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HomeMy WebLinkAbout2021-01-05 Agenda and Supporting Documentation Town Council Evening Agenda VAIL TO W N C O U N C IL R E G U L AR ME E TIN G Evening Agenda Virtual 6:00 P M, January 5, 2021 Meeting to be held Virtually (access High Five Access Media livestream https://www.highfivemedia.org/live-five the day of the meeting and visit https://www.vailgov.com/town-council to participate in public comment) Notes: Times of items are approximate, subject to c hange, and cannot be relied upon to determine what time C ounc il will consider an item. Public comment will be taken on each agenda item. Citizen participation offers an opportunity for citizens to express opinions or ask questions regarding town services, policies or other matters of community conc ern, and any items that are not on the agenda. Please attempt to keep c omments to three minutes; time limits established are to provide efficienc y in the c onduct of the meeting and to allow equal opportunity for everyone wishing to speak. 1.Citizen Participation (10 min.) 2.Consent Agenda (5 min.) 2.1.Resolution No. 1, Series of 2021, A Resolution Adopting the Town's W ebsite as the Town's Posting Location Action Requested of Council: approve, approve with amendments or deny Resolution No. 1, Series of 2021 Background: At the beginning of the year the Town Council adopts a posting location for public notices. Staff Recommendation: Approve, approve with amendments or deny Resolution No. 1, Series of 2021. 2.2.Resolution No. 2, Series of 2021, A Resolution Approving an Amended Operating Plan and Budget of the Vail Local Marketing District for its Fiscal Year J anuary 1, 2021 Through December 31, 2021. Action Requested of Council: Approve, approve with amendments or deny Resolution No. 2, Series of 2021. Background: See attached memo. Staff Recommendation: Approve, approve with amendments or deny Resolution No. 2, Series of 2021. 2.3.911 C All Processing Equipment Contract Award Background: Vail Public Safety Communications Center installed the current Patriot Phone system in 2015. Upgrades are needed to keep the system up to date and to meet Federal NG911 standards. This system was paid for and is maintained entirely by the Eagle County E911 Authority Board. January 5, 2021 - Page 1 of 45 Staff Recommendation: Authorize the Town Manager to enter into an agreement with Motorola Solutions in an amount not to exceed $260,913. 2.4.Award of a construction contract to construct improvements for the renovation of the landscaping around the Ford Park Playground. Background: The landscaping of the area around the Ford Park Playground and basketball court is in poor condition due to erosion and foot traffic. Renovation of the landscape is included in the 2020 RE TT Capital Budget. The Design Review Board has approved the plan of the renovation. The project was publicly bid with GH Daniels and Associates submitting the low bid. Staff Recommendation: Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with GH Daniels I I I and Associates, I nc. to construct improvements relative to the Ford Park Playground Landscape Renovation in the amount not to exceed $69,054.00. 2.5.Public Works Shop Limited Preconstruction Project Contract Award Action Requested of Council: Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Hyder Construction to perform the Public Works Shop Limited Preconstruction project in the amount of, and not to exceed, $345,500. 3.Town Manager Report 4.Action Items 4.1.Ordinance No. 1, Series of 2021, First Reading, An Ordinance Repealing and Reenacting Chapter 2 of Title 6 of the Vail Town Code Regarding Procedures for Disposing on Unclaimed Property in the Town 10 min. Presenter(s): Craig Bettis, Vail Police Commander Action Requested of Council: Approve, approve with amendments or deny Ordinance No. 1, Series of 2021 upon first reading Background: Ordinance No. 1, Series of 2021 would update the Vail Town Code to reflect the recent updates to Unclaimed Property Act, C.R.S. §§ 38-13-101, et seq. (the "Act"). Staff Recommendation: Approve, approve with amendments or deny Ordinance No. 1, Series of 2021 upon first reading 4.2.Dead Drift Development, represented by J ack Snow of RK D Architecture, requests a Construction License Agreement to install temporary soil nails in Town of Vail Open Space 15 min. Presenter(s): J onathan Spence, Planning Manager and Tom Kassmel, Town Engineer Action Requested of Council: The Community Development Department requests that the Town Council evaluate the proposal to utilize Town of Vail property for sub-surface soil nails. This utilization of Town of Vail property would be subject to the terms of a construction license agreement. Background: Dead Drift Development, represented by J ack Snow of RK D Architecture, requests a Construction License Agreement to install temporary soil nails in Town of Vail property in the open space strip of land separating 1390 and 1469 Greenhill Ct. Staff Recommendation: The Community Development Department recommends that the Vail Town Council instructs the Town Manager to: January 5, 2021 - Page 2 of 45 Sign the Construction License Agreement on behalf of the property owner. 5.Adjournment 5.1.Adjournment 6:35 pm (estimate) Meeting agendas and materials can be acc es s ed prior to meeting day on the Town of Vail webs ite www.vailgov.com. All town c ouncil meetings will be streamed live by High F ive Ac cess Media and available for public viewing as the meeting is happening. T he meeting videos are als o posted to High F ive Ac cess Media website the week following meeting day, www.highfivemedia.org. P leas e c all 970-479-2136 for additional information. S ign language interpretation is available upon reques t with 48 hour notification dial 711. January 5, 2021 - Page 3 of 45 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Resolution No. 1, Series of 2021, A Resolution A dopting the Town's Website as the Town's Posting L ocation AC T IO N RE Q UE S T E D O F C O UNC I L: approve, approve with amendments or deny Resolution No. 1, S eries of 2021 B AC K G RO UND: At the beginning of the year the Town Council adopts a posting location for public notices. S TAF F RE C O M M E ND AT IO N: A pprove, approve with amendments or deny Resolution No. 1, S eries of 2021. AT TAC H ME N TS: Description Resolution No. 1, Series of 2021 January 5, 2021 - Page 4 of 45 RESOLUTION NO. 1 SERIES OF 2021 A RESOLUTION ADOPTING THE TOWN'S WEBSITE AS THE TOWN’S POSTING LOCATION WHEREAS, the Colorado Legislature passed House Bill 19-1087, amending C.R.S. § 24- 6-402 to encourage local governments to transition from posting physical notices of public meetings in physical locations to posting notices electronically on a website; WHEREAS, House Bill 19-1087 provides that after July 1, 2019, a local government is deemed to have given full and timely notice of a public meeting if the local public body posts notice on its official website at no charge to the public at least 24 hours prior to the meeting; WHEREAS, the Town maintains an official website; and WHEREAS, the Council wishes to adopt the Town's website as the official posting location for public meetings. NOW BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. The Town's website, www.vailgov.com, is hereby adopted as the official posting location for all meeting notices pursuant to C.R.S. § 24-6-402. Section 2. Town staff is hereby directed to provide the official website address to the State Department of Local Affairs for inclusion in the Department's inventory. Section 3. In the event online notice is not possible due to emergency circumstances, the alternative posting place is the bulletin board at the Vail Town Hall, 75 S. Frontage Road, Vail, Colorado. ADOPTED this 5TH day of January, 2021. Dave Chapin, Mayor ATTEST: Tammy Nagel, Town Clerk January 5, 2021 - Page 5 of 45 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Resolution No. 2, Series of 2021, A Resolution A pproving an A mended Operating Plan and B udget of the Vail L ocal Marketing District for its Fiscal Year J anuary 1, 2021 Through December 31, 2021. AC T IO N RE Q UE S T E D O F C O UNC I L: A pprove, approve with amendments or deny Resolution No. 2, S eries of 2021. B AC K G RO UND: S ee attached memo. S TAF F RE C O M M E ND AT IO N: A pprove, approve with amendments or deny Resolution No. 2, S eries of 2021. AT TAC H ME N TS: Description Resolution No.2, Series of 2021 V LMD 1st Budget Supplemental January 5, 2021 - Page 6 of 45 To: From: Date: Subject: Vail Town Council Vail Local Marketing District January 5, 2021 Vail Local Marketing District 1st Supplemental Budget Request I.BACKGROUND The mission of the Vail Local Marketing District (VLMD) is to market and promote Vail to attract overnight destination guests primarily during the May to October time frame, creating economic vitality by increasing the visitor base, sales tax and lodging tax revenues. The overarching goal of the VLMD is to strengthen Vail’s position as a year- round mountain resort destination that appeals to a broad audience by elevating the summer brand position. With the addition of the DiscoverVail.com website, the VLMD is now in a position to promote non-ski season travel to Vail during the winter months. The goal is to better understand high-funnel consumer interest and performance: •Consumer demand for summer travel during the winter season (i.e., search volume, etc.) •Summer versus winter key metric performance (i.e. click-thru rate and cost per click, etc.) •Understand high-performing and click driving, non-branded summer terms Based on this new opportunity Cactus evaluated multiple digital media options to understand what a monthly paid media investment could look like during the winter months to continue to drive summer and shoulder season tourism. BUDGET DETAIL The Vail Local Marketing District Advisory Council (VLMDAC) is recommending a supplemental of $140,000 to be used for pay per click (PPC) search. This will include: •Five months of non-branded summer vacation terms (i.e. summer mountain vacation, summer weekend getaway, mountain resort hiking, etc.) •A monthly spend level which is comparable to past VLMD summer PPC budgets and is only charged when a listing is clicked on by consumers January 5, 2021 - Page 7 of 45 Town of Vail Page 2 •Non-branded paid search terms only to ensure no competition with Vail Resorts — specifically to navigate away from branded and winter-related search terms that are aimed at driving users to vail.com The additional $140,000 of PPC spend will be allocated between the Front Range ($115,000) and to three (to be determined) destination markets ($25,000) that can be flexible with changing travel conditions (i.e. COVID-19). The 2021 amended fund balance is projected to be $1,644,689, or 46% of a normal year’s annual revenues (above Council’s 25% directive). II.BUDGET RECLASSIFICATIONS Since presenting the budget in October, the VLMD determined several line items needed to be re-classified to more accurately reflect how and where the funds are being spent. These shifts do not reflect a shift in strategy or tactics, but, rather a more accurate representation of the true nature of the expense. Through this process, the following budget shifts have occurred: •Digital media advertising efforts were classified under one line item totaling $577,164, and have since been reclassified to separate Destination Digital Media vs. Front Range Digital Media as outlined below: Destination Digital Media $184,692 Front Range Digital Media $392,472 •An amount of $30,000 was re-classified from Photo/Video production into Branding and Production, to reflect this amount as being hard costs and expenses vs. fees. In addition, $5,000 was re-classified from SITE Marketing email line item into Production to accurate reflect how those dollars are spent.Re-classification from Website into the Database Systems line items resulted in $172,000 shifting from Website into Database Systems to accurately reflect what was specific to website enhancement and development vs. overall data systems enhancements and expenses. •A $48,000 re-classification from Destination to Professional Fees was made to accurately reflect the roll of the Lodging Liaison. III.ACTION REQUESTED OF VAIL LOCAL MARKETING DISTRICT The Vail Local Marketing District recommends that the Vail Town Council approve the supplemental PPC media budget of $140,000. January 5, 2021 - Page 8 of 45 2020 Amended Budget Presented 2021 Budget 1st Supplemental 1st Supplemental Budget Shifts 2021 Amended Budget Income Lodging Tax 2,390,840 2,500,000 2,500,000 PY Lodging Tax 208,765 - - Interest Income 2,000 1,000 1,000 Total Income 2,601,605 2,501,000 - - 2,501,000 Expense Destination 436,322 630,164 25,000 (445,472) 209,692 International 15,668 10,000 10,000 Front Range 445,087 - 115,000 392,472 507,472 Groups and Meetings 524,590 250,000 250,000 Public Relations Expenses 72,950 92,000 92,000 Content/Influencer Strategy 44,250 50,100 50,100 Photography / Video 37,000 93,000 (30,000) 63,000 Research 75,000 75,000 75,000 Web Site 143,510 220,200 (172,000) 48,200 Admin Miscellaneous 8,000 8,000 8,000 Email Marketing - 360 360 Branding 312,309 118,000 35,000 153,000 Database Warehousing and Research 145,490 118,700 172,000 290,700 Professional Fees Vail App 5,499 - - Legal and Accounting 25,000 25,000 25,000 Lodging Liaison - - 48,000 48,000 Advertising Agent Fees 85,625 146,000 146,000 Marketing Coordination-TOV 80,500 95,000 95,000 Marketing Coordination-VVP 40,000 37,500 37,500 Professional Fees - MYPR 102,200 50,000 50,000 Total Professional Fees 338,824 353,500 - 48,000 401,500 Special Event Funding Event Liaison 25,000 25,000 25,000 Total Special Events 25,000 25,000 - - 25,000 Total Expense 2,624,000 2,044,024 140,000 - 2,184,024 Revenue over (Under) Expenditures (22,395) 456,976 (140,000) - 316,976 Beginning Fund Balance 1,350,108 1,327,713 1,327,713 Ending Fund Balance 1,327,713 1,784,689 1,644,689 Fund Balance (25% required) 36% 50% 46% VAIL LOCAL MARKETING DISTRICT 2021 PROPOSED AMENDED BUDGET SUMMARY OF REVENUE EXPENDITURES AND CHANGES IN FUND BALANCE January 5, 2021 - Page 9 of 45 Resolution No. 2, Series of 2021 RESOLUTION NO. 2 SERIES OF 2021 A RESOLUTION APPROVING AN AMENDED OPERATING PLAN AND BUDGET OF THE VAIL LOCAL MARKETING DISTRICT, FOR ITS FISCAL YEAR JANUARY 1, 2021 THROUGH DECEMBER 31, 2021 WHEREAS, the Town of Vail (the “Town”), in the County of Eagle and State of Colorado is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and the Town Charter (the “Charter”); and WHEREAS, the members of the Town Council of the Town (the “Council”) have been duly elected and qualified; and WHEREAS, C.R.S. §29-25-110 requires the Council’s annual approval of the operating plan the Vail Local Marketing District (the “VLMD”). NOW THEREFORE, BE IT RESOLVED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO THAT: Section 1. The Council approves the operating plan and budget of the VLMD for marketing related expenditures beginning on the first day of January, 2021, and ending on the 31st day of December, 2021. Section 2. This Resolution shall take effect immediately upon its passage. INTRODUCED, PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Vail held this 5th day of January, 2021. ___________________________________ Dave Chapin, Town Mayor Attested: _________________________ Tammy Nagel, Town Clerk January 5, 2021 - Page 10 of 45 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: 911 C All P rocessing E quipment Contract Award B AC K G RO UND: Vail Public Safety Communications Center installed the current Patriot Phone system in 2015. Upgrades are needed to keep the system up to date and to meet F ederal NG911 standards. T his system was paid for and is maintained entirely by the E agle County E 911 A uthority B oard. S TAF F RE C O M M E ND AT IO N: A uthorize the Town Manager to enter into an agreement with Motorola Solutions in an amount not to exceed $260,913. AT TAC H ME N TS: Description Motorola Contract January 5, 2021 - Page 11 of 45 To: Mayor and Town Council From: Vail Public Safety Communications Date: December 21, 2020 Subject: Award Software Contract for Upgraded 911 Call Processing Equipment to Motorola I. PUROPOSE The purpose of the memo is to request the council authorize the town manager enter a contract with Motorola Solutions for the upgrade of our existing 911 Call Processing Equipment in an amount not to exceed, $260,913. II. BACKGROUND Vail Public Safety Communications Center installed the current Patriot Phone system in 2015. Upgrades are needed to keep the system up to date and to meet Federal NG911 standards. This system was paid for and is maintained entirely by the Eagle County E911 Authority Board. The Board has unanimously approved the vendor, Motorola Solutions, and has allocated the needed funds in their 2021 budget. This project and continuing software maintenance costs will continue to be paid in full by the 911 Board through the Center’s budget. III. DISCUSSION Objectives With the recent migration to the ESInet, all incoming 911 calls are routed to our center digitally through a statewide network ; by upgrading our call handling equipment from analog to digital we will be able to enhance our service, especially as it pertains to receiving location information. The phone system is also geo-diverse between Vail and Pitkin County Regional Communications, both agencies can back up each other in the instance one system goes down. The upgrade will enhance that ability by c reating a second redundant link utilizing project THOR fiber optics. The system upgrade includes: • A mobile laptop unit that allows remote log in and operation. • Enhanced location technology that will help pinpoint cell phones. • Future options for receiving SMS, video calling, and automatic callback . IV. Implementation This project will take approximately 3 months and will begin immediately in coordination with Pitkin County Regional Communications Center. Cutover is expected in the first quarter of 2021. January 5, 2021 - Page 12 of 45 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Award of a construction contract to construct improvements f or the renovation of the landscaping around the Ford P ark P layground. B AC K G RO UND: The landscaping of the area around the Ford P ark P layground and basketball court is in poor condition due to erosion and foot traffic. Renovation of the landscape is included in the 2020 R E T T Capital Budget. The Design Review Board has approved the plan of the renovation. The project was publicly bid with G H Daniels and Associates submitting the low bid. S TAF F RE C O M M E ND AT IO N: Authorize the Town Manager to enter into an agreement, in a form approved by the Town A ttorney, with G H Daniels I I I and A ssociates, I nc. to construct improvements relative to the Ford P ark P layground L andscape Renovation in the amount not to exceed $69,054.00. AT TAC H ME N TS: Description Memorandum January 5, 2021 - Page 13 of 45 To: Town Council From: Public Works Date: January 5, 2021 Subject: Ford Park Playground Landscape Renovation Contract Award I. ITEM/TOPIC Award of a construction contract to construct improvements for the renovation of the landscaping around the Ford Park Playground. II. ACTION REQUESTED OF COUNCIL Staff requests the Council authorize the Town Manager to enter into a Construction Contract Agreement with GH Daniels III and Associates, Inc. in the amount of $69,054.00 for the Ford Park Playground Landscape Renovation. III. BACKGROUND The 2020 RETT Fund Project list (RFP-019) includes funding in the amount of $75K for the Ford Park Playground Landscape Renovation. This area is in poor condition and receives a considerable amount of foot traffic from the playground. Existing boulder walls are eroding soil on to the basketball court. Staff Landscape Architects have prepared a design for the landscaping which includes replacement of existing fencing, reconstruction of boulder walls additional landscape planting and irrigation system upgrades. The design of the Ford Park Playground Landscape Renovation was approved by the Design Review Board on October 7, 2020. Site photos and a copy of the design is attached to this memorandum for reference. Construction Documents for the renovation of the Ford Park Playground Landscape Renovation were put out to public bid on November 17, 2020. Bids for the work were received on December 15, 2020 with 3 bidders responding. GH Daniels III and Associates, Inc. submitted the low bid in the amount of $65,854,00. GH Daniels is a local company with considerable experience completing landscape construction projects for the Town. January 5, 2021 - Page 14 of 45 Town of Vail Page 2 The contractor is tentatively scheduled to perform the work beginning in early May 2021 and completing site work in late June 2021. IV. STAFF RECOMMENDATION Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with GH Daniels III and Associates, Inc. to construct improvements relative to the Ford Park Playground Landscape Renovation in the amount not to exceed $69,054.00. January 5, 2021 - Page 15 of 45 Town of Vail Page 3 Site Photos January 5, 2021 - Page 16 of 45 \ / \ / \ / \ / \ /\(2)EN(1)AA(1)PV(11)AG(5)RW(3)PM(3)PO(2)PC(2)AA(1)PA(1)AA(5)RW(2)PM(2)AA(3)RW(6)PM(7)RW(1)PA(1)AA(3)AG(1)PV(3)AG(3)AT(3)AG(1)PA(2)AA(5)EN(1)PC(3)AG(5)AT(5)EN(1)PV(6)PO(3)AFEX CRABAPPLEEX SPRUCEEX ASPENSSOD W/ 6" PREP'D SOILPERENNIAL POLLINATOR GARDENBY BETTY FORD ALPINE GARDENSPREP SOIL TO 6" DEPTH(5)RW(5)SEEINSERTBELOWNEW SPLIT RAIL FENCEWITH WIRE MESHX(5)RW(5)PMINSERTDESIGNED BYDATESHEETTOV JOB NO.FILE NAMEDept. of Public Works1309 Elkhorn DriveVail, CO 81657ph. 970-479-2158www.vailgov.comSCALEPLANTING PLANTRO11.17.201"= 10'6FORD PARK PLAYGROUND LANDSCAPEJanuary 5, 2021 - Page 17 of 45 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Public Works Shop L imited P reconstruction P roject Contract Award AC T IO N RE Q UE S T E D O F C O UNC I L: A uthorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Hyder Construction to perform the P ublic Works S hop L imited P reconstruction project in the amount of, and not to exceed, $345,500. AT TAC H ME N TS: Description Staff Memo January 5, 2021 - Page 18 of 45 To: Town Council From: Public Works Department Date: 1/5/2021 Subject: Public Works Shop Limited Preconstruction Project Contract Award I. ITEM/TOPIC Public Works Shop Limited Preconstruction Project Contract Award II. BACKGROUND The Public Works Shop expansion was approved within the 2021 budget process. In order to stay on schedule for a spring 2021 construction start. Initial early action items are required to move forward at this time. Hyder Construction, who was selected in 2019 through a competitive Construction Manager/General Contractor selection process. The work and value being added at this time is: 1. Shop Drawings and Engineering for Structural Steel $45,300 2. Place Order for Steel Materials Not Stocked Locally $75,000 3. Procure and Install All Exterior and Interior Switch Gear and Secondary Feeders from New Holy Cross Transformer, Main Disconnect and ATS to MDC New Electrical Room. in Install Conduit and Conductors from MDPO Panel Board in New Electrical Room to Existing Panels PP-2, PP-4, RP-7 and Fleet Office Panel Make All Terminations Required to Retire Existing Holy Cross Transformer on North Side of Building $150,000 4. Hyder Construction General Conditions for Early Contract Buyout Submittals and Planning $15,000 5. Preconstruction Fee for Hyder Construction Previous award $40,000 6. Shoring Design (Completed) $5,800 7. Total Direct Cost $331,100 8. Contractor Fee $14,555 9. Total Cost of Limited Notice to Proceed $345,500 *Fee of 5.0% is applied to $291,100 and is not a applied to the Preconstruction Fee January 5, 2021 - Page 19 of 45 Town of Vail Page 2 III. ACTION REQUESTED OF COUNCIL Authorize the Town Manager to enter into an agreement with Hyder Construction for the Public Works Shop Limited Preconstruction Project. IV. STAFF RECOMMENDATION Authorize the Town Manager to enter into an agreement, in a form approved by the Town Attorney, with Hyder Construction to perform the Public Works Shop Limited Preconstruction project in the amount of, and not to exceed, $345,500. January 5, 2021 - Page 20 of 45 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Ordinance No. 1, S eries of 2021, F irst Reading, An Ordinance Repealing and Reenacting Chapter 2 of Title 6 of the Vail Town Code Regarding Procedures for Disposing on Unclaimed Property in the Town P RE S E NT E R(S ): Craig Bettis, Vail Police Commander AC T IO N RE Q UE S T E D O F C O UNC I L: A pprove, approve with amendments or deny Ordinance No. 1, Series of 2021 upon first reading B AC K G RO UND: Ordinance No. 1, Series of 2021 would update the Vail Town Code to reflect the recent updates to Unclaimed Property A ct, C.R.S. §§ 38-13-101, et seq. (the "A ct"). S TAF F RE C O M M E ND AT IO N: A pprove, approve with amendments or deny Ordinance No. 1, S eries of 2021 upon first reading AT TAC H ME N TS: Description Memo Ordinance 1, Series 2021 January 5, 2021 - Page 21 of 45 TO: Town Manager Scott Robson FROM: Commander Craig Bettis Town Attorney Matt Mire DATE: January 1st 2021 SUBJECT: Adoption of Unclaimed Property Ordinance #1 Purpose Statement: This memorandum provides a brief overview of the recently updated Unclaimed Property Act, C.R.S. §§ 38-13-101, et seq. (the "Act") and the requisite reporting requirements for certain abandoned or unclaimed property. As of July 1, 2020, the Town needs to either comply with the Act in full or amend the Vail Town Code to opt out of the Act. As explained below, staff recommends that the Town "opt out" as in years past due to the administrative burden and cost to comply with the Act. In addition to the "opt out" provision, several amendments to the Vail Town Code are required to update the original ordinance, as reflected in the attached Ordinance No.1, Series 2021. Background: The Act provides for the reporting and delivery to the State Treasurer of certain unclaimed or abandoned property held by governmental entities. Generally, all intangible property unclaimed for more than 5 years after it became payable or distributable is presumed abandoned. However, for the Town's purposes, intangible property held by municipalities which remains unclaimed by the owner for more than one year after becoming payable or distributable is presumed abandoned. "Intangible property" is generally defined as any income or increment derived therefrom that is held, issued or owing in the ordinary course of business and includes "moneys, checks, drafts, deposits, interest, dividends and income." Property is payable or distributable notwithstanding the owner's failure to make demand or present any instrument or document required to receive payment. For the Town’s purposes, this most often includes items such as monies held in "lost and found", uncashed checks issued by the Town to vendors, uncashed court restitution checks, etc. Importantly, the Act does not apply to tangible personal property, which is what the Vail Town Code primarily addresses. Thus, bicycles, wallets and similar items that are found or turned in to the Police Department are not subject to the Act. Regardless of whether the Town opts in or out of the Act, the Town must report the existence of unclaimed property subject to the Act to the State Treasurer by November 1 of each year. All unclaimed property must be reported regardless of amount or value. The report must include certain specific requirements including the last known address January 5, 2021 - Page 22 of 45 Town of Vail Page 2 and name of each person appearing to be the owner; a description of the property; and the date the property became payable. The Town must also keep a record of any property where the name and last known address of the owner is known for a period of 5 years after the property becomes reportable. Under the Act, any unclaimed property held by any person is subject to the custody of the State unless another statute or local law provides otherwise. In other words, if the Town has adopted its own local law concerning disposition of unclaimed property subject to the Act, it is not required to comply with the procedures provided in the Act for handing such property over to the State. However, even if the Town adopts a local ordinance, the Town is not exempt from the reporting requirements. To opt out of the Act, the Town would need to take the following steps: 1. Adopt an ordinance relating to the disposition of property, which ordinance must require the local government to hold the property for the owner for at least 5 years after the date it is presumed abandoned. In addition, property held by a government is abandoned "one year after the property becomes distributable." Thus, the Town must retain abandoned property for at least 6 years; and 2. Provide the State with an electronic report by November 1 of each year that includes an alphabetical list of the purported owners of the property and the value of the property held. Chapter 2 of Title 6 of the Vail Town Code currently governs all tangible and intangible lost, abandoned or unclaimed property in the Town. To comply with the Act, we have now separated the definitions of unclaimed property and abandoned intangible property. Unclaimed property is all property not subject to the Act and can be regulated freely by the Town. As requested, we have amended the Code to provide that this property will be held for 180 days before it will be disposed of as the Town deems proper, including donating any such unclaimed property to charity. Abandoned intangible property must be held for a year before being deemed "abandoned" and then held for a period of five years thereafter before it can become the property of the Town and disposed of. Conclusion While the reporting requirements remain regardless of what the Town decides to do, staff recommends that the Town "opt out" of other provisions of the Act due to significantly increased administrative burden and cost. While "lost and found" items do not amount to high dollar volume, other intangibles such as uncashed checks issued by the Town can be significant. Currently, after an extended period of time and effort to find the rightful owner, the Town ultimately returns abandoned property to the General Fund. The Town will be responsible for reporting most abandoned intangible property to the State on an annual basis. In the attached Ordinance, we have made the required amendments to the Vail Town Code to "opt out" of the Act, as well as making several administrative updates. January 5, 2021 - Page 23 of 45 12/28/2020 S:\TOWN COUNCIL AGENDA ITEMS\2021\010521\UNCLAIMED PROPERTY-O122320.DOCX ORDINANCE NO. 1 SERIES 2021 AN ORDINANCE REPEALING AND REENACTING CHAPTER 2 OF TITLE 6 OF THE VAIL TOWN CODE REGARDING PROCEDURES FOR DISPOSING OF UNCLAIMED PROPERTY IN THE TOWN NOW BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO, THAT: Section 1. Chapter 2 of Title 6 of the Vail Town Code is hereby repealed in its entirety and reenacted as follows: 6-2-1: DEFINITIONS: For purposes of this Chapter, the following terms shall have the following meanings: ABANDONED INTANGIBLE PROPERTY: Any fixed and certain interest in intangible property held, issued, or owned in the ordinary course of the Town's business, including without limitation cash, checks, drafts, deposits, interest, dividends, income, credit balances, customer overpayments, gift cards, refunds, unpaid wages or pension benefits, reimbursements, stocks, unpaid wages, and interest or income derived therefrom that is held by or under the control of the Town that has not been claimed by its owner for a period of more than one (1) year after the property became distributable. OWNER: A person that owns unclaimed property held by the Town or their duly authorized legal representative or successor in interest. UNCLAIMED PROPERTY: Any tangible or intangible property, except abandoned intangible property, that is held by or under the control of the Town that has not been claimed by its owner for a period of more than one hundred and eighty (180) days after the Town took possession of the property. 6-2-2: PROCEDURES: A. Personal Notice: Prior to disposition of any unclaimed property having an estimated value of one thousand dollars ($1,000) or more or any abandoned intangible property regardless of value, the Police Department shall give written notice by certified mail, return receipt requested, to the last known address of a known owner of the unclaimed property or the abandoned intangible property. The notice shall include a description of the property, the estimated value of the property, and the location where the owner may pick up the property. The notice shall also state that if the owner fails to provide the Police Department with a written claim for the return of any unclaimed property within thirty (30) days of the date of the notice for January 5, 2021 - Page 24 of 45 2 12/28/2020 S:\TOWN COUNCIL AGENDA ITEMS\2021\010521\UNCLAIMED PROPERTY-O122320.DOCX unclaimed property, or five (5) years for abandoned intangible property, the property shall become the sole property of the Town and any claim of the owner to such property shall be deemed forfeited. B. Notice by Publication: Prior to disposition of any unclaimed property having an estimated value of one thousand dollars ($1,000) or more and having no known owner or disposition of any abandoned intangible property, or when the Town has no last known address of the owner, the Police Department shall cause a notice to be published on the Town's website. The notice shall include a description of the property and the estimated value of the property. The notice shall also state that if the owner fails to provide the Police Department with a written claim within thirty (30) days of the date of the publication of the notice for unclaimed property, or five (5) years for abandoned intangible property, the property shall become the sole property of the Town and any claim of the owner to such property shall be deemed forfeited. C. Time Limits: 1. If the Police Department receives no timely written claim, the property shall become the sole property of the Town and any claim of the owner to such property shall be deemed forfeited. 2. Any unclaimed property of less than one thousand dollars ($1,000) shall become the sole property of the Town thirty (30) days after it becomes unclaimed property. 3. Any abandoned intangible property shall become the sole property of the Town five (5) years after it becomes abandoned intangible property. D. Claims: The Police Department shall evaluate each timely written claim and give written notice within thirty (30) days that the claim has been accepted or denied in whole or in part. The Police Department may investigate the validity of the claim and may request further supporting documentation from the claimant. If there is more than one claimant for the same property, the Police Department may, in its sole discretion, resolve said claims, or may file an interpleader action. If any claim is denied, the property shall become the sole property of the Town and any claim of the owner of such property shall be deemed forfeited. The Police Department's decision shall be final, subject only to judicial review as provided by law. 6-2-3: EXEMPTIONS: Vehicles subject to impoundment are exempt from this Chapter. January 5, 2021 - Page 25 of 45 3 12/28/2020 S:\TOWN COUNCIL AGENDA ITEMS\2021\010521\UNCLAIMED PROPERTY-O122320.DOCX 6-2-4: DISPOSITION: In the event unclaimed property or abandoned intangible property becomes the property of the Town under this Chapter, or is otherwise deemed forfeited to the Town, the Police Department may elect to retain the property for use in the conduct of Town business, may elect to donate the property to a non-denominational charitable organization serving the citizens of the Town, or may elect to sell the property at public auction. The sale and conveyance of any such property is without right of redemption. If no bid is made for an item offered for sale, it shall remain the property of the Town and the Town may either retain the property or dispose of it. Section 2. If any part, section, subsection, sentence, clause or phrase of this ordinance is for any reason held to be invalid, such decision shall not affect the validity of the remaining portions of this ordinance; and the Town Council hereby declares it would have passed this ordinance, and each part, section, subsection, sentence, clause or phrase thereof, regardless of the fact that any one or more parts, sections, subsections, sentences, clauses or phrases be declared invalid. Section 3. The amendment of any provision of the Vail Town Code in this ordinance shall not affect any right which has accrued, any duty imposed, any violation that occurred prior to the effective date hereof, any prosecution commenced, nor any other action or proceeding as commenced under or by virtue of the provision amended. The amendment of any provision hereby shall not revive any provision or ordinance previously repealed or superseded unless expressly stated herein. Section 4. All bylaws, orders, resolutions and ordinances, or parts thereof, inconsistent herewith are repealed to the extent only of such inconsistency. This repealer shall not be construed to revise any bylaw, order, resolution or ordinance, or part thereof, theretofore repealed. INTRODUCED, READ ON FIRST READING, APPROVED, AND ORDERED PUBLISHED ONCE IN FULL ON FIRST READING this 5th day of January, 2021 and a public hearing for second reading of this Ordinance is set for the ___ day of ______________, 2021, in the Council Chambers of the Vail Municipal Building, Vail, Colorado. _____________________________ Dave Chapin, Mayor ATTEST: ____________________________ Tammy Nagel, Town Clerk January 5, 2021 - Page 26 of 45 4 12/28/2020 S:\TOWN COUNCIL AGENDA ITEMS\2021\010521\UNCLAIMED PROPERTY-O122320.DOCX READ AND APPROVED ON SECOND READING AND ORDERED PUBLISHED this ___ day of _______________, 2021. _____________________________ Dave Chapin, Mayor ATTEST: ____________________________ Tammy Nagel, Town Clerk January 5, 2021 - Page 27 of 45 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: Dead Drift Development, represented by J ack S now of R K D Architecture, requests a Construction L icense A greement to install temporary soil nails in Town of Vail Open S pace P RE S E NT E R(S ): J onathan S pence, Planning Manager and Tom Kassmel, Town E ngineer AC T IO N RE Q UE S T E D O F C O UNC I L: T he Community Development Department requests that the Town Council evaluate the proposal to utilize Town of Vail property for sub-surface soil nails. This utilization of Town of Vail property would be subject to the terms of a construction license agreement. B AC K G RO UND: Dead Drift Development, represented by J ack Snow of R K D A rchitecture, requests a Construction L icense A greement to install temporary soil nails in Town of Vail property in the open space strip of land separating 1390 and 1469 Greenhill Ct. S TAF F RE C O M M E ND AT IO N: T he Community Development Department recommends that the Vail Town Council instructs the Town Manager to: S ign the Construction L icense Agreement on behalf of the property owner. AT TAC H ME N TS: Description Staff Memorandum Attachment A. Applicant's Narrative Attachment B. Proposed Plan including photo Attachment C. Draft License Agreement January 5, 2021 - Page 28 of 45 TO: Vail Town Council FROM: Community Development Department DATE: January 5, 2021 SUBJECT: Construction License Agreement for Temporary Soil Nails in Town of Vail Property in the vicinity of 1390/1469 Greenhill Ct. I. DESCRIPTION OF REQUEST Dead Drift Development, represented by Jack Snow of RKD Architecture, requests a Construction License Agreement to install temporary soil nails in Town of Vail property in the open space strip of land separating 1390 and 1469 Greenhill Ct. A new two-family residence is currently under construction on 1469 Greenhill Ct. The purpose of the soil nails is to increase the project efficiency and safety while reducing cost and minimizing site disturbance. II. BACKGROUND/PROPOSAL Dead Drift Development received Design Review Board approval for a new two-family residence in August of 1999. 1469 Greenhill Ct. (Lot 11, Glen Lyon Subdivision) is a 0.706 acre vacant parcel with significant steep slopes. To ease in the constructability of the lot and to minimize site disturbance, the applicant has requested the use of the adjacent town-owned open space property. The graphic below shows the property under construction and the adjacent properties. The large parcel to the south of the subject property is Tract D of the Glen Lyon Subdivision, a 19.12 acre open space parcel. The Glen Lyon Subdivision is Special Development District No. 4 and has no underlying zoning. Per the Special Development District, these residential lots generally follow the Two-Family Primary Secondary P/S District. January 5, 2021 - Page 29 of 45 Town of Vail Page 2 The Town of Vail has approved similar requests to utilize town property for soil nails including the following projects: Within the Right of Way • Solaris (Village Center Drive & East Meadow Drive) • Landmark (West Lionshead Circle) • The Lion (West Lionshead Circle) • Lions Square Lodge North (West Lionshead Place) • Vail Health (West Meadow Dr) • 100 Vail Road (Forest Road) Within other Town-owned properties • Arrabelle (LH Tract C; LHMP/LMU) • Solar Vail (Red Sandstone School; Public/GU) • Solar Vail (Middle Creek Tract A; Open Space/NAP) Please see the applicant’s narrative (Attachment A), the proposed site plan/photo (Attachment B) and a draft license agreement (Attachment C) included with this report. January 5, 2021 - Page 30 of 45 Town of Vail Page 3 III. ACTION REQUESTED The Community Development Department requests that the Town Council evaluate the proposal to utilize Town of Vail property for sub-surface soil nails. This utilization of Town of Vail property would be subject to the terms of a construction license agreement. The Community Development Department recommends that the Vail Town Council instructs the Town Manager to: • Sign the Construction License Agreement on behalf of the property owner. IV. ATTACHMENTS A. Applicant’s narrative B. Proposed Plan including photo C. Draft License Agreement January 5, 2021 - Page 31 of 45 Vail Town Council 75 S. Frontage Road, Vail, CO 81657 December 26, 2020 RE. 1469 Greenhill Court Dear Town Council, On behalf of Dead Drift Development, owners of the above property, we are requesting the use of temporary shoring nails into the town’s property, Tract D (indicated on the attached PDF). As you may know the use of temporary soil nails are permitted in the town’s right of ways, but since Tract D is a not a designated as a right-of-way we are making this request. The soil nails should save time, increase safety and help to minimize site disturbance- thus helping preserve the existing aspen grove. See attached photo – the area between the highlight and the fence (property line) are at issue and those are trees we hope to preserve. All work foundation below the temporary shoring should be completed by the end of March, with backfill beginning as soon as possible pending the weather. Other permanent shoring is highlighted on the attached plan, but no permanent shoring will be on Town of Vail Property. Please see attached plan, cross section (showing the worst case/highest cut scenario), photograph and additional requested backup material from the civil engineer. Thank you for your consideration of this matter. Sincerely, Jack K. Snow A.I.A. January 5, 2021 - Page 32 of 45 January 5, 2021 - Page 33 of 45 January 5, 2021 - Page 34 of 45 CONSTRUCTION LICENSE AGREEMENT THIS CONSTRUCTION LICENSE AGREEMENT (“Agreement”) is made as of the _______ day of _______________, 20__, by and between the TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado (the “Town”), and _____________________________________________________ (“Developer”). RECITALS: A. The Developer is the owner of certain real property situate at ______________, in Town of Vail, which is commonly known or referred to as “______________.” The property is legally described on Exhibit A attached hereto and incorporated herein by this reference (the “_____________”). The Developer intends to commence the redevelopment and construction on the ______________ Property pursuant to the approved Development and Building Permit plans referenced under BP-_______. B. The ____________ Project is bounded by certain Town public rights-of- way, namely ____________________________________________________ (the “Rights-of- Way”). Certain portions of these Rights-of-Way are sometimes referred to hereinafter as the “Licensed Areas.” In order to commence construction of the _______________ Project, the Developer has requested that the Town grant a irrevocable license to install and use, within the Licensed Areas, tieback anchors or soil nails and other non-vertical components of a construction shoring system that are necessary to provide interim support for and to stabilize construction, excavation and installation for the Developer Project and to prevent subsidence of soils during the course of construction (the “Shoring System”). Developer has also requested that the Town grant a irrevocable license to install and use, within the Licensed Areas, dewatering wells, pumps, manifold piping and other elements that are necessary in connection with the dewatering of the Developer Project site (the "Dewatering System"). The construction and installation process for the Shoring System and the Dewatering System within the Licensed Areas is sometimes referred to hereinafter as the “Construction.” The Town has determined to grant the requested license in accordance with and subject to all the terms and provisions of this Agreement. NOW, THEREFORE, in consideration of the above premises, and the mutual covenants and agreements set forth herein, the Town and Developer covenant and agree as follows: January 5, 2021 - Page 35 of 45 2 1. Grant of License; Term. (a) The Town hereby grants the Developer a temporary, non-exclusive construction license within the Licensed Areas, which license is and shall be irrevocable and coupled with an interest and non-terminable (the “License”), for the construction, installation, operation, testing, inspection, maintenance, use and enjoyment of the Shoring System and the Dewatering System in conjunction with and throughout the course of the construction, installation and development of the Developer Project. Developer agrees, in consideration of the grant of the License, that the Shoring System and the Dewatering System shall be undertaken in material conformity with the plans and drawings therefor submitted to and reviewed by the Town in conjunction with the issuance or pending issuance by the Town of an excavation or building permit for the Developer Project, as the same may be subsequently modified with the Town’s approval (the “Plans”). (b) The License shall become effective as of the date hereof, and shall remain in full force and effect until the completion of the construction of the _______________ Project, which for this purpose shall be deemed to occur (i) only at such time as Developer secures a temporary or permanent certificate or certificates of occupancy issued by the Town which authorizes the ongoing occupancy, use and enjoyment of all building improvements within the Developer Project, or (ii) if and when Developer at its election voluntarily relinquishes its rights under the License by a written instrument to that effect executed by Developer (which written instrument shall be recorded if this Agreement is also recorded), or (iii) if and when the Developer of the Project fails to reasonably pursue major construction activity pursuant to the subject building permit for a period of more than one year, at which time the Developer shall mitigate any necessary shoring by other means. The License may be used and enjoyed by Developer and its agents, employees, contractors, and designees, and any other agents, contractors and invitees acting by, through or under any of them (collectively the “Permittees”). 2. Construction Process. (a) The Developer covenants that the Construction will be undertaken in a good and workmanlike manner in material conformity with the Plans, and otherwise in conformity with all applicable legal construction requirements as applied and enforced by the Town, pursuant to customary drilling construction methods for purposes of minimizing noise and vibration, and in accordance with other good construction practices to avoid any physical damage to the surface of the Rights-of-Way (except as expressly permitted hereunder), or any resulting failure of subjacent support for the surface of the Rights-of-Way. Should there arise any failure of subjacent support for the surface of the Rights-of-Way, Developer will be solely responsible for restorations as necessary to bring the surface of the Rights-of-Way back into substantially the same or better condition in which the surface existed before such damages or failure of support, and to restore any impaired subjacent support therefor, subject to modifications that are in conformity and/or consistent with the approved plans and specifications governing the January 5, 2021 - Page 36 of 45 3 development of the Developer Project, or required pursuant to the Development Agreement. (b) The Developer will assume full responsibility for any and all damages incurred by Utility Company (as hereinafter defined) facilities within the Licensed Areas that may be caused by the Construction. For purposes of this Agreement, “Utility Company” refers to any company, government entity, or agency that has legally installed public or quasi-public utility facilities within the Licensed Areas, including, but not limited to, Eagle River Water and Sanitation District, Excel Energy, Holy Cross Energy, Comcast Corporation, and Qwest Corporation. Any replacements or repairs of Utility Company facilities which are necessitated because of damage thereto caused by the Construction shall be made at the sole expense of Developer, with the remedial work being undertaken by Developer or the respective Utility Company as the Utility Company may elect; if the remedial work is undertaken by the applicable Utility Company, Developer will reimburse the Utility Company for its out-of-pocket hard construction costs incurred therefor, provided the Utility Company shall reasonably confer with Developer in furtherance of minimizing those costs before commencing the work. Any such reimbursement will be due and owing within thirty (30) days after notice thereof from the Utility Company, accompanied by paid invoices and other documentation reasonably substantiating the incurrence and payment of the subject costs. The foregoing obligations of Developer shall not apply to any damaged facilities that are being replaced by other facilities in conjunction with the Developer Project and to be no longer used for providing service. Developer will, however, bear the obligation and cost for any relocation of Utility Company facilities previously located within the Licensed Areas which are to be relocated under the terms of the approved plans for the Developer Project. 3. Non-Exclusive. The License shall be non-exclusive to the extent that the Town may retain all rights to use the Licensed Areas that are materially consistent and do not materially interfere with the use and enjoyment of the License, the Dewatering System and the Shoring System by Developer and the Permittees. The Town specifically agrees that the Town shall not do or permit anything to be done which physically disturbs or impairs the function of the Dewatering System or the Shoring System during the course of the Construction or the development of the Developer Project. 4. Completion. (a) Upon the completion of the construction of the Developer Project, as such completion is defined in paragraph 1(b) above, the License shall terminate, the Town shall hold the Licensed Areas free from the License, and Developer will have no further right to the use and enjoyment of the License, the Dewatering System or the Shoring System and shall be deemed to have abandoned the same. It is agreed that upon such termination of the License, the Dewatering System and the Shoring System will be abandoned in place within the Licensed Areas, and Developer will have no obligation or duty to remove the same, except as provided below: January 5, 2021 - Page 37 of 45 4 (i) Developer will remove any components of the Shoring System and the Dewatering System located on the surface or within forty-eight (48) inches below the surface of the Licensed Areas; and (ii) In the event that any maintenance or new construction for utility, public transportation or drainage facilities within the Licensed Areas, whether undertaken by the Town, any Transportation Authority or any Utility Company, requires excavation that necessitates the removal of components of the Shoring System or the Dewatering System, the Town may require Developer to bear the additional incremental, out-of-pocket hard construction costs that are incurred by the Town or applicable Transportation Authority or Utility Company in order to remove the subject components of the Shoring System. The Town, Transportation Authority or Utility Company, as applicable, will confer reasonably with Developer in furtherance of minimizing the amount of those costs before commencing the removal work. Such incremental costs shall be paid by Developer directly to the Town, the applicable Transportation Authority or Utility Company within thirty (30) days after notice thereof, such notice to be accompanied by paid invoices and other documentation reasonably substantiating the incurrence and payment of the costs to be so reimbursed. The Town’s rights under this paragraph (ii) shall not apply until the termination of the License, and during the term of the License the Town will warrant and defend Developer and the Permittees in the use and enjoyment of the License and related possession of the Licensed Areas, without interference by third-party claims or interests. The obligations of Developer under this paragraph (ii) may be delegated and assigned of record, in whole or in part, to the owner from time to time of a specified portion of the Developer Project (which may include a specified portion owned by Developer), in which event, and notwithstanding any provisions to the contrary in paragraph 5 below, the owner from time to time of the specified portion of the Developer Project will become solely liable for the delegated and assigned obligations, so long as the assignee owner accepts such obligations by recorded instrument; moreover, Developer may also delegate and assign all or part of its obligations under this paragraph (ii) to any owners association formed with powers of governance in connection with the Developer Project, or any metropolitan district formed under Colorado law with jurisdiction over the Developer Project, and (again notwithstanding the provisions to the contrary in paragraph 5 below) such association or district shall become solely responsible for those obligations to the extent the association or district assumes or undertakes such obligations. (b) Upon abandonment of the Dewatering System and the Shoring System under paragraph 4(a) above, the Town, in turn and at its election, and without Developer having any resulting obligation in connection therewith, may leave the Dewatering System and the Shoring System in place or otherwise manage, treat or dispose of the Dewatering System and the Shoring System within the Licensed Areas in any manner permitted by law, and Developer will have no further obligation in connection with the Dewatering System or the Shoring System from and after such abandonment, subject, however, to Developer’ express obligations under paragraph 4(a) January 5, 2021 - Page 38 of 45 5 above pertaining to required removals. Upon the termination of the License due to completion of construction or otherwise, either party, upon the request of the other, shall execute and deliver a recordable instrument confirming that such termination has occurred. 5. Successors in Interest; Assignment. With respect to the Developer, the License shall constitute a non-appurtenant right and interest in favor of the Developer, akin to an easement in gross, and Developer’ interests therein and under this Agreement shall not run to the benefit of any successor owner of the _______________ Property. However, such interests, including the License, and/or any obligations of the Developer hereunder, may be assigned and/or delegated by the Developer, in whole or part and pursuant to written instrument, to any other party acquiring an ownership interest in the _____________ Property or any portion thereof, or any party engaged in the undertaking of the _____________ Project. Notwithstanding any such assignment or delegation or any succession of ownership interests in the _____________ Property, the Developer will remain liable for its obligations hereunder (subject, however, to the provisions of paragraph 4(a)(ii) above). No present owner or successor in interest in and to the _____________ Property, or any portion thereof, will have any obligation for any of the Developer’ obligations hereunder except as provided in any written assumption made by such owner or successor as an assignee of Developer hereunder. In the case of any assignment, and subject to the foregoing provisions, the term “_______________” hereunder shall mean the assignee then holding the Developer’s rights hereunder. The License and the terms of this Agreement shall touch and concern and run with the land as a burden and benefit to the ownership of the Licensed Areas. 6. Monitoring. Developer shall provide for the monitoring of any movement that may result in damage to any Town owned Structures. Such monitoring activities shall be performed in accordance with the monitoring plan attached hereto as Exhibit B and incorporated herein by this reference (the "Monitoring Plan"). Developer shall install a sufficient number of monument measuring devices (“Monument Devices”) to establish an informational base of existing building and improvement conditions. All Monument Devices shall be installed and maintained in good condition at the Developer’s expense. 7. Structure Remediation. In the event that the Developer's shoring, dewatering, and/or other construction activities cause any damage to any Structures, the Developer shall, at its own cost and expense, repair such damage and return the Structures to their previous existing condition or better by means permitted by law and approved by the Town. 8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado. 9. Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and any prior or extrinsic agreements or understandings with respect to the subject matter hereof, whether oral or written, are superceded hereby. 10. Waiver and Amendment. In no event shall any failure by Developer or the Town to enforce any provision in this Agreement be deemed a waiver of the right to enforce January 5, 2021 - Page 39 of 45 6 such provision thereafter. This Agreement may be amended, and any provision hereof may be waived, only to the extent set forth in a written instrument executed by the party against whom enforcement of such amendment or waiver is sought. 11. Attorneys’ Fees. In the event any legal proceeding arises out of this Agreement and is prosecuted to final judgment, the prevailing party shall be entitled to recover from the other all of the prevailing party’s costs and expenses incurred in connection therewith, including reasonable attorneys’ fees (and any presiding court shall be bound to make this award). 12. Recordation. This Agreement shall be recorded in the real property records for Eagle County, Colorado, at the expense of the Developer. 13. Counterparts. This Agreement may be executed in counterparts, each of which shall constitute and original, and which together shall constitute one and the same agreement. IN WITNESS WHEREOF, the Town and Developer have made this Construction License Agreement as of the day, month and year first above written. TOWN OF VAIL, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado By: Greg Clifton, Town Manager ATTEST: By: Tammy Nagel, Town Clerk STATE OF COLORADO ) ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this ______ day of _________________, 20__, by Greg Clifton as Town Manager of the Town of Vail, a municipal corporation duly organized and existing under and by virtue of the laws of the State of Colorado. WITNESS my hand and official seal. My commission expires: . Notary Public [Signature/notary blocks continue on next page] January 5, 2021 - Page 40 of 45 7 _______________________ _______________________ _______________________ _______________________________________ By: Name: Title: STATE OF COLORADO ) ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this _______ day of __________________, 20__,by __________________________ as ______________________ of __________________________, a ____________________________. WITNESS my hand and official seal. My commission expires: . Notary Public January 5, 2021 - Page 41 of 45 A-1 EXHIBIT A Legal Description of ______________ Property (Attached) January 5, 2021 - Page 42 of 45 B-1 EXHIBIT B Monitoring Plan The attached Sketch No. 1 indicates the _____ Survey Monitoring Point (SMP’s) locations based on discussions with the Town Engineer, Town of Vail. The monitoring of SMP’s PS-1 through PS-__ will be as shown in the following table: Milestone of Work Monitoring Frequency Approximate Dates Pre-Dewatering/Excavation Two Times Dewatering Commenced Once every two weeks for the first three months and then once a month for balance of this phase. Foundation 100% Constructed Once a month, for four months or until survey readings do not change significantly and once prior to theissuance of any Temporary and/or Final Certificate of Occupancy is issued. Reports will be generated by __________________________ and transmitted after each monitoring survey. The installation of SMP’s and the periodic surveying is the responsibility of the Developer. Developer will transmit copies of the periodic SMP reports to the Town of Vail. January 5, 2021 - Page 43 of 45 B-2 Location of Survey Monitoring Points (Attached) January 5, 2021 - Page 44 of 45 VA I L TO W N C O UNC I L A G E ND A ME MO I T E M /T O P I C: A djournment 6:35 pm (estimate) January 5, 2021 - Page 45 of 45