Loading...
HomeMy WebLinkAboutCity Council Agenda Packet 01/28/20136:45 p.m. Pre-Meeting CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING January 28, 2013 7:00p.m. Individuals with disabilities are encouraged to participate in all public meetings sponsored by the City of Wheat Ridge . Call Heather Geyer, Administrative Services Director, at 303-235-2826 at least one week in advance of a meeting if you are interested in participating and need inclusion assistance. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL OF MEMBERS APPROVAL OF MINUTES OF January 14, 2013 PROCLAMATIONS AND CEREMONIES CITIZENS' RIGHT TO SPEAK a. Citizens, who wish, may speak on any matter not on the Agenda for a maximum of 3 Minutes and sign the Public Comment Roster. b. Citizens who wish to speak on Agenda Items, please sign the GENERAL AGENDA ROSTER or appropriate PUBLIC HEARING ROSTER before the item is called to be heard. APPROVALOFAGENDA L CONSENTAGENDA a. Motion to approve payment to Colorado Intergovernmental Risk Sharing Agency (CIRSA) for 2013 Workers' Compensation Premium in the amount of $384,776 and 2013 Property/Casualty Premium in the amount of $185,394 b. Resolution 05-2013 -adopting the City of Wheat Ridge Investment Policy c. Resolution 08-2013-amending the Fiscal Year 2012 General Fund Budget to reflect the approval of a supplemental budget appropriation in the amount of $21,023 for the annual Sales Tax Share to Renewal Wheat Ridge CITY COUNCIL AGENDA: January 28 , 2013 Page -2- PUBLIC HEARINGS AND ORDINANCES ON SECOND READING .f.. Council Bill No . 02-2013 -An Ordinance amending Section 16-131 and Section 16-133 of the Code of Laws concerning possession of marijuana and drug paraphernalia ~ Resolution No. 06-2013 -Authorizing the execution of an Agreement with Colorado Plus Liquid Art Works, Inc. for participation in the Enhanced Sales Tax Incentive Program (ESTIP) rebating 50% of the Enhanced Sales Tax for a period of five years for the remodel of a restaurant at 6995 W . 38th Ave . in an amount not to exceed $76,200 4. Resolution No. 07-2013-Authorizing the execution of an Agreement with Colorado Plus Liquid Art Works Inc. to participate in the Wheat Ridge Business Development Zone Program for a rebate of 100% of the eligible Use Tax in association with the remodel of a restaurant at 6995 W . 38th Ave. in Wheat Ridge . DECISIONS, RESOLUTIONS AND MOTIONS 5. Motion to reconsider the Council 's Decision on the Rezoning application (Case No . WZ- 12-08/Rock) 6. Motion to consider the Findings and Decision prepared for Zoning Application (Case No . WZ-12-08/Rock) CITY MANAGER'S MATTERS CITY ATTORNEY'S MATTERS ELECTED OFFICIALS' MATTERS ADJOURNMENT to Special Study Session CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING January 14, 2013 Mayor DiTullio called the Regular City Council Meeting to order at 7 :00p.m. PLEDGE OF ALLEGIANCE ROLL CALL OF MEMBERS Davis Reinhart Joyce Jay Mike Stites Joseph DeMott Tracy Langworthy George Pond Kristi Davis Absent: Bud Starker Also present: City Clerk, Janelle Shaver; City Attorney, Gerald Dahl; City .Manager, Patrick Goff; Community Development Director, Ken Johnstone; Public Works Director, Tim Paranto; Parks and Recreation Director, Joyce Manwaring; Police Chief, Dan Brennan; interested parties and interested citizens. APPROVAL OF MINUTES OF December 10, 2012 Motion by Mr. Stites for approval of the Minutes of December 10, 2012; seconded by Mr. De Mott; carried 7-0. PROCLAMATIONS AND CEREMONIES Rotary Presentation Mike Herman from WR Rotary presented Mayor DiTullio with a check to the City for $3,000, the second of four installments to be used for public art and the dog park. Deputy City Clerk Bruce Roome. Certified Municipal Clerk Recognition Clerk Shaver outlined the extensive requirements necessary for Bruce to become a Certified Municipal Clerk. Mayor DiTullio presented to Bruce the mounted diploma of certification from the International Institute of Municipal Clerks. CITIZENS' RIGHT TO SPEAK Eileen Leslie, owner of Walker Transmission, explained some problems she has had with the City's tax division. At issue is the interpretation of the City Code. She reported that the City refused to meet with her because she was not the owner at the time of the audit. This has hurt the reputation of her business. She was a practicing CPA for 15 years and feels the City needs an outside oversight on its conduct and would like to present her complaint to the Council directly. City Council Minutes January 14, 2013 Page 2 Jeff Stevens , local artist, is on the Board of Directors of the American Council for the Blind . He spoke about the in-home sight for seniors program they have. They are starting a fund raising program thru March to raise $10,000 and would like to find businesses that would put donation jars out to help them raise funds . Julie Marshall has lived in WR for 6 years on a Section 8 voucher and said her most recent location near 38 1h & Dover is a slum , with bad problems of mold and electrical issues . Revenue is being lost in all cities across the state . She 's lived in several states and believes Colorado is the worst for providing federally compliant Section 8 housing. She hasn't been able to find one 1-bedroom Section 8 house that qualifies under federal guidelines. She is now homeless and asks that landlords please be held accountable . Britta Fisher of WR2020 invited the Council and the public to a community potluck on the last Wednesday of each month in January, February , and March . This film and potluck series is put on by the Live Local Harvest program . After the meal a local farmer will introduce a film about food, and discussion will follow. The events will be held at the Active Adult Center with the meal at 6 :30pm and the film at 7:00. She thanked Councilmember Pond for helping sponsor this event and the City for making the Active Adult Center available. APPROVAL OF THE AGENDA ~ CONSENTAGENDA a . Resolution 01-2013-designating the City Hall Lobby as the Official Public Notice location and the Wheat Ridge Transcript as the official newspaper of general circulation for the City of Wheat Ridge , Colorado b . Motion to encumber funds for on-call storm sewer cleaning and on-call traffic signal repair services in a total amount not to exceed $85 ,000 for 2013 c . Resolution 02-2013-amending the Fiscal Year 2012 General Fund Budget to reflect the approval of a supplemental budget appropriation in the amount of $3 ,007 for payment to Jefferson County Clerk and Recorder for conduct of the November 6 , 2012 General Election . d . Motion to award RFB-13-04-2013 to JPK Micro Supply , Inc. in the amount of $36 ,300 for the scheduled upgrade , replacement and standardization of the City 's Computer Network e . Motion to approve the support and licensing renewal with Logistic Systems , Inc. in the amount of $83 ,553 for computer aided dispatch , records management and mobile field reporting systems . f . Motion to approve payment of the Sales Tax Increment for November of Fiscal Year 2012 from the Town Center Project in the amount of $68 ,094 .80 to the Wheat Ridge Urban Renewal Authority City Council Minutes January 14, 2013 Page 3 g. Resolution 04-2013-approving an Intergovernmental Agreement between the City of Wheat Ridge and the City of Lakewood concerning Academy Training for Police Officer Recruits. Mr. DeMott introduced the Consent Agenda. Motion by Mr. DeMott to approve the consent agenda; seconded by Mr. Reinhart; carried 7-0 PUBLIC HEARINGS AND ORDINANCES ON SECOND READING 2. Council Bill No. 26-2012-An Ordinance approving the rezoning of property located at 12600 W. 42nd Ave. from Agricultural-One (A-1) to Mixed Use- Neighborhood (MU-N) (Case No. WZ 12-08/Rock) Mayor DiTullio opened the public hearing. Mrs. Langworthy introduced Council Bill No. 26-2012 and read the executive summary. Clerk Shaver assigned Ordinance No. 1530. Mayor DiTullio swore in the speakers for this public hearing. Staff Report: Meredith Reckert of the Community Development (Planning) staff entered appropriate documents into the record and distributed a legal protest submitted by adjacent neighbors. -The subject property is bordered on the east, south and west by A-1 properties, including the WR Greenbelt to the south. RC zoning is across the street to the north.-The application to MU-N would allow multi-family residential, limited commercial and live/work. Strict design standards would be required, and standard height limits would apply. Buffering for commercial use would be required. If this rezoning is approved the next step would be a site plan review by staff. A neighborhood meeting was held March, 2012. The Planning Commission heard the case on October 18, 2012, and recommended denial. Staff recommends approval. Applicant: Tom Martinez, a real estate broker, spoke for the applicants Matt and Trudy Rock. He noted that the subject property was originally 2 separate properties that were purchased at different times from the Lee & Baugh Ditch Company and Coors. He said the immediate area has transitioned to commercial, industrial and office uses, so the Rock's feel their request is appropriate. The construction of residential that is suggested by neighbors and some Planning Commission members will not work. They feel a prior zoning change across the street has affected the practical uses of their land. -He cited the staff conclusions for approval, and challenged the Planning City Council Minutes January 14 , 2013 Page 4 Commission 's recommendation for denial. He said denial of this rezoning would be unfair to the applicant. Public Comment: Greg Boom lives on Xenon Street next to the Prospect Recreation maintenance Building and opposes this rezoning. He stated the Prospect Recreation building is zoned Agricultural and is not a commercial use; it's a very quiet neighbor. The roads in this neighborhood won't handle more traffic . He said the neighbors were told the MU-N zone is supposed to be a buffer , but the list of allowed uses for MU-N is long and could include things like a hospital , large apartments, or a grocery store. This is not a transition area ; it's designed for houses and families ; they prefer single family residential and think that use is very viable there . He reminded Council of the Planning Commission's recommendation for denial. Cindy Beckfeld was born on Xenon Street and grew up there. It is a residential area and the commercial uses that have come in have, contrary to what the neighbors were promised, adversely affected the neighborhood. The variety of trucks and semi 's that use Xenon drive too fast; they park on both sides of the street -making it like a one- way street ; and they're rude when you try to talk to them about the problems. The street isn 't big enough for the traffic that would be generated by yet another commercial business. Kathryn Murphy lives directly west of the subject property. She appealed to the Council 's common sense and hearts . She knows it's business and understands it will generate tax revenue for the City , but there comes a time when the people who live in the City should also be considered . She worked in the City for 13 years ; she shops here and encourages others to do so ; she supports the City . Their property is a family owned property from his husband 's great-grandmother. They were told the diesel business would not have an adverse effect on their neighborhood , but the size and volume of the trucks has had an extreme adverse effect on the neighborhood. She pointed out that the excessive noise , traffic and lighting generated by this rezoning will not meet the criteria for MU-N zoning. Additionally , in uncertain economic times, as businesses may come and go, the neighborhood has no assurance what might go in there. She drew attention to the Planning Commission minutes which point out that the rezoning would have a negative effect on adjacent property. The Planning Commission actually came down and walked the property and realized the negative impact this rezoning would have on the neighborhood . She pled with Council not to approve this. Marnie Boom reiterated that the Prospect Recreation facility is not an industrial area . It generates very little activity ; they are very respectful of the neighborhood and keep in good touch; they treat their property agricultural. The neighbors couldn't fight Head Start , which generates traffic 4 times a day and she feels is actually quite a hazard for the kids . There just is not room for another commercial property with traffic . The Rocks want to sell the property so this leaves the neighborhood no assurance about what would be built there . This area is a neighborhood and they want to preserve it. This City Council Minutes January 14 , 2013 Page 5 rezoning would not buffer anything, but would actually further split the neighborhood . - Mrs . Boom also read a letter from another neighbor, LaVonne Beckfeld, who is out of town right now. Mrs . Beckfeld has owned 2 residential properties on Xenon Street since 1940. -She explained how a little , non-invasive home business --a man who sharpened saw blades in his garage -was kicked out of the neighborhood when WR was incorporated because the City said they didn 't want businesses there .-Another incident developed over a dog day care. Some years ago a lady got hearty approval from the neighborhood and an OK from the City to temporarily care for dogs in her garage. The use was to terminate when she moved away . She moved , but the City couldn 't find the paperwork and three different kennels have been there since and it's now three times in size . -She mentioned the neighborhood meeting of last year that was attended by nearly all the residents on Xenon Street and even some from Vivian Street. All the neighbors voiced their opposition to the rezoning , but once again the City has gone against them . -She referenced the narrow street and doesn't think it can handle further commercial uses . She also referenced the Planning Commission members coming out and listening to them, and thanked them for their support of the neighborhood . Donna Mefford lives at the other end of the street , and asked that Council please keep th is agricultural zoning. The street can 't handle more traffic. A few councilmembers had questions of staff. Mr. Martinez offered rebuttal. Mayor DiTullio closed the public hearing . Motion by Mrs . Langworthy to DENY Council Bill No . 26-2012 , an ordinance approving the rezoning of property located at 12600 W . 42nd Avenue from Agricultural-One (A-1) to Mixed Use-Neighborhood (MU N) for the following reason(s): 1. The majority of the request does not meet the zone change criteria . 2 . More commercial use further destroys the integrity of the neighborhood. 3. The proposed zone change does not seem to create a buffer but rather encourages more commercial conversion . Seconded by Mrs. Jay; failed 4 -3 with Councilmembers DeMott , Stites , Davis and Pond voting no. Motion by Mr. DeMott to APPROVE Council Bill No. 26-2012 , an ordinance approving the rezoning of property located at 12600 W . 42nd Avenue from Agricultural-One (A-1) to Mixed Use-Neighborhood (MU N) for the following reason(s): 1. The proposed zone change is consistent with the goals and objectives of the Comprehensive Plan . 2. The proposed zone change is compatible with the surrounding area . 3 . The proposed zone change will not adversely impact the pub lic health , safety , or welfare . 4. The subject property is currently underutil ized , and a zone change may increase City Council Minutes January 14, 2013 Page 6 the likelihood of the site developing and serving as a transitional site between existing commercial and residential uses . Seconded by Mr. Reinhart; failed 4-3 with Councilmembers Davis, Jay and Langworthy voted no. Mr. Dahl confirmed that due to the legal protest 6 votes of the Council are required for passage . Motion by Mr. Reinhart to have Mr. Dahl write findings. Seconded by Mrs . Langworthy; carried 7-0. Mr. Dahl reminded the assembly that the action at the next meeting will not be a public hearing . The application wasn 't approved and that decision has been made. The next action will only be the acceptance of the findings . The Mayor called a short recess at 8 :30pm and the meeting reconvened at 8 :37 3. Council Bill No. 27-2012-An Ordinance approving the rezoning of property located at 3775 Benton St. from Planned Residential Development (PRO) to the Mixed Use-Neighborhood (MU -N) Zone District (Case No . WZ-12-09) Mayor DiTullio opened the public hearing . Ms . Davis introduced Council Bill No . 26-2012 and read the executive summary. Clerk Shaver assigned Ordinance No . 1530 Mayor DiTullio swore in the speakers for this public hearing . Staff Presentation Sarah Showalter of the Community Development Department entered all the packet materials into the record . The subject property is a vacant parcel that has commercial use to the north , R-1 B zoning and use to the west, a duplex (R-3) to the south and C -1 zoning across the street to the east. The current PRO zoning only allows for single family use and a height limit of 35 feet. The proposed MU-N zoning will allow a variety of residential uses , limited commercial uses or a mix. Fairly strict architectural standards would be in place to encourage quality development. Due to the narrowness and very small size of the property a commercial use is not really viable because the dimensions don 't accommodate a realistic structure or the drainage , parking , access and setback requirements. The applicant has expressed wanting to build something with a residential component. A 3-story , 3-unit residential structure would be possible . The neighborhood meeting brought out concerns about allowed uses . Staff thinks the zoning fits the area . Had th is property not had a PRO zoning at the time it could have been included in the legislative rezoning for 381h Avenue . City Council Minutes January 14, 2013 Page 7 Applicant: Property owner Suen Phommatha lives in Westminster but wants to move near his grandfather. He likes Wheat Ridge and wants to pull more young people to the area. There was no public comment. Mayor DiTullio closed the public hearing. Motion by Ms. Davis to approve Council Bill No. 27-2012, an ordinance approving the rezoning of property located at 3775 Benton Street from Planned Residential Development (PRO) to the Mixed Use-Neighborhood (MU-N) zone district, on second reading and that it take effect 15 days after publication; seconded by Mr. Reinhart; carried 7-0. ORDINANCES ON FIRST READING 4. Council Bill No. 01-2013-An Ordinance approving the rezoning of property located at 4335 Harlan Street from Restricted Commercial (RC) to Mixed Use Neighborhood (MU-N) (Case No. WZ-12-1 0/Fernandez) Mrs. Jay introduced Council Bill 01-2013. The property contains a single family home built in 1954. In 1975 it was converted for commercial use and has been used as such since that time. Many of the properties on this block are converted residences which now serve as low impact offices. The applicant would like to return the structure to residential use, but the change to a MU-N zone category would allow for a live/work option. Motion by Mrs. Jay to approve Council Bill No. 01-2013, an ordinance approving the rezoning of property located at 4335 Harlan Street from Restricted Commercial (RC) to Mixed Use-Neighborhood (MU N) on first reading, order it published, public hearing set for Monday, February 11, 2013 at 7 p.m. in City Council Chambers, and that it take effect 15 days after final publication; seconded by Mr. Reinhart; carried 7-0. ~ Council Bill No. 02-2013 -An Ordinance amending Section 16-131 and Section 16-133 of the Code of Laws concerning possession of marijuana and drug paraphernalia Mr. Reinhart introduced Council Bill 02-2013. Due to the pa~sage of Amendment 64 by the voters of Colorado in November, 2012 it is necessary to amend our Code to allow the recreational use of one ounce of marijuana and associated drug paraphernalia by persons 21 years of age and older. Motion by Mr. Reinhart to approve Council Bill No. 02-2013, an ordinance amending Sections 16-131 and 16-133 of the Wheat Ridge Code of Laws on first reading, order it City Council Minutes January 14, 2013 Page 8 published , public hearing set for Monday , January 28, 2013 at 7 p.m . in City Council Chambers, and that it take effect upon adoption and signature of the Mayor as provided by Section 5 .11 of the Charter; seconded by Mr . DeMott; carried 7-0 . DECISIONS, RESOLUTIONS AND MOTIONS 6 . Resolution 03-2013 -approving a Smoke-Free Policy in all parks, playgrounds and open space within the City of Wheat Ridge Mr. Stites introduced Resolution 03-2013. The resolution creates a new park rule and is not intended to be formally added to the City's Code of Laws . Motion by Mr. Stites to approve Resolution No . 03-2013, a resolution approving a smoke-free policy in all parks , playgrounds and open space within the City of Wheat Ridge ; seconded by Mrs. Langworthy; carried 7-0 . 7 . Motion to award RFQ-JN-12-35 to OHM Design of Denver, Co ., in the amount of $89,730 for the purpose of preparing the design and construction documents for the park at 44th and Kendall Ms . Davis introduced Item #7 . This contract includes design development, preparation of constructions documents, bidding and bid analysis services. Motion by Ms . Davis to award RFQ-JN-12-35 to OHM Design , Denver , CO, in the amount of $89,730 for the purpose of preparing the design and construction documents for the park at 44th and Kendall ; seconded by Mrs. Jay; carried 7-0 . !L Motion to approve payment in the amount of $215 ,500 to WR2020 for the purpose of funding a Revolving Loan Program for the Building Up Business and Home Improvement Loan Programs and other Community and Economic Development Programs . Mrs . Jay introduced Item #8. At the request of WR2020 the City has budgeted money to support the following : • $150,000 to support the Home Investment Loan Program (HIP) and Building Up Business Loan (BUBL) Program. 6% will be used for administration and a balance of $11 ,141 .54 currently exists in the fund. • $20,000 to support Live Local Wheat Ridge-a series of social events that support local restaurants and businesses . • $20 ,000 for the East Wheat Ridge Revitalizations Project , a matching grant program to help east WR residents with costs for painting, landscaping, tree trimming and other deferred maintenance . City Council Minutes January 14, 2013 Page 9 • $19,500 for neighborhood dumpster days, block parties, and community education . • $6,000 to administer the Community Development Block Grant Energy Efficiency Program. $157,000 in federal money is available to income qualified households for energy efficient upgrades such as windows, attic insulation, roofs and gutters. Motion by Mrs. Jay to approve payment in the amount of $215,500 to WR2020 for the purpose of funding a revolving loan program for the Building Up Business and Home Improvement Loan Programs and other community and economic development programs; seconded by Mr. Reinhart; carried 7-0. 9 . Motion to direct staff to write an ordinance setting term limits for Board and Commission Members Mr. Pond introduced Item #9. Staff report Clerk Shaver related to Council how there have been times when it's been very hard to find people to serve on certain boards or to serve from certain districts. The provision to allow people to serve out-of-district was a result of this recurring problem. While City Council elections offer one opportunity for the infusion of new ideas and fresh energy, she also stressed the value of the institutional memory that long-time board members bring to the table . She encouraged Council not to impose forced term limits. Deputy City Clerk Bruce Roome presented some hard numbers for Council to consider. Eight of the 16 cities that responded to an informal inquiry have term limits for their boards. These cities tend to be large cities like Arvada and Aurora . Other information showed the number of years served individually by some 800 volunteer members since incorporation. It showed that term limits have and continue to occur in a natural way-either through attrition, resignations or non-reappointments. Our current boards and commissions actually have a very even distribution of members with various lengths of service. Motion by Mr. Pond to not direct staff to draft an ordinance setting term limits for Board and Commission members because there is not a compelling need for term limits at this time; seconded by Mrs . Langworthy; carried 7-0. 10. Motion to ratify Mayoral appointment of Zachary Urban to the Housing Authority representing District II, term to expire March 2 , 2014 Item #1 0 was introduced by Ms . Davis . This vacancy appointment is for one year. Mrs . Jay said she would not support the Mayor's appointment because she would rather have Kim Calomino be appointed . City Council Minutes January 14, 2013 Page 10 Motion by Ms . Davis to ratify the Mayoral appointment of Zachary Urban to the Housing Authority representing District II , term to expire March 2, 2014; seconded by Mr. Stites ; carried 4-3, with Councilmembers Langworthy, Jay, and Reinhart voting no . 11. Motion to ratify Mayoral appointments to Renewal Wheat Ridge Item #11 was introduced by Ms . Davis . There are two positions up for appointments . Motion by Ms . Davis to ratify the at-large Mayoral appointments of Walter Pettit and Shane Nicholson to Renewal Wheat Ridge , both terms to expire November 30, 2017 ; seconded by Mr. Reinhart ; carried 7-0. CITY MANAGER'S MATTERS Mr. Goff gave updates on some new and redeveloping businesses. The King Soopers at 38th & Sheridan has pulled its permits for their $6 million remodeling . -The new brew pub Colorado+ (Plus) that's going in on 38th Avenue is moving forward . It will serve over 52 Colorado beers-including four of their own. -Tommy Slalom at 38th & Sheridan in Denver will be moving into Wheat Ridge on 43 rd Avenue . They are a retailer of water sport boats , jet skis , etc . -The restaurant Taste of Home Cooking is moving in from Arvada into the old Mercedes restaurant location on Kipling . CITY ATTORNEY'S MATTERS CITY CLERK'S MATTERS Clerk Shaver thanked Bruce Roome for his work putting together data on the boards and commissions that helped Council make their decision. ELECTED OFFICIALS' MATTERS George Pond appreciates the discussion on term limits for boards. He reminded all of the Live Local Harvest events on January 30, February 27, and March 27 . Joyce Jay thinks it's great we 're having discussion on the dais so people can see how we make these decisions , and she 's excited people will see some study sessions . Joe DeMott thanked the Rotary for their contribution and all the hard work they do. He thanked Deputy Clerk Roome for the information he provided tonight and congratulated him on his certification. He thinks the term limit discussion was open and meaningful. Kristi Davis congratulated Bruce and thanked him for the data . The discussion on the dais was helpful , the data showed there really wasn 't the need one might have thought, and she thinks it's good to let the public see how Council reaches its decision. She thinks it's good that the Council discussed the applicants for the Mayoral appointments at a study session , and that it cleared up some glitches in the process. City Council Minutes January 14, 2013 Page 11 Tracy Langworthy announced the Meet the Artist event this Thursday, January 17 at 5:30-7:00 PM at Home Instead Senior Care, 6191 W. 44th Avenue. The features local artist is Katie Hoffman . -The next Live Local event is at Clancy's this Thursday evening. -She thanked Bruce Roome for the information. He is always so helpful and she's glad to see we have employees that go above and beyond what their job requires. Mike Stites's positive thing : Today he saw some kids walking on 38th Avenue after school and they didn 't have coats on . He thinks it's likely they didn't have coats . He encouraged folks to check in their neighborhoods to make sure all the children have clothing for the cold weather. Mayor DiTullio offered congratulations to Bruce Roome. Bruce took over after 30 plus years of the previous Deputy Clerk and he had some big shoes to fill. -He congratulated Zach Urban, Walt Petit and Shane Nicholson on their appointments tonight. They bring good experience to the Urban Renewal Authority and the Housing Authority , and with money to spend they should have a productive year. -He thanked the Rotary again for their contributions towards the art at Discovery Park and for the dog park. -He noted that Wheat Ridge hosted the Metro Mayors Caucus annual retreat this past Saturday morning at the Rec Center. 38 area mayors attended , including Mayor Hancock from Denver, members of COOT, the Colorado Municipal League and some other organizations . He noted that the Rec Center is 13 years old and still shows well. It looks like it's brand new and they got several compliments on it. Meeting adjourned at 9 :37pm. Janelle Shaver, City Clerk APPROVED BY CITY COUNCIL ON January 28, 2013 BY A VOTE OF __ to __ Davis Reinhart, Mayor pro tem The preceding Minutes were prepared according to §47 of Robert's Rules of Order, i.e. they contain a record of what was done at the meeting, not what was said by the members. Recordings and DVD's of the meetings are available for listening or viewing in the City Clerk 's Office , as well as cop ies of Ordinances and Resolutions . ... ~ ~ ... ~ r-City of • :_rpr WheatR!_dge ITEM NO:~· DATE: January 28,2013 REQUEST FOR CITY COUNCIL ACTION TITLE: MOTION TO APPROVE PAYMENT TO COLORADO INTERGOVERNMENTAL RISK SHARING AGENCY (CIRSA) FOR 2013 WORKERS' COMPENSATION PREMIUM IN THE AMOUNT OF $384,776 AND 2013 PROPERTY/CASUALTY PREMIUM IN THE AMOUNT OF $185,394 D PUBLIC HEARING C8] BIDS /MOTIONS 0 RESOLUTIONS QUASI-JUDICIAL: D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2N° READING D YES C8] NO ~ector i?Dt!I!Jd~ City Manager ISSUE: The Colorado Intergovernmental Risk Sharing Agency (CIRSA) provides property/casualty and workers' compensation coverage for the City of Wheat Ridge. Each year the City ofWheat Ridge completes a CIRSA renewal application process for both property/casualty and workers' compensation coverage and the premiwn amount is based on the information provided in the applications . The pool billing amount is then reduced if the City is eligible for credits offered by CIRSA. The final payments for 2013 are $384,776 for workers' compensation and $185 ,394 for property/ casualty. FINANCIAL IMPACT: CIRSA premiwns are budgeted line items in the 2013 adopted budget, General Government - Central Charges account. For 2013 , the City received a total of$23 ,381 in credits between the two policies due to the proactive work of the employee Safety Committee in accident prevention and overall loss control efforts. V :\Forms\CAFtemplate Council Action Form January 28 , 2013 Page2 BACKGROUND: Each year the City of Wheat Ridge completes a CIRSA renewal application process for both property/casualty and workers compensation coverage and the premium amount is based on the information provided in the applications. The pool billing amount is then reduced if the City is eligible for credits offered by CIRSA. For 2013 the City received loss control audit credits of$13,383 for worker's compensation and $2,025 for property/casualty. The City received a member equity credit for property/casualty coverage in the amount of$7,973. The adjusted workers' compensation payment for 2013 is $384,776, which reflects a premium increase of$8,901 from the $375,875 paid in 2011. The adjusted property/casualty payment for 2013 is $185 ,394, which reflects a $12,722 increase in premium from the $172,672 paid in 2012. RECOMMENDATIONS: Staff recommends payment ofthe adjusted premiums. RECOMMENDED MOTION: "I move to approve payment to CIRSA for 2013 workers' compensation premium in the amount of$384,776 and the 2013 property/casualty premium in the amount of $185 ,394." Or, "I move deny the payment to CIRSA for workers' compensation and property/casualty premiums for the following reason(s) " REPORT PREPARED/REVIEWED BY; Heather Geyer, Administrative Services Director ATTACHMENTS: I . Invoice # W 13121 -Workers ' Compensation Pool billing for 2013 2. Invoice # 130231 -Property /Casualty Pool billing for 2013 City of Wheat Ridge Karen Van Ert 7500 W. 29th Ave. Wheat Ridge, CO 80033 Y E A R S Invoice# W13121 January 1, 2013 This invoice constitutes your Workers' Compensation Pool billing for 2013: EFFECTIVE DATES OF COVERAGE AMOUNT DUE Workers ' Compensation Coverage (see breakdown enclosed) 2012 Loss Control (LC) Audit Credit 01 /01/13-01/01 /14 TOTAL 2013 AMOUNT DUE, NET OF CREDITS The Board has established two options for payment of this contribution: $398,159 ($13,383) $384,776 I. Full payment on January I. Select this option by paying the full amount due by February 15, 2013. Payments made after February 15 will be charged interest on I /4 of the contribution at the current prime interest rate. 2. Four equal payments on January I, April I, July I, and October I, 2013. Notices wi II be sent on the due dates and payments will be considered delinquent 45 days following the due dates . Payments made late will be charged interest on 114 of the contribution at the current prime interest rate. Select this option by paying 1/4 ofthe amount due by February 15,2013. Delinquencies are subject to CIRSA Bylaws, Article VIII (I) (a) and Article XV . This invoice includes all exposure changes reported to us from the time your renewal quote was calculated , August 15 , 2012 , to the time the invoice was calculated, December 14, 2012. Any changes between August 15 and December 14 , including but not limited to the addition or deletion of payroll , or amendment of a class code, are reflected in this invoice . Any changes after December 14 will be included in your payroll audit performed in February 2014. PLEASE REMIT PAYMENT TO: CIRSA WC P.O. Box 910543 Denver, CO 80291-0543 Attachment 1 City of Wheat Ridge Karen Van Ert 7500 W. 29th Ave . Wheat Ridge , CO 80033 This invoice constitutes your Property /Cas ualty Pool billing for 2013: Invoice# 130231 January 1, 2013 EFFECTIVE DATES OF COVERAGE Property /C asualty Coverage: 0 I /0 I /13-0 I /0 l I 14 General Liability , including separately rated exposures Public Officials E&O Liability Police Professional Liability Auto Liability Auto Physical Damage Property Damage Total Property/Cas ualty Coverage PC Member Equity Account Adjustment 2012 Loss Control (LC) Audit Credit TOTAL 2013 AMOUNT DUE, NET OF CREDITS The Board has established two options for payment of this contribution: AMOUNT DUE $14 ,291 $41,446 $42,233 $23 ,966 $4,867 $68,589 $195,392 $(7,973) $(2 ,025) $185,394 I . Full payment on January I. Select this option by paying the fu ll amount due by February 15, 2013. Payments made after February 15 will be charged interest on 1/4 of the contribution at the current prime interest rate . 2. Four equal payments on January I, April l, July I, and October I , 2013. Notices will be sent on the due dates and payments will be considered delinquent 45 days following the due dates. Payments made late will be charged interest on l /4 of the contribution at the current prime interest rate . Select this option by paying 1/4 ofthe amount due by February 15 ,2 013. Delinquencies are subject to CIRSA Bylaws, Article VIII (I) (a) and Article XV . This invoice includes all exposure changes reported to us from the time your renewal quote was calculated, August 21, 2012, to the time the invoice was calcu lat ed, December 14, 2012. Any changes between August 21 and December 14 , including but not limited to the addition or deletion of buildings, mobile equipment and automobiles, are reflected in this invoice. Any changes after December 14 will be billed or credited separately. This invoice does not include any optional coverages your entity has se lected. A separate bill will be sent for any such coverages. PLEASE REMIT PAYMENT TO: CIRSA P.O. Box 910543 Denver, CO 80291-0543 Attachment 2 ~ ~ ~ ...... • r-City of • :P"WheatRi._dge ITEM NO: _ _L_l,- DATE: January 28 , 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 05-2013 - A RESOLUTION ADOPTING THE CITY OF WHEAT RIDGE INVESTMENT POLICY D PUBLIC HEARING D BIDS/MOTIONS [8J RESOLUTIONS QUASI-JUDICIAL: ISSUE: 0 ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2 N D READING D YES The Investment Policy sets policy authori zing the City Treasurer to invest City monies. The policy has been revised to increase clarity of its provisions and update language consistent with recommendations of the Government Finance Officers Association. PRIOR ACTION: The Investment Policy was last updated in October of 2007. FINANCIAL IMPACT: The adoption of this resolution will have no financial impact. BACKGROUND: It has always been the policy of the City to place investments with priority consideration of liquidity, safety, and return on investment, in that order. Tills policy emphasizes those priorities and provides guidance for ensuring that all investments are placed within all applicable laws. RECOMMENDATIONS: It is recommended that Council pass this resolution. In the absence of passage the existing policy will remain in effect. Council Action Form January 28, 2013 Page2 RECOMMENDED MOTION: "I move to approve Resolution No. 05-2013, a resolution adopting the City of Wheat Ridge Investment Policy. Or, "I move to postpone indefinitely Resolution No. 05-2013, a resolution adopting the City of Wheat Ridge Investment Policy for the following reason(s) " REPORT PREPARED/REVIEWED BY: Larry Schulz, City Treasurer Heather Geyer, Administrative Services Director ATTACHMENTS: 1. Resolution No. 05-2013 2. Investment Policy CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 05 Series of 2013 TITLE: A RESOLUTION APPROVING THE CITY OF WHEAT RIDGE INVESTMENT POLICY WHEREAS, Section 3.10 of the City Charter authorizes the City Treasurer to invest all City monies as directed by City Council, and WHEREAS, The Government Finance Officers' Association has provided recommended practices for government investing , WHEREAS, The City Treasurer has recommended that City Council adopt those recommended practices in a revised Investment Policy; NOW THEREFORE BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, as follows: A . The revised City of Wheat Ridge Investment Policy is adopted by City Council. DONE AND RESOLVED THIS 28TH DAY OF January, 2013. Jerry DiTullio, Mayor ATTEST: Janelle Shaver, City Clerk Attachment 1 INTENT City of Wheat Ridge Investment Policy The City of Wheat Ridge (City) recognizes the need to adopt an investment policy to establish parameters and guidelines for the efficient management of the City's funds and for the purchase and sale of investments. This policy applies to the investments of all funds of the City . Except for funds held in trust or special funds that are otherwise specifically provided for, the City will consolidate the balances from all funds to maximize investment earnings and meet the liquidity requirements of the City subject to the primary objective of providing security of principal. POLICY The City has established the following fiscal policy related to investments. Governing Authority The investment policy shall be operated in conformance with federal, state (CRS § 24-75-601, et seq.) and other legal requirements, including the Wheat Ridge City Charter. Scope This policy applies to the investment of all funds, excluding the investment of employees' retirement funds, police pension fund and certain restricted funds. Except for cash in certain restricted and special funds, the City will pool cash and reserve balances from all funds to maximize investment earnings and to increase efficiencies with regard to investment pricing, safekeeping and administration. Objectives It is the policy of the City to invest idle public funds in a manner to meet the daily cash flow demands of the City with the primary objectives, in priority order, being: a) Safety of Principal b) Liquidity and c) Return on Investments. A.) Safety of Principal Safety of principal is the foremost objective of the City's investment activities. Investments will be undertaken in a manner that seeks to ensure the preservation of capital in the overall investment portfolio. The objective will be to mitigate the following risks: 1 Attachment 2 1.} Credit Risk The City will minimize credit risk, which is the risk of loss due to the failure of the investment issuer or backer. As such, the City shall place reliance upon nationally recognized credit rating agencies in evaluating credit risk of obligations not issued by the U. S. government and Federal Instrumentality's (Agencies and Government Sponsored Enterprises). Credit risk shall be limited by restricting the credit ratings on securities that may be purchased and through diversification in order to reduce exposure to any one security type or issuer. 2.) Interest Rate Risk The City will minimize its interest rate risk, which is the risk that the market value of securities in the portfolio will fall due to the changes in market interest rates, by structuring the portfolio to meet the cash requirements of the City's ongoing operations, thereby mitigating the need to liquidate securities at a loss prior to maturity. 3.} Concentration Risk The City will minimize concentration of credit risk, which is the risk of loss due to having a significant portion of resources invested in a single issuer, by diversifying its investment portfolio so that the impact of potential losses from any one type of security or issuer will be minimized. Investments issued or explicitly guaranteed by the U.S. government and investments in mutual funds, external investment pools, and other pooled investments are excluded from this requirement. B.) liquidity The investment portfolio shall remain sufficiently liquid to meet all of the City's operating requirements that may be reasonably anticipated. Investments shall be managed in order to avoid, although not prohibit, the sale of securities before their respective maturities to meet anticipated cash flow needs. Since all possible cash demands cannot be anticipated, the investment portfolio should contain a significant quantity of active secondary or resale markets. As such, a guideline of at least ten percent (10%) of the investment portfolio will be invested in overnight instruments, money market funds, Colorado local government pools, or in marketable securities which can be sold to raise cash within one day's notice. C.) Return on Investments The investment portfolio shall be designed and managed with the objective of attaining a market rate of return throughout interest rate cycles, taking into account the investment risk constraints and liquidity needs. Return on investment is of secondary importance compared to safety of principal and liquidity. The core investments are limited to relatively low risk securities in anticipation of earning a fair, albeit lower, return relative to the risk being assumed. 2 Delegation of Authority Authority to manage the investment program is granted to the City Treasurer (hereinafter referred to as Investment Officer) and derived from the following: City of Wheat Ridge Home Rule Charter. Responsibility for the operation of the investment program is hereby delegated to the Investment Officer, who shall act in accordance with established written procedures and internal controls for the operation of the investment program consistent with this investment policy. No person may engage in an investment transaction except as provided under the terms of this policy and the procedures established by the Investment Officer. The Investment Officer shall be responsible for all transactions undertaken and shall establish a system of controls to regulate the activities of subordinate officials. The Investment Officer, after initiating a Request for Proposal process and with approval of City Council, may delegate the management of the City's portfolio to a professional money management firm. The firm must adhere to all the requirements and restrictions contained in this policy. Authorized Investments The City's authorized investments shall consist ofthe following: United States Treasury and Agency Obligations U.S. government obligations, U.S. government agency obligations, Government Sponsored Enterprises, and U.S. government instrumentality obligations that have a liquid market with a readily determinable market value. Corporate Debt Any U.S. dollar denominated corporate or bank debt issued by a corporation or bank which is organized and operated with the United States and has a net worth in excess of two hundred fifty million dollars; except that the notes evidencing the debt must mature within five years from the date of settlement and, at the time of purchase, the debt must carry at least two credit ratings from any of the nationally recognized credit agencies and must not be rated below II AA-or Aa3" by any credit rating agency. Commercial Paper Commercial paper rated A-1, P-1, or their equivalent by any nationally recognized credit rating agencies. Bankers' Acceptances Bankers Acceptances, the issuers of which are banks organized under U.S. laws or their parent companies, are rated A-1, P-1 or their equivalent by any nationally recognized credit rating agencies. 3 Repurchase Agreements Repurchase Agreements and Reverse Repurchase Agreements may be done only with approved dealers with whom the City has signed a master agreement governing such transactions, and must mature within 90 days. U.S. Treasury, agency, or instrumentality securities must collateralize any such transactions, the market value of which shall be at least 102% of the funds invested in the transaction at inception, and not less than 100% of the funds invested during its life. Securities collateralizing such transactions shall be delivered to the purchaser or their securities' custodian. Bonds (General Obligation debt) General Obligations of any state of the United States, the District of Columbia, or any territorial possession of the United States or of any political subdivision, institution, department, agency, instrumentality, or authority of any such governmental entities. No security may be purchased pursuant to this paragraph unless, at the time of purchase, the security is rated in one of the three highest rating categories by any nationally recognized organization that regularly rates such obligations. Guaranteed Investment Contracts (GICs) GICs of domestically-regulated insurance companies having a claims-paying ability rating AA or its equivalent by any nationally recognized credit rating agencies. Money Markets and Investment Pools Money Market Mutual Funds and Local Government Investment Pools as permitted by Colorado statute, provided that such funds are either registered with the SEC or rated AAA by any nationally recognized credit rating agency. Certificates of Deposit/Bank Deposits/Savings Accounts Time deposit open accounts, certificates of deposits and savings accounts in insured institutions as defined by Colorado statute. For financial statement reporting purposes, these deposits are treated as cash deposits (vs. investments) but the City will adhere to the objectives outlined by this policy when making decisions related to these types of cash deposits. Interest Earnings Investment income will be allocated to the various funds based on the respective participation of capital in the overall investment portfolio and in accordance with generally accepted accounting principles. 4 Investment Limitations The City will adhere to the following investment limitations: A.) Diversification The City's investments shall be diversified by: 1.) Limiting investments to avoid over concentration in securities from a specific issuer or business sector (excluding U.S. Treasury securities) 2.) Limiting investment in securities with higher credit risks 3.) Investing in securities with varying maturities, and 4.) Continuously investing a portion of the City's investment portfolio in readily available funds such as local government investment pools, money market funds, or overnight repurchase agreements to ensure that appropriate liquidity is maintained to meet the City's ongoing obligations The Investment Officer shall obtain competitive bids from at least two brokers or financial institutions on all purchases of investment instruments purchased on the secondary market. B.} Maturity To the extent possible, the City shall attempt to match its investments with anticipated cash flow needs. Unless matched to a specific cash flow, the City will not directly invest in securities with maturities of more than five (5) years from the date of purchase. C.} Sale of investments prior to maturity Investments may be sold prior to their maturity date if the investment official determines that it is in the best interest of the City to do so . Sales shall not be made to speculate upon future market trends. It is the City's intent to purchase and hold securities until maturity; however, from time to time, it may become necessary to sell a security at a loss in order to meet cash flow requirements or to take advantage of certain exchange advantages. D.) Derivatives Securities which derive their value from an underlying asset, group of assets, reference rate, or index value are not permitted as an authorized investment under this policy. 5 Reporting of Investments An annual report will be prepared by the Investment Officer or managing firm and presented to City Council in connection with the year end financial statement presentation. On a quarterly basis, a report of investment activity will be prepared by the Investment Officer and submitted to City Council. Additionally, an Investment Advisory Committee, which will consist of the Investment Officer, the City Manager, Administrative Services Director, and a member from the community, appointed by the Investment Officer, that possesses expertise within the banking/finance industry. The Investment Officer will serve as chair of the Investment Committee and will coordinate quarterly meetings to review the status of investments and the transactions that occurred during the quarter. The Investment Advisory Committee/Investment Officer may establish strategies and guidelines for the percentage of the total portfolio that may be invested in securities other than repurchase agreements, Treasury bills or collateralized certificates of deposit. The committee shall conduct a quarterly review of these guidelines and evaluate the probability of market and default risk in various investment sectors as part of its considerations. Policy Review The City's Investment Officer and Investment Advisory Committee will review the Investment Policy annually in concert with the preparation of the City's year-end financial statements to ensure that the City is adhering to the framework outlined in this policy and will make recommendations to revise the policy as needed. Adoption and changes to this policy will require approval by City Council. 6 "~ A~ .. ~ ~ City of • JP'WheatRi._dge TITLE: ITEM NO: _j (.,. DATE: January 28 , 2013 REQUEST FOR CITY COUNCIL ACTION RESOLUTION NO. 08-2013 - A RESOLUTION AMENDING THE FISCAL YEAR 2012 GENERAL FUND BUDGET TO REFLECT THE APPROVAL OF A SUPPLEMENTAL BUDGET APPROPRIATION IN THE AMOUNT OF $21,023 FOR THE ANNUAL SALES TAX SHARE TO RENEWAL WHEAT RIDGE 0 PUBLIC HEARING D BIDS/MOTIONS I:8J RESOLUTIONS D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2N° READING QUASI-JUDICIAL: D YES I:8J NO c({~A~ ISSUE: The City entered into an Intergovernmental Agreement (IGA) with Renewal Wheat Ridge (RWR) in June 2006 to establish the rights and responsibilities of the City and RWR with respect to : 1) operational assistance and 2) the sharing of sales tax increment applicable to the Wheat Ridge Town Center Project. In October, 2011 the City Council approved an increase in the sales tax increment payment from 50% to 100% to RWR through December 31,2014. The 2012 Budget was adopted before this amendment was made and includes only $225,000 for the sales tax share. The 2012 increment was estimated at $393 ,000 and on September 24, 2012 a supplemental budget appropriation in the amount of $168,000 was approved by Council to fund those expenses. Upon closing of the books as of December 31 , 2012 , the actual amount received by RWR was $407 ,072.80 thus requiring a second supplemental budget adjustment in the amount of$14,072. The same type scenario was realized for the Wheat Ridge Cyclery Improvements Agreement. That agreement allows for the utilization ofTax Increment Financing (TIF) to share back a certain portion of sales tax increment with RWR to pay Wheat Ridge Cyclery for certain Council Action Form January 28 , 2013 Page2 improvements made to the store. The 2012 increment was estimated at $52 ,000 but on1y $25 ,000 was budgeted. Therefore a supplemental budget appropriation was approved on September 24, 2012 in the amount of$27,000. The December 31,2012 year-end total for increment received is $58 ,950.92 thus requiring a supplemental adjustment of $6,951. A total supplemental budget appropriation in the amount of $21,023 is requested to amend the 2012 Budget accordingly. PRIOR ACTION: None FINANCIAL IMPACT: This supplemental budget appropriation will increase the General Fund budget by $21 ,023. However, there will be a neutral financial impact on the 2012 Budget as revenues are anticipated to increase by the same amount. BACKGROUND: The City adopted the Wheat Ridge Town Center U rban Renewal Plan on December 14 , 1981 which provided for the utilization of propert~ and sales tax increment in the commercial area east of Wadsworth Boulevard, between West 381 Avenue and West 441h Avenue. The property tax increment expired in 2006 after 25 years . The City entered into an IGA with RWR in June 2006 to establish the rights and responsibilities of the City and the Authority with respect to: 1) operational assistance and 2) the sharing of sales tax increment applicable to the Wheat Ridge Town Center Project. Th e IGA stipulates that the City will share 50% of the sales tax increment from the Wheat Ridge Town Center Project with the Authority until December 31 , 2014. On October 24, 2011 the City Council approved an amendment to the IGA to increase the sales tax increment paid to RWR from 50% to 100%, effective retroactively to January 1, 2011 , and to extend the same for the full term of the IGA . R WR and Wheat Ridge Cyclery entered into an Improvements Agreement on March 20, 2007 for improvements to the Cyclery property located at 7085 W . 38th Avenue. It was RWR's desire to assist the Cyclery in making a number of improvements to the property, which would improve the public appearance of the property, remedy its deterioration, maintain a positive business environment in the neighborhood, and serve as an anchor to attract other desirable businesses to the neighborhood. As an inducement to the Cyclery to complete certain improvements, R WR agreed to reimburse to the Cyclery those costs associated with these improvements by implementing tax increment finan cing. Und e r th e Agreement, the Cyclery will be rec e iving 100% ofboth the property tax and sal es tax incremental rev enue generated by th e expan sion of the business . Council Action Form January 28, 2013 Page 3 The Agreement establishes R WR maximum obligation for reimbursement at $264,180, or 10 years of sales and property tax increment, whichever occurs first. The maximum obligation is equal to the estimated costs of the eligible improvements. The total sales tax increment generated by the Wheat Ridge Cyclery project in 2012 is $58,950.92. These funds are due to RWR who will in tum make payment to Wheat Ridge Cyclery. RECOMMENDATIONS: Staff recommends approval of the resolution in order to provide a supplemental budget appropriation in the amount of $21,023 to the Economic Development Division budget. RECOMMENDED MOTION: "I move to approve Resolution No. 08-2013, a resolution amending the fiscal year 2012 General Fund Budget to reflect the approval of a supplemental budget appropriation in the amount of $21,023 for the annual sales tax share to Renewal Wheat Ridge." Or, "I move to deny approval of Resolution No. 08-2013, a resolution amending the Fiscal year 2012 General Fund Budget to reflect the approval of a supplemental budget appropriation in the amount of $21,023 for the annual sales tax share to Renewal Wheat Ridge for the following reason( s) " REPORT PREPARED/REVIEWED BY: Steve Art, Economic Development and Urban Renewal Manager Patrick Goff, City Manager/URA Executive Director ATTACHMENTS: 1. Resolution No. 08-2013 TITLE: CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 08 Series of 2013 A RESOLUTION AMENDING THE FISCAL YEAR 2012 GENERAL FUND BUDGET TO REFLECT THE APPROVAL OF A SUPPLEMENTAL BUDGET APPROPRIATION IN THE AMOUNT OF $21,023 FOR THE ANNUAL SALES TAX SHARE TO RENEWAL WHEAT RIDGE (RWR) WHEREAS, the City of Wheat Ridge, acting through its City Council has created Renewal Wheat Ridge ("RWR"), an urban renewal authority; and WHEREAS, projects in the Town Center have generated sales tax revenues, referred to by the City and RWR as the "sales tax increment" for use by RWR on urban renewal projects; and WHEREAS, in 2006 the City and RWR entered into an Intergovernmental Agreement (the "Agreement") pertaining to the allocation of the sales tax increment derived from the Town Center project and the sharing of resources relating to services, equipment and personnel; and WHEREAS, the City has amended the Agreement on October 24, 2011, to raise the percentage of sales tax distribution to RWR from 50% to 1 00%; and WHEREAS, in 2007 RWR entered into an Improvements Agreement with Wheat Ridge Cyclery (the "Cyclery") to reimburse the Cyclery for certain improvements to the property to improve its public appearance; and WHEREAS, adequate resources were not allocated in the 2012 Budget to fund these expenditures; and WHEREAS, the Wheat Ridge Charter requires that amendments to the budget be effected by the City Council adopting a Resolution. NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council: Supplemental Appropriation A. The City Council authorizes the transfer of $14,072 from the General Fund undesignated reserves to account number 01-1 05-700-720 and $6,951 from the General Fund undesignated reserves to account number 01-105-700-718 and amending the General Fund revenues accordingly. GED/WR/WRURA Attachment 1 DONE AND RESOLVED this 28th day of January, 2013. Jerry DiTullio, Mayor ATTEST: Janelle Shaver, City Clerk ~~"~ ..... ~ City of • :P'WheatR.t.__dge ITEM NO: f)_ · DATE: January 28 ,2013 REQUEST FOR CITY COUNCIL ACTION TITLE: COUNCIL BILL NO. 02-2013 AN ORDINANCE AMENDING SECTIONS 16-131 AND 16-133 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING POSSESSION OF MARIJUANA AND DRUG PARAPHERNALIA [8J PUBLIC HEARING D BIDS/MOTIONS D RESOLUTIONS QUASI-JUDICIAL: City Attorney ISSUE: D ORDINANCES FOR 1ST READING (01 /14/2013) [8J ORDINANCES FOR 2N° READING (01128 /2013) D YES [8J NO Sections 16-131 and 16-133 of the Wheat Ridge Code of Laws prohibit certain activities concerning the possession and use of marijuana and associated drug paraphernalia. On November 6, 2012, the citizens of the State of Colorado voted in favor of Amendment 64 legalizing the recreational use of marijuana and associated drug paraphernalia for persons twenty-one years of age and older. Accordingly, it is now legal for persons twenty-one years of age or older to possess, display and privately use one ounce or less of marijuana and to possess up to six marijuana plants with three or fewer being mature, flowering plants. In accordance with the effective date ofDecember 6, 2012 , law enforcement stopped issuing citations to persons twenty-one years of age or older for marijuana-related activities that were legalized by the provisions in Amendment 64. Currently, the provisions in Sections 16-131 and 16-133 ofthe Code are in conflict with the provisions in Amendment 64. The attached Ordinance amends those provisions so that they are consistent with state law. Council Action Form January 28, 2013 Page2 PRIOR ACTION: None FINANCIAL IMPACT: The financial impact for the City is unknown at this time. BACKGROUND: On November 6, 2012 , the people of the State of Colorado adopted Amendment 64 which amended the Colorado Constitution by adding Article XVIII Section 16 thereto concerning the legalization of the recreational use of marijuana. Amendment 64 was proclaimed by the Govemor as effective on December 6, 2012. As of that date, the acquisition, possession, production, use or transportation of marijuana and associated drug paraphernalia by persons twenty-one years of age and older is legal under state law. Individual use by adults Although Amendment 64 legalizes certain activities, it also places limits on what will be protected and what remains illegal. As of December 6 , 2012 persons 21 years of age or older may possess one ounce or less of marijuana, and necessary paraphernalia to ingest or smoke the same. These adult individuals may transfer that amount of marijuana to other adults. In addition, it is now legal for those adults to possess drug paraphernalia associated with the growing and ingesting of marijuana. Adults may also possess, grow , process or transport no more than six marijuana plants, with three or fewer being mature, flowering plants. Plants must be grown in an enclosed locked space. That growing may not take place openly or publicly, and products may not be made available for sale. In addition, the possession and use of marijuana and associated drug paraphernalia by persons under the age of twenty-one years remains illegal and the use of marijuana openly and publicly remains illegal for persons of any age. As of December 6 , 2012 , law enforcement may not issue tickets for any of the above listed activities protected by Amendment 64. Tickets issued prior to the effective date of Amendment 64 may, at the discretion of the City's Prosecutor, continue to be prosecuted. State regulation of retail marijuana sales Am.endment 64 requires the Colorado Department of Revenue to issue regulations for licenses for retail marijuana stores by July 1, 2013. The Governor has appointed a task force to draft enabling legislation for this regulatory program. It is likely that the task force will rely on the state regulation for medical marijuana currently under revision . Federal law As Council is aware, the possession and sale of any quantity of marijuana is illegal under federal law , and the passage of Amendment 64 in Colorado has not changed this. Various legislators are considering introducing federal legislation to exempt state laws allowing marijuana from the otherwise applicable preemptive federal criminal marijuana laws. The degree to which the federal govemment chooses to enforce federal criminal marijuana laws or to challenge Amendment 64 in court will continue to evolve. Council Action Form January 28 , 2013 Page3 Medical Marijuana The passage of Amendment 64 does not affect the constitutional and statutory provlSlons regarding medical marijuana and the licensing and zoning restrictions applied by the City of Wheat Ridge to that activity. While it is likely that the State Department of Revenue will look to the existing medical marijuana regulations to assist in crafting the new state retail marijuana regulations, the two kinds of marijuana use and their regulation remain separate. The Ordinance amends Sections 16-131 and 16-13 3 in accordance with the provisions in Amendment 64. The other provisions of Amendment 64 concerning the regulation of the retail sale of marijuana will be brought to Council as the law develops at the state level. RECOMMENDATION: City staff recommends adoption ofthis Ordinance. RECOMMENDED MOTION: "I move to approve Council Bill No. 02-2013 , an ordinance amending Sections 16-131 and 16-133 of the Wheat Ridge Code of Laws on second reading, and that it takes effect upon adoption and signature of the Mayor as provided by Section 5.11 of the Charter. Or, "I move to table indefinitely Council Bill No. 02-2013 for the following reason(s) " REPORT PREPARED BY: Gerald E. Dahl, City Attorney ATTACHMENTS: 1. Council Bill No. 02-2013 2. Amendment 64 3. November 7, 2012 Memorandum from CML CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER REINHART Council Bill No. 02 Ordinance No. ___ _ Series 2013 TITLE: AN ORDINANCE AMENDING SECTIONS 16-131 AND 16-133 OF THE WHEAT RIDGE CODE OF LAWS CONCERNING POSSESSION OF MARIJUANA AND DRUG PARAPHERNALIA WHEREAS, in the recent November 2012 general election, the voters of the State of Colorado adopted Amendment 64 to the Colorado Constitution ("Amendment 64"), codified at Article XVIII Section 16 regarding the personal use and regulation of marijuana; and WHEREAS, Amendment 64 legalized the possession, use, display, purchase or transportation of marijuana accessories or one ounce or less of marijuana for persons twenty-one years of age or older; and WHEREAS, Amendment 64 allows persons twenty-one years of age or older to possess, grow, process or transport no more than six marijuana plants, with three or fewer being mature, flowering plants and to possess the marijuana produced by the plants on the premises where the plants were grown, provided that the growing takes place in an enclosed, locked space, is not conducted openly or publicly, and is not made available for sale; and WHEREAS, Amendment 64 allows local governments to prohibit the possession of marijuana and marijuana accessories by persons under the age of twenty-one years and to prohibit the open and public consumption of marijuana by persons of any age; and WHEREAS, Wheat Ridge Code of Laws Sections 16-131 and 16-133 concern unlawful conduct regarding the possession and use or marijuana and marijuana accessories; and WHEREAS, the City Council desires to amend those Code provisions in accordance with Amendment 64. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Section 16-131 of the Wheat Ridge Code of Laws is amended to read as follows: Sec. 16-131. Possession of Marijuana Attachment 1 (a) For the purpose of this section, the FOLLOWING DEFINITIONS APPLY: tefffis (1) "Marijuana," "marihuana" and "cannabis" are synonymous and shall include all parts of the plant cannabis sativa L. OF THE GENUS CANNABIS, whether growing or not; the seed thereof; the resin extracted from any part of such plant; and every compound, manufacture, sate SALT, derivative, mixture, or preparation of such plant, its seeds or resin but shall not include INDUSTRIAL HEMP, the mature stalks of such plant, fiber produced from its stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, sate SALT, derivative, mixture or preparation of its mature stalks, except the resin extracted therefrom, fiber, oil or cake, or the sterilized seeds of such plant which is incapable of germination, OR THE WEIGHT OF ANY OTHER INGREDIENT COMBINED WITH MARIJUANA TO PREPARE TOPICAL OR ORAL ADMINISTRATIONS, FOOD, DRINK, OR OTHER PRODUCT. (2) The term "Cannabis concentrate " means hashish, tetrahydrocannabinols, or any alkaloid, salt, derivative, preparation , compound , or mixture, whether natural or synthesized or tetrahydrocannabinols. (3) "MARIJUANA PRODUCTS" MEANS CONCENTRATED MARIJUANA PRODUCTS AND MARIJUANA PRODUCTS THAT ARE COMPRISED OF MARIJUANA AND OTHER INGREDIENTS AND ARE INTENDED FOR USE OR CONSUMPTION, SUCH AS, BUT NOT LIMITED TO, EDIBLE PRODUCTS, OINTMENTS, AND TINCTURES (4) It shall be unlawful FOR ANY PERSON UNDER TWENTY-ONE (21) YEARS OF AGE to possess OR DISPLAY MARIJUANA PRODUCTS OR one (1) ounce or less of marijuana, cannabis, or cannabis concentrate, and upon conviction thereof, or plea of guilty or no contest thereto, punishment shall not be by imprisonment, but shall be by a fine of not more than one hundred dollars ($1 00.00), together with a surcharge of ten dollars ($10.00) to be paid to the police department through the court to offset the cost of destruction of drugs, injection devises and drug paraphernalia, whether or not any of those items was confiscated from the defendant. (5) It shall be unlawful openly and publicly to display oF consume one (1) ounce OF less of MARIJUANA PRODUCTS, marijuana, cannabis, or cannabis concentrate, and upon conviction thereof, or a plea of guilty or no contest thereto, punishment be by a fine of one hundred dollars ($1 00.00), and by imprisonment not exceeding fifteen (15) days. 2 (6) The prov1s1ons of this section shall not apply to any person who possesses or uses MARIJUANA PRODUCTS, MARIJUANA, cannabis or cannabis concentrate pursuant to the dangerous drug therapeutic research act OR IN ACCORDANCE WITH THE PROVISIONS IN ARTICLE XVIII SECTION 14 OF THE COLORADO CONSTITUTION. Section 2. Section 16-133 of the Wheat Ridge Code of Laws is amended by the addition of Subsection (h) to read as follows: Sec. 16-133. Drug paraphernalia * * * (h) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO THE POSSESSION, DISPLAY, PURCHASE, TRANSPORT OR USE IN PRIVATE BY ANY PERSON THAT IS TWENTY-ONE YEARS OF AGE OR OLDER OF DRUG PARAPHERNALIA THAT IS USED, INTENDED FOR USE, OR DESIGNED FOR USE IN PLANTING, PROPAGATING, CULTIVATING, GROWING, HARVESTING, COMPOSTING, MANUFACTURING, COMPOUNDING, CONVERTING, PRODUCING, PROCESSING, PREPARING, TESTING, ANALYZING, PACKAGING, REPACKAGING, STORING, VAPORIZING, OR CONTAINING MARIJUANA OR FOR INGESTING, INHALING, OR OTHERWISE INTRODUCING MARIJUANA INTO THE HUMAN BODY. Section 3. Severability, Conflicting Ordinances Repealed. If any section, subsection or clause of this Ordinance shall be deemed to be unconstitutional or otherwise invalid, the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed. Section 4. Effective Date. This Ordinance shall take effect upon adoption and signature of the Mayor, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 7 to 0 on this 14th day of January, 2013, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge, and Public Hearing and consideration on final passage set for January 28, 2013 at 7:00 p.m., in the Council Chambers, 7500 West 29 1h Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of_ to_, this day of , 201_. SIGNED by the Mayor on this __ day of _____ , 201_. 3 ATTEST: Janelle Shaver, City Clerk First Publication: January 17, 2013 Second Publication: Wheat Ridge Transcript Effective Date : Jerry DiTullio, Mayor Approved as to Form Gerald E. Dahl, City Attorney 4 Amendment 64 Use and Regulation of Marijuana I Ballot Title: Shall there be an amendment to the Colorado constitution 2 concerning marijuana, and, in connection therewith, providing for the regulation 3 of marijuana; permitting a person twenty-one years of age or older to consume or 4 possess limited amounts of marijuana; providing for the licensing of cultivation 5 facilities, product manufacturing facilities, testing facilities, and retail stores; 6 permitting local governments to regulate or prohibit such facilities; requiring the 7 general assembly to enact an excise tax to be levied upon wholesale sales of 8 marijuana; requiring that the first $40 million in revenue raised annually by such 9 tax be credited to the public school capital construction assistance fund; and I 0 requiring the general assembly to enact legislation governing the cultivation, I I processing, and sale of industrial hemp? 12 Text of Measure: 13 Be it Enacted by the People of the State of Colorado: 14 Article XVIJI ofthe constitution of the state of Colorado is amended BY THE 15 ADDITION OF A NEW SECTION to read: 16 Section 16. Personal use and regulation of marijuana 17 (1) Purpose and findings. 18 {a) IN THE INTEREST OF THE EFFICIENT USE OF LAW ENFORCEMENT I 9 RESOURCES, ENHANCING REVENUE FOR PUBLIC PURPOSES, AND INDIVIDUAL 20 FREEDOM, THE PEOPLE OF THE STATE OF COLORADO FIND AND DECLARE THAT THE 21 USE OF MARIJUANA SHOULD BE LEGAL FOR PERSONS TWENTY -ONE YEARS OF AGE 22 OR OLDER AND TAXED IN A MANNER SIMILAR TO ALCOHOL. 23 {b) IN THE INTEREST OF THE HEALTH AND PUBLIC SAFETY OF OUR 24 CITIZENRY, THE PEOPLE OF THE STATE OF COLORADO FURTHER FIND AND DECLARE 25 THAT MARIJUANA SHOULD BE REGULA TED IN A MANNER SIMILAR TO ALCOHOL SO 26 THAT: 27 {I) INDIVIDUALS WlLL HAVE TO SHOW PROOF OF AGE BEFORE PURCHASING 28 MARIJUANA ; Attachment 2 (II) SELLING, DISTRIBUTING, OR TRANSFERRING MARIJUANA TO MJNORS 2 AND OTHER INDIVIDUALS UNDER THE AGE OF TWENTY-ONE SHALL REMAIN 3 ILLEGAL; 4 (Ill) DRIVING UNDER THE INFLUENCE OF MARIJUANA SHALL REMAIN 5 ILLEGAL; 6 (IV) LEGITIMATE, TAXPAYING BUSINESS PEOPLE, AND NOT CRIMINAL 7 ACTORS, WILL CONDUCT SALES OF MARIJUANA; AND 8 (V) MARIJUANA SOLD IN THlS STATE WILL BE LABELED AND SUBJECT TO 9 ADDITIONAL REGULATIONS TO ENSURE THAT CONSUMERS ARE INFORMED AND I 0 PROTECTED. II (c) IN THE INTEREST OF ENACTING RATIONAL POLICIES FOR THE 12 TREATMENT OF ALL VARIATIONS OF THE CANNABIS PLANT, THE PEOPLE OF 13 COLORADO FURTHER FIND AND DECLARE THAT INDUSTRIAL HEMP SHOULD BE 14 REGULATED SEPARATELY FROM STRAINS OF CANNABIS WITH HIGHER DELTA-9 15 TETRAHYDROCANNABINOL (TH C) CONCENTRATIONS. 16 (d) THE PEOPLE OF THE STATE OF COLORADO FURTHER FIND AND DECLARE 17 THAT IT IS NECESSARY TO ENSURE CONSISTENCY AND FAIRNESS IN THE 18 APPLICATION OF THIS SECTION THROUGHOUT THE STATE AND THAT, THEREFORE, 19 THE MATTERS ADDRESSED BY THlS SECTION ARE, EXCEPT AS SPECIFIED HEREIN, 20 MATTERS OF STATEWIDE CONCERN. 21 (2) Definitions. AS USED IN THlS SECTION, UNLESS THE CONTEXT OTHERWISE 22 REQUIRES, 23 (a) "COLORADO MEDICAL MARIJUANA CODE" MEANS ARTICLE 43.3 OF 24 TITLE 12, COLORADO REVISED STATUTES. 25 (b) "CONSUMER" MEANS A PERSON TWENTY -ONE YEARS OF AGE OR OLDER 26 WHO PURCHASES MARIJUANA OR MARIJUANA PRODUCTS FOR PERSONAL USE BY 27 PERSONS TWENTY -ONE YEARS OF AGE OR OLDER, BUT NOT FOR RESALE TO OTHERS. 28 (c) "DEPARTMENT" MEANS THE DEPARTMENT OF REVENUE OR ITS 29 SUCCESSOR AGENCY. 30 (d) "INDUSTRIAL HEMP" MEANS THE PLANT OF THE GENUS CANNABIS AND 31 ANY PART OF SUCH PLANT, WHETHER GROWING OR NOT, WITH A DELTA-9 2 I TETRAHYDROCANNABINOL CONCENTRATION THAT DOES NOT EXCEED THREE- 2 TENTHS PERCENT ON A DRY WEIGHT BASIS . 3 (e) "LOCALITY" MEANS A COUNTY, MUNIClP ALITY, OR CITY AND COUNTY. 4 (f) "MARIJUANA" OR "MARIHUANA" MEANS ALL PARTS OF THE PLANT OF 5 THE GENUS CANNABIS WHETHER GROWING OR NOT, THE SEEDS THEREOF, THE RESIN 6 EXTRACTED FROM ANY PART OF THE PLANT, AND EVERY COMPOUND, 7 MANUFACTURE, SALT, DERIVATIVE, MIXTURE, OR PREPARATION OF THE PLANT, ITS 8 SEEDS, OR ITS RESIN, INCLUDING MARIHUANA CONCENTRATE. "MARIJUANA" OR 9 "MARIHUANA" DOES NOT INCLUDE INDUSTRIAL HEMP, NOR DOES IT INCLUDE FIBER I 0 PRODUCED FROM THE STALKS, OfL, OR CAKE MADE FROM THE SEEDS OF THE PLANT, II STERILIZED SEED OF THE PLANT WHICH IS INCAPABLE OF GERMINATION, OR THE 12 WEIGHT OF ANY OTHER INGREDIENT COMBINED WITH MARIJUANA TO PREPARE 13 TOPICAL OR ORAL ADMINISTRATIONS, FOOD, DRINK, OR OTHER PRODUCT. 14 (g) "MARIJUANA ACCESSORIES" MEANS ANY EQUrPMENT, PRODUCTS, OR 15 MATERIALS OF ANY KrND WHJCH ARE USED, INTENDED FOR USE, OR DESIGNED FOR 16 USE IN PLANTING, PROPAGATING, CULTfVATING, GROWING, HARVESTING, 17 COMPOSTlNG, MANUFACTURING, COMPOUNDJNG, CONVERTING, PRODUCING, 18 PROCESSING, PREPARING, TESTING, ANALYZING, PACKAGING, REPACKAGING, 19 STORING, VAPORIZING, OR CONTAJNING MARIJUANA, OR FOR INGESTING, INHALING, 20 OR OTHERWISE INTRODUCING MARIJUANA INTO THE HUMAN BODY. 21 (h) "MARIJUANA CULTIVATION FACILITY" MEANS AN ENTITY LICENSED TO 22 CULTIVATE, PREPARE, AND PACKAGE MARIJUANA AND SELL MARIJUANA TO RET AIL 23 MARIJUANA STORES, TO MARIJUANA PRODUCT MANUFACTURING FACILITIES, AND 24 TO OTHER MARIJUANA CULTIVATION FACrLJTIES, BUT NOT TO CONSUMERS. 25 (i) "MARIJUANA ESTABLISHMENT" MEANS A MARIJUANA CULTIVATION 26 FACrLITY, A MARIJUANA TESTING FACILITY, A MARIJUANA PRODUCT 27 MANUFACTURING FACILITY, OR A RETAIL MARIJUANA STORE. 28 (j) "MARIJUANA PRODUCT MANUFACTURING FACrLITY" MEANS AN ENTITY 29 LICENSED TO PURCHASE MARIJUANA; MANUFACTURE, PREPARE, AND PACKAGE 30 MARIJUANA PRODUCTS; AND SELL MARIJUANA AND MARIJUANA PRODUCTS TO 31 OTHER MARIJUANA PRODUCT MANUFACTURING FACrLITIES AND TO RETArL 32 MARIJUANA STORES, BUT NOT TO CONSUMERS. 33 (k) "MARIJUANA PRODUCTS" MEANS CONCENTRATED MARIJUANA 34 PRODUCTS AND MARIJUANA PRODUCTS THAT ARE COMPRISED OF MARIJUANA AND 3 OTHER INGREDIENTS AND ARE INTENDED FOR USE OR CONSUMPTION , SUCH AS , BUT 2 NOT LIMITED TO, EDIBLE PRODUCTS , OINTMENTS, AND TINCTURES. 3 {I) "MARIJUANA TESTING FACILITY" MEANS AN ENTITY LICENSED TO 4 ANALYZE AND CERTIFY THE SAFETY AND POTENCY OF MARIJUANA. 5 {m) "MEDICAL MARIJUANA CENTER" MEANS AN ENTITY LICENSED BY A 6 STATE AGENCY TO SELL MARIJUANA AND MARIJUANA PRODUCTS PURSUANT TO 7 SECTION 14 OF THIS ARTICLE AND THE COLORADO MEDICAL MARIJUANA CODE. 8 (n) "RETAIL MARIJUANA STORE" MEANS AN ENTITY LICENSED TO 9 PURCHASE MARIJUANA FROM MARIJUANA CULTIVATION FACILITIES AND 10 MARIJUANA AND MARIJUANA PRODUCTS FROM MARJJUANA PRODUCT II MAN UFACTURfNGFACTLITIESANDTOSELLMARIJUANAANDMARIJUANAPRODUCTS 12 TO CONSUMERS. 13 {o) "UNREASONABLY IMPRACTICABLE" MEANS THAT THE MEASURES 14 NECESSARY TO COMPLY WITH THE REG ULATIONS REQ U IRE SUCH A HlGH 15 INVESTMENT OF RISK , MONEY , TIME, OR ANY OTHER RESOURCE OR ASSET THAT THE 16 OPERATION OF A MARIJUANA ESTABLISHMENT IS NOT WORTHY OF BEING CARRIED 17 OUT IN PRACTICE BY A REASONABLY PRUDENT BUSINESSPERSON. 18 {3) Personal use of marijuana. NOTWITHSTANDING ANY OTHER PROVISION OF 19 LAW , THE FOLLOWING ACTS ARE NOT UNLAWFUL AND SHALL NOT BE AN OFFENSE 20 UNDER COLORADO LAW OR THE LAW OF ANY LOCALITY WITHIN COLORADO OR BE 21 A BASIS FOR SEIZURE OR FORFEITURE OF ASSETS UNDER COLORADO LAW FOR 22 PERSONS TWENTY-ONE YEARS OF AGE OR OLDER: 23 {a) POSSESSING , USING , DISPLAYING , PURCHASING, OR TRANSPORTING 24 MARIJUANA ACCESSORIES OR ONE OUNCE OR LESS OF MARIJUANA. 25 (b) POSSESSING, GROWING, PROCESSING , OR TRANSPORTING NO MORE 26 THAN SIX MARIJUANA PLANTS, WITH THREE OR FEWER BEING MATURE , FLOWERING 27 PLANTS , AND POSSESSION OF THE MARIJUANA PRODUCED BY THE PLANTS ON THE 28 PREMISES WHERE THE PLANTS WERE GROWN, PROVIDED THAT THE GROWING TAKES 29 PLACE IN AN ENCLOSED , LOCKED SPACE, IS NOT CONDUCTED OPENLY OR PUBLICLY , 30 AND IS NOT MADE AVAILABLE FOR SALE. 31 {c) TRANSFER OF ONE OUNCE OR LESS OF MARIJUANA WITHOUT 32 REMUNERATION TO A PERSON WHO IS TWENTY-ONE YEARS OF AGE OR OLDER. 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 (d) CONSUMPTION OF MARIJUANA, PROVIDED THAT NOTHING IN THIS SECTION SHALL PERMIT CONSUMPTION THAT IS CONDUCTED OPENLY AND PUBLICLY OR IN A MANNER THAT ENDANGERS OTHERS. (e) ASSISTING ANOTHER PERSON WHO IS TWENTY-ONE YEARS OF AGE OR OLDER IN ANY OF THE ACTS DESCRIBED IN PARAGRAPHS (a) THROUGH (d) OF THIS SUBSECTION. ( 4) Lawful operation of marijuana-related facilities. NOTWITHSTANDING ANY OTHER PROVISION OF LAW , THE FOLLOWING ACTS ARE NOT UNLAWFUL AND SHALL NOT BE AN OFFENSE UNDER COLORADO LAW OR BE A BASIS FOR SEIZURE OR FORFEITURE OF ASSETS UNDER COLORADO LAW FOR PERSONS TWENTY -ONE YEARS OF AGE OR OLDER: (a) MANUFACTURE, POSSESSION, OR PURCHASE OF MARIJUANA ACCESSORIES OR THE SALE OF MARIJUANA ACCESSORIES TO A PERSON WHO IS TWENTY -ONE YEARS OF AGE OR OLDER. (b) POSSESSING, DISPLAYING, OR TRANSPORTING MARIJUANA OR MARIJUANA PRODUCTS; PURCHASE OF MARIJUANA FROM A MARIJUANA CULTIV A TJON FACILITY; PURCHASE OF MARIJUANA OR MARIJUANA PRODUCTS FROM A MARIJUANA PRODUCT MANUFACTURING FACILITY; OR SALE OF MARIJUANA OR MARIJUANA PRODUCTS TO CONSUMERS, LF THE PERSON CONDUCTING THE ACTlVITIES DESCRIBED IN THIS PARAGRAPH HAS OBTAINED A CURRENT, VALID LICENSE TO OPERATE A RETAIL MARIJUANA STORE OR IS ACTING IN HIS OR HER CAPACITY ASANOWNER,EMPLOYEEORAGENTOFALICENSEDRETAILMARIJUANA STORE. (c) CUL TJV ATTNG , HARVESTING, PROCESSING, PACKAGING, TRANSPORTING, DISPLA YJNG , OR POSSESSING MARIJUANA; DELNERY OR TRANSFER OF MARIJUANA TO A MARIJUANA TESTING FACILITY; SELLING MARIJUANA TO A MARIJUANA CULTIVATION FACILITY, A MARIJUANA PRODUCT MANUFACTURING FACILITY, OR A RETAIL MARIJUANA STORE; OR THE PURCHASE OF MARIJUANA FROM A MARIJUANA CUL TJV A TION FACILITY, IF THE PERSON CONDUCTING THE ACTIVITIES DESCRIBED TN THIS PARAGRAPH HAS OBTAINED A CURRENT, VAILD LICENSE TO OPERATE A MARIJUANA CULTIVATION FACILITY OR IS ACTING IN HIS OR HER CAPACITY AS AN OWNER, EMPLOYEE, OR AGENT OF A LICENSED MARIJUANA CULTIVATION FACILITY. (d) PACKAGING, PROCESSING, TRANSPORTING , MANUFACTURING , DISPLAYING, OR POSSESSING MARIJUANA OR MARIJUANA PRODUCTS; DELIVERY OR 5 TRANSFER OF MARIJUANA OR MARIJUANA PRODUCTS TO A MARIJUANA TESTING 2 FACILITY; SELLING MARIJUANA OR MARIJUANA PRODUCTS TO A RETAIL MARIJUANA 3 STORE OR A MARIJUANA PRODUCT MANUFACTURING FACILITY; THE PURCHASE OF 4 MARIJUANA FROM A MARIJUANA CULTIVATION FACILITY; OR THE PURCHASE OF 5 MARIJUANA OR MARIJUANA PRODUCTS FROM A MARIJUANA PRODUCT 6 MANUFACTURING FACILITY, IF THE PERSON CONDUCTING THE ACTIVITIES 7 DESCRlBED IN THJS PARAGRAPH HAS OBTAINED A CURRENT, VALID LICENSE TO 8 OPERATE A MARIJUANA PRODUCT MANUFACTURJNG FACiLITY OR IS ACTING IN HIS 9 ORHERCAPACJTY ASANOWNER,EMPLOYEE,ORAGENTOFALICENSEDMARIJUANA I 0 PRODUCT MANUFACTURING FACILITY. II (e) POSSESSING, CULTIVATING, PROCESSING, REPACKAGING, STORING, 12 TRANSPORTING, DISPLAYING, TRANSFERRING OR DELIVERING MARIJUANA OR 13 MARIJUANA PRODUCTS JF THE PERSON HAS OBTAINED A CURRENT, VALID LICENSE 14 TO OPERATE A MARIJUANA TESTING FACILITY OR IS ACTING IN HIS OR HER 15 CAPACITY AS AN OWNER, EMPLOYEE, OR AGENT OF A LICENSED MARIJUANA 16 TESTING FACiLITY. 17 (f) LEASING OR OTHERWISE ALLOWING THE USE OF PROPERTY OWNED, 18 OCCUPIED OR CONTROLLED BY ANY PERSON, CORPORATION OR OTHER ENTITY FOR 19 ANY OF THE ACTIVITES CONDUCTED LAWFULLY IN ACCORDANCE WJTH 20 PARAGRAPHS (a) THROUGH (e) OF THIS SUBSECTION. 21 (5) Regulation of marijuana. 22 (a) NOT LATER THAN JULY I, 2013, THE DEPARTMENT SHALL ADOPT 23 REGULATIONS NECESSARY FOR IMPLEMENTATION OF THIS SECTION. SUCH 24 REGULATIONS SHALL NOT PROHLBJT THE OPERATION OF MARIJUANA 25 ESTABLISHMENTS, EITHER EXPRESSLY OR THROUGH REGULATIONS THAT MAKE 26 THEIR OPERATION UNREASONABLY IMPRACTICABLE. SUCH REGULATIONS SHALL 27 INCLUDE: 28 (I) PROCEDURES FOR THE ISSUANCE, RENEWAL, SUSPENSION, AND 29 REVOCATION OF A LICENSE TO OPERATE A MARIJUANA EST ABLJSHMENT, WlTH 30 SUCH PROCEDURES SUBJECT TO ALL REQUIREMENTS OF ARTICLE 4 OF TITLE 24 OF 31 THE COLORADO ADMINISTRATIVE PROCEDURE ACT OR ANY SUCCESSOR 32 PROVISION; 33 (JI) A SCHEDULE OF APPLICATION, LICENSING AND RENEWAL FEES, 34 PROVIDED, APPLICATION FEES SHALL NOT EXCEED FIVE THOUSAND DOLLARS, WITH 35 THIS UPPER LIMIT ADJUSTED ANNUALLY FOR INFLATION, UNLESS THE DEPARTMENT 6 DETERMINES A GREATER FEE IS NECESSARY TO CARRY OUT ITS RESPONSIBILITIES 2 UNDER THIS SECTION, AND PROVIDED FURTHER, AN ENTITY THAT IS LICENSED 3 UNDER THE COLORADO MEDICAL MARIJUANA CODE TO CULTIVATE OR SELL 4 MARIJUANA OR TO MANUFACTURE MARIJUANA PRODUCTS AT THE TLME THIS 5 SECTION TAKES EFFECT AND THAT CHOOSES TO APPLY FOR A SEPARATE 6 MARIJUANA ESTABLISHMENT LICENSE SHALL NOT BE REQUIRED TO PAY AN 7 APPLICA TJON FEE GREATER THAN FIVE HUNDRED DOLLARS TO APPLY FOR A 8 LICENSE TO OPERATE A MARIJUANA ESTABLISHMENT IN ACCORDANCE WITH THE 9 PROVISIONS OF THIS SECTION; to {III) QUALIFICATIONS FOR LICENSURE THAT ARE DIRECTLY AND 11 DEMONSTRABLY RELATED TO THE OPERATION OF A MARIJUANA EST ABLJSHMENT; 12 {IV) SECURITY REQUIREMENTS FOR MARIJUANA ESTABLISHMENTS; 13 {V) REQUIREMENTS TO PREVENT THE SALE OR DIVERSION OF MARIJUANA 14 AND MARIJUANA PRODUCTS TO PERSONS UNDER THE AGE OF TWENTY-ONE; 15 {VI) LABELING REQUIREMENTS FOR MARIJUANA AND MARIJUANA 16 PRODUCTS SOLD OR DISTRIBUTED BY A MARIJUANA ESTABLISHMENT; 17 {VII) HEALTH AND SAFETY REGULATIONS AND STANDARDS FOR THE 18 MANUFACTURE OF MARIJUANA PRODUCTS AND THE CULTIVATION OF MARIJUANA; 19 (VIII) RESTRICTIONS ON THE ADVERTISING AND DISPLAY OF MARIJUANA 20 AND MARIJUANA PRODUCTS; AND 21 {IX) CIVIL PENALTIES FOR THE FAILURE TO COMPLY WITH REGULATIONS 22 MADE PURSUANT TO THIS SECTION. 23 {b) IN ORDER TO ENSURE THE MOST SECURE, RELIABLE, AND ACCOUNT ABLE 24 SYSTEM FOR THE PRODUCTION AND DISTRIBUTION OF MARIJUANA AND MARIJUANA 25 PRODUCTS IN ACCORDANCE WITH THIS SUBSECTION, IN ANY COMPETITIVE 26 APPLICATION PROCESS THE DEPARTMENT SHALL HAVE AS A PRIMARY 27 CONSIDERATION WHETHER AN APPLICANT: 28 {I) HAS PRIOR EXPERIENCE PRODUCING OR DISTRIBUTING MARIJUANA OR 29 MARIJUANA PRODUCTS PURSUANT TO SECTION 14 OF THIS ARTICLE AND THE 30 COLORADO MEDICAL MARIJUANA CODE IN THE LOCALITY IN WHICH THE 31 APPLICANT SEEKS TO OPERATE A MARIJUANA ESTABLISHMENT; AND 7 (II) HAS, DURING THE EXPERIENCE DESCRJBED IN SUBPARAGRAPH (1), 2 COMPLLED CONSIST ANTLY WITH SECTION 14 OF THlS ARTICLE , THE PROVISIONS OF 3 THE COLORADO MEDICAL MARJJUANA CODE AND CONFORMING REGULATIONS. 4 (c) IN ORDER TO ENSURE THAT INDIVIDUAL PRIVACY IS PROTECTED , 5 NOTWITHSTANDING PARAGRAPH (a), THE DEPARTMENT SHALL NOT REQUIRE A 6 CONSUMER TO PROVIDE A RETAIL MARJJUANA STORE WITH PERSONAL 7 INFORMATION OTHER THAN GOVERNMENT -ISSUED IDENTlFICA TION TO DETERMINE 8 THE CONSUMER'S AGE , AND A RETAIL MARJJUANA STORE SHALL NOT BE REQUIRED 9 TO ACQUIRE AND RECORD PERSONAL INFORMATION ABOUT CONSUMERS OTHER 10 THAN INFORMATION TYPICALLY ACQUIRED IN A FINANCIAL TRANSACTION 11 CONDUCTED AT A RET AfL LIQUOR STORE. 12 (d) THE GENERAL ASSEMBLY SHALL ENACT AN EXCISE TAX TO BE LEV LED 13 UPON MARJJUANA SOLD OR OTHERWISE TRANSFERRED BY A MARJJUANA 14 CULTIVATION FACILITY TO A MARJJUANA PRODUCT MANUFACTURING FACILITY OR 15 TO A RETAIL MARIJUANA STORE AT A RATE NOT TO EXCEED FIFTEEN PERCENT 16 PRIOR TO JANUARY I , 2017 AND AT A RATE TO BE DETERMINED BY THE GENERAL 17 ASSEMBLY THEREAFTER, AND SHALL DIRECT THE DEPARTMENT TO ESTABLISH 18 PROCEDURES FOR THE COLLECTION OF ALL TAXES LEVIED. PROVIDED, THE FIRST 19 FORTY MlLLION DOLLARS IN REVENUE RAISED ANNUALLY FROM ANY SUCH EXCISE 20 TAX SHALL BE CREDITED TO THE PUBLIC SCHOOL CAPITAL CONSTRUCTION 21 ASSISTANCE FUND CREATED BY ARTICLE 43.7 OF TITLE 22, C.R.S., OR ANY 22 SUCCESSOR FUND DEDICATED TO A SlMILAR PURPOSE. PROVIDED FURTHER, NO 23 SUCH EXCISE TAX SHALL BE LEVIED UPON MARJJUANA INTENDED FOR SALE AT 24 MEDICAL MARJJUANA CENTERS PURSUANT TO SECTION 14 OF THIS ARTICLE AND 25 THE COLORADO MEDICAL MARJJUANA CODE. 26 (e) NOTLATERTHAN0CTOBER 1 ,2013,EACHLOCALITYSHALLENACTAN 27 ORDINANCE OR REGULATION SPECIFYING THE ENTITY WITHIN THE LOCALITY THAT 28 IS RESPONSIBLE FOR PROCESSING APPLICATIONS SUBMITTED FOR A LICENSE TO 29 OPERATE A MARIJUANA ESTABLISHMENT WITHIN THE BOUNDARJES OF THE 30 LOCALITY AND FOR THE ISSUANCE OF SUCH LICENSES SHOULD THE ISSUANCE BY 31 THE LOCALITY BECOME NECESSARY BECAUSE OF A FAlLURE BY THE DEPARTMENT 32 TO ADOPT REGULATIONS PURSUANT TO PARAGRAPH (a) ORBECAUSEOF A FAILURE 33 BY THE DEPARTMENT TO PROCESS AND ISSUE LICENSES AS REQUIRED BY 34 PARAGRAPH (g). 35 (f) A LOCALITY MAY ENACT ORDINANCES OR REGULATIONS , NOT IN 36 CONFLICT WITH THIS SECTION OR WITH REGULATIONS OR LEGISLATION ENACTED 37 PURSUANT TO THIS SECTION , GOVERNlNG THE TIME, PLACE, MANNER AND NUMBER 8 1 OF MARIJUANA EST ABLISHMENTOPERA TIONS; ESTABLISHING PROCEDURES FOR THE 2 ISSUANCE, SUSPENSION, AND REVOCATION OF A LICENSE ISSUED BY THE LOCALITY 3 IN ACCORDANCE WITH PARAGRAPH (h) OR (i), SUCH PROCEDURES TO BE SUBJECT 4 TO ALL REQUIREMENTS OF ARTICLE 4 OF TITLE 24 OF THE COLORADO 5 ADMINISTRATlVEPROCEDUREACTORANYSUCCESSORPROVISION;ESTABLISHrNG 6 A SCHEDULE OF ANNUAL OPERATING, LICENSING, AND APPLICATION FEES FOR 7 MARIJUANA ESTABLISHMENTS, PROVIDED, THE APPLICATION FEE SHALL ONLY BE 8 DUE IF AN APPLICATION IS SUBMITTED TO A LOCALITY IN ACCORDANCE WITH 9 PARAGRAPH (i) AND A LICENSING FEE SHALL ONLY BE DUE IF A LICENSE IS ISSUED 10 BY A LOCALITY IN ACCORDANCE WITH PARAGRAPH (h) OR (i); AND ESTABLISHING 11 CIVIL PENAL TIES FOR VIOLATION OF AN ORDINANCE OR REGULATION GOVERNING 12 THE TIME, PLACE, AND MANNER OF A MARIJUANA ESTABLISHMENT THAT MAY 13 OPERATE IN SUCH LOCALITY. A LOCALITY MAY PROHIBIT THE OPERATION OF 14 MARIJUANA CULTIVATION FACILITIES, MARIJUANA PRODUCT MANUFACTURING 15 FACILITIES, MARIJUANA TESTING FAClLITIES, OR RETAIL MARIJUANA STORES 16 THROUGH THE ENACTMENT OF AN ORDINANCE OR THROUGH AN INITIATED OR 17 REFERRED MEASURE; PROVIDED, ANY INITIATED OR REFERRED MEASURE TO 18 PROHIBIT THE OPERATION OF MARIJUANA CULTIVATION FACILITIES, MARIJUANA 19 PRODUCT MANUFACTURING FACILITIES, MARIJUANA TESTING FACILITIES, OR 20 RET AIL MARIJUANA STORES MUST APPEAR ON A GENERAL ELECTION BALLOT 21 DURING AN EVEN NUMBERED YEAR. 22 (g) EACH APPLICA TlON FOR AN ANNUAL LICENSE TO OPERATE A 23 MARIJUANA ESTABLISHMENT SHALL BE SUBMITTED TO THE DEPARTMENT. THE 24 DEPARTMENT SHALL: 25 (I) BEGIN ACCEPTING AND PROCESSING APPLlCA TIONS ON OCTOBER l, 2013; 26 (II) IMMEDIATELY FORWARD A COPY OF EACH APPLICATION AND HALF OF 27 THE LICENSE APPLICATION FEE TO THE LOCALITY IN WHICH THE APPLICANT DESIRES 28 TO OPERATE THE MARIJUANA ESTABLISHMENT; 29 (III) ISSUE AN ANNUAL LICENSE TO THE APPLICANT BETWEEN FORTY-FIVE 30 AND NINETY DAYS AFTER RECEIPT OF AN APPLICATION UNLESS THE DEPARTMENT 31 FINDS THE APPLICANT IS NOT IN COMPLIANCE WITH REGULATIONS ENACTED 32 PURSUANTTOPARAGRAPH(a)OR THEDEPARTMENTISNOTIFIEDBYTHERELEVANT 33 LOCALITY THAT THE APPLICANT IS NOT IN COMPLIANCE WITH ORDINANCES AND 34 REGULATIONS MADE PURSUANT TO PARAGRAPH (f) AND IN EFFECT AT THE TIME OF 35 APPLICATION, PROVIDED, WHERE A LOCALITY HAS ENACTED A NUMERICAL LIMIT 36 ON THE NUMBER OF MARIJUANA ESTABLISHMENTS AND A GREATER NUMBER OF 37 APPLICANTS SEEK LICENSES, THE DEPARTMENT SHALL SOLICIT AND CONSIDER 9 I INPUT FROM THE LOCALITY AS TO THE LOCALJTY'S PREFERENCE OR PREFERENCES 2 FOR LICENSURE; AND 3 (IV) UPON DE IAL OF AN APPLICATION, NOTIFY THE APPLICANT IN WRITING 4 OF THE SPECIFIC REASON FOR ITS DENIAL. 5 (h) IF THE DEPARTMENT DOES NOT ISSUE A LICENSE TO AN APPLICANT 6 WITHIN NINETY DAYS OF RECEIPT OF THE APPLICATION FILED IN ACCORDANCE WITH 7 PARAGRAPH (g) AND DOES NOT NOTIFY THE APPLICANT OF THE SPECIFIC REASON 8 FOR ITS DENIAL, IN WRITING AND WITHIN SUCH TIME PERIOD, OR IF THE 9 DEPARTMENT HAS ADOPTED REGULATIONS PURSUANT TO PARAGRAPH(a) AND HAS I 0 ACCEPTED APPLICATIONS PURSUANT TO PARAGRAPH (g) BUT HAS NOT ISSUED ANY II LICENSES BY JANUARY I, 2014, THE APPLICANT MAY RESUBMJT ITS APPLICATION 12 DIRECTLY TO THE LOCALITY, PURSUANT TO PARAGRAPH (e), AND THE LOCALITY 13 MAY ISSUE AN ANNUAL LICENSE TO THE APPLICANT. A LOCALITY ISSUING A 14 LICENSE TO AN APPLICANT SHALL DO SO WITHIN NlNETY DAYS OF RECEIPT OF THE 15 RESUBMITTED APPLICATION UNLESS THE LOCALITY FINDS AND NOTIFIES THE 16 APPLICANT THAT THE APPLICANT IS NOT IN COMPLIANCE WITH ORDINANCES AND 17 REGULATIONS MADE PURSUANT TO PARAGRAPH (f) IN EFFECT AT THE TIME THE 18 APPLICA TfON IS RESUBMITTED ANDTHELOCALJTY SHALL NOTIFY THE DEPARTMENT 19 IF AN ANNUAL LICENSE HAS BEEN ISSUED TO THE APPLICANT. IF AN APPLICATION 20 IS SUBMITTED TO A LOCALITY UNDER THIS PARAGRAPH, THE DEPARTMENT SHALL 21 FORWARD TO THE LOCALITY THE APPLICATION FEE PAID BY THE APPLICANT TO THE 22 DEPARTMENT UPON REQUEST BY THE LOCALITY. A LICENSE ISSUED BY A LOCALITY 23 IN ACCORDANCE WITH THIS PARAGRAPH SHALL HAVE THE SAME FORCE AND EFFECT 24 AS A LICENSE ISSUED BY THE DEPARTMENT IN ACCORDANCE WITH PARAGRAPH (g) 25 AND THE HOLDER OF SUCH LICENSE SHALL NOT BE SUBJECT TO REGULATION OR 26 ENFORCEMENT BY THE DEPARTMENT DURING THE TERM OF THAT LICENSE. 27 A SUBSEQUENT OR RENEWED LICENSE MAY BE ISSUED UNDER THIS PARAGRAPH ON 28 AN ANNUAL BASIS ONLY UPON RESUBMJSSION TO THE LOCALITY OF A NEW 29 APPLICATION SUBMITTED TO THE DEPARTMENT PURSUANT TO PARAGRAPH (g). 30 NOTHING IN THIS PARAGRAPH SHALL LIMIT SUCH RELIEF AS MAY BE AVAILABLE TO 31 AN AGGRIEVED PARTY UNDER SECTION 24-4-104, C.R.S., OF THE COLORADO 32 ADMINISTRATIVE PROCEDURE ACT OR ANY SUCCESSOR PROVISION. 33 (i) IF THE DEPARTMENT DOES NOT ADOPT REGULATIONS REQUIRED BY 34 PARAGRAPH (a), AN APPLICANT MAY SUBMlT AN APPLICATION DIRECTLY TO A 35 LOCALITY AFTER OCTOBER I, 2013 AND THE LOCALITY MAY ISSUE AN ANNUAL 36 LICENSE TO THE APPLICANT. A LOCALITY ISSUING A LICENSE TO AN APPLICANT 37 SHALL DO SO WITHIN NlNETY DAYS OF RECEIPT OF THE APPLICATION UNLESS IT 38 FINDS AND NOTIFIES THE APPLICANT THAT THE APPLICANT IS NOT IN COMPLIANCE 10 I WITH ORDINANCES AND REGULATIONS MADE PURSUANT TO PARAGRAPH (f) IN 2 EFFECT AT THE TIME OF APPLICATION AND SHALL NOTIFY THE DEPARTMENT IF AN 3 ANNUAL LICENSE HAS BEEN ISSUED TO THE APPLICANT. A LICENSE ISSUED BY A 4 LOCALITY IN ACCORDANCE WITH THIS PARAGRAPH SHALL HAVE THE SAME FORCE 5 AND EFFECT AS A LICENSE ISSUED BY THE DEPARTMENT IN ACCORDANCE WITH 6 PARAGRAPH (g) AND THE HOLDER OF SUCH LICENSE SHALL NOT BE SUBJECT TO 7 REGULATION OR ENFORCEMENT BY THE DEPARTMENT DURING THE TERM OF THAT 8 LICENSE. A SUBSEQUENT OR RENEWED LICENSE MAY BE ISSUED UNDER THIS 9 PARAGRAPH ON AN ANNUAL BASIS lF THE DEPARTMENT HAS NOT ADOPTED 10 REGULATIONSREQUIREDBYPARAGRAPH (a) ATLEASTNINETY DAYS PRIOR TO THE 11 DATE UPON WHICH SUCH SUBSEQUENT OR RENEWED LICENSE WOULD BE EFFECTIVE 12 OR lF THE DEPARTMENT HAS ADOPTED REGULATIONS PURSUANT TO PARAGRAPH 13 (a) BUT HAS NOT, AT LEAST NINETY DAYS AFTER THE ADOPTION OF SUCH 14 REGULATIONS, ISSUED LICENSES PURSUANT TO PARAGRAPH (g). 15 0) NOT LATER THAN JULY I, 2014, THE GENERAL ASSEMBLY SHALL ENACT 16 LEGLSLA TION GOVERNING THE CUL TIV A TJON, PROCESSING AND SALE OF 17 INDUSTRIAL HEMP. 18 (6) Employers, driving, minors and control of property. 19 (a) NOTHING IN THJS SECTION IS INTENDED TO REQUlRE AN EMPLOYER TO 20 PERMIT OR ACCOMMODATE THE USE, CONSUMPTION, POSSESSION, TRANSFER, 21 DISPLAY, TRANSPORTATION, SALE OR GROWING OF MARIJUANA IN THE WORKPLACE 22 OR TO AFFECT THE ABILITY OF EMPLOYERS TO HAVE POLIClES RESTRICTING THE 23 USE OF MARIJUANA BY EMPLOYEES. 24 (b) NOTHING IN THIS SECTION IS INTENDED TO ALLOW DRIVING UNDER THE 25 lNFLUENCE OF MARIJUANA OR DRIVING WHlLE JMPAlRED BY MARIJUANA OR TO 26 SUPERSEDE STATUTORY LAWS RELATED TO DRIVING UNDER THE lNFLUENCE OF 27 MARIJUANA OR DRIVING WHILE IMPAIRED BY MARIJUANA, NOR SHALL THIS SECTION 28 PREVENT THE STATE FROM ENACTING AND IMPOSING PENALTlES FOR DRIVING 29 UNDER THE lNFLUENCE OF OR WHILE IMP AlRED BY MARIJUANA. 30 (c) NOTHING IN THIS SECTION IS INTENDED TO PERMIT THE TRANSFER OF 31 MARIJUANA, WITH OR WITHOUT REMUNERATION, TO A PERSON UNDER THE AGE OF 32 TWENTY-ONE OR TO ALLOW A PERSON UNDER THE AGE OF TWENTY-ONE TO 33 PURCHASE, POSSESS, USE, TRANSPORT, GROW, OR CONSUME MARIJUANA. 34 (d) NOTHING IN THlS SECTION SHALL PROHIBIT A PERSON, EMPLOYER, 35 SCHOOL, HOSPITAL, DETENTION FAClLITY, CORPORATION OR ANY OTHER ENTITY 11 WHO OCCUPIES, OWNS OR CONTROLS A PROPERTY FROM PROHIBITING OR 2 OTHERWISE REGULATING THE POSSESSION, CONSUMPTION, USE, DISPLAY, 3 TRANSFER, DISTRIBUTION, SALE, TRANSPORTATION, OR GROWING OF MARIJUANA 4 ON OR IN THAT PROPERTY. 5 (7) Medical marijuana provisions unaffected. NOTHING IN THIS SECTION SHALL 6 BE CONSTRUED: 7 {a) TO LIMIT ANY PRIVILEGES OR RIGHTS OF A MEDICAL MARIJUANA 8 PATIENT, PRIMARY CAREGIVER, OR LICENSED ENTITY AS PROVIDED IN SECTION 14 9 OF THIS ARTICLE AND THE COLORADO MEDICAL MARIJUANA CODE; I 0 (b) TO PERMIT A MEDICAL MARIJUANA CENTER TO DISTRIBUTE MARIJUANA 11 TO A PERSON WHO IS NOT A MEDICAL MARIJUANA PATIENT; 12 (c) TO PERMIT A MEDICAL MARIJUANA CENTER TO PURCHASE MARIJUANA 13 OR MARIJUANA PRODUCTS IN A MANNER OR FROM A SOURCE NOT AUTHORIZED 14 UNDER THE COLORADO MEDICAL MARIJUANA CODE; 15 (d) TO PERMIT ANY MEDICAL MARIJUANA CENTER LICENSED PURSUANT TO 16 SECTION 140FTHISARTICLEANDTHECOLORADOMEDICALMARIJUANACODETO 17 OPERATE ON THE SAME PREMISES AS A RETAIL MARIJUANA STORE; OR 18 (e) TODISCHARGETHEDEPARTMENT, THECOLORADOBOARDOFHEALTH, 19 OR THE COLORADO DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT FROM 20 THETR STATUTORY AND CONSTITUTIONAL DUTIES TO REGULATE MEDICAL 21 MARIJUANA PURSUANT TO SECTION 14 OF THIS ARTICLE AND THE COLORADO 22 MEDICAL MARIJUANA CODE. 23 (8) Self-executing, severability, conflicting provisions. ALL PROVISIONS OF 24 THIS SECTION ARE SELF-EXECUTING EXCEPT AS SPECIFTED HEREIN, ARE SEVERABLE, 25 AND, EXCEPT WHERE OTHERWISE INDICATED IN THE TEXT, SHALL SUPERSEDE 26 CONFLICTING STATE STATUTORY, LOCAL CHARTER, ORDINANCE, OR RESOLUTION, 27 AND OTHER STATE AND LOCAL PROVISIONS. 28 (9) Effective date. UNLESS OTHERWISE PROVIDED BY THIS SECTION, ALL 29 PROVISIONS OF THJS SECTION SHALL BECOME EFFECTIVE UPON OFFICIAL 30 DECLARATION OF THE VOTE HEREON BY PROCLAMATION OF THE GOVERNOR, 31 PURSUANT TO SECTION 1(4) OF ARTICLE V. 12 To : From : Date : Subject: THE VOICE OF COLORADO'S CITIES AND TOWNS 1144 Sherman Street , Denver, CO 80203 • (p) 303-831-64111866-578-0936 • (f) 303-860-8175 • www.cml.org CML Membership Rachel Allen , CML Staff Attorney Kevin Bommer, CML Deputy Director November 7 , 2012 Amendment 64 -Use and Regulation of Marijuana Passes Colorado voters approve marijuana for consumers at least 21 years old On November 6 , 2012 , Colorado voters passed Amendment 64 to Use and Regulation of Marijuana . Amendment 64 provides for persons 21-years-of-age or older to legally consume or possess 1 ounce or less of marijuana without a doctor's recommendation and tax marijuana similar to alcohol. Amendment 64 also creates the framework for a regulatory scheme for retail sales of marijuana . This memo addresses issues of immediate consideration for Colorado's cities and towns . CML will continue to monitor and report on emerging issues and developments , such as workplace issues , rulemaking , and implementation . Please consult with your municipal attorney to address retail marijuana operations in your municipality . Marijuana retail sales and home grows Unless specifically prohibited (see below), special retail stores will be allowed to sell marijuana in a system of licensed establishments regulated the by state and local governments. Amendment 64 also allows for people to grow up to six marijuana plants in their home or other enclosed , locked space . However, it is not clear at this time how this constitutional protection will interact with local land use powers , particularly any ordinances pertaining to home grows. Amendment 64 does not change existing medical marijuana laws Retail operations may be licensed as a medical marijuana center or retail marijuana establishment, not both . Medical marijuana centers choosing to convert to a retail marijuana operation will pay a reduced fee for the marijuana application , but otherwise, Amendment 64 has no impact on the existing medical marijuana regulatory scheme . Local governments may choose to prohibit or license retail marijuana or medical marijuana operations. How your municipality has addressed medical marijuana does not dictate how your municipality will or should address retail marijuana establishments . Timeline for local prohibition or regulation Amendment 64 tasks the Colorado Department of Revenue with issuing regulations for retail marijuana stores by July 1, 2013 . Municipalities should opt whether to adopt 1) a prohibition or 2) local restrictions on the time , place , manner and number of retail marijuana operations in their jurisdiction before July 1, 2013. Local governments may prohibit by council action at any time, but the first opportunity to refer a retail marijuana prohibition question to the ballot is the general election on November 4 , 2014 . Some municipalities may choose to issue a prohibition, moratorium , or regulations until the voters have the opportunity to be heard at the next general election. Attachment 3 Local licenses may be issued October 1 , 2013 In the event that the Colorado Department of Revenue does not issue regulations by July 1, 2013 , then cities and towns may choose to issue local licenses starting on October 1, 2013 , but there is no requirement for local governments to issue retail marijuana licenses in the absence of a state licensing program . CML will keep you informed The League will monitor the Colorado Department of Revenue progress and keep municipalities abreast of developments . This is critical because if the Department of Revenue doesn 't issue licenses by July 1, 2013 , then municipalities that opt to issue local license will have 90 days to enact a regulation , licensing , and enforcement program . CML will also keep our members informed on employee-employer issues , as it relates to the use and possession of marijuana in the workplace . Finally , CML will investigate and report on the complex federal issues that are likely to arise as Amendment 64 is implemented in Colorado . Marijuana continues to be illegal under federal law, and it is possible that a lawsuit challenging the legality of Amendment 64 is forthcoming . That would set up a dynamic discussion of the 1Oth Amendment and the extent of state sovereignty on this issue . For additional information , please go to www.cml.org , call (303) 831-6411 I (866) 578 -0936 toll free or contact: • Rachel Allen , CML staff attorney -rallen@cml.org • Kevin Bommer, CML Deputy Director-kbommer@cml.org ... ~~~ .. ., City of ?WheatR.l._.dge TITLE: ITEM NO:~ DATE: January 28,2013 REQUEST FOR CITY COUNCIL ACTION RESOLUTION NO. 06-2013 A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH COLORADO PLUS LIQUID ART WORKS, INC. FOR PARTICIPATION IN THE ENHANCED SALES TAX INCENTIVE PROGRAM (ESTIP) REBATING 50°/o OF THE ENHANCED SALES TAX FOR A PERIOD OF FIVE YEARS FOR THE REMODEL OF A RESTAURANT AT 6995 WEST 38™ A VENUE IN AN AMOUNT NOT TO EXCEED $76,200 ~ PUBLIC HEARING D BIDS/MOTIONS ~ RESOLUTIONS D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2N° READING QUASI-JUDIC D YES ~ NO _Q City Manager ISSUE: Colorado Plus Liquid Art Works, Inc. (Colorado Plus) has made an application and request to participate in the City's Enhanced Sales Tax Incentive Program (ESTIP), related to the construction of a new restaurant at 6995 W . 38th Avenue. The request is for the rebate of 50% of the future sales tax increment for a period o f five years for an estimated total of $62,500. PRIOR ACTION: At the January 7, 2013 , Study Session, City Council reviewed a request from Colorado Plus for an ESTIP agreement wherein all or a portion of the sales tax increment would be rebated back to Colorado Plus. City Council discussed the request and directed staff to draft an ESTIP agreement to rebate 50% of future sales tax increment for a period of five years in an amount not to exceed $76 ,200. Council Action Form January 28, 2013 Page 2 FINANCIAL IMPACT: This agreement will decrease future sales taxes to the City from the Colorado Plus project by 50% of the total City sales taxes generated for a period of five years for an estimated total of $62,500. BACKGROUND: Chapter 22 of the Wheat Ridge Code of Laws established the ESTIP program. The primary purpose of the ESTIP is to encourage the establishment and/or substantial expansion of retail sales tax generating businesses within the City. The ESTIP provides incentives through the rebate of future sales tax increment. In the past the Council has approved several ESTIP agreements with existing Wheat Ridge businesses, non-profits, and business looking for an incentive to relocate to Wheat Ridge. Every project was unique but each was evaluated for incentives against a set of criteria outlined in the Code of Laws. The criteria for approval of an ESTIP agreement are as follows: 1. The amount of enhanced sales tax which can reasonably be anticipated to be derived by the city through the expanded or new tax generating business; 2. The public benefits which are provided by the applicant through public works, public improvements, additional employment for city residents; 3. The amount of city expenditures which may be deferred by the city based upon public improvements to be completed by the applicant; and 4. The conformance of the applicant's property or project with the comprehensive plan and zoning ordinances of the city. In September 2012, Colorado Plus approached staff with a desire to enter into a BDZ Agreement wherein they would receive up to 100% rebate of their use tax . In that September request, Colorado Plus estimated total building construction improvements, furniture , fixtures and equipment of$209,135 . As of December 2012, that number has risen to more than $300,000 and a total investment of more than $1,000,000. To date, they have paid $3 ,768.21 to the City in use- tax fees , and a total of $6,8 06.77 in permit fees. Then, in October of2012, with change orders and unanticipated construction costs affecting the development, Colorado Plus approached staff with a desire to enter into an ESTIP Agreement wherein they would receive a portion of their enhanced sales tax annually for a period of years. The structure being remodeled is about 44 years old and is in need of a major overhaul to bring it up to current standards that are compliant with building codes. Besides the decor improvements to the interior and exterior of the structure, the building requires vast improvements to its plumbing, electrical, and mechanical systems. The building is also laden with asbestos which must be remediated to allow for decor improvements . Some of these improvements are currently in the process as rehabilitation began in October 2012. Council Action Form January 28, 2013 Page 3 Visible improvements include the addition of two glass roll up garage doors, similar to the one at Right Coast Pizza, creating a more visually pleasing site and improved ingress and egress for public safety. Seating areas will be improved as Colorado Plus has removed all the old booths used by Valente's and will replace them with new furnishings. ESTIP funds would be rebated for public improvements to address accessibility issues throughout the building, a new fa9ade and patio seating area, demolition, concrete work, roofing repairs, roll-up doors, asbestos abatement, electrical, plumbing work, fire suppression system, kitchen expansion, electrical safety, and other public enhancements. The inside of the facility is being designed by Lakota Skye, a decor company specializing in restaurants. The theme will be an industrial look featuring wide-open ceilings to expose the!- beams. A 17-foot bar will feature native rocks and/or lumber as structural support and decor. Colors include steel grey, silver, gold, black and white. All facilities will be upgraded to ADA compliance standards. The parking areas in both parking lots are in poor shape and will be re-sealed and re-striped giving those areas a new and fresh look. New signage will be placed on the building and the old pole sign in the parking lot to the west of the structure will be removed and may be replaced with a monument sign at some point. The project has not been without its change orders as demolition and new construction continue. These change orders have resulted in the original project budget being amended and have greatly increased development costs. Wheat Ridge based Compass Construction has been awarded the contract to complete the improvements per the owner's plans. These major cost overruns are the reason that Colorado Plus ownership is requesting the BDZ and ESTIP with the City of Wheat Ridge. These increased development costs have forced the owners to make some major decisions on development and a phasing of the project. Because this type ofbusiness has not operated in Wheat Ridge, it's difficult to assess the estimated amount of sales tax that may be generated annually. Based on recent history of restaurant sales, the facility could generate annual new sales tax of about $25,000. Colorado Plus is requesting a total incentive package of $80,000 to be broken down into a BDZ request of approximately $3,800 and an ESTIP for the remaining portion of the request. In calculating the ESTIP, the base year would be set at zero dollars based on the previous 12- months of sales tax production at that address. The City of Wheat Ridge would be at no risk in entering into the ESTIP because no funds are released to Colorado Plus prior to the sales tax revenues being received by the City. The ESTIP funds are provided on an annual basis. Colorado Plus purchased the site for $675,000 and has an annual debt service of$39,600 and an annual property tax payment of$15,495. Development costs are anticipated near $300,000 for a total project cost of just over $1,028,000. Colorado Plus has an equity loan of$675,000 and its Council Action Form January 28, 2013 Page4 owners are investing $300,000 of their own equity into the project. The project is also receiving $60,000 of funding from a Wheat Ridge 2020 grant. The total funding sources total $1,035,000. The project anticipates monthly expenses of approximately $61,000 and generated revenues of about $70,000 per month. Colorado Plus anticipates generating approximately $25,000 in sales tax annually. RECOMMENDATIONS: This item was posted in the Wheat Ridge transcript as required by ordinance and staff recommends conducting a public hearing. Staff recommends funding this project to the full requested amount for the following reasons: 1. The project meets the objectives of the 38 1h Avenue Corridor Urban Renewal Plan, the 38 1h Avenue Subarea Plan, Envision Wheat Ridge by providing new niche and sales tax producing products. 2. The project could be a catalyst for the redevelopment of adjacent properties along the corridor and could help stimulate development of the closed Mark's Restaurant directly across the street from this project. 3. The project site has been vacant for four years. This project will aide in eliminating blight along the 38 1h Avenue corridor. 4. The project will bring additional 'life' to the 381h Avenue with increased pedestrian, bike and motor vehicular access. 5. The project will bring in new sales tax revenues and employment RECOMMENDED MOTION: "I move to approve adoption of Resolution No. 06-2013, a resolution authorizing the execution of an agreement with Colorado Plus Liquid Art Works, Inc. for participation in the Enhanced Sales Tax Incentive Program rebating 50% of the enhanced sales tax for a period oftive years for the remodel of a site at 6995 W. 38th Avenue in an amount not to exceed $76,200." Or, "I move to postpone indefinitely the adoption of Resolution No. 06-2013, a resolution authorizing the execution of an agreement with Colorado Plus Liquid Art Works, Inc. for participation in the Enhanced Sales Tax Incentive Program for the following reason(s) ___ " REPORT PREPARED/REVIEWED BY: Steve Art, Economic Development/ Urban Renewal Manager Patrick Goff, City Manager ATTACHMENTS: 1. Resolution No. 06-2013 2. ESTIP Agreement 3. Colorado Plus Liquid Art Works project description and pro forma CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 06 Series of 2013 TITLE: A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH COLORADO PLUS LIQUID ART WORKS INC. FOR PARTICIPATION IN THE ENHANCED SALES TAX INCENTIVE PROGRAM (ESTIP) REBATING 50% OF THE ENHANCED SALES TAX FOR A PERIOD OF FIVE YEARS FOR THE REMODEL OF A RESTAURANT AT 6995 WEST 38TH AVENUE IN AN AMOUNT NOT TO EXCEED $76,200 WHEREAS, the City has adopted as a portion of the Wheat Ridge Code of Laws ("Code") Chapter 22, Division 4, "Enhanced Sales Tax Incentive Program" (the Program) to encourage, in part, continued development and expansion of opportunities for employment in the private sector in the City; and WHEREAS, Colorado Plus Liquid Artworks (Colorado Plus) has applied to participate in the Program and a public hearing was posted and conducted; and WHEREAS, Colorado Plus is the owner and operator of a development site that will serve residents of Wheat Ridge and surrounding communities; WHEREAS, Owner plans to construct public improvements of approximately $250,000 and a total project budget of approximately $1,000,000; and WHEREAS, the project enhances services to the neighborhood and neighboring communities and brings revenue to the City from surrounding communities - a true definition of economic development; and WHEREAS; the project creates up to eight full and part-time jobs, and WHEREAS; the project spurs reinvestment through remodeling and new construction of a blighted structure, thus enhancing and preserving its economic viability in the City; and WHEREAS, cost-sharing at the rate prescribed herein will serve to aid the expansion of Owner in that it will alleviate a portion of the costs associated with the expansion. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, as follows: An Agreement to participate in the City of Wheat Ridge Enhanced Sales Tax Incentive Program with Colorado Plus Liquid Art Works, Inc. is hereby approved wherein an amount of 50% of enhanced sales tax generated for a period of five Attachment 1 years , not-to-exceed $76,200 , will be rebated to Colorado Plus Liquid Artworks Inc. DONE AND RESOLVED this 281h day of January 2013. Jerry DiTullio, Mayor ATTEST: Janelle Shaver, City Clerk AGREEMENT PURSUANT TO ENHANCED SALES TAX INCENTIVE PROGRAM This Agreement Pursuant To Enhanced Sales Tax Incentive Program (this "Agreement") is made and entered into as of the 28th day of January, 2013, by and between COLORADO PLUS LIQUID ART WORKS INC., an S-Corporation located at 6995 W. 38TH Avenue, Wheat Ridge, CO 80033, hereinafter referred to as the "Owner'' and the CITY OF WHEAT RIDGE, COLORADO, hereinafter referred to as the "City," collectively the "Parties," and each individually, as a "Party." RECITALS: Whereas, the City has adopted Chapter 22, Article 69 -84 of the Wheat Ridge Code of Laws, entitled the Enhanced Sales Tax Incentive Program (the "ESTIP Program"), a copy of which is attached hereto as Exhibit A, to encourage, in part, the establishment of retail sales tax generating businesses within the City; and Whereas, the Owner desires to participate in the ESTIP Program and to share in the enhanced sales tax derived from the property described as Colorado Plus Liquid Art Works, Inc., generally located at 6995 W. 38th Avenue in Wheat Ridge, Colorado and more particularly described in Exhibit B, attached hereto and incorporated by this reference (the "Property"), for the installation of Public Improvements described in Exhibit C, attached hereto and incorporated by this reference (the "Public Improvements") to the extent allowed by this Agreement and the ESTIP Program. NOW, THEREFORE, in consideration of the foregoing premises and the covenants, promises, and agreements of each of the Parties hereto, to be kept and performed by each of them, the Parties agree as follows: 1. Recitals. The Recitals set forth above are incorporated in this Agreement by reference. 2. Term. The term of this Agreement shall commence on the first day of the calendar month following the month in which the Owner receives their Certificate of Occupancy on the Property (the "Commencement Date") and shall terminate in five (5) years, unless otherwise provided in this Agreement (the "Term"). The Term of this Agreement shall automatically renew for each additional one year period to the extent required by Section 4( d) hereof. 3. Aoolication of Citv Code. This Agreement is subject to the limitations of the ESTIP Program, as found in the City of Wheat Ridge Code of Laws. In the event of conflicts between this Agreement and the ESTIP Program, the ESTIP Program shall control. Attachment 2 4. Qualification of Property for the ESTIP Program. The City agrees that the Property qualifies for the ESTIP Program and the Public Improvements are improvements for public and/or public related purposes that will stimulate the economy of and within the City, provide employment opportunities for residents of this City and others, expand the goods available for purchase and consumption by residents of the City, and increase sales taxes collected by the City. The City finds the business is reasonably likely to generate enhanced sales taxes of at least $125,000 over the full term of this Agreement. The following provisions shall apply for each year in which the ESTIP Program is in effect for the Property: a. Fifty percent (50%) of the "Enhanced Sales Taxes" collected by the City and derived from the Property shall be segregated by the City to be utilized for the ESTIP Program herein established and approved (the "Allocated Revenues"). For purposes of this Agreement "Enhanced Sales Taxes" shall have the meaning set forth in the ESTIP Program at Section 22-75 ofthe Wheat Ridge Code of Laws. b . The amount of Enhanced Sales Taxes shall be calculated as follows: the actual amount of sales taxes collected on the Property during the period for 12-monhs proceeding the issuance of a certificate of occupancy by the City of Wheat Ridge (the "base amount").The excess of collections in each such year above the base amount shall be the Enhanced Sales Taxes for that year. c. The Owner shall share in the Enhanced Sales Taxes derived from the Property and the business located thereon as provided herein. d. Enhanced Sales Taxes from the Property shall be shared and the Allocated Revenues shall be disbursed to the Owner on an annual basis with sales taxes collected on and after the Commencement Date. The maximum period of time that this Agreement shall be in effect shall for FIVE (5) years or SEVENTY SIX THOUSAND AND TWO HUNDRED DOLLARS ($76,200), whichever occurs first. · 2 The Term will be automatically extended for one year for up to two (4) additional one (1) year periods. e. This Agreement is a personal agreement between the City and the Owner and does not run with the Owner's property interest in the land. The obligations, benefits and/or the provisions of this Agreement may not be assigned in whole or in part without the express authorization of the City Council, acting in its sole and exclusive discretion and no third party shall be entitled to rely upon or enforce any provisions hereon. Notwithstanding the foregoing, Owner may assign its interests in this Agreement to an affiliate or to a successor by consolidation. For the purposes of this Paragraph, an affiliate means an entity which controls, is controlled by, or is under common control with the Owner. This Agreement shall never constitute a debt or obligation of the City within any constitutional or statutory provision. f. Any Enhanced Sales Taxes subject to the Agreement shall be escrowed in the event there is a legal challenge to the ESTIP Program or to the approval of this Agreement. g. At the end of the Term of this Agreement as provided for herein, any monies segregated by the City which have not been expended as hereunder provided may be transferred to another account of the City or used in a manner determined by the City in its sole discretion, excluding any amounts escrowed under Paragraph 4.fabove. 3 h. The Owner shall be deemed the "owner or proprietor" of the Property for the purposes of this Agreement and the ESTIP Program, whether or not the Owner owns all or any portion of the Property at any relevant time, since the Owner is coordinating the installation of the Public Improvements. 5. City's Budget Process. Each year, the City Manager shall include in a budget presented to the City Council pursuant to Chapter X, Sec. 10.2 of the Wheat Ridge Home Rule City Charter, the appropriation of the Allocated Revenues for payment to the Owner as provided in this Agreement. Nothing in this Agreement shall be construed as obligating the City Council to appropriate the Allocated Revenues in any fiscal year. 6. No Debt or Pecuniary Liabilitv. Notwithstanding anything in the Agreement to the contrary, the Agreement is specifically subject to annual appropriation of sufficient funds to pay the Allocated Revenue as provided in the ESTIP Program. No multiple year fiscal obligation is created hereby. The decision of the City Council not to appropriate funds in any given year shall not affect, impair or invalidate any of the remaining provisions of this Agreement. None of the obligations of the City hereunder shall be payable from any source other than Enhanced Sales Taxes. 7. Subordination. Notwithstanding anything in this Agreement to the contrary, the Owner shall have no right, claim, lien, or priority, in or to the City's sales tax revenue that would be superior to or on parity with the rights, claims, or liens of the holders of any sales tax revenue that would be bonds, notes , certificates, or debentures payable from or secured by any sales taxes , outstanding as of the Effective Date of this Agreement. All rights of the Owner are , and at all time shall be, subordinate and inferior to the rights , claims and liens of the holders of any and all such sales tax revenue bonds, notes , certificates, or debentures, issued by the City and payable from or secured by any sales taxes. 8. No Covenant to Construct or to Open. The intent of this Agreement is to provide for Owner's participation in the ESTIP Program, in the event that Owner constructs the Public Improvements. Notwithstanding any provision in this Agreement to the contrary, Owner shall have no obligation under this Agreement to construct the Public Improvements, and in that event, the City shall have no obligation to share any of the Enhanced Sales taxes with Owner. 9. Remedies. The Owner waives any constitutional claims against the City arising out of a breach of this Agreement. The Owner's remedies against the City under this Agreement are limited to breach of contract claims. In no event shall the Owner be entitled to a claim, nor shall the City be liable for , any special , exemplary, punitive or consequential damages of any kind , including economic damages or lost profits . 4 10. Severability. It is understood and agreed by the Parties that if any part, term or provision of this Agreement is held by the courts to be illegal or in conflict with any law of the State of Colorado, the validity of the remaining portions or provisions shall not be affected, the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provision held to be invalid, and the Parties shall cooperate to cure any legal defects in the Agreement or the ESTIP. Should the allocation of the Enhanced Sales Tax, or the payment of the Allocated Revenues be judicially adjudged illegal, invalid or unenforceable under the present or future laws effective during the Term of this Agreement by a court of competent jurisdiction in a fmal, non-appealable judgment, the Parties shall utilize their best, good faith efforts to restructure this Agreement or enter into a new agreement consistent with the purposes of this Agreement. Should the Parties be unsuccessful in their efforts, the Agreement shall terminate without penalty or recourse to the City. 11. Governing Law. The laws of the State of Colorado shall govern the validity, performance and enforcement of this Agreement. Should either Party institute legal suit or action for enforcement of any obligation contained herein, it is agreed that venue of such suit or action shall be proper and exclusive in the district court for Jefferson County, Colorado. 12. Notices. All notices required or permitted under this Agreement shall be in writing and shall be hand delivered or sent by certified mail, return receipt requested, postage prepaid, to be addressed to the Parties set forth below. All notices so given shall be considered effective upon the earlier of the actual receipt or seventy-two (72) hours after deposit in the United States Mail with the proper address. Either Party by notice so given may change the address to which future notices shall be sent: Notice to the City: Copy to: Notice to the Owner: City Manager City of Wheat Ridge 7500 W. 29th Avenue Wheat Ridge, CO 80033 City Attorney City of Wheat Ridge 7500 W. 29th Avenue Wheat Ridge, CO 80033 Eugene Kahng -President LIQUID ART WORKS, INC. 6995 W. 38th Avenue Wheat Ridge, CO 80033 5 13. Entire Agreement -Amendments. This Agreement embodies the whole agreement of the Parties. There are no promises , terms , conditions , or obligations other than those contained herein and this Agreement shall supersede all previous communications , representations or agreements , either verbal or written, between the Parties hereto. This Agreement may be amended only by written agreement between the Owner and the City acting pursuant to City Council authorization. 14. Effective Date. This Agreement shall be effective and binding upon the Parties upon the date first set forth above. Notwithstanding any provision of this Agreement which may be interpreted to the contrary , in the event that Owner does not acquire title to the Property and construct and make improvements to the Property on or before June 30, 2013 , then upon notice by the Owner to the City, this Agreement shall terminate and both Parties shall be relieved of all liability hereunder. IN WITNESS WHEREOF , Owner and City have each caused this Agreement to be executed by the authorized Parties. State of Colorado County of ____ _ ) ) ss. ) OWNER COLORADO PLUS LIQUID ART WORKS, INC. Eugene Kahng President The foregoing Agreement was acknowledged before me this _ day of _____ , 20_, by as [title] of _________________ ,Inc. WITNESS MY HAND AND OFFICAL SEAL. My Commission expires: _______ _ Notary Public 6 ATTEST: Name: Janelle Shaver Title: City Clerk State of Colorado ) ) ss. County of Jefferson ) CITY OF WHEAT RIDGE By: __________________ _ Name: Jerry DiTullio Title: Mayor The foregoing Agreement was acknowledged before me this __ day of ____ __ 20_, by Jerry DiTullio as Mayor and Janelle Shaver as City Clerk, respectively, of the City of Wheat Ridge, Colorado. WITNESS MY HAND AND OFFICAL SEAL. My Commission expires: _______ _ Notary Public 7 EXHIBIT A Ordinance 2001-08 The Enhanced Sales Tax Incentive Program (The "ESTIP Program") Sec. 22-73. -Program established. There is hereby established within the city an enhanced sales tax incentive program. (Ord. No. 1988-758, § 1(24-1), 5-23-88; Ord. No. 1272, § 1, 12-9-02) Sec. 22-74.-Purpose. The purpose of the enhanced sales tax incentive program created by this division is to encourage the establishment and/or substantial expansion of retail sales tax generating businesses within the city, thereby stimulating the economy of and within the city, thereby providing employment for residents of the city and others, thereby further expanding the goods available for purchase and consumption by residents of the city, and further increasing the sales taxes collected by the city, which increased sales tax collections will enable the city to provide expanded and improved municipal services to and for the benefit of the residents of the city, while at the same time providing public or public-related improvements at no cost, or at deferred cost, to the city and its taxpayers and residents. (Ord. No. 1988-758, § 1(24-2), 5-23-88; Ord. No. 1272, § 1, 12-9-02) Sec. 22-75.-Definitions. The following words, terms and phrases, when used in this division , shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Enhanced sales tax shall mean the amount of sales tax collected by the city over and above a base amount negotiated by, and agreed upon by, the applicant and the city, and which amount is approved by the city council, which base amount shall never be lower than the amount of sales taxes collected by the city at the property in question in the previous twelve (12) months plus a reasonable and agreed upon percentage of anticipated increase in sales taxes, or, in the case of a newly established business, an amount which represents the good faith determination by the applicant and the city as to the amount of sales taxes which could be generated from the new business without the participation by applicant in the ESTIP created under this division. ESTIP means the enhanced sales tax incentive program created under this division . 8 Owner or proprietor shall mean the record owner or operator of an individual business, or, in the case of a shopping center, the owner of the real property upon which more than one (1) business is operated, provided that the owner (whether an individual, corporation, partnership or other entity) is the owner or less or of the individual businesses operated thereon. (Ord. No . 1988-758, § 1(24-3), 5-23-88; Ord. No. 1272, § 1, 12-9-02) Sec. 22-76. -Participation. Participation in ESTIP shall be based upon approval by the city council exercising its legislative discretion in good faith. Any owner or proprietor of a newly established or proposed retail sales tax generating business or location, or the owner or proprietor of an existing retail sales tax generating business or location which wishes to expand substantially, may apply to the city for inclusion within the ESTIP provided that the new or expanded business is reasonably likely to generate enhanced sales taxes of at least five thousand dollars ($5,000.00) in the first year of operation. (Ord. No. 1988-758, § 1(24-4), 5-23-88; Ord. No. 199 0-854, § 1, 11-26-90; Ord. No . 1272, § 1, 12-9-02) Sec. 22-77.-Approval of agreement; use offunds generally. Approval by the city council of an agreement implementing this ESTIP shall entitle the successful applicant to share in enhanced sales taxes derived from applicant's property or business in an amount which shall not in any event exceed the enhanced sales taxes; provided, however, that applicant may use such amounts only for public and/or public-related purposes such as those specified herein and which are expressly approved by the city council at the time of consideration of the application. The time period in which the enhanced sales taxes may be shared shall not commence until all public or public-related improvements are completed, and shall be limited by the city council, in its discretion, to a specified time, or until a specified amount is reached. (Ord. No. 1988-758, § 1(24-5), 5-23-88; Ord. No. 2002-1240, § 1, 1-28-02; Ord. No . 1272, § 1, 12-9-02) Sec. 22-78. -Uses enumerated. The uses to which the shared enhanced sales taxes may be put by an applicant shall be strictly limited to those which are public or public-related in nature. For the purposes of this division, public or public-related purposes shall mean public improvements, including but not limited to streets, sidewalks, curbs, gutters, pedestrian malls, street lights, drainage facilities, landscaping, decorative structures, statuaries, fountains , identification signs, traffic safety devices, bicycle paths, off-street parking facilities , benches, restrooms, information booths, public meeting facilities , and all necessary, incidental, and appurtenant structures and improvements, together with the 9 relocation and improvement of existing utility lines, and any other improvements of a similar nature which are specifically approved by the city council upon the city council's frnding that said improvement are public or public-related improvements, and that such improvements shall enhance the competitive position of the applicant within the Denver metropolitan area marketplace. (Ord. No. 1988-758, § 1(24-6), 5-23-88; Ord. No. 1272, § 1, 12-9-02) Sec. 22-79. -Increments, sharing of funds. The base figure for sales taxes shall be divided into twelve (12) monthly increments, which increments are subject to agreement between the parties, and approval by the city council, and which increments shall be reasonably related to the average monthly performance of the business or property in question, or similar businesses in the area (i .e. adjust for seasonal variations). If in any month the agreed upon figure is not met by applicant so as to create enhanced sales tax for that month, no funds shall be shared with applicant for that month, and no increment shall be shared until that deficit, and any other cumulative deficit, has been met, so that at the end of any twelve-month cycle, funds in excess of those enhanced sales taxes agreed to be shared shall not have been shared with any applicant. (Ord. No. 1988-758, § 1(24-7}, 5-23-88; Ord. No. 1272, ,\';; 1, 12-9-02) Sec. 22-80. -Revenues restricted. It is an overriding consideration and determination of the city council that existing sources of city sales tax revenues shall not be used, impaired, or otherwise affected by this enhanced sales tax incentive program. Therefore, it is hereby conclusively determined that only enhanced sales taxes generated by the properties described in an application shall be subject to division under this ESTIP . It shall be the affirmative duty of the treasurer to collect and hold all such enhanced sales taxes in a separate account apart from the sales taxes generated by and collected from the other sales tax generating uses and businesses within the city and to provide an accounting system which accomplishes the overriding purpose of this section. It is conclusively stated by the city council that this division would not be adopted or implemented but for the provisions of this section. (Ord. No . 1988-758, § 1{24-8), 5-23-88; Ord. No. 1272, § 1, 12-9-02) Sec. 22-81. -Capital improvement fund. The one (1) percent of sales and use taxes earmarked for the capital improvement fund may be utilized in this ESTIP for public improvements so long as the same are within the meaning of the phrase capital improvements as defmed in the voter approved sales tax referendum previously held within the city, and provided that the same are found and determined by the city council to be capital improvements which could be 10 provided by the city from the capital improvement fund but for the provision of such improvements by the applicant; provided, however, that such use of capital improvement funds as part of this ESTIP shall be limited to the amount agreed pursuant to section 22- 83 hereof; provided further, however, that nothing contained herein shall limit the city council in the determination to appropriate additional capital improvement funds for capital improvements affecting the property in question as a part of the city's regular appropriation and budget process. (Ord. No. 1988-758, § 1(24-9), 5-23-88; Ord. No. 1272, § 1, 12-9-02) Sec. 22-82. -Criteria for approval of application. Approval of an appHcation for inclusion in this ESTIP shall be given by the city council, at a public hearing held as a portion of a regularly scheduled city council meeting, based upon the following criteria: (I) (2) (3) (4) (5) (6) The amount of enhanced sales taxes which are reasonably to be anticipated to be derived by the city through the expanded or new retail sales tax generating business; The public benefits which are provided by the applicant through public works, public improvements, additional employment for city residents, etc; The amount of expenditures which may be deferred by the city based upon public improvements to be completed by the applicant; The conformance of the applicant's property or project with the comprehensive plan and zoning ordinances of the city; The agreement required by section 22-83 having been reached, which agreement shall contain and conform to all requirements of section 22-83 Approval shall be by motion adopted by a majority of the entire city council. (Ord. No. 1988-758, § 1(24-10), 5-23-88; Ord. No.1272, § 1, 12-9-02) Sec. 22-83. -A greement required. Each appHcation for approval submitted to the city council shall be subject to approval by the council solely on its own merits. Approval of an application shall require 11 that an agreement be executed by the owner and the city, which agreement shall, at a minimum, contain: (1) (2) (3) (4) (5) (6) (7) (8) A list of those public or public-related improvements which justify applicant's approval, and the amount which shall be spent on such improvements; The maximum amount of enhanced sales taxes to be shared, and the maximum time during which the agreement shall continue, it being expressly understood that any such agreement shall expire and be of no further force and effect upon the occurrence of the earlier to be reached of the maximum time of the agreement (whether or not the maximum amount to be shared has been reached) or the maximum amount to be shared (whether or not the maximum time set forth has expired); A statement that this is a personal agreement which is not transferable and which does not run with the land; That this agreement shall never constitute a debt or obligation of the city within any constitutional or statutory provision; The base amount which is agreed upon by month, and the fact that if, in any month as specified, sales taxes received from the property do not at least equal such amount, that there shall be no sharing of funds for such month; The base amount shall be agreed upon which shall consider the historic level of sales at the property in question, or a similar property within the area in the event of a new business, and a reasonable allowance for increased sales due to the improvements and upgrades completed as a result of inclusion within this program; A provision that any enhanced sales taxes subject to sharing shall be escrowed in the event there is a legal challenge to this enhanced sales tax incentive program or the approval of any application therefor; An affirmative statement that the obligations, benefits, and/or provisions of this agreement may not be assigned in whole or in any part without the 12 (9) expressed authorization of the city council, and further that no third party shall be entitled to rely upon or enforce any provision hereof; Any other provisions agreed upon by the parties and approved by the city council. (Ord. No. 1988-758, § 1 (24-11), 5-23-88; Ord. No. 1272, § 1, 12-9-02) Sec. 22-84.-Joint venture; liability. The city council has enacted this ESTIP as a joint benefit to the public at large and to private owners for the purposes of providing the city with increased sales tax revenues generated upon and by properties improved as a result of this program; public improvements being completed by private owners through no debt obligation being incurred on the part of the city, and allowing applicants an opportunity to improve properties which generate sales activities, which improvements make those properties more competitive in the marketplace and further provide to the applicant additional contingent sources of revenues for upgrading such properties. The city council specifically fmds and determines that creation of this ESTIP is consistent with the city's powers as a home rule municipal corporation, and that exercise of such powers in the manner set forth herein is in furtherance of the public health, safety and welfare. Notwithstanding any provision hereof, the city shall never be a joint venture in any private entity or activity which participates in this ESTIP, and the city shall never be liable or responsible for any debt or obligation of any participant in ESTIP. (Ord. No. 1988-758, § 1(24-12), 5-23-88; Ord. No. 1272, § 1, 12-9-02) 13 EXHIBITB 6995 W 38TH AVE. WHEAT RIDGE, CO 80033 (building's physical address) THE WEST 100 FEET OF LOT 1, BLOCK 1, HOLLEY SUBDIVISION, EXCEPT THAT PORTION CONVEYED TO THE CITY OF WHEAT RIDGE BY DEED RECORDED OCTOBER 8, 1990 UNDER RECEPTION NUMBER 90086578, COUNTY OF JEFFERSON, STATE OF COLORADO. 3835 REED ST. WHEAT RIDGE, CO 80033 (parking lot only) LOT 2, BLOCK 1, HOLLEY SUBDIVISION, COUNTY OF JEFFERSON, STATE OF COLORADO. 14 EXHIBITC Qualifying Public Improvement Costs The project will include the following public improvements : Provide handicapped accessibility to the entire structure to include ingress and egress and ADA accessible restroom facilities. Exterior fa9ade improvements enhancing the public environment and overall look ofthe Ridge at 38 Creation of an exterior patio along 38 1h A venue inviting multi modal transportation and viewing environment of the site Bring the interior of the site to building code conformance and public safety standards . 15 tBrewlPu6 6995 W. 38 Ave. Wheat Ridge CO 80033 Renewal Wh Business Development Zon & Tax Increment FlniUiclng AppUo. on Applicant Eugene Kahng, Jae Hee Kim SL Inc. 6995 W. 38TH Ave. Wheat Ridge CO 10033 December 6 2012 Attachment 3 Business Development Zone & Tax Increment Financing Application Project Narrative Sl, Inc . is the recent purchaser of the former Valente's Italian Restaurant property at 6995 W. 38'h Ave. Due to lack of investment interest, the site has remained vacant for four years . The building fell victim to years of neglect and requires a major overhaul in areas concerning plumbing, electrical, mechanical in order to get the site up to code . Sl, Inc . is applying for the BDZ and ESTIP grant and rebate programs to help fund the Colorado + Brew Pub project. The site lies in the Cl zoning area and is located in one of the major focus areas on 38'h between Pierce and Vance St . The location in relation to the 38'h Ave Corridor Plan and the style of the building which includes a front patio (offering great curb appeal) that can accommodate up to 36 patrons prove to be an ideal setting for a brew pub . We are pleased to see the efforts of the Corridor Plan come to fruition and confident that future vacancy rates for commercial and residential spaces in the area will decline hopefully increasing the price per square foot. There will be a total of 56 tap handles and Colorado + will brew beer on site with a one barrel system and will provide 4 different styles on tap, the other 52 for Colorado brewed beers only as Colorado currently has over 100 of it's own craft micro breweries with the number steadily increasing. The area will be a great location for such a unique concept which should attract patrons from neighboring cities like Denver, Arvada , Golden and lakewood. Colorado + will also serve vinous, and distilled spirits primarily from local producers . According to a study done by the Craft Beer Association (CBA) and the Journal of Advertising and Marketing (JAM), the average craft beer drinker's age is between 25 and 40 years old and has an income of over $50000 per year compared with the average income of a "big brewer" beer drinker is $35000, and with that information in mind, Colorado+ will help to increase the overall outlook, identity and appeal of the area . Colorado + plans on providing even more diversity in the area by way of food offerings, which will include Hawaiian and Korean style bbq . These foods pair well with beer and consists of mostly fried and grilled fair. We will also include bulgogi (thinly sliced marinated rib eye) burgers with a kimchi garnish as well as various styles of quick and easy fair from jumok bop (seaweed rolls), to fried tofu balls . As Colorado craft brewers are always reinventing traditional styles of world beers, beverage and food pairings will expand boundaries and see new heights. + 1 Business Development Zone & Tax Increment Financing Application Improvements The building it self is about 44 yrs old and needs a major overhaul in the areas of plumbing, electrical and mechanical as the systems are in poor condition . Another area of concern is asbestos as it is common in buildings of this age . The fa~ade will receive a face lift as two, glass garage style roll up doors will be installed allowing for a clean modern appeal as patrons will be able to enjoy from within or outside in the patio area . The parking lot will get re -sealed and striped giving it a fresh new look, as well as new pa i nt for the west wall as the mural has a meaningful significance, it will not work with the general theme. The interior decor will be spear headed by Lakota Skye (a decor company). We've agreed on a Colorado industrial theme with wide open ceilings to expose the 1-beams as the drop ceilings are getting demoed . The 17' bar will feature native rocks and or lumber as structural support and decor. Colors will include steel grey, silver, gold, black and white. The bathrooms will be remodeled for ADA compliancy reasons and will receive tiled floors and walls, new countertops and partitions . The floor tiles on the first floor tested hot for asbestos and have been removed by our General Contractors in accordance with state and federal guidelines. After the removal, we 've dec ided on a stained concrete finish as the concrete is in good shape . We've attached our General Contractors cost proposal bid, Tap System Builder's proposal, and our Brew Room equ ipment costs . Also included are the first floor layouts which include the brew room, kitchen, din i ng, patio, bathrooms and the bar area . The total project investment is around $1,100,000 includ i ng the estimated cost for remodel, which will be around $300000, which does not include permit fees and entitlement costs (brew pub license, brewers notice, and lawyer fees). Construction has started i n October 2012 and will end in March 2013 . Projected financial statements are also included . Business Development Zone & Tax Increment Financing Application Conclusion Colorado+ will make improvements not only in cosmetic curb and atmospheric appeal, but hopefully in the local economy as we plan on employing at least 8 employees in the beginning and fueling the local economy by serving mostly locally crafted beverages . We hope to bring a diverse clientele with this location, including young and old professionals, blue and white color home brewers, men and women . We also hope to educate our customers on an industry that is alive and vibrant, as all of our servers will be Cicerone Beer Server Certified. We will also offer games and entertainment by way of dart boards, flat screens , pinball machines, and a small l i brary . Colorado hosts the biggest most prestigious beer festival in the country . This year, the Great American Beer Festival hosted 49000 attendees, 578 U.S. breweries and Colorado won 35 medals this year, second place to California's 49 and considering the disparity in population, that's not bad . We are confident with the direction this industry as a whole is heading and we feel our business will satisfy the city's vision statement for the Revitalization of Wheat Ridge . As a former proprietor of Vern's liquor in Wheat Ridge for 6 years, we 've seen five fold increases in our craft beer sales and we've had first hand experience on the potential of craft beer in the area as we use to collaborate with various local brewers and conduct a beer tasting session every Friday. We also plan on hosting local events with other local businesses and the Colorado Brewer's Guild as we would like to create a welcoming atmosphere in the community . Lastly, in order to make a welcoming atmosphere and implement all ideas to make this an economically feasible design, it will require an additional $80,000 as the systems in the building are in such poor condition and most of the work w ill consist of code work, as with most buildings this old, plumb i ng, electrical and mechanical alone consists of a third of the costs, about $100000 . The actual number should be around $150000 if we implement the full mechanical design for the kitchen and another $30000 in order to reach full occupancy as per fire code . The grant and rebate money will go into those areas of concern as the initial contractor's bid prior to purchasing the building was underestimated, which is common for old buildings as issues do surface more times than not. Thank you so much for your consideration, Eugene Kahng, President of SL, Inc. Business Development Zone & Tax Increment Financing Application Demolition Process-Asbestos contamination, which is common io older buildings was found in the dining room and bar room Ooor tiles as well as in a few walls in the bathroom area which will have to be remodeled .for ADA compliancy. Business Development Zone & Tax Increment Financing ApplicatiOn Ceiling demo -Our goal i to provide an open space feeling Outdated systems -The mechanical, plumbing and electrical systems in the kitchen area arc outdated and unsafe. Modern kitchens also require acoustic ceiUngs in order to pas current health department regulations. + 5 Qlrrw a>u6 City of Whe, ... Ridge Commercial Remodel PERMIT-20121115 PERMIT NO: JOB ADDRESS: JOB DESCRIPTION: *** CONTACTS *** OWNER GC SUB SUB SUB (720) 219-5314 (303)777-1234 (303)937-8369 (303)979-1641 *** PARCEL INFO *** 20121115 6995 W 38th AVE Restaurant Remodel RAY MARK LIMITED I I Nathan Hoppe James & Richard Pasterkamp Joseph R. Cronen John McGrath ZONE CODE: UA I Unassigned SUBDIVISION CODE: 133 I ISSUED: EXPIRES: 09/19/2012 09/19/2013 090364 Compass Construction LLC 017887 Pasterkamp Heating & Air Cond. 020388 Cronen Plumbing and Heating 019585 Over-all Electric USE: BLOCK/LOT#: I o I *** FEE SUMMARY *** ESTIMATED PROJECT VALUATION: 209,344.80 FEES Total Valuation Permit Fee Plan Review Fee Use Tax Plan Review Addtiona ** TOTAL ** *** COMMENTS *** *** CONDITIONS *** 0.00 1,841.55 945.46 3,768.21 251.55 6,806.77 LM: Site signage will require separate permits. .· Screening for trash storage area shall comply with section 26-614 of the Zoning and Development Code and will require separate permits . The issuance of a building permit should not be construed to be approval of a business license. All exterior lighting shall be in conformance wiht Section 2§-503 of the Zoning and Development Code with fixtures fully shielded so that the source of the illumination is not visible from adjacent properties and streets. KC: Approved per plans and red-line notes on plans. Must C• all applicable City of Wheat Ridge Municipal Codes. Subjec· '~ l ~5 --..... ,: {:..;.,:a. ~:.~ -c'""---"~-·-. ~f!:E· .. 'i .t .. c,:._.:.. :i.~} .. ~- ~:~ ?~~-: ;t~ ~~ ·~"';to:~ -----------··-------------------------- SL Inc -Colorado Plus P&L Projection per Month -- Dec 07 2012 -~ . Brew Pub Patio Total Sales 1--~ I Chairs 99 32 1 131 Sales/Person $7 .00 $7.00 ---- Chair cycle/day 3 1 Total/ Day $2 ,079.00 I $224 .00 $2,303.00 I Total/ Month $62,370.00 $6,720.00 $69,090.00 COGS (SO%) I $31,185.00 $3,360.00 $34,545.00 Gross Profit $31,185.00 $3,360.00 $34,545.00 Labor Cost (20%) ! $12,474.00 $1 ,344 ~ $13,818.00 l I Expenses (10%) $6,237 .001 $672.00 $6,909.00 ~ ---~ Rent(6.81%, 5.2%) I I $5,500.00 I Total/ Expenses I $18,711 .00 $2,016.00 $26,227.00 I Net Profit/Loss 20.00% $12,474.00 $1,344.00 $13,818.00 SL Inc (Colorado Plus) 6995 W . 38th Avenue-W heat Ridge. CO 80033 General Project Assumptions _______ __. Brew Pub General Project Assumptions nmtng Assumptions Project UM Summery COST ASSUMPTIONS pcpqtrtr Cost pcppertv Co(IS Dryt!opmtm eoar Soft Opening Dete F .. Opening Number ol SNIS Slz:e ol Fecollty for sealing IOic:llen Area Parldng $paces ~Cost Land Option Cost Other Property Costs Debl Setvlclng (Loen Peyment) Enbtlement Cost Permits Cost legal end Closing Cost. Site-(tmprovemenl Costs) F umiture end Flxtu<es Cost Other Costs Total Cost OPERATING EXPENSES INCOME Cost ol Good Sold Rent Employee Costs Other Expenses Totel&pe- Comtnttml Auumptlons Funclr~g Sources Equity Return Total Seles Per Month Total Seles Per Year Other Income Total Income Per Year Seles Tu Produced Per Year Equity loan S Prope11y 0wne< lnves- Oihet Souces ol Fulnding Total Fundi ng Sources: $ Totel Costa Totel R..,_ per month 6/3112012 rme Frwne Montt. 06/3112012 6 Montha 2120/2013 31112013 99 1 ,241 sf 732 sf 15.620 111 $675,000 NJA NJA $3.300 /Month $15.495 $7,540 $23,593 $5,048 $293.663 $5,000 St,021,639 $34,545 /Month $5,500 /Month $13,818 /Month $6.11011 IMonlh 160.n2 /Month $69,090 Food end Bet $828.080 Food end Bet $000 $828,080 $24,872 875,000.00 $300,000 $60.000 1,035 ,000 .00 $1 ,089;411 .01 $24,872 Project Area J .; I ' tl !J I "'1~11 ! 'l!~"' ''""'~ , r~ ., Do,., I, ! , ·m ~n.~ -. -li j ~~i!l 't ~~_;g., ~ b;· ,. lp .. ~~ ;~r i' , , , ... -!J 1 ~ ~~~~~~ i~ l i1 ~~1 l i ! r 1• ~ • (! 1 1 u ·q ; ~~ :r ~ I I• •· I I . I !t II ti· , i il til ! a It j~i tbil il II I I , :~i!!i :t t 11ft~ If I ! :!li l d! .~1 ~~i ., I ~:t:i• i''l • • !Jtl I• J II I @P I= 19 1 ~trJ It"' '-.!ie fft I I ~ ! i ! I ,I ~ I I i Ill~ iii I ad ~ I I • !I ~ ll . I i li; !I I r. ~(I)() .mo l!§ 'dl! l dd r ~>o ~~ ":im il l ;i IH I ~~ f j~ Zen ~~ ~~ i . i :;a~. ~~ I ;~ ;:.i.~ Z ra . ! . f ··~i f ~ . i • ~ . i ~ ~ -z ;- c: '0 '0 m :u r- ~ m I '0 ~ H z --' I .--, ' M~~ MARK RUDNICKI ARCHITECTURE toU SOUTH AIIEROEEH STI!EET --UTTL£TON. co 10120 clllw • • 0 -,_E/FAX JeD..,__ -.,_.,.,.,. ... Jl , ........ • ji: • i !i! .! !if! I ll ' ' 11' i . ;· ~ c - II I ' • :~~ l 1 10.1. ...... "" I ' I .... WEST 38 A VEN UE A RESTAURANT I PUB REM ODEL FOR : SLINC . 6995 WEST 38TH AVENUE WH EAT RI DG E. COLORADO I !il! < :I 'i Business Development Zone & Tax Increment Financing Application Appearance -The addition of central HVAC along with the glass roll up doors will increase curb side appeal by eliminating most of the roof top swamp cooler units and pro\•idiog a modern clean look for the front patio. c ~ ; ~ ... " .,. City of JP'"WheatR.l_.dge ITEMNO: '-1 . DATE: January 28, 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 07-2013 A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH COLORADO PLUS LIQUID ART WORKS INC. TO PARTICIPATE IN THE WHEAT RIDGE BUSINESS DEVELOPMENT ZONE PROGRAM FOR A REBATE OF lOOo/o OF THE ELIGIBLE USE TAX IN ASSOCIATION WITH THE REMODEL OF A RESTAURANT AT 6995 W. 38th A VENUE IN WHEAT RIDGE ~ PUBLIC HEARING D BIDS/MOTIONS ~ RESOLUTIONS D ORDINANCES FOR I ST READING 0 ORDINANCES FOR 2N° READING QUASI-JUDICIAL: D YES ~ NO -2~~~ ISSUE: Colorado Plus Liquid Art Works Inc. (Colorado Plus) has made application and request to participate in the City's Business Development Zone (BDZ) program, related to the remodel of a restaurant at 6995 W. 38th Avenue. The request is for the rebate of 100% of the eligible use tax for an estimated total of $3,800. PRIOR ACTION: At the January 7, 2013, Study Session, City Council reviewed a request from Colorado Plus for a BDZ agreement to rebate 100% of use tax. City Council discussed the request and directed staff to draft a BDZ agreement to rebate 1 00% of use tax. Council Action Form-BDZ January 28, 2013 Page2 FINANCIAL IMPACT: The total estimated use tax for this project is approximately $3,800. The proposed BDZ agreement would rebate 1 00% of this amount for a total financial impact to the City of approximately $3,800. BACKGROUND: Wheat Ridge Code of Laws Chapter 22, Article I, Division 5, establishes the BDZ, an economic development tool. The goal of the BDZ is to encourage the development of private sector jobs, revitalize deteriorating areas of the City and encourage the development, redevelopment and expansion ofbusinesses within the City. This tool allows the City Council to waive certain building permit fees and building use taxes in association with construction projects that occur in established Business Development Zones. The tool is intended to be used to refund fees and taxes for projects that have the potential to generate future sales and use tax or provide substantial public benefit to the City. Colorado Plus recently purchased the site at 6995 W. 38th Avenue. The site formerly housed Valente's Italian Restaurant that ceased operations in October of2008. The site has remained vacant for four years and due to a lack of investment and the buildings age, the structure has fallen into disrepair. In September 2012, Colorado Plus approached staff with a desire to enter into a BDZ Agreement wherein Colorado Plus would receive up to 100% rebate of their use tax. In that September request, Colorado Plus estimated a total cost for building construction improvements, furniture, fixtures and equipment at $209,135. As of December 2012, that number has risen to more than $300,000 and a total investment of more than $1,000,000. To date, they have paid to the City $3,768.21 in use-tax fees, and a total of$6,806.77 in permit fees. The owners of Colorado Plus are performing tenant improvements and will open a brew pub in the spring of2013. When completed, Colorado Plus will have seating for more than 130 guests. The brew pub will have interior seating, on two levels, for about 100 persons and an outdoor patio area along 38 1h Avenue served by two rollup style garage doors. The brew pub will feature 56 tap handles, with 52 of those featuring Colorado-brewed craft beers, and the remaining four featuring micro brews crafted on site and served under the label of Colorado Plus. Besides the diversity in crafted beer offerings, Colorado Plus will offer a diverse menu with food offerings that include Hawaiian and Korean style BBQ. Colorado Plus will hire up to eight new employees and anticipates increasing that number as the customer base grows. This development is new to the City and meets the goals of providing niche businesses along the City's main corridor, 38 1h Avenue. The brew pub is anticipated to generate fees and taxes associated with the redevelopment and incremental property, sales and use tax. Council Action Form-BDZ January 28, 2013 Page 3 As previously stated, the building is about 44 years old and is in need of a major overhaul to bring it up to current standards that are compliant with building codes. Besides the decor improvements to the interior and exterior of the structure, the building requires vast improvements to its plumbing, electrical, and mechanical systems. The building is also laden with asbestos which must be remediated to allow for decorative improvements. Some of these improvements are currently in the process as rehabilitation began in October 2012. Improvements that will be visible include the addition of two, glass, garage-style roll up doors, similar to the one at Right Coast Pizza. These doors will allow for a clean, modern appeal which allows patrons to enjoy their experience from inside the facility or on the patio. Seating areas will be improved as Colorado Plus has removed all the old booths used by Valente's and will replace all those with new furnishings. BDZ funds would be rebated for public improvements such as accessibility throughout the building, a new fa9ade and patio seating area to enhance the attractiveness of 38th Avenue, demolition, concrete work, roofing repairs, roll-up doors, asbestos abatement, electrical and plumbing work, a fire suppression system, kitchen expansion and cost overruns. The interior is being designed by Lakota Skye, a decor company specializing in restaurants. The theme will be an industrial look featuring wide-open ceilings to expose the 1-beams. A 17-foot bar will feature native rocks and/or lumber as structural support and decor. Colors include steel grey, silver, gold, black and white. All facilities will be upgraded to ADA compliance standards. The parking areas in both lots are in poor shape and will be re-sealed andre-striped giving those areas a new and fresh look. New signage will be placed on the building and the old pole sign in the parking lot to the west of the structure will be removed and may be replaced with a monument sign at some point. The project has not been without its change orders as demolition and new construction continue. These change orders have resulted in the original project budget being amended and have greatly increased development costs. Wheat Ridge based Compass Construction has been awarded the contract to complete the improvements per the owner's plans. These major cost overruns are the reason that Colorado Plus ownership is requesting the BDZ and ESTIP with the City of Wheat Ridge. These increased development costs have forced the owners to make some major decisions on development and a phasing of Colorado Plus. According to a study completed by the Craft Beer Association (CBA) and the Journal of Advertising and Marketing (JAM), the average craft beer drinker's age is between 25-40 years of age, they have an average income of more than $50,000 per year, compared with the average income of$35,000 for a major brand beer drinker. Colorado Plus owners believe these numbers support the development of the site and will bring in customers throughout the region, generating additional sales tax for the City through the sale of convenience-store items and other services. Council Action Form-BDZ January 28, 2013 Page4 During and upon completion of the project the end user will provide the following: • Future sales and use tax revenue • The generation of permanent jobs • Construction-related jobs and the economic activity in the surrounding neighborhood Colorado Plus is requesting a total incentive package of $80,000 to be broken down into a BDZ request of approximately $3,800 and an ESTIP for the remaining portion of the request. Colorado Plus purchased the site for $675,000 and has an annual debt service of$39,600 and an annual property tax payment of $15,495. Development costs are anticipated near $300,000 for a total project cost of just over $1,028,000. Colorado Plus has an equity loan of $675,000 and its owners are investing $300,000 of their own equity into the project. The project is also receiving $60,000 of funding from a grant from Wheat Ridge 2020. The total funding sources add to $1,035,000. The project anticipates monthly expenses of approximately $61,000 and generating revenues of about $70,000 per month. Colorado Plus anticipates generating approximately $25,000 in sales tax annually. RECOMMENDATIONS: This item was posted in the Wheat Ridge transcript as required by ordinance and staff recommends conducting a public hearing. Staff recommends funding this project to the full requested amount for the following reasons: 1. The project meets the objectives of the 38 1h Avenue Corridor Urban Renewal Plan, the 38 1h Avenue Subarea Plan, Envision Wheat Ridge by providing new niche and sales tax producing products. 2. The project could be a catalyst for the redevelopment of adjacent properties along the corridor and could help stimulate development of the closed Mark's Restaurant directly across the street from this project. 3. The project site has been vacant for 4 years. This project will aide in eliminating blight along the 38th A venue corridor. 4. The project will bring additional 'life' to 38 1h Avenue with increased pedestrian, bike and motor vehicular access. 5. The project will bring in new sales tax revenues and employment. RECOMMENDED MOTION: "I move to approve Resolution No. 07-2013, a resolution authoring the execution of an agreement for Colorado Plus Liquid Art Works Inc. to participate in the Wheat Ridge Business Council Action Form-BDZ January 28, 2013 Page 5 Development Zone Program for a rebate of 100% ofthe eligible use tax in association with the remodel of a restaurant at 6995 West 38th Avenue in Wheat Ridge." Or, "I move to postpone indefinitely Resolution No. 07-2013, a resolution authorizing the execution of an agreement with Art Works to participate in the Wheat Ridge Business Development Zone Program for the following reason(s) " REPORT PREPARED/REVIEWED BY: Steve Art, Economic Development/Urban Renewal Manager Patrick Goff, City Manager ATTACHMENTS: 1. Resolution No. 07-2013 2. Agreement to Participate Please refer to ESTIP CAF attachments for a copy of the proforma CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 07 Series of 2012 TITLE: RESOLUTION NO. 07-2013 -A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH COLORADO PLUS LIQUID ART WORKS INC. TO PARTICIPATE IN THE WHEAT RIDGE BUSINESS DEVELOPMENT ZONE PROGRAM FOR A REBATE OF 100% OF THE ELIGIBLE USE TAX IN ASSOCIATION WITH THE REMODEL OF A RESTAURANT AT 6995 W. 38th AVENUE IN WHEAT RIDGE WHEREAS, the City has adopted as a portion of the Wheat Ridge Code of Laws ("Code") Chapter 22, Article I, Division 5, "Business Development Zone" to encourage, in part, continued development and expansion of opportunities for employment in the private sector in the City; and WHEREAS, Colorado Plus Liquid Art Works Inc. (Colorado Plus) has applied to participate in the Program and a public hearing was posted and conducted; and WHEREAS, Colorado Plus is the owner and operator of leased space and improvements thereon within the City and known as the "Owner," and is the operator of a development site that will serve residents of Wheat Ridge and surrounding communities; WHEREAS, Owner plans to construct public improvements of approximately $250,000 and a total project budget of approximately $1 ,000,000; and WHEREAS, the project enhances services to the neighborhood and neighboring communities and brings revenue to the City from surrounding communities-a true definition of economic development; and WHEREAS; the project creates up to eight full and part-time jobs, and WHEREAS; the project spurs reinvestment through remodeling and new construction of a blighted structure, thus enhancing and preserving its economic viability in the City; and WHEREAS, cost-sharing at the rate prescribed herein will serve to aid the expansion of Owner in that it will alleviate a portion of the costs associated with the expansion. Attachment 1 NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, as follows: An Agreement to participate in the City of Wheat Ridge Business Development Zone Program with Colorado Plus Liquid Art Works, Inc. is hereby approved wherein an amount of 1 00% of use-tax generated will be rebated to Colorado Plus Liquid Art Works, Inc. DONE AND RESOLVED this 28th day of January, 2013. Jerry DiTullio, Mayor ATTEST: Janelle Shaver, City Clerk AGREEMENT TO PARTICIPATE IN THE CITY OF WHEAT RIDGE BUSINESS DEVELOPMENT ZoNE PROGRAM This Agreement to Participate in the City of Wheat Ridge Business Development Zone Program (this "Agreement") is made and entered into as of the January 28, 2013, by and between COLORADO PLUS LIQUID ART WORKS INC., an S-Corporation located at 6995 W. 38th A venue, Wheat Ridge, CO 80033, hereinafter referred to as the "Owner" and the CITY OF WHEAT RIDGE, COLORADO, 7500 W. 29th Avenue, Wheat Ridge, Colorado 80033 hereinafter referred to as the "City," collectively the "Parties," and each individually, as a "Party." WHEREAS, the City has adopted as a portion of the Wheat Ridge Code of Laws ("Code") Chapter 22, Article I, Division 5, "Business Development Zone" (the "Program"), to encourage, in part, continued development and expansion of opportunities for employment in the private sector in the City; and WHEREAS, Owner has applied to participate in the Program and a public hearing was posted and conducted; and WHEREAS, Owner is the owner and operator of a commercial development serving residents of Wheat Ridge and surrounding communities; and WHEREAS, pursuant to Code Sec. 22-86 (b), the City Council has designated the real property owned by Owner as a "Wheat Ridge Business Development Zone"; and WHEREAS, Owner plans to construct tenant improvements totaling approximately $300,000; and WHEREAS, the project creates neighborhood services and brings revenue to the City from surrounding communities-a true definition of economic development; and WHEREAS; the project will create up to eight jobs and construction related jobs prior to the opening of the facility, and WHEREAS; the project creates new revenue through permit fees and use tax on furniture, fixtures and equipment; WHEREAS; the project spurs reinvestment and remodeling of a blighted facility, thus enhancing and preserving its economic viability in the City; and WHEREAS; the project should lead to the revitalization of the 38th A venue commercial corridor and aid the existing commercial establishments; WHEREAS, the Program allows the City to provide for the sharing of certain categories of fees, taxes and other business development-related charges for new development within the business development district ("Eligible City Fees, Charges and Taxes" as defined in Code Sec. 22-87 (1)) to the extent allowed by an agreement with a business owner; and 1 Attachment 2 WHEREAS, cost-sharing at the rate prescribed herein will serve to aid the expansion of Owner in that it will alleviate a portion of the costs associated with the expansion. NOW, THEREFORE, in consideration of the foregoing, and the covenants, promises, and agreements of each of the Parties hereto, to be kept and performed by each of them, the Parties agree as follows: 1. Recitals. The Recitals set forth above are incorporated in this Agreement by reference. 2. Term. The term of this Agreement shall commence on January 29, 2013 and shall terminate upon full refund by the City to Owner of eligible City fees, charges and taxes as set forth in Paragraph 7 (the "Term"). Notwithstanding the foregoing, it is an express provision of this Agreement that this Agreement shall expire and be of no further force and effect upon the occurrence of the earlier to occur of: (1) expiration of the Term or (2) payment of the maximum amount to be shared as set forth in Paragraph 7 (whether or not the Term has expired), or (3) determination by the City of Owner's default, as provided in Paragraphs 13 or 16. 3. The Project. The project proposed by the Owner through which it desires to participate in the Program consists of the following, generally: property upon which to provide tenant improvements to interior and exterior of a 1944 structure located on the main street of Wheat Ridge a blighted structure. Owner proposed to construct tenant improvements in the amount of approximately $300,000 that include interior and exterior improvements to the Owner site and the creation of an outdoor patio area, and development of a restaurant with a full licensed commercial kitchen and a brew pub. The foregoing shall be collectively referred to herein as the "Project," and is more fully described below in Paragraphs 4. 4. Representations of Owner. Pursuant to Code Sec. 22-94, Owner hereby represents to the City the following: a. Improvements justifying Project approval. 1. Revitalization of land. The project will invest an estimated $300,000 of improvements, excluding land acquisition costs, into an interior and exterior remodel of the building with plans that have been approved by the City of Wheat Ridge Community Development Department and attached as Scope of Development and attached as Exhibit A which shall also be used as the application for inclusion in the program. 11. Estimated cost. The cost for the initial phase of the Project including the improvements described above is estimated to b e approximately THREE HUNDRED THOUSAND DOLLARS ($300 ,000). 2 b. Expected future tax revenue. Owner operates a Limited Liability Corporation. Any future sales and use tax revenue will be directly generated by this Project. Benefits to the community which may generate future sales and use tax indirectly have been identified by the Owner as follows: i. Short-term positive impact during construction: Prior to the completion of the Project, the tenant improvement phase will employ additional personnel in the construction phase. n. Upon completion of the improvements, the project will provide new sales tax production. 111. This project should lead to improving the neighborhood and providing more dining options in the community. tv. Creates new revenue through permit fees, use tax on furniture, fixtures and equipment and sales tax; 5. Personal agreement; non-transferable; no third party beneficiaries The cost-sharing of Eligible City Fees, Charges and Taxes as approved herein shall constitute a personal agreement between the City and Owner. The terms of this Agreement do not run with the land. The obligations, benefits and/or provisions of this Agreement may not be assigned in whole or in any part without the express authorization of the City Council. No third party shall be entitled to rely upon or enforce any provision hereof. 6. Agreement not to constitute debt or obligation of the City Nothing herein shall be construed to constitute a debt or obligation of the City. Notwithstanding any other provision of this Agreement to the contrary, the Parties understand and acknowledge that the City is subject to Article X, § 20 of the Colorado Constitution ("TABOR"). This Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obligations of the City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the City's current fiscal period ending upon the next succeeding December 31. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otherwise made available in accordance with ordinances and resolutions of the City and other applicable law. 7. Cost-sharing a. Estimated Eligible City Fees, Charges and Taxes. The following are estimates of the Eligible City Taxes which are the subject of the cost-sharing herein. b. Cost-sharing. Pursuant to Code Sec. 22-88, cost-sharing of the Eligible City Fees, Charges and Taxes may be granted up to the Expected Use Tax Revenue. It is anticipated that the Use Tax Revenue received from the Project is currently projected to 3 be $3,800. Notwithstanding the foregoing, and in reliance upon the representation of Owner of the benefits to the City of the Project, the City and Owner agree to the cost- sharing for the Eligible City Fees, Charges and Taxes as follows: 1. 100% of the Eligible Use Tax shall be due and paid to the City by Owner for tenant improvements based upon review and approval by the City of properly documented requests for the same. Upon receipt thereof, the City shall refund 100% of such Eligible Use Tax back to the Owner in one equal payment. 8. Legal challenge In the event of legal challenge to the Program as applied to Owner, any costs scheduled to be shared-back to Owner shall be escrowed until resolution of the dispute. 9. Waiver of Code requirements To the extent any requirements of Code Sees. 22-85 through 22-96 have been waived, such waiver has occurred pursuant to Code Sec. 22-93 (c) whereby the City Council has found by a :X majority vote that such waiver is in the public's interest and will provide a substantial benefit to the City. 10. No joint venture Pursuant to Code Sec. 22-95, nothing herein shall be construed to create a joint venture between the City and Owner. Notwithstanding any provision hereof, the City shall never be a joint venture in any private entity or activity which participates in the Program, and the City shall never be liable or responsible for any debt or obligation of any participant, including the Owner, in the Program. 11. Use of funds Pursuant to Code Sec. 22-89, Owner expressly acknowledges and agrees that any Eligible Use Tax refunded to the Owner under this Agreement, up to the amount agreed upon by the City Council pursuant to this Agreement may only be used for the purpose of the Project, as described in Paragraph 12, on Owner's Property within the underlying Business Development Zone. 12. Uses enumerated Pursuant to Code Sec. 22-90, the uses to which the Eligible Use Tax, Fees may be put to use by the Owner shall be strictly limited to those which are approved by the City Council and which relate directly to the Project within the City, which Project is anticipated to indirectly generate more municipal sales and use tax revenues for the City in the future. Uses hereby expressly approved by City Council are as follows: -Remodel of a 1944 structure located on the main street in Wheat Ridge located at 6995 W. 38th Avenue to include full gutting of structure; adherence to accessibility issues; placement of new ingress and egress sites that include a full 4 patio seating area; remodel of the kitchen to current code; parking lot improvements and new signage. 13. No covenant to construct or to operate. The intent of this Agreement is to provide for Owner's participation in the Program, in the event that Owner completes the Project. Notwithstanding any provision in this Agreement to the contrary, Owner shall have no obligation under this Agreement to complete the Project. In the event Owner fails to complete the Project, this Agreement may be terminated at the option of the City. 14. Remedies The Owner waives any constitutional claims against the City arising out of a breach of this Agreement. The Owner's remedies against the City under this Agreement are limited to breach of contract claims. In no event shall the City be liable for any form of damages, including without limitation: exemplary, punitive or consequential damages, including economic damages and lost profits. 15. Termination In the event Owner fails to comply with one or more of the terms of this Agreement, City may, in its sole discretion, terminate this Agreement. 16. Indemnification To the fullest extent permitted by law, Owner agrees to indemnify and hold the City harmless from any damage, liability or cost (including reasonable attorneys' fees and cost of defense) to the extent caused by the Owner's negligent acts, errors or omissions in the performance this Agreement and those of its sub-contractors, sub-consultants or anyone for whom the Owner is legally liable. To the extent permitted by the Colorado Constitution and statutes, the City agrees to indemnify and hold the Owner harmless from any damage, liability or cost (including reasonable attorneys' fees and costs of defense) to the extent caused by the City's negligent acts, errors or omissions arising from this Agreement. These defense and indemnification obligations shall survive the expiration or termination of this Agreement. The Parties acknowledge that the provisions of this Paragraph are not intended to waive or alter any of the rights and defenses afforded to the City under the common law, the Colorado Governmental Immunity Act, C.R.S. §§ 24-10-101, et. seq. or any otherlaw. 17. Severability If any part, term or provision of this Agreement or the Program is held by a court of competent jurisdiction to be illegal or in conflict with any law of the State of Colorado, the validity of the remaining portions or provisions shall not be affected, the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provision held to be invalid, and the Parties shall cooperate to cure any legal defects in the Agreement or the Program. Should the sharing of Eligible City Fees, Charges and Taxes 5 pursuant to this Agreement be judicially adjudged illegal , invalid or unenforceable under the present or future laws effective during the Term of this Agreement by a court of competent jurisdiction in a final , non-appealable judgment, the Parties shall utilize their best, good faith efforts to restructure this Agreement or enter into a new agreement consistent with the purposes of this Agreement. Should the Parties be unsuccessful in their efforts, the Agreement shall terminate without penalty or recourse to either Party. 18. Governing law; venue The laws of the State of Colorado shall govern the validity, performance and enforcement of this Agreement. Should either Party institute legal suit or action for enforcement of any obligation contained herein, it is agreed that venue of such suit or action shall be proper and exclusive in the district court for Jefferson County, Colorado. 19. Notices All notices required or permitted under this Agreement shall be in writing and shall be hand delivered or sent by certified mail , return receipt requested , postage prepaid, to be addressed to the Parties set forth below. All notices so given shall be considered effective upon the earlier of the actual receipt or seventy-two (72) hours after deposit in the United States Mail with the proper address. Either Party by notice so gi v en may change the address to which future notices shall be sent: Notice to the City: Copy to: Notice to the Owner: Copy to: 20. Entire agreement -amendments City Manager City of Wheat Ridge 7500 W. 29th Ave. Wheat Ridge, CO 80033 City Attorney City of Wheat Ridge 7500 W. 29th Ave. Wheat Ridge, CO 80033 Eugene Kahng -President COLORADO PLUS LIQUID ART WORKS , INC . 6995 W. 38th Avenue, Wheat Ridge, CO 80033 This Agreement embodies the whole agreement of the Parties. There are no promises, terms, conditions , or obligations other than those contained herein, and this Agreement shall supersede all previous communications, representations or agreements, either verbal or written, between the Parties hereto. This Agreement may be amended only by written agreement between the Owner and the City acting pursuant to City Council authorization. 6 21. Effective date This Agreement shall be effective and binding upon the Parties upon the date first set forth above. IN WITNESS WHEREOF , Owner and City have each caused this Agreement to be executed by their authorized representatives. State of Colorado County of Jefferson ) ) ) OWNER OWNER,LLC By: __________________________ __ Name: Eugene Kahng-President Title: Owner -COLORADO PLUS LIQUID ART WORKS, INC. ss. The forego ing Agreement was acknowledged before me this _ day of ________ __, 2010 , by _________________ , Starker Construction Company. WITNESS MY HAND AND OFFICIAL SEAL. My Commission expires: ________ _ NOTARY PUBLIC 7 CITY OF WHEAT RIDGE ATTEST: Name: Janelle Shaver Title: City Clerk By: __________________ __ Name: Jerry DiTullio Title: Mayor Approved as to Form Gerald E . Dahl, City Attorney 8 EXHffiiTA SCOPE OF DEVELOPMENT The project is a brew-pub on 38th Avenue with interior seating for over 130 as well as exterior patio seating. They will have an on-site parking lot for 20 cars and a lot to the east for an additional 50 vehicles. They expect to have an initial staff of approximately 8-10 persons. New improvements being constructed include: Repaving of all parking areas Accommodate accessibility issues to the entire site Exterior renovations to enhance the visual realm of the surrounding area New landscaping After construction the project will provide: • The incremental future sales and use tax revenue expected from the development of this property is significant; • The project will generate many permanent good paying job opportunities, as well as good construction-related jobs during construction and the economic activity they bring to the surrounding neighborhood; • The project will construct improvements in the public right-of-way which will defer improvements being made by the city; and • The project is in conformance with the best aspects of the comprehensive plan. 9 ~ l # ... ~ ~ ., City of . • JP'WheatRi_dge ITEMNO: _6, DATE: January 28, 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: MOTION TO RECONSIDER THE COUNCIL'S DECISION ON THE REZONING APPLICATION CASE NO. WZ-12- 08/ROCK 0 PUBLIC HEARING (8J BIDS/MOTIONS 0 RESOLUTIONS QUASI-JUDICIAL: /71_7 L/-"':/" City Attorney ISSUE: 0 ORDINANCES FOR 1ST READING (mm/dd/yyyy) 0 ORDINANCES FOR 2ND READING (mm/dd/yyyy) (8J YES 0 NO 2~ This matter concerns the procedure for Council to reconsider its decision on zoning application Case No. WZ-12-08/Rock. PRIOR ACTION: Council previously denied the application for rezoning following the January 14, 2013 public hearing and directed the City Attorney to prepare findings and decision for its consideration on January 28. FINANCIAL IMP ACT: None BACKGROUND: The City Attorney has been asked to describe the procedure for reconsideration of the Council's decision on the Rock rezoning application, including whether and how Councilmember Starker could participate in that action. Under the council's Rules ofProcedure, the only opportunity for reconsideration of a matter by the Council is during the same meeting or the next regular m eeting; thus , reconsideration, if at all , must take place at the January 28 regular Council meeting. The following steps are required: Council Action Form January 28 , 2013 Page2 • In order to participate on this item , Councilmember Starker must, prior to the meeting, listen to the entire portion of the January 14 meeting devoted to the application, and must also have reviewed the packet materials and any exhibits entered into the record the night of the hearing. • Councilmember Starker must affirmatively answer questions on the record on January 28 that he has done the above and that he believes he is capable of rendering an informed and impartial decision on the matter. • If Councilmember Starker has not reviewed the file and tape, he may not participate further on this item. • A Councilmember who voted on the prevailing side on January 14 (a member voting to deny) moves to reconsider denial of the application. That motion must pass by a majority vote of the entire Council (5 votes). • If a motion to reconsider is made but does not pass , the matter is not reconsidered and the only item for Council action is to adopt the written findings. • If the motion passes , the Council is returned to the point at which the hearing was closed on January 14 and the Council had not yet acted on the application. • While in the past, Council has voted to reconsider, then scheduled the matter for a substantive motion at a later meeting, this is not required, and is not advisable on a quasi-judicial matter, where the hearing has been closed and the parties have a right to a prompt decision. • A member can then make any motion -to deny or to approve. Suggested motions are printed below. • If a motion to approve is made, it must pass by 6 votes. If not, then Council proceeds to consider the findings for denial that are in the meeting packet. RECOMMENDATIONS: None RECOMMENDED MOTIONS: Motion lA: Reconsideration: "I move to reconsider the Council 's January 14 , 2013 decision on Rezoning Application Case No. WZ-12-08/Rock." Council Action Form January 28, 2013 Page 3 Motion 2A: Approval: "I move to APPROVE Council Bill No. 26-2012, an ordinance approving the rezoning of property located at 12600 W. 42nd Avenue from Agricultural-One (A-1) to Mixed Use- Neighborhood (MU-N) for the following reason(s): 1. The proposed zone change is consistent with the goals and objective of the Comprehensive Plan and the I-70 /Kipling Corridor Urban Renewal Plan. 2. The proposed zone change is compatible with the surrounding area. 3. The proposed zone change will not adversely impact the public health, safety, or welfare. 4. The subject property is currently underutilized, and a zone change may increase the likelihood of the site developing and serving as a transitional site between existing commercial and residential uses." Motion 2B: Denial: "I move to DENY Council Bill No. 26-2012, an ordinance approving the rezoning of property located at 12600 W. 42nd Avenue from Agricultural-One (A-1) to Mixed Use- Neighborhood (MU-N) for the following reason(s): 1. The majority of the request does not meet the zone change criteria. 2. More commercial use further destroys the integrity of the neighborhood. 3. The proposed zone change does not seem to create a buffer but rather encourages more commercial conversion." I further move to approve the Findings & Decision prepared by the City Attorney. REPORT PREPARED BY; Gerald E. Dahl , City Attorney ATTACHMENTS: 1. Council Rules of Order and Procedure Excerpt-Reconsideration 2 . Council Bill approving Rezoning Case WZ-12-08 /Rock 3. Community Development Staff Report WZ-12-08/Rock 4. Planning Commission Minutes, dated October 18 , 2012 ORDINANCES, RESOLUTIONS, AND MOTIONS A. RECONSIDERATION 1. A motion to reconsider can be made only by a Council Member originally voting with the prevailing side. 2. Such motions shall be made only at that or the next regularly scheduled Council Business Meeting. A continued or rescheduled meeting shall be considered at a next scheduled Council Business Meeting for the purpose of Reconsideration. If not reconsidered at that time, the issue cannot be placed on any agenda for six (6) months. 3 . A motion to reconsider shall require an affirmative vote of a majority of the entire Council. 4. A COUNCIL MEMBER WHO HAS BEEN ABSENT FROM A PRIOR MEETING MAY VOTE ON A RECONSIDERATION PROVIDED SUCH COUNCIL MEMBER HAS LISTENED TO THE TAPE OF THAT AGENDA ITEM IN THE CITY CLERK'S OFFICE PRIOR TO THE MOTION FOR RECONSIDERATION. Attachment 1 CITY OF WHEAT RIDGE INTRODUCED BY COUNCIL MEMBER DeMott COUNCIL BILL NO. 26 ORDINANCE NO.---- Series of 2012 TITLE: AN ORDINANCE APPROVING THE REZONING OF PROPERTY LOCATED AT 12600 W. 42ND AVENUE FROM AGRICULTURAL-ONE (A-1) TO MIXED USE-NEIGHBORHOOD (MU-N) (CASE NO. WZ 12-08/ROCK) WHEREAS, Chapter 26 of the Wheat Ridge Code of Laws establishes procedures for the City's review and approval of requests for land use cases; and, WHEREAS, Matthew Rock has submitted a land use application for approval of a zone change to the Mixed Use-Neighborhood zone district for property located at 12600 W. 42"d Avenue; and, WHEREAS, the subject property has long been underutilized, and development may be more likely under the mixed use zoning which allows for a wider range of uses; and, WHEREAS, the proposed zone change is supported by the City's Comprehensive Plan-Envision Wheat Ridge-and by the 1-70/Kipling Corridors Urban Renewal Plan. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Upon application by Matthew Rock for approval of a zone change ordinance from Agricultural-One (A-1) to Mixed Use-Neighborhood (MU-N) for property located at 12600 W. 42"d Avenue, and pursuant to the findings made based on testimony and evidence presented at a public hearing before the Wheat Ridge City Council, a zone change is approved for the following described land: LOT 1, BLOCK 1, ROCK SUBDIVISION FILING NO. 1 Section 2. Vested Property Rights. Approval of this zone change does not create a vested property right. Vested property rights may only arise and accrue pursuant to the provisions of Section 26-121 of the Code of Laws of the City of Wheat Ridge. Section 3. Safety Clause. The City of Wheat Ridge hereby finds, determines, and declares that this ordinance is promulgated under the general police power of the City of Wheat Ridge, 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 Attachment 2 City Council further determines that the ordinance bears a rational relation to the proper legislative objective sought to be attained. Section 4. Severability; Conflicting Ordinance Repealed. If any section , subsection or clause of the ordinance shall be deemed to be unconstitutional or otherwise invalid , the validity of the remaining sections, subsections and clauses shall not be affected thereby. All other ordinances or parts of ordinances in conflict with the provisions of this Ordinance are hereby repealed . Section 5. Effective Date. This Ordinance shall take effect 15 days after final publication, as provided by Section 5.11 of the Charter. INTRODUCED, READ, AND ADOPTED on first reading by a vote of 8 to 0 on this 26th day of November, 2012 , ordered it published with Public Hearing and consideration on final passage set for Monday, January 14, 2013 at 7:00 o'clock p.m ., in the Council Chambers , 7500 West 29th Avenue , Wheat Ridge, Colorado , and that it takes effect 15 days after f inal publication . READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to , this day of , 2013. SIGNED by the Mayor on this ___ day of _______ , 2013. ATTEST: Janelle Shaver, City Clerk 1st publication : November 29 , 2012 2 nd publication: Wheat Ridge Transcript: Effective Date: Jerry DiTullio, Mayor Approved as to Form Gerald Dahl, City Attorney .... '~ ... ~ .,. City of • .. ~Wlieat&gge ~OMMUNITY DEVELOPMENT CITY OF WHEAT RlDGE COMMUNITY DEVELOPMENT STAFF REPORT TO: Planning Commi ion CA E MANAGER: Lauren Mikulak DATE OF MEETING: CASE NO. & NAME: ACTION REQUESTED : October 18 20 12 WZ-12-08 I Rock Approval of a zone change from Agricultural-One (A-I) to Mixed Use- Neighborhood (MU-N) LOCATION OF REQUEST: 12600 W. 42nd Avenue APPLICANT(S): PROPERTY OWNER(S): APPROXIMATE AREA : PRESENT ZONING: PRESENT LAND USE: Matthew Rock Matthe\ & Trud Rock 47 ,748 Square Feet (1.1 Acre ) Agricultural-One (A-I) Vacant land COMPREHENSIVE PLAN: Neighborhood ENTER INTO RECORD : (X) CASE FILE & PACKET MATERIALS (X) COMPREHENSIVE PLAN (X) ZONING ORDINANCE (X) DIGITAL PRESENTATION LOCATION MAP ase o. WZ-12-0 I Rock Attachment 3 SITE All notification and posting requirements have been met; therefore, there is jurisdiction to hear this case. I. REQUEST II. EXISTING CONDITIONS/PROPERTY HISTORY Case No . WZ-12-08 is an application by Matthew Rock requesting approval of a zone change from Agricultural-One to Mixed U (MU-N) for property located at 12600 W. 42"d Avenue The zone change is the first step in the process for approval of mixed use development on this site . If approved, and prior to any construction , a site plan review will be required to confirm that proposed development meets the standards of the mixed use zone district. Subject Property The property is located at 12600 W. 42"d A venue which is south and east of lnterstate-70 , just north of the Clear Creek Greenbelt. The site is located within the 1-70/Kipling Corridor Urban Renewal Area. The property is currently zoned Agricultural-One (A-1 ), which allows for single-family dwellings and agricultural uses. The applicant purchased the property in 1998, but the site has remained undeveloped since that time. In 2003 and in 2004 , the applicant met with staff to discuss the possibility of rezoning to a planned commercial development (PCD). The PCD zone change proposal did not move forward , however the property was consolidated from two lots to one in 2005 (Case No. MS-05-02). The resulting parcel is trapezoidal in shape, with the western property line being nearly twice the length of the eastern property line . The Lee & Baugh Ditch previously traversed the lot but was relocated and now runs along the southern and eastern property lines . Currently , the · is undeveloped and is the only vacant parcel along this portion of W. 42"d A venue Surrounding Zoning and Land Use The surrounding properties include a variety of land uses and zoning designations To the immediate south west , and east are parcels also zoned A-1. To the east is the administration and maintenance facility for the Prospect Recreation and Park District, to the west are two single-family homes, and to the south is Clear Creek and the Wheat Ridge Greenbelt. Across W. 42"d Avenue to the north are two properties zoned Restricted Commercial (RC). These include the Jefferson County Head Start facility and a one-story office buildinf with several businesses including Grainger Supply and Radio Resource. At the intersection ofW. 42" Avenue and Y oungfield Street are two more commercial properties . The office and show home for Modem Log Homes is located on a parcel zoned Neighborhood Commercial (NC), and a multi-tenant commercial building at the southeast comer is zoned Commercial-One (C-1 ). Case No. WZ-12-08 I Rock 2 III. PROPOSED ZONING The applicant is requesting the property be rezoned to Mixed Use-Neighborhood (MU-N), a zone district that is generally located along neighborhood main streets and at neighborhood commercial centers . The zone district is established to encourage medium density mixed use development in which residential and civic uses are permitted, in addition to a limited range of neighborhood-serving commercial and retail uses. Under the current A-1 zorung, permitted uses include single family homes and some agricultural functions . Under the proposed zoning, a single family home would still be a permitted use, but the MU-N zoning expands development options to include live/work scenarios or neighborhood-serving commercial uses. The applicant does not have any specific development plans but has expressed a desire to see a live/work d and a site that takes advantage of the Greenbelt views and recreation opportunities The following table compares the proposed and existing standards that apply to the subject property. In general, the MU-N district is expected to make the subject property more developable by aiJowing for a wider range of uses. The MU-N zone district also has enhanced architectural controls to ensure compatibility with the variety of surrounding land uses. Case No. WZ-12-08 I Rock Allows new residential, commercial , or mixed uses High quality architecture required ; standards related to articulation, variation , materials, transparency 35 feet if building has residential use 50 feet for all other buildings 0 -12 foot build-to area 5 feet 0 feet 1-2 story = 10 feet 3 story = 15 feet 4 story or more = 20 feet 90% for mixed use 85% for single use 10% for mixed use 15% for single use Allows single-family residential ; special uses include day care centers, churches, group homes , kennels No architectural standards for single- family homes ; metal buildings permitted for accessory structures 35 feet 30 feet 15 feet 15 feet 15 feet 25% 25% 3 Given the proximity oftwo single-family homes on the west side of the subject site, it should be noted that the MU-N zone district includes standards which offset the potential impacts of commercial development and taller buildings. To protect the existing residential properties, the following regulations apply to all new MU-N development adjacent to single-or two-family homes: • Screening is required wherever a parking lot abuts a residential use, including a 6-foot landscape buffer and a 6-foot fence, wall, or hedge. • A landscape buffer is required wherever a building abuts a residential use. This includes a minimum I 0-foot wide landscape buffer for 1-to 2-story buildings , 15 feet for 3-story buildings, and 20 feet for a 4-story building. • In addition to a landscape buffer, buildings over 2 stories must provide a 5-foot step back for each additional upper floor. • Any portion of a building within 100 feet of a residential use may not be taller than 4 stories. IV. ZONE CHANGE CRITERIA Staffhas provided an analysis of the zone change criteria outlined in section 26-122.E . The Planning Commission shall base its recommendation in consideration of the extent to which the following criteria have been met: 1. The change of zone promotes the health, safety, and general welfare ofthe community and will not result in a significant adverse effect on the surrounding area. The change of zone will not result in a significant adverse effect on the surrounding area. While the new zoning would allow for medium density development on the now vacant lot, any proposed development will require site plan review through which traffic impacts , drainage, and buffering will be analyzed. Development proposals will be required to meet stormwater drainage and water quality requirements in order to be approved , therefore no drainage problems are anticipated. The MU-N zoning is expected to add value to the subject property and also to the surrounding community. The mixed use development standards will support compatibility between future development and existing land uses . There are no architectural standards under the current A-1 zoning, so the enhanced design controls in the MU-N code are expected to benefit the character of the area. Required upper floor stepbacks and landscape buffers will minimize impacts to adjacent single family homes. Staff concludes that this criterion has been met. 2. Adequate infrastructure/facilities are available to serve the types of uses allowed by the change of zone, or the applicant will upgrade and provide such where they do not exist or are under capacity. Prior to future development a site plan review application will be required. This application will include a referral to all impacted utility agencies. In the event that current capacity is not adequate, the property owner/developer will be responsible for utility upgrades. Staff concludes that this criterion has been met. Case No . WZ-12-08 I Rock 4 3. The Planning Commission shall also find that at least one (1) of the following conditions exists: a. The change of zone is in conformance, or will bring the property into conformance, with the City of Wheat Ridge comprehensive plan goals, objectives and policies, and other related policies or plans for the area. The proposed zoning is consistent with the policies and goals in the 1-70/Kip/ing Corridors Urban Renewal Plan and the City 's comprehensive plan-Envision Wheat Ridge. Both plans were adopted in 2009 and both recognize the need to improve underutilized properties through investment. Because the MU-N zoning will allow for a wider range of uses on the property, the zone change is expected to encourage investment in the site. The Structure Plan map in Envision Wheat Ridge illustrates the community's vision by classifying different types of areas and corridors. It is not a parcel-based land use map, and therefore does not show all existing and proposed land uses. In the Structure Plan, W. 42"d Avenue is shown with "neighborhood buffer ' and "neighborhood" overlays. The comprehensive plan calls for an improved mix of land uses in the transitional areas between the City's high intensity commercial corridors and lower density residential neighborhoods. The subject property is ideally situated to serve as a transitional site or neighborhood buffer between the homes on Xenon Street and the businesses on W. 42"d A venue and Y oungfield Street. By encouraging mixed use development and establishing specific design requirements, the MU-N zoning provides tools and standards which support the City 's goals of improving the appearance and vitality of vacant sites. Staff concludes that/his criterion has been met. b. The existing zone classification currently recorded on the official zoning maps of the City of Wheat Ridge is in error. Staff has not found any evidence of an error with the current Agricultural-One (A-I) zoning designation as it appears on the City's zoning maps. Staff concludes that this criterion is not applicable. c. A change of character in the area has occurred or is occurring to such a degree that it is in the public interest to encourage redevelopment of the area or to recognize the changing character of the area. Over the last 12 years, the character of W. 42"d A venue has evolved as the north side of the street has developed from vacant land into the viable commercial and public uses that exist today. In 2001 , Modern Log Homes developed the property at 4288 Youngfi e ld Street to include an office and show home. In 2003 , the one-story office building was completed at 12701 W. 42"d Case No . WZ-12-08 1 Rock 5 Avenue, and in 2008, Jefferson County developed the school facility for its Head Start program at 12725 W. 42"d Avenue. By allowing residential and/or limited commercial uses, the proposed zone change is consistent with the character of the street. Staff concludes that this criterion has been met. d. The proposed rezoning is necessary in order to provide for a community need that was not anticipated at the time of the adoption of the City of Wheat Ridge comprehensive plan. The proposed rezoning does not relate to an unanticipated need. Staff concludes that this criterion is not applicable. V. NEIGHBORHOOD MEETING Prior to submittal of an application for a zone change, the applicant was required to hold a neighborhood input meeting in accordance with the requirements of section 26-109. A meeting for neighborhood i was held on March 2 I 2012 . Eight people from the neighborhood were in attendance VI. AGENCY REFERRAL All affected service agencies were contacted regarding the ability to serve the property. Any applicant for development will be responsible for providing upgrades , as needed. Referral responses in follow in regards to the zone change. Another referral process will occur in the future when a development scenario is known . Arvada Fire Protection District: No concerns. Xcel Energy: No concerns. Valley Water District: The district can provide water service to the property . Wheat Ridge Public Works: There are no concerns with the zone change; traffic and drainage impacts will be reviewed with future development. Wheat Ridge Urban Renewal Authority: No concerns· the board finds that the zone change does not conflict with the urban renewal plan. VII. STAFF CONCLUSIONS AND RECOMMENDATION Staff concludes that the proposed zone chan ge is consistent with the Comprehensive Plan and the 1-70/Kipling Corridors Urban Renew al Plan. Staff concludes that the zone chan ge will be compatible with the surrounding area allowing the site to serve as a neighborhood buffer. Staff further concludes Case No . WZ-12-08 I Rock 6 that the subject property has long been an underutilized parcel and that property development may be more likely under the mixed use zoning which allows for a wider range of uses. Staff concludes that any applicant for development under the new zoning will, through the site plan review process, be required to provide utility upgrades, as needed. Finally, staff concludes that the proposed zone change will not adversely affect public health, safety, or welfare; the architectural controls, upper floor step backs, and landscaped buffer requirements of the mixed use district will ensure compatibility with surrounding land uses. Because the zone change evaluation criteria support the zone change request, staff therefore provides a recommendation of approval. VIII. SUGGESTED MOTIONS Option A: "I move to recommend APPROVAL of Case No. WZ-12-08, a request for approval of a zone change from Agricultural-One to Mixed Use-Neighborhood, for property located at 12600 W. 42"d Avenue, for the following reasons: 1. The proposed zone change is consistent with the goals and objectives of the Comprehensive Plan and the 1-70/Kip/ing Corridor Urban Renewal Plan. 2. The proposed zone change is compatible with the surrounding area. 3. The proposed zone change will not adversely impact the public health, safety, or welfare. 4. The subject property is currently underutilized , and a zone change may increase the likelihood of the site developing and serving as a transitional site between existing commercial and residential uses." Option 8: "I move to recommend DENIAL of Case No. WZ-12-08, a request for approval of a zone change from Agricultural-One to Mixed Use-Neighborhood, for property located at 12600 W. 42"d Avenue, for the following reasons: 1. 2. 3 . " CaseNo. WZ-12-08 /Rock 7 EXHIBIT 1: LEGAL DESCRIPTION & MAP Legal Description The area proposed to be rezoned is legally described as: LOT I BLOCK 1. RO K SUBDIVISION FILING NO. I. CITY OF WHEAT RIDGE, COUNTY OF JEFFER ON. TATE OF COLORADO. Also known by street and number as 12600 W. 42"d A enue, Wheat Ridge, CO 80033; as depicted in the map below. I 04221 04221 04281 04218 1272~ I J r-----------------4mDAVE----------------~ II 12710 12710 12600 12700 ... J 04201 ase o. WZ-12 -0 I Rock 04210 04200 041!11 04181 04201 8 EXHIBIT 2: AERIAL IMAGE ase No . WZ-I 2-08 I Rock 9 EXHIBIT 3: SITE PHOTOS Looking south at the subject site; most of the mature landscaping at the back ofthe site is within the adjacent Wheat Rjdge Greenbe lt. A enue; the subject property is on the south side of the street. Looking west down W. 42 Avenue· this multi-tenant office building across the street from the subject property was completed in 2003. 10 / / A venue ; the property has about 300 feet of frontage along the street. Looking southeast from the comer W. 42 A venue and Xenon Street; the administration and maintenance facility for the Prospect Recreation and Park District is east of the subject site. Case o. WZ-12-08 I Rock II EXHIBIT 4: ZONING MAP a e o. WZ-12-0 I Rock 12 EXHIBIT 5: LETTER OF REQUEST -4+--_-_.:-IA_.:I/....;_tr_!.:..=..:...:__:.---!..-~~~..;:;;;_~ ~~-.L.:..:.~'f,,__t:>~dJ_ ~--- ~-~-~~ 1-' w~~<-!.~ ~~~~~~~~~~~~~ -,,.------JZ~ ~ ------ CaseNo.WZ-12-0 !Rock 13 EXHIBIT 6: NEIGHBORHOOD MEETING NOTES Ci1y of Wheal Ridge Municipal Building 7$00 W. 29'" Ave . Wheat Ridge. CO 10033-8001 P: 303.23S.2846 F: 303.23S.28S7 O.te: City Staff Present: Locatioll or meeting: Property loc:ation: Property owner: NEIGHBORHOOD MEETING NOTES March 21,2012 Meredith Reckert, Senior Planner Wheat Ridge Municipal Building Second Floor Conference Room 7500 W. 29th A venue Wheat Ridge, CO 80033 12600 W. 42nd Avenue Matthew Rock Phone : 720-333-3703 Email: rocks roofing@msn.corn I 0300 W. 65 1li A venue Arvada, CO 80004 Torn Martinez. owner's consultant Property Owner(s) present? Yes Existing Zonlng: Agricultw-e -One, A· I Comprehensive Plan Designation: Neighborhood Members of the public present: There were seven area residents and/or property owners in attendance. A wrilten response was submitted from David and Joan AmdahJ, 4235 Vivian Street, who could not be in attendance . See attached sign-up sheet. AppUc.ant's Proposal: ln 2003, the applicant first proposed a zone change for the property. At that time, any zone change would have required a planned development. With the adoption of mixed use zone districts in 2010, the applicant is now proposing a zone change to Mixed Us(> Neighborhood (MU-N) to provide a mixed use building with ground floor offices and upper floor residences . No specific designs or site plan have yet been drawn. The applicant is proposing a development that would take advantage of the Greenbelt views and recreation opportunities and would provide around-the-clock presence on the property from residents and employees . Existing Conditions: The property is located at the southwest comer ofW. 42nd Avenue and Xenon Street. The parcel is tentatively addressed as 12600 W. 42nd Avenue , and is identified as PIN 39-203-06-003 . The property is currently zoned Agriculture-One (A · I). Case No . WZ-12-08 1 Rock 14 The surrounding properties include a variety of land uses and zoning designations . To the immediate south, west, and east are propenies also zoned A· I . To the west is a single--family residential home , to the east is the Prospect Recreation and Parle District administration and maintenance facility, and to the south is Clear Creek and the Wheat Ridge Greenbelt . Across 42nd A venue to the north are properties zoned Neighborhood Commercial (NC) and Restricted Commercial (RC). These include businesses such as Grainger Supply and Radio Source, as well as the Jefferson County Head Start facility. At the comer ofW. 42nd Avenue and Youngfield, just two Jots to the west, are the offices for Modem Log Homes and a multitenant commercial building zoned Commercial-One (C-1). ln preparation for future development, a consolidation plat was approved in December 2005 for the property. The resulting parcel is trapezoidal in shape; the western property line is nearly twice the length of the eastern property line . The subject proper1y is the only vacant lot in the block. It is just over one acre in size at 47,748 square feet . The Lee & Baugh Ditch runs along the southern and eastern property lines . The property is 3.5 acres in size and is located on the southwest comer ofW. 44th and Tabor St. The adjacent properties along W. 44111 are zoned C-1 with the exception ofa small area on the property to the west. which is zoned C-2 . The areas to the south of the property are zoned A-I developed with single family homes and open space . The foUowillg ••s•es were discussed: What Is proposed to be buUt? The property owner is no/ sure yet. Perhaps a mixed use project wilh live/work units with commercial on the bot/om floor and residential above that may be allractive to an artist or someone with a small business such as a CPA. Another option may be a multi-family project. WW Mr. Rock be Uving there and openting bls roofmg company? No, th e proposed Mixed Use Neighborhood zoning on the property would not allow a conJractor 's office. When did Mr. Rock buy the property? Mr. Rock purchased the property in 1998. What are the tu •mpUcadons If the property were rezoned and developed commerdally? The Ciry of Wheat Ridge is not the taxing entiry; it is Jefferson County. There should be an increase in property taxes if it were developed commercially . The area residents wondered whether Mr. Ro~k would Uke to Uve next to a commercial business with the tram~ Ughts, noise, trash trucks, etc:. The neighborhood lncllated that they are not lD favor of a•y more commercial land use in the area and would Uke to see the property developed with A-1 zonlDg. They would prefer to see a llouse buUt on the property. Case No. WZ-12-08 I R ock 15 .... ~4~ .. ., City of _p-\VheatR!_dge PLANNING COMMISSION Minutes of Meeting October 18,2012 1. CALL THE MEETING TO ORDER The meeting was called to order by Chair TfMMS at 7:03 p.m. in the City Council Chambers of the Municipal Building, 7500 West 29th Avenue, Wheat Ridge, Colorado. 2. ROLL CALL OF MEMBERS Commission Members Present: Staff Members Present: Anne Brinkman Alan Bucknam Monica Duran Tracy Guildner Dick Matthews Steve Timms Amanda Weaver Scott Ohm Lauren Mikulak, Planner I Deborah Baker, Recording Secretary 3. PLEDGE OF ALLEGIANCE 4. APPROVE ORDER OF THE AGENDA It was moved by Commissioner MATTHEWS and seconded by Commissioner BUCKNAM to approve the order of the agenda. Motion carried 7-0 with Commission GUILDNER abstaining. 5. APPROVAL OF MINUTES-September 6, 2012 It was moved by Commissioner MA TTBEWS and seconded by Commissioner DURAN to approve the minutes of September 6, 2012. Motion carried 6-0 with Commissioners GUJLDNER and BUCKNAM abstaining. 6. PUBLIC FORUM (This is the time for any person to speak on any subject not appearing on the agenda.) No one wished to speak at this time. Planning Commission Minutes October 18 , 20 12 Attachment 4 - 1 - 7. PUBLIC HEARING A. Case No. WZ-12-08: An application flied by Matthew Rock for approval of a zone change from Agricultural-One ~A-1) to Mixed Use-Neighborhood (MU-N) for property located at 12600 W. 42n Avenue. Prior to introduction of this case, Commissioner GUILDNER requested that she be recused from the case because she has known the applicants for a long time. It was moved by Commissioner BRINKMAN and seconded by Commissioner WEAVER to accept Commissioner GUILDNER 'S recusal. The motion passed 6-1 with Commissioner MATTHEWS voting no and Commissioner GUILDER abstaining. Commissioner GUILDNER left the Council Chambers following the vote. This case was presented by Lauren Mikulak. She entered into the public record the contents of the case file, the zoning ordinance, and the digital presentation. All notification and posting requirements have been met. There is jurisdiction to hear the case. She reviewed the staff report and the digital presentation. Staff recommends approval of the zone change. Commissioner OHM asked if the City or applicant considered pedestrian and bicycle access to the Clear Creek Trail. Ms. Mikulak replied that the proximity to the trail has been of interest to the applicant, but direct access has not been considered at this time .. In response to Commissioner BRINKMAN's question, Ms. Mikulak replied that she does not know if the property is in or abuts the floodplain. Commissioner BRINKMAN said that she has seen what looks like evidence of parking on the property. Ms. Mikulak was not aware of what was making the marks. Staff has worked with applicant to clarify no parking or storage is permitted on a property without a primary structure. Commissioner BRINKMAN asked for clarification on the location of right of way lines shown on the map. Ms. Mikulak confirmed the right-of-way line is set back from the existing edge of pavement. Curb and gutter will likely need to be constructed when the site develops . In response to Commissioner BRINKMAN's question, Ms. Mikulak responded that W. 42nd Avenue and Xenon are both classified as local streets. Commissioner MATTHEWS commented that the back of the Jot going down to the creek is very steep and approximately 20 feet above Clear Creek, so that would likely answer Commissioner BRINKMAN'S question that the property is likely out of the flood plain. Planning Commission Minutes October 18, 20 12 -2 - Commissioner MATTHEWS asked if utilities will be undergrounded if this property is developed. Ms. Mikulak replied that the Mixed Use code may either request or require undergrounding of utilities, but staff and the applicant haven't discussed this yet. Commissioner MATTHEWS commented that underground utilities would definitely improve the appearance of the neighborhood. In response to Commissioner MATTHEWS' question about the Mixed Use zoning, Ms. Mikulak explained that any portion of any building within I 00 feet of a single family home may be no taller than four stories, no matter what the uses of the building are. Commissioner MATTHEWS asked if the property is exempt from charter height restrictions because it is in an Urban Renewal Area. Ms. Mikulak explained that the Mixed Use-Neighborhood zoning does not get exempted so the 35-and 50-foot height limits are hard caps. In response to Commissioner BUCKNAM's question about the property to the east, Ms. Mikulak replied that it is the maintenance facility of the Prospect Recreation and Park District, the district that maintains parks in unincorporated Jefferson County. In addition to a small administration building, they store fleet vehicles, maintenance tools, and picnic tables at that location. Ms. Mikulak did not know their regular business hours or the frequency of the traffic. Commissioner BUCKNAM asked if there had been any discussion of rezoning to Mixed Use-Commercial as opposed to Mixed Use-Neighborhood, because of the proximity of warehouse and commercial directly to the north. Ms. Mikulak responded that there had not been for several reasons: the proximity of single family homes to the west and north, and the lower intensity MU-N district seems more appropriate. Also, in MU-N a detached single family home is permitted, whereas in MU-C it is not permitted. Chair TlMMS asked Ms. Mikulak when the NC and RC parcels to the north were rezoned. Ms. Mikulak replied that they were rezoned at least I 0 years ago. She confirmed that the development of the lots is fairly recent. In response to Chair TIMMS • question, Ms. Mikulak stated that she thinks the Parks and Recreation District has occupied the site to the east for at least 10 years. In response to Chair TIMMS' question, Ms. Mikulak said there is no minimum lot size in MU-N. Potentially, the applicant could subdivide this Jot as long as they meet other setback and parking requirements, but subdividing has not been discussed. Chair TIMMS asked for more information on the limited commercial uses mentioned in Ms. Mikulak's presentation. Ms. Mikulak replied that there are four mixed use zone districts and they get progressively more permissive. The Mixed Use-Neighborhood zone district has the least amount of permitted uses. Ms. Mikulak read from the permitted use chart. Planning Commission Minutes October 18 , 2012 -3 - In response to Chair TIMMS' question, Ms. Mikulak replied that no industrial uses are allowed in MU-N. Commissioner MA ITHEWS asked if, the Grainger property across the street would be allowed in MU-N. Ms. Mikulak replied that she is not familiar enough with the uses inside of the building to respond. If it is only offices, it would be permitted. Ifthere is warehousing then it would not be permitted. Commissioner BUCKNAM added that it is a wholesale-retail operation. Ms. Mikulak added that wholesaling is a conditional use in MU-N because of associated trucks traffic Matthew Rock 10300 West 65th Avenue, Arvada, CO Mr. Rock explained his reasons for requesting mixed use zoning of the property. He envisions a development with limited businesses, such as a hairdresser, florist, or gift shop. He would like to see an area where people can live, work, and recreate in the same area. Mr. Rock thanked the Commission for their consideration of his request. Commissioner BRINKMAN asked if Mr. Rock knew why there are tire tracks in the dirt area on the site. Mr. Rock responded that since it is a vacant lot and a dead end street, and a school is next to it, people probably use the site as a turnaround point, or use the area for parking. He doesn't know for sure. Commissioner BRINKMAN asked Mr. Rock if he inquired about the flood plain when he purchased the property in 1998 . He responded that at the time of purchase they were informed the property was above the flood plain. It is rus understanding that it is 25 feet above the flood plain . Commissioner BRINKMAN asked if Mr. Rock has met any of his neighbors besides at the neighborhood meeting. Mr. Rock stated that he knows the neighbor to the north, and has had some association with the neighbor to the west. Chair TIMMS noted that the legal description is Lot 1 Block 1 of the Rock Subdivision, and asked if Mr. Rock platted the property. Mr. Rock confirmed that he platted the property in 2003. Mr. Rock confirmed that previously the property was multiple lots and it was consolidated into one larger lot. Ms. Mikulak added that one of the previous lots was not developable. There was an east/west diagonal lot line creating a small sliver on the southern portion of the lot, essentially where the ditch is now located. The two lots were consolidated to make one developable lot. Chair TIMMS opened the public hearing. Planning Commission Minutes October 18, 2012 -4- Greg Boom 4200 Xenon St., Wheat Ridge, CO Mr. Boom stated that he owns two pieces of property in the neighborhood. His residence is at 4200 Xenon St. which is right next to the Parks facility, and 4225 Vivian St. which is directly east of that. He provided his history in the neighborhood as well as his complaints about traffic and commercial development in the area. He expressed his displeasure about the change he sees occurring in the neighborhood and how it adversely affects him and his neighbors' ways of life. Commissioner BRINIKMAN asked Mr. Boom if he knows how much traffic Grainger Express has brought into the neighborhood. Mr. Boom thinks it has brought in considerable traffic, but since he is not home during the day he can't be sure. The school also brings in a lot of traffic. Commissioner BRINKMAN asked if there were signs on Xenon restricting truck traffic. Mr. Boom replied that there are no signs, and he does not know if the neighborhood has asked for it. La Vonne Beckfeld 4365 Xenon, Wheat Ridge, CO Mrs. Beckfeld stated she owns property at 4210 and 4365 Xenon St. She has lived there since 1942 and she provided her history of the neighborhood. She expressed her displeasure with the traffic, the business development, and what she perceives to be the City's uncaring attitude toward the residents. Commissioner BRINKMAN asked Mrs. Beckfeld if there is a ditch running through that property. She replied that she did have, but does not now. In response to ~other question from Commissioner BRINKMAN, she doesn't remember if it is the Slater & Moody ditch. Cindy Beckfeld 4365 Xenon St., Wheat Ridge, CO Ms. Beckfield expressed her dissatisfaction with the diesel emission operation at the end of Xenon at 441h. She also was concerned about the amount of traffic. She fears that if this zone change is approved, it will open the door to more of the same aggravations this neighborhood is already experiencing. Katherine Murphy 12700 W. 42nd Ave., Wheat Ridge, CO Ms. Murphy stated that she and her husband bought their property in 2001 and provided her history of the neighborhood. She expressed her dissatisfaction with the traffic and the commercial use in the area which is disturbing to the residents day and night. She complained about the bright lights from the highway and commercial businesses that shine in their windows at night. Planning Commission Minutes October 18, 2012 -5- Mamie Boom 4200 Xenon St., Wheat Ridge, CO Ms. Boom owns property at 4200 Xenon and 4225 Vivian St. She expressed her concern about more development as most of the people in the neighborhood get water from wells. She also expressed concerns about the traffic from Grainger and the school, which makes it unsafe to walk or ride horses in the neighborhood. She stated she and the neighbors want the area to remain a residential neighborhood. Chair TIMMS asked if the Commissioners have any follow up questions. Commissioner OHM asked if a photometric plan is required, and ifthere a limit on the light that spills on adjacent properties. Ms . Mikulak replied that it is required for any new development that has building mounted or free standing lights. The code requires that exterior lighting be shielded to avoid illuminating beyond the property boundaries. Commissioner OHM asked Ms. Mikulak to confirm that an auto repair shop is not permitted, because of the complaints about the diesel shop brought up in this meeting. Ms. Mikulak responded that repair, rental, and servicing of automobiles, with no outdoor storage is listed as a conditional use in all mixed use districts except for Mixed Use- Commercial Interstate, so a conditional use permit would be needed for that type of business . Commissioner OHM asked if on-street parking is permitted with Mixed Use- Neighborhood. Ms. Mikulak replied that when looking at a new development, a trip generation study or traffic impact study is used to estimate how many new vehicles will be drawn to the site. Staff also looks at the use and parking ratios to determine how many off-street parking spaces are needed. On-street parking spaces are not always counted, particularly in places where it is not safe or allowed. ln this particular area , on- street parking would not likely be encouraged. Commissioner BRINKMAN asked why the ditch company and Public Works Department had no comments on the zone change. Ms. Mikulak explained the history and current status of the ditch on the subject property, and explained that no comments were generated because there is no specific use or site plan proposed at this time to comment on. In response to Commissioner BRINKMAN's question asking what the next step is for this case, Ms. Mikulak replied that the next step is a public hearing before City Council. The Planning Commissions will make a recommendation for approval or denial, but the Council will ultimately decide. The case is scheduled for the City Council meeting on January 14,2013. Commissioner BUCKNAM asked if there has been any conversation about subdividing into two lots , and zoning both of them R-1 or R-2 considering the agricultural and residential uses existing on Xenon. Ms. Mikulak replied that subdividing under current Planning Commission Minutes October 18 , 2012 -6 - A-1 zoning is not possible. The minimum lot size in A-1 is I acre, and this property is 1.1 acres. Residential rezoning has not been discussed but could be considered. Ms. Mikulak responded to Commissioner BUCKNAM's request for clarification on the standards and placement of parking. Parking in MU-N should be next to or behind the building and not between the building and the street. Sandy Cusack 15901 South Westrninister Road, OkJaboma City, OK Ms. Cusack identified herself as the daughter of La Vonne Beckfeld. She stated that although the Commission is challenged with the development of Wheat Ridge they also have an obligation to the citizens who have lived in the neighborhood for many years. Chair TIMMS closed the public hearing. Commissioner BUCKNAM commented that a residential type of zoning may be more appropriate than a mixed use zoning. He is concerned about introducing too much commercial or retail development into an area that may be better suited for purely residential. Commissioner WEAVER commented that she understands the intention of MU-N is to provide a buffer, but an increase in commercial use is not going to provide the buffer; rather it seems to be encouraging more commercial development. Commissioner OHM observed that everyone from the public who spoke mentioned traffic as a major concern, and asked if it is possible to place restrictions on the types of uses permitted if the rezone is approved. After brief discussion, Ms. Mikulak agreed it may be legal but logistically those types of conditions are difficult to enforce. Commissioner BRINKMAN thanked the neighborhood for coming to the meeting and encouraged them to continue to come to the meetings. She does not believe the zoning change wiJI be beneficial to the neighborhood, explained her reasons, and said she will vote no. Commissioner MATTHEWS stated he does not think mixed use development standards are appropriate for the subject lot. Commissioner BUCKNAM stated that agrees with the applicant and staff in recommending development of the site, but he thinks more appropriate development would be residential in nature. It was moved by Commissioner WEAVER and seconded by Commissioner BRINKMAN to recommend denial of Case No. WZ-12-08, a request for approval of a zone change from Agricultural-One to Mixed-Use Neighborhood, for property located at 12600 W. 42nd Avenue, for the foUowing reasons: Planning Commission Minutes October 18, 2012 -7 - 1. The majority of the request does not meet the zone change criteria. 2. More commercial use further destroys the integrity of the neighborhood. 3. The proposed zone change docs not seem to create a buffer but rather encourages more commercial conversion. Motion passed 6-1, with Chair TIMMS voting no and Commissioner GUILDNER recusing herself. Commissioner GUILDNER returned to Council Chambers at 8:45 p.m. 8. OTHER ITEMS • Ms. Mikulak reported that Kim Waggoner has accepted the position of Administrative Assistant to replace Kathy Field who transferred to Public Works in September. She will be starting work on Monday, October 22,2012. • Commissioner OHM commented on the success of Ridge at 38th event. It was a very positive event for Wheat Ridge. • Commissioner BRINKMAN thanked the staff and city for Boards and Commission dinner on October 17th. There were no other items to come before the Commission. The next Planning Commission meeting is scheduled for November 1, 2012. 9. ADJOURNMENT It was moved by Commissioner BRINKMAN and seconded by Commissioner OHM to adjourn the meeting at 8:48 p.m. Motion carried 8-0. //¥--/Steve Timms, Chair / Planning Commission Minutes October 18, 2012 Deborah Baker, Recording Secretary -8 - ~ ~ . ~ -~ ., City of • :P'WheatR.i_dge ITEM NO:~ DATE: January 28, 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: MOTION TO CONSIDER THE FINDINGS AND DECISION PREPARED FOR ZONING APPLICATION CASE NO. WZ- 12-08/ROCK D PUBLIC HEARING C8J BIDS/MOTIONS D RESOLUTIONS QUASI-JUDICIAL: 7'[? /···· {__,;'-;/ City Attorney ISSUE: D ORDINANCES FOR 1ST READING (mm/dd/yyyy) 0 ORDINANCES FOR 2N° READING (mm/dd/yyyy) ~ YES D NO ~~ Council will decide whether to approve or deny the Findings and Decision prepared for zoning application Case No. WZ-12-08/Rock. PRIOR ACTION: Council previously denied the application for rezoning of property located at 12600 W . 42nd Avenue and instructed the City Attorney to prepare Findings and Decision for same. FINANCIAL IMP ACT: None BACKGROUND: The Planning Commission reviewed the application at the October 18,2012 public hearing, and recommended denial. On January 14, 2013 , the Council conducted a public hearing on the application. Testimony was given by the applicant and members of the public. At the conclusion of the public hearing and Council deliberation, the Council denied the rezoning application and instructed the City Attorney to prepare Findings and Decision for the matter. RECOMMENDATIONS: Staff recommends approval ofthe attached Findings and Decision. Council Action Form January 28, 2013 Page2 MOTION: "I move to approve the Findings and Decision in Case No. WZ-12-08/Rock." REPORT PREPARED BY; Gerald E. Dahl , City Attorney ATTACHMENTS: 1. Findings and Decision CITY COUNCIL CITY OF WHEAT RIDGE, COLORADO CASE No. WZ-12-08/Rock FINDINGS AND DECISION THIS MA TIER comes before the Wheat Ridge City Council (the "Council") upon the application (the "Application") of Matthew Rock for approval of a zone change for property located at 12600 W. 42nd Avenue within the City of Wheat Ridge, Colorado (the "City"). The legal description of the property is Lot 1, Block 1, Rock Subdivision Filing No.1 (the "Subject Property"). The Council, having conducted the required public hearing and being fully advised in the matter, enters the following Findings and Decision. FINDINGS 1. The application was filed by Matthew Rock for approval of a zone change from Agricultural-I (A-1) to Mixed Use-Neighborhood (MU-N) for the Subject Property. 2. The Subject Property is one parcel totaling approximately 1.1 acres in size. The Subject Property is vacant, and the purpose of the zone change request is to provide the owner with expanded options for development of the site. 3. Section 26-112 of the Wheat Ridge Code of Laws (the "Code") governs both the procedure and the standard for review of private rezoning applications. The Application to rezone the Subject Property is one such private rezoning application. 4. The Application was reviewed by the Wheat Ridge Planning Commission at a public hearing on October 18, 2012. The Planning Commission recommended denial of the application for the following reasons: a. The majority of the request does not meet the zone change criteria. b. More commercial use further destroys the integrity of the neighborhood . c. The proposed zone change does not seem to create a buffer but rather encourages more commercial conversion. 5. Proper notice as required by law has been provided ; the Subject Property is within the City of Wheat Ridge; thus the Council has jurisdiction to hear and decide this case. Attachment 1 6. On January 14 , 2013 , the Council conducted a public hearing on the Application. Testimony and exhibits were accepted into the record from staff, the Applicant and the public . The Applicant was represented by Tom Martinez, a real estate broker. 7. At the January 14 , 2013 hearing, the City Council accepted the following exhibits into the hearing record: • planning staff report • zoning ordinance • case file , including application, attachments and additional written objections • digital staff presentation • materials presented by the Applicant • letter oflegal protest dated January 10 , 2013 signed by David A. Murphy and Kathryn R . Murphy of 12700 W . 42nd Avenue, Wheat Ridge, Colorado. 8. The staff presentation was given by Meredith Reckert. Ms. Reckert described the current zoning of the Subject Property as A-1, which allows for single-family dwellings and agricultural uses. The Applicant purchased the property in 1998, but the site has remained undeveloped since that time. In 2005 the Subject Property was consolidated from two lots to one in anticipation of future development. Ms. Reckert described the resulting parcel as trapez oidal in shape, with the western boundary line being twice the length of the eastern property line. Currently the Subject Property is the only vacant parcel along this portion of West 42nd Avenue. Ms. Reckert further described surrounding land uses as including a variety of commercial and residential land use and zoning designations . To the west is a single-family residential home; to the east is the Prospect Recreation and Park District administration and maintenance facility ; and to the south are Clear Creek and the Wheat Ridge Greenbelt. All three are zoned A-1. Across 42nd Avenue to the north , properties are zoned Neighborhood Commercial and Restricted Commercial. These include businesses such as Grainger Supply, Radio Source and the Jefferson County Head Start school facility . 9. On behalf of the Applicant, Mr. Martinez testified that the proposed use of the Subject Property, if rezoned , would not be for an exclusively residential structure, but instead various commercial uses , potentially including live-work mixed-use uses. However, at the rezoning stage, no particular specific development project or proposal was being advanced . 1 0. The following additional persons testified during the public hearing: • Greg Boom, owner of 4200 Xenon Street, testified to his belief that the Wheat Ridge Park and Recreation facility use is not a commercial use. Mr. Boom stated he opposed the rezoning because, among other reasons , 42nd A venue could not handle additional commercial traffic to serve the Subject Property and that in fact there were traffic problems on 42nd A venue now . Mr. Boom testified to his belief that the proposed rezoning would not meet requirements for mixed-use as a buffer between commercial uses and adjacent residential u ses . He testified that this area is not a "transition area ." -2- • Ms. Cyndi Beckfield testified in opposition to the application stating that there are current traffic problems on 42nd A venue now and that another commercial business on the Subject Property would make this problem worse. She testified to her belief that 42nd A venue was neither designed nor large enough to accommodate additional traffic. • Kathryn Murphy, owner of the residential property immediately adjacent to the Subject Property to the west, testified that the application did not meet the criteria of Code Section 26-112.E, that traffic issues on 42nd A venue were already at undesirable levels and that an additional business would exacerbate those negative impacts. Ms. Murphy testified there was no way to buffer additional lighting impacts from commercial development on the Subject Property to adjacent residential properties. • Mamie Boom, owner of 4200 Xenon Street, testified that the Wheat Ridge Park and Recreation District use is noncommercial and is operated as an agricultural use. She testified that the street width of 42nd A venue is not adequate for additional development, and that the Head Start school facility already overburdens the street now and that there is no room for additional traffic. She testified that approval of this rezoning would "divide a neighborhood." Ms. Boom stated she was authorized to also testify on behalf of LaVonne Beckfield , owner of 4365 Xenon Street, and that Ms. Beckfield believes that the 42nd A venue cannot handle additional traffic. • Donna Mefford, property owner of 4380 Xenon Street testified that 42nd A venue does not accommodate sufficient parking already and that there are frequently two rows of giant trucks parked along the street. 11. The Mayor closed the public hearing and took comments from the Council. • Councilmember Jay commented that she does not believe this is a good retail area and that instead it would be attractive for residential uses. • Councilmember Davis questioned the Planning Commission reasons for stating that the review criteria of Code Section 26-112.E were not met. Meredith Reckert answered by saying the Planning Commission felt that the application did not promote the health, safety and general welfare of the surrounding community and that there would be adverse impacts to that community as the property owners have testified. Ms. Reckert stated that while utility services were not a problem, the Subject Property was on the edge of a residential area but in a transitional area under the Comprehensive Plan. She testified that the zoning is a "hodgepodge" in this area. • Councilmember Pond questioned whether there would be a traffic study as a part of any future site plan review. Ms. Reckert replied that this would be true. -3 - • Councilmember Langworthy inquired what a traffic study would take into account. Ms. Reckert answered that it would address current a.m. and p.m. peak traffic levels. Community Development Director Johnstone commented that the level of traffic study required for a future site development would depend upon what kind of uses were proposed. Councilmember Langworthy commented that the Application treats Xenon Street as a commercial street whereas it was built as a neighborhood street. • Councilmember DeMott questioned at what point a use should be denied on the basis of traffic . Ms. Reckert replied there is a list of permitted uses in the mixed-use district that are being requested by the applicant but that such uses would not likely include pure retail uses. • Councilmember Stites questioned whether the mixed-use district would offer more protection than the current A-1 district. Ms. Reckert said that architecturally yes, there would be some protection, but it would depend upon what would be proposed. 12. Mr. Martinez was permitted to give rebuttal testimony. He stated there was no access to the current Wheat Ridge Greenbelt from the Subject Property because of a 20 foot drop between the property and the Greenbelt, and the property is currently underutilized. 13. Code Section 26-112.E contains the criteria for review of rezoning applications. This section provides: Criteria for review. The planning commission and city council shall base its decision in consideration of the extent to which the applicant demonstrates the following criteria have been met: 1. The change of zone promotes the health, safety, and general welfare of the community and will not result in a significant adverse effect on the surrounding area; and 2. Adequate infrastructure/facilities are available to serve the types of uses allowed by the change of zone, or the applicant will upgrade and provide such where they do not exist or are under capacity; and 3. At least one (1) of the following conditions exists: a. The change of zone is in conformance, or will bring the property into conformance with, the City of Wheat Ridge comprehensive plan goals, objectives and policies, and other city-approved policies or plans for the area. b. The existing zone classification currently recorded on the official zoning maps of the City of Wheat Ridge is in error. c. A change of character in the area has occurred or is occurring to such a degree that it is in the public interest to encourage -4- redevelopment of the area or to recognize the changing character of the area. d. The proposed rezoning is necessary in order to provide for a community need that was not anticipated at the time of the adoption of the City of Wheat Ridge comprehensive plan. 14. Based upon the testimony and evidence received at the January 14 , 2013 public hearing, the Council makes the following findings with respect to the Applicant's compliance, or lack thereof, with the requirements of Code Section 26-112.E: • the Council agrees with the Planning Commission reasons for denial , which include: 1. the majority of the request does not meet the zone change criteria; u. more commercial use further destroys the integrity of the neighborhood; and 111. the proposed zone change does not seem to create a buffer but rather encourages more commercial conversion. • Code Section 26-112.E.l requires that the Applicant demonstrate that "the change of zone promotes the health , safety and general welfare of the community and will not result in a significant adverse effect on the surrounding area." The Council finds this criterion is not met. The Council finds that the health , safety and general welfare of the surrounding area will be negatively impacted if the Application were granted. In particular, the Council finds that existing traffic levels overburden existing streets in the immediate area and that approval of the Application would promote additional traffic which would further overburden those streets , create negative impacts and safety, parking, noise and general interference with existing residential uses in the community. • Code Section 26-112.E.2 requires that the Applicant demonstrate that "adequate infrastructure/facilities are available to serve the types of uses allowed by the change of zone , or the applicable upgrade provides such where they do not exist or are under capacity." The Council finds that while utility services are available to serve the Subject Property, the existing street network is presently inadequate and would be rendered further so by approval of the Application and the resulting additional commercial development, beyond the extent to which the Applicant would be required , in a site plan , to provide additional upgrades . The Council finds this criterion is not met for that reason. 15. The Wheat Ridge Home Rule Charter, at Section 5.1 0, and the Wheat Ridge Code of Laws , Section 26-112.C.7, provide that in the event a legal protest is filed against a proposed change of zone, the zone change shall only be approved by the favorable vote of % of the entire City Council. Charter Section 5.10 provides that the protest must be signed by the owners of -5- 20% or more of the area of the property included within the proposed change or of those immediately adjacent to the rear or any side of the property extending 100 feet from the property or those directly opposite the street from the property extending 100 feet from the street frontage of such property. In this case, a legal protest was filed on January 10 , 2013 by David A. Murphy and Kathryn R. Murphy, owners of the property located at 12700 W. 42nd Avenue, directly adjacent to the west of the Subject Property. The Council finds this protest qualifies as constituting a protest with respect to at least 20% of the property immediately adjacent to the Subject Property and, accordingly, the Application may not be approved except by the favorable vote of % of the entire City Council. The City Council is composed of eight members, pursuant to Charter Section 4.1. Three quarters of the entire membership of the Council ts s1x. Accordingly, the Application must receive six affirmative votes in order to be approved. 16. At the conclusion of the public hearing and Council deliberation, Councilmember Langworthy moved to deny the ordinance approving the rezoning of the Subject Property (and thus to deny the Application). That motion failed on a vote of three for and four against (one member absent). Councilmember DeMott then made a motion to approve the ordinance (and thus to approve the Application). This motion also failed with four votes in favor and three against ; not having achieved the required 3/4 (six votes) required under Charter Section 5.10 and Code of Laws 26-112.C.7. Accordingly, the Application was deemed denied , and upon motion of Councilmember Reinhart , the City Attorney was directed to prepare Findings and Decision memorializing the denial for the Council's consideration at its next regular meeting on January 28 , 2013. These Findings are that document. 17 . The City Council finds that each of the bases listed 111 Paragraph 14 for its decision herein , standing alone , are sufficient grounds for its decision. DECISION Based upon the foregoing Findings , the City Council hereby denies the Application for approval of zone change from Agriculture-I to Mixed-Use Neighborhood for property located at 12600 W . 42nd Avenue, Case No. WZ-12-08/Rock. APPROVED AND ADOPTED by the Wheat Ridge City Council this ___ day of January 2013 Jerry DiTullio , Mayor ATTEST: Janelle Shaver, City Clerk -6- Certificate of Mailing I certify that on January , 2013 , a true and correct copy of the foregoing Findings and Decision was placed in the United States mail postage prepaid and addressed to: Matthew Rock 10600 W. 65th Avenue Arvada, CO 80004 -7-