harrison Woodruff, P.C., Boulder, CO, 2011-present Associate Attorney, Law Clerk o Recreational In-Channel Diversions: Assisted Western Slope county in obtaining conditional RICD water right, successfully assisted with negotiations with 16 opposers, including the Colorado Water Conservation Board, to resolve concerns; currently assisting Town of Avon with application to make RICD absolute. o Municipal Water Supplies: Assist numerous municipalities in developing and protecting water supplies, including in water court litigation and water quality commission rulemaking; review water court resumes in Divisions 2, 4, and 5; successfully prosecuted applications for findings of reasonable diligence for direct flow and storage water rights for municipalities in Divisions 2 and 4. o Water Rights Purchases: Assisted homebuilder clients with securing, purchasing, and conveying water rights to be dedicated for municipal water supplies; investigated title to water rights associated with water rights purchases in Division 1 and water rights exchanges in Division 2. o Water Rights Development: Assisted private landowners in Divisions 1 and 6 with creating and implementing plan for development and accounting; worked with Division Engineers to resolve administrative concerns. o Water Court Experience: Assisted with representation of Western Slope county in trial in Division 2 regarding change of transmountain water rights by Front Range municipality; assisting with appeal of case to Colorado Supreme Court. SPEAKING Water Law 101, Anne Bensard, Andrea Kehrl, Alison Gorsevski, Boulder County Bar Association, December 2014 Campaigning on the Clock and Other Special District Election No-Nos, Carolyn Steffl and Anne Bensard, Special District Association Conference, Keystone, CO, 2014. PUBLICATIONS The Colorado River and the Inevitability of Institutional Change, 32 Public Land & Resources Law Review 103, Douglas Kenney, Sarah Bates, Anne Bensard, and John Berggren, 2011. Stressors and Threats to the Water Budget of the Colorado River Basin, John Berggren, Douglas Kenney, Anne Bensard, Colorado River Governance Initiative White Paper, 2010. . VOLUNTEER Boulder County Bar Association, Free Legal Clinic Attorney Volunteer o Provide legal information; perform intake; organize attendees and attorneys MEMBERSHIPS Colorado Bar Association, Water Law Section, Member Boulder County Bar Association, Member EDUCATION University of Colorado Law School, Boulder, CO, May 2012 Juris Doctor Honors: Top 15% of graduating class; Dean’s List; Recipient of Charles N. Woodruff Fellowship University of Colorado, Boulder, CO, August 2008 B.A. in Economics with Public Policy Emphasis, International Affairs; Minor in French; Honors: summa cum laude, with distinction; Phi Beta Kappa; Norlin Scholars; Dean’s List TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY OCTOBER 14, 2014 AVON TOWN HALL, ONE LAKE STREET Avon Council Meeting 10-10-2014 Minutes Page 1 1. CALL TO ORDER & ROLL CALL Mayor Carroll called the meeting to order at 5:25 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, Assistant to the Town Manager Preston Neill and Town Clerk Debbie Hoppe. 2. APPROVAL OF AGENDA Mayor Carroll asked to add item 10.1 Executive Session. Eric Heil asked to add item 10.2 Executive Session. Councilor Wolf asked to add Committee Meeting Updates. Council agreed to add items. 3. PUBLIC COMMENT 3.1. HONORING OF KURT KUPER (POLICE CHIEF BOB TICER) Lynne Blake and Courtney Holm commented. 4. ACTION ITEMS 4.1. MOTION TO CONTINUE THE PUBLIC HEARING FOR SECOND READING OF ORDINANCE 14-15, SERIES OF 2014, COMCAST FRANCHISE AGREEMENT TO OCTOBER 28, 2014 (TOWN MANAGER VIRGINIA EGGER) Councilor Wolf moved to continue the Public Hearing for Second Reading of Ordinance 14-15, Series of 2014, COMCAST Franchise Agreement to October 28, 2014; Councilor Gennett seconded the motion and it passed unanimously by those present. 4.2. ACTION TO APPROVE RESOLUTION 14-26 KAYAK BOND REFINANCING (POLARSTAR PROPERTIES GERRY FLYNN) Councilor Evans moved to approve Resolution 14-26 Kayak Bond refinancing; Councilor Reynolds seconded the motion and it passed unanimously by those present. 4.3. PUBLIC HEARING SECOND READING OF ORDINANCE 14-16, SERIES 2014, APPROVING A PURCHASE AND SALE AGREEMENT OF PHASE 1B OFFICE BUILDING, MOUNTAIN VISTA RESORT SUBDIVISION AND COMMONLY REFERRED TO AS “THE SKIER BUILDING” FOR USE AS A TOWN HALL Mayor Carroll opened the Public Hearing; comments were made by John Minervini, Jared Barnes, Peter Buckley, Charles Sherwood and Phil Struve. Mayor Pro Tem Fancher moved to approve Second Reading of Ordinance 14-16, Series 2014, Approving a Purchase and Sale Agreement of Phase 1B Office Building, Mountain Vista Resort Subdivision and commonly referred to as “The Skier Building” for use as a Town Hall; Councilor Dantas seconded the motion and it passed on a 6 to 1 vote. Councilor Gennett voted no. TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY OCTOBER 14, 2014 AVON TOWN HALL, ONE LAKE STREET Avon Council Meeting 10-10-2014 Minutes Page 2 4.3. PUBLIC HEARING SECOND READING OF ORDINANCE 14-17, SERIES OF 2014, CERTIFICATE OF PARTICIPATION – PURCHASE AND BUILDING FINISHES FOR “THE SKIER BUILDING” (ASSISTANT TOWN MANAGER SCOTT WRIGHT) Mayor Pro Tem Fancher moved to approve Second Reading of Ordinance 14-17, Series of 2014, Certificate of Participation – Purchase and Building Finishes for “The Skier Building”; Councilor Wolf seconded the motion and it passed on a 5 to 1 vote. Councilor Gennett voted no. Councilor Reynolds recused himself. 4.5. PUBLIC HEARING SECOND READING ON ORDINANCE 14-14, SERIES OF 2014, CERTIFICATES OF PARTICIPATION FOR STREET AND ROAD IMPROVEMENTS (ASSISTANT TOWN MANAGER SCOTT WRIGHT) Councilor Dantas moved to approve Second Reading on Ordinance 14-14, Series of 2014, Certificates of Participation for Street and Road Improvements; Mayor Pro Tem Fancher seconded the motion and it passed on a 4 to 1 vote. Councilor Wolf voted no. Councilor Evans and Councilor Reynolds recused themselves. 4.6. ACTION TO AUTHORIZE THE TOWN MANAGER TO EXECUTE AN INDEPENDENT CONTRACTOR AGREEMENT FOR SPONSORSHIP OF APRÈS AVON (SPECIAL EVENTS COORDINATOR DANITA DEMPSEY) Mayor Pro Tem Fancher moved authorize the Town Manager to execute an Independent Contractor Agreement for Sponsorship of Après Avon; Councilor Evans seconded the motion and it passed unanimously by those present. Councilor Wolf recused himself. 4.7. RESOLUTION NO. 14-25, PROPOSITION 105 (ASSISTANT TO THE TOWN MANAGER PRESTON NEILL) Mayor Pro Tem Fancher moved to approve Resolution No. 14-25, Proposition 105; Councilor Evans seconded the motion and it passed on a 6 to 1 vote. Councilor Reynolds voted no. 4.8. MINUTES FROM SEPTEMBER 23, 2014 MEETING (TOWN CLERK DEBBIE HOPPE) Mayor Pro Tem Fancher moved to approve the Minutes from September 23, 2014; Councilor Wolf seconded the motion and it passed unanimously by those present. 5. WORK SESSION 5.1. 2015-2016 BUDGET WORK SESSION - ALL FUNDS AND FIVE-YEAR CAPITAL IMPROVEMENTS PLAN (ASSISTANT TOWN MANAGER SCOTT WRIGHT) 6. Work Session 6.1. TRAILS ADVISORY GROUP – PURPOSE, DUTIES AND PROCESS FOR SELECTION (PLANNING MANAGER MATT PIELSTICKER) 6.2. DISCUSSION OF WEST AVON TRAIL NAMES (TOWN MANAGER VIRGINIA EGGER) The Council concurred trails in the West Avon Preserve will be named as follows: Saddle Ridge (formerly Saddleridge) Lee's Way Down TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY OCTOBER 14, 2014 AVON TOWN HALL, ONE LAKE STREET Avon Council Meeting 10-10-2014 Minutes Page 3 Wyse Way (formerly Masher) Our Backyard (Easy Loop) PB & J (formerly Playground Way and stands for ‘Pumps’, ‘Berms’, and ‘Jumps’) Carroll's Cutoff (formerly ASC X-Cut) BLT (formerly Lower Flow and stands for ‘Bumps’, ‘Launches’, and ‘Table Tops’) Wild West Ridge Avon Singletree Connector 6.3. DETERMINATION OF THE MALL/MAIN STREET NAMES (TOWN MANAGER VIRGINIA EGGER) The Council concurred on the following names: Lettuce Shed Lane (no change) Bronze sculpture – Possibility Possibility Plaza The Main Street Mall 7. COMMITTEE MEETING UPDATES: COUNCILORS AND MAYOR 7.1. Stage updates (Councilor Wolf) 7.2. Avon Elementary GOCO grant 7.3. Speak out Reach Up (with Councilor Dantas) 7.4. Vail Honeywagon recycling update 7.5. Community Gardens at Buffalo Ridge 7.6. N.I.T.S.A accolade with Chief Ticer 7.7. Harmony Park Musical Playground 7.8. Creative Industries Tour 8. COUNCIL COMMENTS 9. MAYOR REPORT AND FUTURE AGENDA ITEMS 10. EXECUTIVE SESSION, IF CALLED (THIS MEETING IS NOT OPEN TO THE PUBLIC) 10.1. For a conference with the Town Attorney for the purpose of receiving legal advice under C.R.S. §246402(2)(b) and for the purpose of determining 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) concerning economic development opportunities. 10.2. 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. Mayor Carroll moved to meet in Executive Session at 10:22 p.m. For a conference with the Town Attorney for the purpose of receiving legal advice under C.R.S. §246402(2)(b) and for the purpose of determining 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) concerning economic development TOWN OF AVON, COLORADO AVON MEETING MINUTES FOR TUESDAY OCTOBER 14, 2014 AVON TOWN HALL, ONE LAKE STREET Avon Council Meeting 10-10-2014 Minutes Page 4 opportunities and 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 ; Councilor Gennett seconded the motion and it passed unanimously. Councilor Evans moved to end Executive Session; Councilor Wolf seconded the motion and it passed unanimously. Executive Session adjourned at 11:05 p.m. 11. ADJOURNMENT There being no further business to come before the Council, the regular meeting adjourned at 11:05 pm. RESPECTFULLY SUBMITTED: _________________________________ Debbie Hoppe, Town Clerk APPROVED: Rich Carroll ________________________________ Dave Dantas ________________________________ Chris Evans ________________________________ Jennie Fancher ________________________________ Albert “Buz” Reynolds ________________________________ Jake Wolf ________________________________ Matt Gennett ________________________________ FISCAL YEAR 2014 FINANCIAL REPORT October 28, 2014 ______________________________________________________________________________________ 1. Fiscal Year 2014 Financial Report Cover Memo 2. Sales and Accommodations Tax Reports – August 2014 3. Real Estate Transfer Tax Report and Monthly Detail – September 2014 4. General Fund Year-To-Date Expenditures- September 2014 5. Fleet Maintenance Fund Year-To Date Expenditures- September 2014 6. Transit Fund Year-To Date Expenditures- September 2014 7. DestiMetrics Executive Summary- September 2014 TOWN COUNCIL REPORT To: Honorable Mayor Rich Carroll and Avon Town Council From: Kelly Huitt, Budget Analyst Date: October 22, 2014 Re: Fiscal Year 2013 Financial Report – August/September 2014 Revenues: SALES TAX • Sales tax revenue for the month of August is up $42,753.55 or 8.48% compared to August 2013, and up 6.07% compared to the monthly budget. This increase includes $17,899 from new businesses, and after adjusting for new business growth, 4.93% is the actual gain in revenue for the month. Year-to-date sales tax from new businesses makes up 43.80% of total growth. August 2014 sales tax revenue is the highest ever for the month of August. • August collections are up compared to 2013 for all industries except Miscellaneous Retail at ($13,780.57) or (33.87%) and Service related businesses at ($1,078.74) or (9.50%). The decrease in Miscellaneous Retail is largely due to a business closure in this industry and a business miscoded to Miscellaneous Retail that was removed and placed in the correct category. Revenue from Home/Garden is up 40.32% or $15,278 for the month, Restaurants/Bars are up 8.83% and Grocery, Specialty, and Health retailers are up almost $12,000 with a 9.03% increase. 2013/2014 Growth Growth Variance Existing Business New Business Home/Garden $15,278.01 32.24%8.08% Grocery, Specialty, Health 11,932.67 9.03%0.00% Liquor Stores 338.96 1.31%0.00% Sporting Goods Retail/Rental 7,040.82 20.93%3.75% Miscellaneous Retail (13,780.57)-41.73%7.86% Accommodations 3,314.89 4.60%0.14% Restaurants/Bars 9,486.41 2.82%6.01% Other 10,221.10 12.42%7.78% Service Related (1,078.74)-10.16%0.66% Total $42,753.55 4.93%3.55% Category Monthly Totals ACCOMMODATIONS TAX • Accommodations tax revenue for August is up $3,356.26, or 4.96% compared to August 2013, and up 4.96% compared to the monthly budget. Year-to-date accommodations tax is up 7.79% compared to 2013 and 4.68% compared to the budget. • August accommodations tax collections are up for Timeshares and Hotels at 7.48% and 6.24%, respectively while Vacation Rentals are down (16.20%). REAL ESTATE TRANSFER TAX • 2014 real estate transfer tax collections for September equal $267,886.92. This is a 70.62% increase from September 2013, and 106.67% over the monthly budget. The large monthly increase is due to several large sales in Wildridge and Mountain Star. Year to date collections are at 116.38% of the total budgeted amount. Expenditures: • General Fund expenditures at the end of September are 72.70% of the budgeted amounts. • Fleet expenditures to date are at 71.99% of the total budget. • Transit funds are 64.27% spent compared to the annual appropriation. DestiMetrics: • Avon’s occupancy was at 45.0% for the month of September, which is a 31.4% increase over September 2013. The average daily rate was down -1.6% while RevPAR was up at 12.4% above 2013. • October’s anticipated occupancy is 18.7%, a 32.5% increase compared to 2013. October’s anticipated average daily rate is down (8.7%) while RevPAR is up 20.9%. • Looking back at the past six months, occupancy was up 11.6%, while average daily rate was down (3.1%) and revenue per average room night increased 8.2% over 2013. • Projected occupancy for the upcoming six months on the books is 38.3% higher than 2013 at 17.3%. The outlook for average daily rate is down (6.5%). • Rooms booked during September 2014 for arrival September – February has increased by 92.8% compared to rooms booked during September 2013 for arrival in the following six months. Hopefully this means that the “snow hangover” is now over and guests will book rooms ahead of the snowfall. TOWN OF AVON SALES TAX WORKSHEET 2014 Actual vs. Budget Budget YTD Collections Budget % of change 2009 2010 2011 2012 2013 2014 2014 Variance from 2013 January 552,648.47$ 515,009.18$ 511,040.76$ 519,784.89$ 677,943.78$ 693,355$ 638,863.27$ (54,491.56)$ -5.76% February 516,349.68 504,752.59 532,903.25 533,546.48 636,702.27 651,176 673,722.03 22,546.21 5.81% March 536,913.42 620,937.20 665,532.70 643,910.29 720,267.31 736,640 793,301.96 56,661.50 10.14% April 319,833.51 309,937.09 305,269.73 304,220.84 307,407.13 314,395 381,839.56 67,444.43 24.21% May 267,960.76 242,830.16 236,424.93 270,082.79 309,938.72 316,984 340,332.28 23,348.02 9.81% June 396,066.29 377,920.42 406,828.27 430,588.57 490,329.18 501,475 538,517.31 37,041.94 9.83% July 409,956.20 421,975.98 452,873.44 472,215.40 537,479.66 549,698 570,959.86 21,262.18 6.23% August 374,965.99 361,702.25 419,977.29 455,439.86 504,332.25 515,797 547,085.80 31,289.04 8.48% September 350,585.25 359,139.22 391,546.49 424,793.75 475,362.88 486,169 October 286,412.11 288,859.84 299,193.35 341,711.43 356,925.96 365,040 November 281,696.02 284,528.70 301,407.41 336,060.63 362,460.94 370,700 December 786,701.84 818,360.74 921,815.61 852,868.64 981,917.79 1,004,239 Total 5,080,089.54$ 5,105,953.37$ 5,444,813.23$ 5,585,223.57$ 6,361,067.87$ 6,505,668$ 4,484,622.07$ 205,101.76$ 7.17% Actual Collections $0 $50,000 $100,000 $150,000 $200,000 $250,000 $300,000 $350,000 $400,000 $450,000 $500,000 $550,000 $600,000 2010 2011 2012 2013 2014 Year Sales Tax Collections for August TOWN OF AVON SALES TAX WORKSHEET 2014 Actual vs. Budget $1,200,000 $1,500,000 $1,800,000 $2,100,000 $2,400,000 $2,700,000 $3,000,000 $3,300,000 $3,600,000 $3,900,000 $4,200,000 $4,500,000 2010 2011 2012 2013 2014 YTD Sales Tax Collections $- $50,000 $100,000 $150,000 $200,000 $250,000 $300,000 $350,000 $400,000 $450,000 $500,000 $550,000 $600,000 $650,000 $700,000 $750,000 $800,000 Sales Tax Monthly Comparison 2012-2014 2012 2013 2014 TOWN OF AVON ACCOMMODATIONS TAX WORKSHEET 2014 Actual vs. Budget Budget YTD Collections Budget % of change 2009 2010 2011 2012 2013 2014 2014 Variance 2013 January 84,919.00$ 87,938.84$ 85,233.73$ 90,118.88$ 108,508.43$ 111,733$ 129,851.78$ 18,119.08$ 19.67% February 83,502.22 99,336.34 114,035.90 106,016.32 137,503.61 141,589 150,317.06 8,727.60 9.32% March 84,909.85 105,518.15 122,145.16 115,043.42 153,208.80 157,761 168,597.39 10,836.07 10.04% April 26,821.29 26,496.88 26,214.58 20,786.24 26,494.49 27,282 31,626.02 4,344.26 19.37% May 19,090.36 12,425.51 15,152.82 16,664.44 24,527.17 25,256 21,961.97 (3,294.01) -10.46% June 34,439.33 32,857.68 49,999.66 56,012.17 66,578.91 68,557 54,232.23 (14,325.04) -18.54% July 47,864.32 51,170.82 62,928.07 66,726.73 73,008.92 75,178 81,083.01 5,904.67 11.06% August 39,155.19 42,188.56 52,037.55 58,358.93 67,688.07 69,699 71,044.33 1,344.94 4.96% September 21,134.69 30,090.34 35,521.81 42,245.24 44,661.37 45,988 October 17,043.78 20,614.06 21,801.56 25,879.51 27,154.53 27,961 November 15,268.58 20,582.47 24,971.33 22,786.42 28,171.04 29,008 December 96,847.30 98,561.90 135,984.00 112,759.02 131,361.43 135,265 Total 570,995.91$ 627,781.55$ 746,026.17$ 733,397.32$ 888,866.77$ 915,279$ 708,713.79$ 31,657.56$ 7.79% Actual Collections - 10,000.00 20,000.00 30,000.00 40,000.00 50,000.00 60,000.00 70,000.00 80,000.00 2010 2011 2012 2013 2014 Accommodations Tax Collections for August Town of Avon Real Estate Transfer Tax September 2014 Collections Detail Budget YTD Collections $ change % of change 2009 2010 2011 2012 2013 2014 2014 2013 2013 January 34,468.00$ 237,133.00$ 57,540.00$ 50,204.00$ 22,535.00$ 72,955$ 85,126.74$ 62,591.74$ 277.75% February 95,703.38 362,719.22 230,705.50 41,750.07 55,872.69 142,823 562,219.70 506,347.01 906.25% March 6,023.70 284,243.65 187,099.47 84,760.49 125,927.64 124,906 50,375.06 (75,552.58) -60.00% April 92,238.95 210,185.30 249,482.30 219,195.80 144,437.80 166,202 197,656.36 53,218.56 36.85% May 37,803.12 112,431.30 187,668.62 270,170.12 121,784.12 132,494 183,745.60 61,961.48 50.88% June 365,324.28 66,271.14 49,606.58 169,040.47 90,309.74 134,436 220,009.15 129,699.41 143.62% July 208,800.24 63,509.36 46,707.37 71,057.40 386,434.78 140,963 141,051.52 (245,383.26) -63.50% August 87,827.30 88,823.40 106,785.21 232,505.93 97,579.70 111,375 154,032.32 56,452.62 57.85% September 159,877.84 159,861.96 140,876.56 96,389.34 157,010.67 129,619 267,886.92 110,876.25 70.62% October 205,537.52 222,575.20 64,005.33 176,889.62 169,839.80 152,280 November 131,944.57 115,654.16 98,057.44 150,549.86 112,491.82 110,500 December 336,431.50 236,117.45 198,448.03 145,134.57 83,382.60 181,447 Total 1,761,980.40$ 2,159,525.14$ 1,616,982.41$ 1,707,647.67$ 1,567,606.36$ 1,600,000$ 1,862,103.37$ 660,211.23$ 54.93% Budget 1,600,000$ Variance, Favorable (Unfavorable)262,103.37 Actual Collections $- $200,000.00 $400,000.00 $600,000.00 $800,000.00 $1,000,000.00 $1,200,000.00 $1,400,000.00 $1,600,000.00 $1,800,000.00 $2,000,000.00 2010 2011 2012 2013 2014 YTD Real Estate Transfer Tax Collections Town of Avon Real Estate Transfer Tax September 2014 Collections Detail Purchaser Name Property Amount Received Balance Forward 1,594,216.45$ Land Title - Shepherd Falcon Pointe #101, wk 23 70.00 Land Title - Hopkinds and Porter Sunridge #G-103 1,250.00 Stewart Title - Stephens Lodge at Brookside #309 16,500.00 Lant Title - Yager 2376 Fox Ln 29,700.00 Land Title - Negomir Metcalf Lofts #E-13 1,660.00 Land Title - Nelson Falcon Pointe #106, wk 19 63.80 Land Title - Jakubowski Sunridge #E-201 1,240.00 Land Title - Hanes 63 Rabbit Brush 42,000.00 Title Co of Rockies - Lawrence 2661 Beartrap #A 22,120.00 Title Co of Rockies Christie Lodge CL#48 3,149.90 Title Co of Rockies Mtn Vista #14-38 3,156.00 Chicago Title Westin Riverfront #14-38 670.00 Chicago Title Westin Riverfront #14-37 236.00 Stewart Title - Wyse 2852 Oneal Spur 8,000.00 Land Title - Kowalski 4550 Flat Point 22,660.00 Assured Title - Hassinger Chapel Square #BR-310 4,000.00 Stewart Title - Felton Avon Crossing #2202 6,999.98 Stewart Title - Greza LLC Sunridge #R-201 4,510.00 Stewart Title - Beaver Creek Landing A204 LLC Beaver Bench #B-2 4,680.00 Land Title - Zoller Avon Crossing #1302 3,100.00 Title Co of Rockies Mtn Vista #14-37 1,404.00 Title Co of Rockies Christie Lodge CL#47 2,414.00 Title Co of Rockies Christie Lodge CL#46 3,295.00 Land Title - Robb Falcon Pointe #105, wk 15 63.80 Stewart Title - Orr Revocable Trust 5380 Ferret Ln 22,800.00 Chicago Title Mtn Vista #14-32 154.21 Chicago Title Mtn Vista #14-28 19.71 Chicago Title Westin Riverfront #14-29 93.22 Chicago Title Westin Riverfront #14-36 736.00 Chicago Title Westin Riverfront #14-35 515.60 Chicago Title Westin Riverfront #14-34 369.80 Chicago Title Westin Riverfront #14-33 1,071.80 Title Co of Rockies Mtn Vista #14-36 797.10 Land Title - Ewing 2140 Saddle Ridge Lp #4 4,300.00 Land Title - Williams and Waechter Sunridge #O-202 1,170.00 Land Title - Burton Canyon Run #D-203 11,650.00 Land Title - Hunter Beaver Bench #A-15 3,800.00 Stewart Title - Colorado Cardoso Family Prop 2433 Draw Spur #B-1 9,300.00 Title Co of Rockies Christie Lodge #45 3,158.00 Title Co of Rockies Mtn Vista #14-35 2,058.00 Land Title - Mayeda Avon Commercial Center #220 1,671.00 Land Title - Plooster Real Estate Holdings LLC Canyon Run #B-204 14,700.00 Land Title - Thomas Chapel Square #BR-322 6,580.00 Total September Revenue 267,886.92 Total YTD Revenue 1,862,103.37 Total 2014 Budget 1,600,000.00 Variance, Favorable (Unfavorable)262,103.37$ Dept./Div.2014 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget General Government: Legislative: 111 Mayor and Town Council 578,920$ -$ 414,784$ 164,136$ 71.65% 112 Boards and Commissions 15,299 - 8,376 6,923 54.75% 113 Town Attorney 155,000 45,433 126,415 (16,848) 110.87% 115 Town Clerk 153,927 7,053 128,045 18,829 87.77% Total Legislative 903,146 52,486 677,620 173,040 80.84% Judicial: 121 Municipal Court 98,235 10,626 65,842 21,767 77.84% Executive: 131 Town Manager 294,403 243 183,803 110,357 62.51% 132 Human Resources 229,806 1,042 160,847 67,917 70.45% 133 Community Relations 111,569 - 81,792 29,777 73.31% Total Executive 635,778 1,285 426,442 208,051 67.28% Finance Department: 141 Finance 741,372 7,369 526,159 207,844 71.96% 143 Information Systems 337,296 22,568 239,057 75,671 77.57% 149 Nondepartmental 290,998 12,922 235,289 42,787 85.30% Total Financial Administration 1,369,666 42,859 1,000,505 326,302 76.18% Total General Government 3,006,825 107,256 2,170,409 729,160 75.75% Community Development: 212 Planning 245,489 4,253 168,411 72,825 70.33% 213 Building Inspection 127,353 - 92,293 35,060 72.47% 214 Economic Development 111,605 25 69,394 42,186 62.20% Total Community Development 484,447 4,278 330,098 150,071 69.02% Police Department: 311 Administration 553,701 12,281 384,780 156,640 71.71% 312 Patrol 1,964,620 18,994 1,514,501 431,125 78.06% 313 Investigations 221,354 251 165,605 55,498 74.93% Total Police 2,739,675 31,526 2,064,886 643,263 76.52% Public Works: 412 Engineering 219,703 555 156,627 62,521 71.54% 413 Roads and Bridges 1,377,518 44,155 926,126 407,237 70.44% Total Public Works 1,597,221 44,710 1,082,753 469,758 70.59% Department Expenditure Summaries General Fund #10 September 2014 Expenditures to Date Dept./Div.2014 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget Department Expenditure Summaries General Fund #10 September 2014 Expenditures to Date Parks and Recreation: 513 Special Events 558,606 29,877 296,020 232,709 58.34% 514 Administration 223,113 2,622 161,434 59,057 73.53% 515 Adult Programs 28,657 177 18,409 10,071 64.86% 516 Aquatics 394,409 4,771 288,809 100,829 74.44% 517 Childcare 36,486 - 25,428 11,058 69.69% 518 Fitness 158,237 147 129,604 28,486 82.00% 519 Guest Services 235,050 4,805 154,709 75,536 67.86% 521 Youth Programs 118,979 252 85,093 33,634 71.73% 522 Cabin 43,643 - 28,069 15,574 64.32% 551 Parks & Grounds 1,069,325 45,608 703,390 320,327 70.04% 571 Buildings & Facilities 1,053,353 38,374 687,369 327,610 68.90% Total Parks and Recreation 3,919,858 126,633 2,578,334 1,214,891 69.01% TOTAL OPERATING EXPENDITURES 11,748,026$ 314,403$ 8,226,480$ 3,207,143 72.70% Dept./Div.2014 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget EXPENDITURES Public Works: 434 Fleet Maintenance 1,546,142$ 56,821$ 1,056,308$ 433,013$ 71.99% Total Operating Expenditures 1,546,142 56,821 1,056,308 433,013 71.99% TOTAL EXPENDITURES 1,546,142$ 56,821$ 1,056,308$ 433,013$ 71.99% Expenditure Summary Fleet Maintenance Enterprise Fund #61 September 2014 Expenditures to Date Dept./Div.2014 Encumbrances Year To Date Available Number Description Budget Outstanding Expenditures Balance YTD/Budget EXPENDITURES 431 Transit Administration 219,197$ 2,114$ 142,026$ 75,057$ 65.76% 432 Transit Operations 997,403 2,025 674,480 320,898 67.83% 435 Wash Bay 189,479 13,860 69,123 106,496 43.80% Total Operating Expenditures 1,406,079 17,999 885,629 502,451 64.27% TOTAL EXPENDITURES 1,406,079$ 17,999$ 885,629$ 502,451$ 64.27% Expenditure Summary Transit Enterprise Fund #52 September 2014 Expenditures to Date Destination: Avon Destination Period: Bookings as of September 30, 2014 a. Last Month Performance: Current YTD vs. Previous YTD 2014/152013/14 Year over Year % Diff 45.0%34.2%31.4% $116$130 -10.6% $52$45 17.4% b. Next Month Performance: Current YTD vs. Previous YTD 18.7%14.1%32.5% $114$125 -8.7% $21$18 20.9% c. Historical 6 Month Actual Performance: Current YTD vs. Previous YTD 41.3%37.0%11.6% $136$140 -3.1% $56$52 8.2% d. Future 6 Month On The Books Performance: Current YTD vs. Previous YTD 17.3%12.5%38.3% $208$223 -6.5% $36$28 29.3% e. Incremental Pacing - % Change in Rooms Booked last Calendar Month: Sep. 30, 2014 vs. Previous Year 10.5%5.4%92.8% Avon Destination Occupancy for the prior 6 months changed by (11.6%)Occupancy Avon Destination RevPAR for last month (September) changed by (17.4%)RevPAR (September) RESERVATIONS ACTIVITY REPORT Avon Destination Executive Summary Avon Destination Occupancy for last month (September) changed by (31.4%)Occupancy (September) Avon Destination Average Daily Rate for last month (September) changed by (-10.6%) Avon Destination Occupancy for next month (October) changed by (32.5%)Occupancy (October) Avon Destination Average Daily Rate for next month (October) changed by (-8.7%)ADR (October) Avon Destination RevPAR for next month (October) changed by (20.9%)RevPAR (October) Occupancy * DestiMetrics Census: Total number of rooms reported by participating DestiMetrics properties as available for short-term rental in the reporting month. This number can vary monthly as inventories and report participants change over time. DESCRIPTION: The Reservation Activity Outlook Report tracks occupancy, average daily rate (ADR), and revenue per available room (RevPAR); the key metrics most of interest to lodging properties. The report combines the data sets of participating properties into a destination wide view that features three data sets (providing that sufficient information is available) including: i) current YTD occupancy, ii) last YTD occupancy, iii) last season's ending occupancy. The Reservation Activity Outlook Report is generated on a monthly basis, usually for a 12 month subscription period, and is created from data provided by a group of properties participating in a cooperative manner, and representing a valid set of data as a result. Report results are provided only to those properties who participate by submitting their data. Additionally, participating properties can order (on an a-la-carte basis) an individual report which shows the reservation activity of their property, measured against an aggregated set of competitive properties that they choose from amongst DestiMetrics's other participants. As is the case in all DestiMetrics data, all information provided by individual properties is strictly confidential, except when aggregated with other data and indistinguishable as a result. Avon Destination Average Daily Rate for the prior 6 months changed by (-3.1%)ADR Avon Destination RevPAR for the prior 6 months changed by (8.2%)RevPAR Avon Destination Average Daily Rate for the upcoming 6 months changed by (-6.5%) Data based on a sample of up to 10 properties in the Avon Destination destination, representing up to 752 Units ('DestiMetrics Census'*) ADR Copyright 2006 - 2014, DestiMetrics, LLC. All Rights Reserved. Information provided here is CONFIDENTIAL INFORMATION and is the exclusive property of DestiMetrics LLC. It is expressly not for reproduction, distribution publication or any other dissemination without the express written permission of DestiMetrics, LLC. Sample reports may be provided to interested persons, specifically for purposes of their evaluation of a potential subscription and are subject to Copyrights of this product. Data and Metrics represented on this report are representative of the Sample Properties only and may not be representative of the entire Community or Industry. Persons using this data for strategic purposes do so at their own risk and hold DestiMetrics harmless. Avon Destination RevPAR for the upcoming 6 months changed by (29.3%)RevPAR Rooms Booked during last month (September, 2014) compared to Rooms Booked during the same period last year (September, 2013) for arrival September to February has changed by (92.8%) Booking Pace (September) ADR (September) Avon Destination Occupancy for the upcoming 6 months changed by (38.3%) 10/7/2014 Copyright (c) 2006 - 2014, DestiMetrics, LLC All Rights Reserved. Confidential Information not for reproduction and protected by law. info@DestiMetrics.com www.DestiMetrics.com 1   Heil Law & Planning, LLC Office: 303.975.6120 3445 S. Clermont St. Fax: 720.836.3337 Denver, CO 80222 E-Mail: eric@heillaw.com e-mail: ericheillaw@yahoo.com H EIL L AW TO: Honorable Mayor Carroll and Town Council members FROM: Eric J. Heil, Town Attorney RE: Public Improvements Agreement – Village (at Avon) DATE: October 23, 2014 Summary: This memorandum provides an update on the use and approval of Public Improvements Agreements for the Village (at Avon). Traer Creek-RP LLC has requested approval to begin construction and installation of water and sewer lines on Planning Area J. AMC 7.32.100 sets forth the minimum requirements for a Public Improvements Agreement. Section 3.2 of the newly adopted Development Agreement (effective August 1, 2014) states that the design, construction and financing of Public Improvements as well as designation of specific entity responsible for such design, construction and financing will be addressed in the applicable Public Improvements Agreement. Section 3.2(b) states that the Applicant for any Development Application submitted after the Effective Date will provide an improvement guarantee assuring the completion of the Public Improvements as required by the Avon Municipal Code. Public Improvements Agreements in the Village (at Avon). In the past (prior to 2010 Code and prior to Village settlement) public improvements were constructed as part of subdivision approvals and were addressed in a Subdivision Improvements Agreement that was reviewed and approved by the Council. The new 2010 Avon Development Code and the new 2014 Development Agreement for the Village (at Avon) references “Public Improvements Agreement” which permits the construction and installation of public improvements without an accompanying subdivision application. The Village (at Avon) 2014 Development Agreement expands administrative subdivision approval. The new PUD Guide for the Village (at Avon) establishes an administrative approval process for subdivisions on Lot 1 (Planning Areas A, B, C, D, E and F) and Planning Area J in the Village. These areas are referred to as the “Administrative Subdivision” areas in Section G. of the 2014 PUD Guide. The 2014 PUD Guide and the 2014 Development Agreement do not expressly state whether Public Improvements Agreements are approved by Town staff or by the Council. AMC 7.32.100 does not expressly state whether Public Improvements Agreements are approved by Town staff or by Council; however, Sec. 7.32.100(e) does state that the use of Deeds of Trust shall be subject to approval by Council and that the form of guarantee (meaning for all methods of collateral) shall be subject to approval by the Town Attorney. It is my opinion based on working on the Village (at Avon) documents and the establishment of the Administrative Subdivision areas that Public Improvements Agreements for Lot 1 and Planning Area J in the Village may be approved administratively. The Town has a form Public Improvements Agreement which incorporates the minimum requirements from AMC Sec. 7.32.100 (see the attached form of Public Improvements Agreement). With regard to Lot 1 and Planning Area J, the road alignments, connections and minimum designs are specifically defined. Water and Sewer utilities are primarily reviewed by the Eagle River Water and Sanitation District and the Upper Eagle River Water Authority. There is little discretion in the review and approve of Public Improvements. If there is any proposed deviation from the adopted standards then such proposal must come to the Town Council for review and approval. Thank you, Eric M EMORANDUM & PLANNING, LLC   FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT V3 – Oct.13, 2012 ejh Page 1 of 12                                                     [INSERT  NAME  OF  SUBDIVISION  OR  PROJECT]   PUBLIC  IMPROVEMENTS  AGREEMENT     THIS  AGREEMENT,  made  and  entered  into  this  ________  day  of  _______,  201___,  is   by  and  among  ___________________________________  (“Owner”  [“District”  shall  be   substituted  for  Owner  when  applicable]),  and  the  Town  of  Avon,  a  Colorado  home   rule  municipality,  by  and  through  its  Council  (“Town”).     RECITALS     WHEREAS,  the  Owner,  in  connection  with  the  approval  [describe  approval  by   Town]  for  the  _______________________,  consisting  of    _______  acres,  ____________________,   Town  of  Avon,  Eagle  County,  Colorado  (“Project”),  desires  to  enter  into  a  Public   Improvements  Agreement  (“Agreement”)  with  the  Town;  and     WHEREAS,  pursuant  to  the  Municipal  Code,  the  Town  desires  to  make   reasonable  provisions  for  completion  of  certain  public  improvements    (“Public   Improvements”)  as  depicted  on  the  plans  approved  by  the  Town  for  the   _______________,  dated  ________________,  (“Approved  Plans”)  and  as  set  forth  in  Exhibit   A:  Approved  Plans  attached  hereto  and  incorporated  herein  by  reference,  together   with  minor  changes  approved  by  the  Town  Engineer;  and     WHEREAS,  the  Owner  is  responsible  for  the  completion  of  the  Public   Improvements.       AGREEMENT      NOW  THEREFORE,  in  consideration  of  the  following  mutual  covenants,   conditions  and  promises,  the  parties  hereby  agree  as  follows:     1. Completion  of  Work.   (a) Performance.    Owner  agrees  to  furnish  all  equipment,  labor  and  material   necessary  to  perform  and  complete,  in  a  good  and  workmanlike  manner,   all  Public  Improvements  and  work  incidental  thereto  (“Work”)  as   depicted  on  the  Approved  Plans  and  as  set  forth  in  Exhibit  A:  Approved   Plans.    Owner  further  agrees  that  Owner  will  be  responsible  for  all  costs   of  Public  Improvements  as  assigned.    Said  Work  shall  be  performed  in   accordance  with  the  Approved  Plans.       (b) Time  for  Completion  of  Public  Improvements.    Owner  agrees  to   complete  Public  Improvements  within  two  (2)  years  of  the  date  of  this   Agreement.    Owner  agrees  to  commence  construction  of  Public   Improvements  prior  to  the  issuance  of  a  building  permit  for  any     FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT V3 – Oct.13, 2012 ejh Page 2 of 12                                                     improvements  in  the  subdivision  and  to  complete  the  Public   Improvements  prior  to  the  issuance  of  a  Certificate  of  Occupancy  for  any   building  on  any  lot  in  the  Subdivision  served  by  the  Public  Improvements.     Commencement  of  construction  of  Public  Improvements  shall  be  deemed   to  mean  the  award  and  execution  of  contracts  for  the  construction  of  the   Public  Improvements  as  depicted  on  Exhibit  A:  Approved  Plans.   (c) Inspection  Procedures.    All  Work  shall  be  done  under  the  inspection   procedures  and  standards  established  by  the  Town  and  Holy  Cross   Energy,  Eagle  River  Water  and  Sanitation  District,  Upper  Eagle  River   Water  Authority,  Excel  Energy,  Qwest  Communications,  Comcast  or  any   other  utility  (“Utilities”),  as  applicable  and  shall  be  subject  to  the   reasonable  satisfaction  of  the  Town  and  applicable  Utilities.    All  Work   shall  not  be  deemed  complete  until  the  reasonable  approval  and   acceptance  of  the  Public  Improvements  by  the  Town  and/or  the  Utilities.     Such  inspections  by  the  Town  and  Utilities  shall  not  relieve  the  Owner  or   Owner’s  agents  from  any  responsibility  or  obligation  to  assure  that  all   Work  is  completed  in  conformance  with  all  standards,  plans  and   specifications  as  submitted  to  and  previously  approved  by  the  Town  and   Utilities.   (d) Cost  of  Inspections.    The  cost,  if  any,  of  such  inspections,  by  Town   employees,  or  an  independent  third  party  inspector,  shall  be  paid  by  the   Owner  and  subject  to  the  limitations  set  forth  in  Paragraph  5  below.   (e) Notice  of  Non-­‐Compliance.    In  the  event  that  the  Town  through  its   inspectors  reasonably  determines  that  the  Public  Improvements  are  not   in  compliance  with  the  Approved  Plans,  it  shall  give  written  notice  of  such   non-­‐compliance  (“Notice  of  Non-­‐Compliance”)  to  the  Owner.    The  Notice   of  Non-­‐Compliance  shall  include  a  narrative  describing  the  unsatisfactory   construction  work  with  specific  reference  to  the  applicable  construction   plans  and  specifications.    The  Notice  of  Non-­‐Compliance  must  be   provided  to  the  Owner  within  five  (5)  working  days  after  the  date  of  the   inspection.   2. Guarantee  for  Public  Improvements.       (a) Form  of  Guarantee.    The  Owner  shall  provide  financial  security   (“Guarantee”)  to  the  Town  to  secure  the  completion  of  the  Public   Improvements  in  this  Agreement  in  accordance  with  one  of  the  following   the  acceptable  methods  of  providing  a  guarantee:.   (i) Deposit  in  Escrow.  Owner  shall  deposit  a  cash  sum  equal  to  the   estimated  cost  of  all  Public  Improvements  plus  overrun  allowances,   either  with  the  Town  or  in  escrow  with  a  responsible  financial     FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT V3 – Oct.13, 2012 ejh Page 3 of 12                                                     institution  authorized  to  do  such  business  in  the  state.  In  the  case  of   an  escrow  account,  the  Owner  shall  file  with  the  Town  an  escrow   agreement  that  includes  the  following  terms:   1. Funds  of  the  escrow  account  shall  be  held  in  trust  until   released  by  the  Town  and  may  not  be  used  or  pledged  by  the   Owner  as  security  in  any  matter  during  that  period  other  than   payment  for  the  Public  Improvements.  The  funds  may  be  used   for  payment  of  improvements  as  made,  except  that  the  escrow   holder  shall  withhold  from  disbursement  so  much  of  the  funds   as  is  estimated  as  being  necessary  to  complete  the  construction   and  installation  of  such  improvements,  plus  an  overrun   allowance  as  provided  in  Paragraph  2(b)  below.   2. In  the  case  of  a  failure  on  the  part  of  Owner  to  complete  any   improvement  within  the  required  time  period,  the  financial   institution  shall  immediately  make  all  funds  in  such  account   available  to  the  Town  for  use  in  the  completion  of  those   improvements.   (ii) Letter  of  Credit.  The  Owner  may  propose  to  provide  from  a  bank  or   other  responsible  financial  institution  authorized  to  do  such  business   in  the  State  an  irrevocable  letter  of  credit.  Such  letter  shall  be  filed   with  the  Town  and  shall  certify  the  following:   1. That  the  creditor  irrevocably  guarantees  funds  in  an  amount   equal  to  the  estimated  cost  of  all  Public  Improvements  plus   overrun  allowances  as  provided  in  Paragraph  2(b),  below,  for   the  completion  of  all  such  improvements.   2. That,  in  the  case  of  failure  on  the  part  of  the  Owner  to  complete   any  specified  improvements  within  the  required  time  period,   the  creditor  shall  pay  to  the  Town  immediately  and  without   further  action  such  funds  as  are  necessary  to  finance  the   completion  of  those  improvements  up  to  the  limit  of  credit   stated  in  the  letter.   (iii) Deed  of  Trust.  The  Owner  may  propose  to  guarantee  the  completion   of  public  improvements  by  granting  the  Town  a  deed  of  trust  on  the   property  being  subdivided.  The  deed  of  trust  shall  secure  the   obligation  to  complete  required  Public  Improvements  by  securing  a   stated  amount  equal  to  the  estimated  cost  of  all  required  Public   Improvements  plus  overrun  allowances.  No  deed  of  trust  shall  be   accepted  unless  the  unencumbered  value  of  the  property  equals  or   exceeds  the  stated  amount  of  the  guarantee.  The  unencumbered  value     FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT V3 – Oct.13, 2012 ejh Page 4 of 12                                                     of  the  subdivision  property  shall  be  deemed  to  be  the  municipal   assessor's  estimate  of  the  value  of  all  lots  of  the  subdivision  less  the   amount  of  outstanding  recorded  lien  obligations.  The  applicant  shall   not  sell  or  otherwise  transfer  any  lot  secured  by  the  deed  of  trust  until   the  obligation  to  construct  Public  Improvements  is  satisfied  or  until  a   partial  release  is  obtained.  A  partial  release  may  be  granted  if  and   only  if:   1. In  conjunction  with  sale  or  transfer  of  any  lot,  the  seller  or   transferor  escrows  funds  as  provided  in  Paragraph  2(a)(i),   above,  sufficient  to  cover  the  pro  rata  cost  of  all  unaccepted   improvements  attributable  to  such  lot.   2. The  escrow  agreement  provides  that,  in  the  case  of  failure  on   the  part  of  the  applicant  to  complete  any  improvement  within   the  required  time  period,  the  institution  shall  make  all  funds  in   such  account  available  to  the  Town  for  use  in  the  completion  of   those  improvements.  The  minimum  amount  to  be  escrowed   shall  be  calculated  by  prorating  the  estimated  cost  of  all   required  public  improvements  that  have  not  been  finally   accepted  plus  overrun  allowances  against  each  lot  on  the  basis   of  area.   (iv) The  form  of  Guarantee  is  attached  hereto  as  Exhibit  C:  Form  of   Guarantee.   (b) Amount  of  Guarantee  for  Completion  of  Public  Improvements.     Owner  shall  deliver  to  the  Town  a  Guarantee  in  an  amount  equal  to  one   hundred  percent  (100%)  of  the  amount  of  the  cost  estimate  for  the  Public   Improvement  as  approved  by  the  Town  Engineer  plus  a  percentage  of  the   estimated  costs  as  an  overrun  allowance  as  follows:     Total Estimated Costs of Improvements Percent for Overrun Allowance $0.00—$500,000.00 20 $500,000.00—$1,000,000.00 15 $1,000,000.00 and over 10   (c) Partial  Release  of  Guarantee.      The  amount  of  Guarantee  may  be   reduced  periodically  upon  completion  of  itemized  Public  Improvements   for  which  cost  estimates  have  been  set  forth  in  Exhibit  B:  Cost  Estimates   and  upon  receipt  of  the  Certifications,  as  specified  in  Paragraph  9,  below,     FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT V3 – Oct.13, 2012 ejh Page 5 of 12                                                     verifying  that  itemized  portions  of  the  Public  Improvements  have  been   completed,  provided  that  Owner  is  not  in  default  under  this  Agreement   and  provided  that  the  remaining  amount  of  Guarantee  shall  be  at  least   one  hundred  and  ten  percent  (110%)  of  the  estimated  costs  of   completion  of  all  remaining  Public  Improvements.    The  Town  shall   release  the  remaining  Guarantee  amount  less  the  amount  described  in   Paragraph  3  below  for  security  during  the  warranty  period  within  five  (5)   business  days  of  (i)  completion  of  all  Work  related  to  the  Public   Improvements  and  (ii)  acceptance  by  the  Town  and  Utilities  of  the  Public   Improvements,  provided  that  the  Owner  is  not  in  default  under  this   Agreement.   (d) Default  by  Owner.    In  the  event  of  a  default  in  whole  or  in  part  by  Owner   in  the  performance  of  this  Agreement,  the  Town  shall  be  authorized  to   draw  on  the  Guarantee  for  the  purpose  of  undertaking  completion  or   remediation  work  on  the  Public  Improvements  or  otherwise  curing   Owner’s  default  hereunder  after  providing  thirty  (30)  days’  advance   written  notice  of  default  and  providing  an  opportunity  during  such  period   for  Owner  to  cure  the  default.    The  Town  shall  be  entitled  to  draw  on  the   Guarantee  after  adoption  of  a  resolution  of  the  Town  Council  stating  (i)   that  Owner  is  in  default  and  describing  the  nature  of  the  default,  and  (ii)   that  funds  are  required  to  complete  or  correct  the  Work  on  the  Public   Improvements  or  to  otherwise  cure  Owner’s  default.   3. Warranty  Period.    The  Public  Improvements  shall  be  warranted  to  be  free  from   defects  in  workmanship  or  quality  for  a  period  of  two  (2)  years  after  acceptance   of  all  the  Work  by  the  Town.    In  the  event  of  any  such  defect,  the  Town  may   require  Owner  to  correct  the  defect  in  material  or  workmanship.      The  Town   shall  retain  a  portion  of  the  Guarantee  as  a  financial  security  during  the  warranty   period.       (a) Amount  of  Guarantee  to  Secure  Warranty.    The  amount  of  the   Guarantee  during  the  warranty  period  shall  be  a  percentage  of  the  total   actual  cost  of  completion  of  Public  Improvements  in  the  amount  set  forth   below:   Total Construction Cost Percent to Secure Warranty $0.00 – $500,000.00 10 $500,000.00 – $1,000,000.00 7½ $1,000,000.00 and over 5     FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT V3 – Oct.13, 2012 ejh Page 6 of 12                                                     (b) In  the  event  any  corrective  work  is  performed  during  the  two  (2)  year   warranty  period  then  the  warranty  on  such  corrected  work  shall  be   extended  for  two  (2)  years  from  the  date  on  which  the  corrected  work  is   completed.    Guarantee  equal  to  one  hundred  and  ten  percent  (110%)  of   the  cost  of  any  corrected  work,  as  estimated  by  the  Town  Engineer,  shall   be  retained  by  the  Town  or  immediately  paid  to  the  Town  by  the  Owner,   if  sufficient  funds  are  not  held  by  the  Town,  in  accordance  with  Paragraph   3(a)  above,  for  a  period  of  two  (2)  years  from  the  date  of  completion  of   the  corrected  work.             4. Engineering  Certification.    Upon  completion  of  portions  of  the  Public   Improvements,  Owner  will  cause  Owner’s  engineers  (who  shall  have  been   actively  engaged  in  observing  the  construction  of  the  Public  Improvements  and   shall  be  registered  engineers  in  the  State  of  Colorado)  to  provide  a  written   opinion,  to  the  satisfaction  of  the  Town  Engineer,  that  based  upon  on-­‐site   observation,  review  of  sufficient  construction-­‐observation  reports,  field  test   reports  and  material  test  reports  and  certifications  by  qualified  personnel,  the   installation  of  the  Public  Improvements,  or  portions  thereof  as  may  be   completed  from  time  to  time,  have  been  completed,  to  the  best  of  their   knowledge  and  professional  judgment,  in  conformance  with  all  standards,  plans   and  specifications  as  submitted  to  and  previously  approved  by  the  Town,  or  the   pertinent  utility  supplier,  as  depicted  on  the  Approved  Plans.    Inspection  reports,   test  results,  as-­‐constructed  plans  and  other  supporting  documentation  shall  be   submitted  with  the  certification.    The  as-­‐constructed  plans  shall  be  submitted  on   paper  and  in  one  of  the  following  digital  formats:  AutoCad  DWG,  AutoCad  DXF,   or  ESRI  GIS  shapefile.   5. Inspection  Fees.    Fees  for  inspections,  if  any,  shall  be  paid  by  the  Owner  within   thirty  (30)  days  after  delivery  of  written  invoice  for  such  fees  to  cover  the  cost  of   inspections  by  the  Town.    The  fees,  if  any,  will  be  based  on  direct  (out-­‐of-­‐pocket)   costs  of  the  Town  plus  an  administrative  fee  in  the  amount  of  fifteen  (15%)   percent  of  the  direct  costs,  but  in  no  event  will  the  total  amount  of  such   inspection  fees  exceed  five  percent  (5%)  of  the  actual  aggregate  costs  for  such   Public  Improvements.   6. No  Obligation  of  Town  to  Complete  Improvements.    Owner  agrees  that  in  the   event  Owner  shall  fail  to  perform  its  obligations  as  set  forth  herein,  the  Town   shall  be  under  no  obligation  to  complete  any  of  the  said  Public  Improvements  or   to  issue  permits  for  development  served  by  the  Public  Improvements.       7. Non-­‐Liability  of  Town;  Indemnification.    The  Town  shall  not,  nor  shall  any   officer,  agent,  or  employee  thereof,  be  liable  or  responsible  for  any  accident,  loss   or  damage  related  to  the  Work  specified  in  this  Agreement,  nor  shall  the  Town,   nor  any  officer,  agent  or  employee  thereof,  be  liable  for  any  persons  or  property   injured  by  reason  of  the  nature  of  said  Work.    To  the  extent  permitted  by  law,     FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT V3 – Oct.13, 2012 ejh Page 7 of 12                                                     Owner  hereby  agrees  to  indemnify  and  hold  harmless  the  Town,  and  any  of  its   officers,  agents  and  employees  against  any  losses,  claims,  damages  or  liabilities   to  which  the  Town  or  any  of  its  officers,  agents  or  employees  may  become   subject,  because  of  any  losses,  claims,  damages  or  liabilities  (or  actions  in   respect  thereof)  that  arise  out  of,  or  are  based  upon,  any  acts  or  omissions  in  the   performance  of  the  obligations  of  Owner,  as  hereinbefore  stated.    Furthermore,   the  Owner  shall  reimburse  the  Town  for  any  and  all  legal  or  other  expenses   reasonably  incurred  by  the  Town  in  connection  with  investigating  or  defending   any  such  loss  or  claim.   8. Rights  of  Town  in  Event  of  Default.    In  the  event  that  Owner  defaults  in  whole   or  in  part  in  the  performance  of  this  Agreement,  and  after  the  expiration  of  thirty   (30)  days  after  having  given  written  notice  to  Owner  of  such  default  during   which  period  of  time  the  Owner  fails  to  correct  said  default,  the  Town  may,  at  its   sole  discretion,  proceed  with  the  construction  or  completion  of  the  Public   Improvements  specified  on  Exhibit  A:  Approved  Plans.    All  costs  paid  by  the   Town  to  correct  or  complete  the  Public  Improvements,  including  cost  of   personnel,  equipment,  materials,  studies,  legal  and  other  amounts  expended  by   the  Town  to  perform  the  Public  Improvement  construction  responsibilities  of   Owner,  together  with  an  administrative  fee  in  the  amount  of  fifteen  percent   (15%)  of  the  total  costs  incurred  by  Town  shall  be  paid  by  Owner.    Any  such   costs  relating  to  the  Public  Improvements,  which  have  not  been  reimbursed  by   Owner,  shall  be  a  debt  of  Owner.    In  addition  to  other  remedies  stated  in  this   Agreement,  if  the  Owner  is  in  default  of  this  Agreement,  the  Town  may  withhold   the  acceptance  or  processing  of  development  applications  and  may  withhold  the   approval  of  development  permits  for  or  on  any  property  which  would  be  served   by  the  Public  Improvements  until  such  time  as  the  Public  Improvements  are   completed.             9. Letter  Certifying  Completion  and  Final  Acceptance  of  Improvements.    When   all  Public  Improvements  have  been  completed  and  accepted  by  the  Town,  or  the   pertinent  utility  supplier,  and  the  Warranty  Period  has  expired  and  provided   that  Owner  is  not  in  default  under  any  of  its  obligations  to  the  Town  under  this   Agreement,  the  Town  agrees  that  it  will  issue  a  letter,  after  consultation  with  the   pertinent  utility  supplier  if  necessary,  in  recordable  form,  certifying  that  all   obligations  of  Owner  under  this  Agreement  have  been  satisfied  (“Certification”).   10. Non-­‐Liability  of  Town  for  Indirect  or  Consequential  Damages  or  Lost   Profits.    The  Parties  agree  that  the  Town  shall  not  be  liable  for  indirect  or   consequential  damages,  including  lost  profits,  which  result  or  arise  from  the   Town’s  declaration  that  Owner  is  in  default  of  the  Agreement,  so  long  as  the   Town  acts  in  good  faith.   11. Incorporation  of  Exhibits.    Unless  otherwise  stated  in  this  Agreement,  exhibits,   applications,  or  documents  referenced  in  this  Agreement  shall  be  incorporated     FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT V3 – Oct.13, 2012 ejh Page 8 of 12                                                     in  this  Agreement  for  all  purposes.    In  the  event  of  a  conflict  between  any   incorporated  exhibit  and  this  Agreement,  the  provisions  of  this  Agreement  shall   govern  and  control.   12. Assignment  and  Release.    All  or  part  of  the  rights,  duties,  obligations,   responsibilities,  or  benefits  set  forth  in  this  Agreement  shall  not  be  assigned  by   Owner  without  the  express  written  consent  of  the  Town  Council  of  the  Town.     Any  written  assignment  shall  expressly  refer  to  this  Agreement,  specify  the   particular  rights,  duties,  obligations,  responsibilities,  or  benefits  so  assigned,  and   shall  not  be  effective  unless  approved  by  resolution  or  motion  of  the  Town   Council  of  the  Town.    No  assignment  shall  release  the  Owner  from  performance   of  any  duty,  obligation,  or  responsibility  unless  such  release  is  clearly  expressed   in  such  written  document  of  assignment.   13. No  Third  Party  Beneficiaries.    Nothing  contained  in  this  Agreement  is  intended   to  or  shall  create  a  contractual  relation  with,  cause  of  action  in  favor  of,  or  claim   for  relief  for,  any  third  party,  including  any  agent,  sub-­‐consultant  or  sub-­‐ contractor  of  the  Owner.    Absolutely  no  third  party  beneficiaries  are  intended  by   this  Agreement.    Any  third-­‐party  receiving  a  benefit  from  this  Agreement  is  an   incidental  and  unintended  beneficiary  only.   14. Amounts  Past  Due.    Any  amounts  due  to  the  Town  of  Avon  under  this   Agreement  which  are  past  due  shall  bear  interest  at  the  rate  of  one  and  one-half percent (1½%) per month (eighteen percent [18%] per annum, compounded annually)..   15. Amendments.    This  Agreement  may  be  amended  from  time  to  time,  provided   that  such  amendment  is  in  writing  and  signed  by  all  parties  hereto.   16. Covenants  Running  with  the  Land.    This  Agreement  and  the  obligations  hereof   shall  be  deemed  to  be  covenants  running  with  the  land  and  shall  be  binding  on   the  successors  and  assigns  of  the  parties  hereto.   17. Venue.    Venue  for  any  litigation  arising  out  of  this  Agreement  shall  be  in  the   District  Court  for  Eagle  County,  Colorado.   [Signature  Page  Follows]     FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT V3 – Oct.13, 2012 ejh Page 9 of 12                                                     THE  PARTIES  HERETO  HAVE  EXECUTED  THIS  AGREEMENT  AS  OF  THE  DATE   FIRST  ABOVE  WRITTEN.     TOWN  OF  AVON                 BY:_____________________________  ATTEST:____________________________    Mayor  Town  Clerk     APPROVED  AS  TO  FORM:     ___________________________   Town  Attorney       OWNER         BY:__________________________    Owner           FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT V3 – Oct.13, 2012 ejh Page 10 of 12                           EXHIBIT A: APPROVED PLANS APPROVED PLANS: ______________________________ Construction Drawings __________________, Town of Avon, Colorado _______________, 20__ Sheets 1 through __ Release Date: _______________, 20__ Prepared by:   FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT V3 – Oct.13, 2012 ejh Page 11 of 12                           EXHIBIT B: COST ESTIMATE PUBLIC IMPROVEMENTS CONSTRUCTION COST ESTIMATE   FORM OF PUBLIC IMPROVEMENTS AGREEMENT DRAFT V3 – Oct.13, 2012 ejh Page 12 of 12                           EXHIBIT C: FORM OF GUARANTEE [Insert Form of Guarantee]