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HomeMy WebLinkAboutCity Council Agenda Packet 04/14/20146:45pm -Pre-Meeting ;\~=~' ~:\ CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING April 14, 2014 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 March 24.2014 PROCLAMATIONS AND CEREMONIES Day Without Hate Proclamation Arbor Day Proclamation 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. APPROVAL OF AGENDA .!.: CONSENT AGENDA a. Resolution 25-2014-approving the Intergovernmental Agreement of the Colorado Information Sharing Consortium b. Motion to approve the annual support and licensing renewal for the Cartegraph System in the amount of $44,290 to Cartegraph, Inc. c. Motion to award the purchase of 15 Mobile Data Computer (MDC) Replacements to Counter Trade Products, Inc. in the amount of $50,385 CITY COUNCIL AGENDA: April 14, 2014 Page -2- PUBLIC HEARINGS AND ORDINANCES ON SECONG READING .£. Council Bill No. 01-2014-An Ordinance approving the rezoning of property located at 6405-6409 W. 44th Ave. from Restricted Commercial (RC) to mixed Use-Neighborhood (MU-N) (Case NO . WZ-14-01/Lombardi) ORDINANCES ON FIRST READING ~ Council Bill No . 02-2014-An Ordinance Amending Chapter 26 of the Wheat Ridge Code of Laws concerning the Subdivision Regulations and making certain related Amendments to Chapters 2 and 5 in association therewith (Case No. ZOA-14-01) 4. Council Bill No . 03-2014-An Ordinance amending Section 26-109 of Chapter 26 of the Wheat Ridge Code of Laws , concerning Public Noticing Requirements (Case No . ZOA-14-02) DECISIONS. RESOLUTIONS AND MOTIONS ~ Resolution 22-2014-amending the Fiscal Year 2014 General Fund Budget to reflect the approval of a Supplemental Budget Appropriation for the purposes of funding the expansion of the Seniors ' Resource Center Circulator Bus Service in the Amount of $12 ,000 6. Resolution 21-2014-amending the Fiscal Year 2014 General Fund Budget to reflect the approval of a Supplemental Budget Appropriation in an amount not to exceed $1.5 Million to pay down a Renewal Wheat Ridge Loan for the property at Town Center North 7. Resolution 23-2014-concerning the proposed redevelopment at the southwest corner of West 38th Avenue and Kipling St. and the proposed incurrence of a loan by the Wheat Ridge Urban Renewal Authority to be secured by certain Tax Increment Revenues generated by the project; declaring the City Council 's present intent to appropriate funds to replenish the reserve fund securing such loan , if necessary ; and authorizing a Redevelopment Agreement, a Cooperation Agreement and other related actions in connection with ~ Resolution 24-2014-amending the 2014 Fiscal Year General Fund Budget to reflect the approval of a Supplemental Budget Appropriation in an amount not to exceed $1.0 Million for the purposes of funding Public Improvements in association with the Redevelopment of the southwest corner of West 38th Ave. and Kipling St. 9. Reconsideration of appointment to the Planning Commission, District IV CITY COUNCIL AGENDA: April 14, 2014 CITY MANAGER'S MATTERS CITY ATTORNEY'S MATTERS ELECTED OFFICIALS' MATTERS ADJOURNMENT Page -3- mffr~IIIWmB CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING March 24, 2014 Mayor Jay called the Regular City Council Meeting to order at 7:00p.m . PLEDGE OF ALLEGIANCE ROLLCALL OF MEMBERS Jerry DiTullio Bud Starker Zachary Urban Kristi Davis Tim Fitzgerald George Pond Tracy Langworthy Genevieve Wooden Also present: City Clerk, Janelle Shaver; City Attorney, Gerald Dahl; City Manager, Patrick Goff; Parks Director, Joyce Manwaring; Public Works Director, Scott Brink; Division Chief, Joe Cassa; other staff, guests and interested citizens APPROVAL OF MINUTES OF February 24, 2014 and March 3, 2014 Councilmember Starker noted a typographical error on page 6 of the Minutes. Clerk Shaver said it will be corrected. Motion by Councilmember DiTullio to approve the minutes of February 24, 2014 and March 3, 2014; seconded by Councilmember Urban; carried 8-0. PROCLAMATIONS AND CEREMONIES National Victim Rights Week Proclamation Mayor Jay read a proclamation designating the week of April 6-12, 2014 as National Crime Victim Rights Week. Commander Dave Pickett (WRPD) introduced Victim Outreach (VOl) board member, Assistant District Attorney Scott Storey, who spoke about the important work that dedicated volunteers do in reaching out to victims of crime. With him were VOl volunteers Kelly Ritz and Lorey Bratten, and he thanked the City for this recognition. Human Trafficking Proclamation Mayor Jay read a proclamation supporting efforts to end the crime of human trafficking. Division Chief Joe Cassa and Commander Dave Picket accepted the proclamation on behalf of the WRPD and the victims of this crime. Division Chief Cassa shared that this is a very complex crime. WRPD collaborates and strategizes with other law enforcement agencies in the county and the District Attorney's office on prevention, training, investigation and prosecution . It does occur in Wheat Ridge and it usually involves young juveniles. CITIZENS' RIGHT TO SPEAK Mark Potter (WR) recommended that Council put the road diet plan and funding before the voters in November. Dianne Allen (WR) spoke of her concerns about two buildings next to the upcoming new park at 44th & Kendall-one an decrepit, boarded-up building, another an operational auto repair business that stores old cars and boats. Besides being unattractive, they have code violations CITY COUNCIL MINUTES: March 24, 2014 Page -2- and are potential safety hazards. Traffic is up on 44th Avenue and this doesn't present a good image of our city. She left photos. Kathy Tolman (WR) said she has spoken with several people who are confused about 38th Avenue. She encouraged Council to put it on the November ballot so people have time to learn about it and all the implications. Infrastructure changes cost money and people are worried that a tax increase will hurt Wheat Ridge businesses. She asked that Council not spend any more money on this without taking it to the voters. Vivian Vos (WR) read results of a survey done in the fall of 2013 which revealed that the changes on 38th Avenue are not popular with the majority of respondents. She asked that no more time, effort and money be spent on it until it is brought to the voters. Larry Vassos (WR) lives, works and shops in WR. He addressed the negative aspects of the road diet and its lack of popularity. He asked that it be restriped to four lanes. John Bandimere (WR) asked that the people have an opportunity to vote on the road diet. As a businessman he's not happy about what's already been done, and he thinks Council should let the people make the decision about this. Christi Thompson (WR) said that before any more money is spent on 38 1h it should go to a vote. Diane Potter (WR) proposed that the 38th Avenue road diet and budget should be put on the ballot in November. Scott Shepherd (WR) expressed serious concerns about a marijuana shop across the street from Paramount Park-where children play. He showed a picture of his son at the plate of the ball field with the marijuana shop in the background. He stated that when the wind is right the odor of marijuana blows over to the park and there is often a person on Kipling twirling a sign to advertise the shop. He understands the product and the location are legal, but he wanted Council to know the reality of this and that he and his wife strongly believe that something is wrong when this is what our park is like now. Thomas Slattery (WR) supports bringing the road diet to a vote of the people. Council should have a clear direction from the people before they so drastically alter the fabric of east Wheat Ridge and surrounding neighborhoods. Matthew Lillie (WR) thinks the road diet has increased activity and improved the aesthetics in Wheat Ridge, but supports going to the voters. He believes a new age level will flourish. Kim Calomino (WR) said she is a proponent of the changes that have been made on 38th to attract new businesses. We have more than 30 new businesses on the corridor. It is attracting what we sorely need --new families and young professionals . She sees large gatherings of people on weekends at some of the businesses that have outdoor areas. She encouraged having a ballot issue to increase sales tax. She doesn't think the extra time lost driving down the corridor has that much impact. She encouraged Council to pursue and finalize the corridor's advancement and changes. She thinks it's good for the city. CITY COUNCIL MINUTES: March 24, 2014 Page -3- Pat Mucelli (WR) owns a building on 38th where there is back-in parking; he doesn't like it very much. He'd like Council to let residents vote on this. It's very tough ~etting on and off 38th due to traffic congestion, and if traffic is going to other streets such as 44t and 29"d people won't see the businesses on 38th_ Tom Schmuke (WR) supports taking 38th Avenue to a vote of the people. Everyone appreciates the effort to build up businesses on 38th Avenue, but statistics show the road diet is not working. Car count is down and that is the constant concern of businesses. He's also concerned about the negative comments he sees on WR Neighbors Facebook and other social media . He supports letting the people decide because they are the customers. Jerry Nealon thanked Council for their courage and efforts on 38th Avenue. The growth, activity, interest and buzz far outweigh the few extra seconds he has to wait to get onto the street. He listed Tennyson, Highlands, Golden and Arvada that have all calmed down traffic to attract outdoor cafes and businesses and the type of people we want to see, to attract younger families. An earlier study about what Wheat Ridge needed to be sustainable had this as step one. It's not perfect, but he thinks what's happened so far is awesome. He doesn't think it needs to go to the voters. We have a representative government, not a democracy, and Council was elected to get things done. Chad Harr (WR) supports the changes on 38th_ For so many years Wheat Ridge has languished in areas like low income, while surrounding cities have exploded attracting the type of citizens we'd like to have . One reason is we don't have the amenities and lifestyle we'd like to have. He noted the survey that was cited was not done by the City. Per City records, only 90 seconds have been added to a trip down the corridor. He acknowledges the extra time, but loves the cross walks for the kids. He's knows several business owners on 38th that are excited about the changes; one newer businesses had a record month this year. Revenue is up . He wonders why some businesses aren't succeeding when we know that automotive related tax revenue is up along the corridor. We shouldn't be fighting about traffic; we should be talking about vitality, tax revenue, and bringing businesses into the city. The citizens have spoken a long time on this issue and we need to keep moving the city forward. APPROVAL OF AGENDA ~ CONSENT AGENDA a. Motion approving a contribution in the amount of $139,000 to Wheat Ridge 2020 for the purpose of funding the Building Up Business (BUBL) and Home Improvement (HIP) Revolving Loan Programs, and providing support for other WR2020 core programs. [A total of $304,000 has been appropriated in the 2014 budget for WR2020 loan and core programs. This $139,000 request includes $50,000 for the BUBL and HIP programs; $35,000 to support Live Local Wheat Ridge; $15,000 for East Wheat Ridge Block Improvement Program; $15, 000 for community identity and marketing tours; $4, 000 for rental of City facilities; $20,000 for community outreach and education.] b. Motion to approve funding in the amount of $45,000 to the Wheat Ridge Business District Revitalization Incentive Grant Program for Fiscal Year 2014 . [Provides matching grant assistance for accessibility, signs and fa9ade improvements, and architectural design assistance.] CITY COUNCIL MINUTES : March 24, 2014 Page -4- c. Motion to award ITB-14-03 , 2014 Crack Seal Project, to Coatings Inc., Arvada, Co, in the amount of $142,410 , with a contingency amount of $7,120 and authorize the Director of Public Works to issue change orders up to a total contract and contingency amount of $149,530 [The first of two preventative maintenance projects for 2014.] g.. Motion to award RFP 14-02 Natural Gas Suppliers to Centerpoint Energy Services , Inc., Denver CO [One-year contract (renewable up to four more years) to purchase natural gas for City Hall and the Recreation Center] e. Motion to award RFP-14-01 Police Vehicle Equipment & Installation Services for four vehicles to AV-Tech Electronics , Inc ., Wheat Ridge CO at a cost of $11 ,463 .11 per vehicle and a total amount not to exceed $45 ,852 [Equipment and lighting installation ; from the Public Works Operations Budget] t. Motion to award ITB-14-04 to Barba & Sons Construction Inc., of Broomfield , CO in the amount of $95 ,376 which includes the base bid and demo bid alternate with a contingency amount of $9 ,536 and authorize the Parks & Recreation Director to issue change orders up to a total amount of $104 ,912 for the Police Department Remodel Project [Space formerly used as a Crime Lab is being repurposed to provide office spaces, additional interview rooms and to expand the men 's locker room .] Councilmember Davis introduced the Consent Agenda . Motion by Councilmember Davis to approve Consent Agenda Items a through f; seconded by Councilmember Fitzgerald ; carried 8-0 ORDINANCES ON FIRST READING 2. Council Bill No. 01-2014-An Ordinance approving the rezoning of property located at 6405-6409 W. 44th Ave. from Rest ricted Commercial (RC) to mixed Use-Neighborhood (MU -N) (Case NO. WZ-14-01/Lombardi) Councilmembe r Urban introduced Council Bill No . 01-2014. The applicant requests a zone change from Restricted Commercial (RC) to Mixed Use- Neighborhood (MU -N) to expand options for use . The three parcels currently contain two commercial structures . If the property is approved for redevelopment an administrative site plan review will be followed. Motion by Councilmember Urban to approve Council Bill No . 01-2014 , an ordinance approving the rezoning of property located at 6405-09 W. 44th Avenue from Restricted Commercial (RC) to Mixed Use-Neighborhood (MU-N) on first reading , order it published , public hearing set for Monday, April14 , 2014 at 7 p.m . in City Council Chambers , and that it take effect 15 days after final publication; seconded by Councilmember Starker; carried 8-0. DECISIONS, RESOLUTIONS AND MOTIONS CITY COUNCIL MINUTES: March 24, 2014 Page -5- ~ Resolution 19-2014 -approving an Intergovernmental Agreement with the Regional Transportation District (RTD) for the Tabor Street Multi-Modal Improvements from the 1- 70 North Frontage Road to Ridge Road Councilmember Wooden introduced Resolution 19-2014. This federal grant will provide $740,228 to widen and improve Tabor Street to provide bike and pedestrian access to the commuter rail station at Ward Road . Motion by Councilmember Wooden to approve Resolution 19-2014, a resolution approving an Intergovernmental Agreement with the Regional Transportation District (RTD) for the Tabor Street Multi-Modal Improvements from the 1-70 North Frontage Road to Ridge Road ; seconded by Councilmember Langworthy; carried 8-0 4. Resolution 20-2014-authorizing the City Manager to negotiate a redevelopment agreement and related documents in connection with the proposed redevelopment at the southwest corner of 38th & Kipling St. Councilmember Pond introduced Resolution 20-2014. This resolution authorizes the use of Tax Increment Financing (TIF) for the project. Extraordinary development expenses such as right-of-way improvements, widening Kipling, new drainage infrastructure, sidewalks and landscaping create a $3.0 million gap for the developer, MVG Development. To cover this financial gap MVG is asking for Urban Renewal to issue a 1 0-year tax-exempt bond for about $2.4 million, and for the City to issue a subordinate note for about $1.0 million from the General Fund. Both would be payable from the sales and property tax increment from the proposed project. Further, the City will commit to adopt a moral obligation resolution to secure the bonds and up to $1.0 million as a note to finance certain eligible improvements. Mr. Goff said the project is getting to a critical point. The developer will be closing on the property on April 11 and they need financial obligations in place. This resolution doesn't officially obligate the City to anything -it just authorizes him to move forward with the required documents: a moral obligation pledge, a development agreement, and authorization to appropriate funds to the project. Motion by Councilmember Pond to approve Resolution 20-2014, a resolution authorizing the City Manager to negotiate a redevelopment agreement and related documents in connection with the proposed redevelopment at the southwest corner of 38th & Kipling Street; seconded by Councilmember Fitzgerald; Councilmember Urban asked if there should be a sunset clause. Attorney Dahl advised against it at this stage of the project. It's just authorizing Mr. Goff to negotiate. Councilmember Starker referenced a small change in the resolution that the developer had requested. Mr. Goff said staff doesn't feel it's necessary, but has no problem with it. Mr. Dahl concurred. Motion carried 8-0. CITY COUNCIL MINUTES: March 24, 2014 Page -6- 5. Motion to appoint Lisa Hollenbeck to the Planning Commission Representing District IV, term to expire March 2, 2017 The applicant lives in District Ill, but Councilmembers Langworthy and Wooden recommend her appointment to fill the vacant seat in District IV. Motion by Councilmember Langworthy to appoint Lisa Hollenbeck to the Planning Commission Representing District IV, term to expire March 2, 2017; seconded by Councilmember Wooden; carried 8-0 6. Motion to appoint William Gehl to the Liquor Licensing Authority Board representing District IV, term to expire March 2, 2016 The applicant lives in District Ill, but Councilmembers Langworthy and Wooden recommend his appointment to fill the vacant seat in District IV. Motion by Councilmember Langworthy to appoint William Gehl to the Liquor Licensing Authority Board representing District IV, term to expire March 2, 2016; seconded by Councilmember Wooden; carried 8-0 7. Motion to appoint Dan Bradford to the Board of Adjustment, Alternate At-Large Vacancy, term to expire March 2, 2016 Motion by Councilmember DiTullio to appoint Dan Bradford to the Board of Adjustment, Alternate At-Large Vacancy, term to expire March 2, 2016; seconded by Councilmember Starker; carried 8-0 CITY MANAGER'S MATTERS Patrick Goff reminded everyone of the Town Hall Meeting next Monday, March 31 at the Rec Center. The open house starts at 6:00 with a variety of exhibits and tables with information for citizens. Presentations start at 6:30, and after the meeting staff will be available for another 30 minutes to answer questions . CITY ATTORNEY'S MATTERS none ELECTED OFFICIALS' MATTERS Jerry DiTullio thanked the people who came in to speak, pro and con. -He spoke about recent emails and lobbying to put the removal of height and density limits on the ballot again -- for a third time. If that is done he strongly encouraged that there be three separate ballot questions-one for height and density, one for the 38 1h Avenue road diet and its funding, and one for a general revenue question. The ballot is the ultimate public process. -He enjoyed working with everyone at the retreat Saturday. Bud Starker said he's always glad to hear citizens that come in and talk. -He noted that the Chase Street drainage project is underway and making good progress. CITY COUNCIL MINUTES: March 24, 2014 Page -7- Zachary Urban remarked that over 16 residents had come in to voice their options , and he thanked them for the time it takes. -He said it's time to move forward with getting the wording for a ballot proposal about 38th Avenue for the November election. The specifics of design and the funding mechanism can be added as they become available, but he would like to get the process started so voters will have plenty of time to learn about it. Motion by Councilmember Urban to have staff draft ballot language that would include design and the funding mechanism for 38th Avenue; seconded by Councilmember DiTullio. Discussion : Councilmember Starker believes this is too premature; we don't have the design specifics yet. Councilmember Davis noted that at the retreat Council had discussed working with neighboring cities and consultants on handling difficult ballot issues, and the funding for this and other city projects. She'd prefer to get help from other sources first so we can construct a plan that's successful and transparent. Councilmember Fitzgerald also thinks this is premature. He doesn't think we're ready to vote on this. He feels it's not about the road diet-it's about our vision for the city. Councilmember Pond also thinks this is premature to have staff draft ballot language when they don't have all the necessary information. Councilmember Langworthy agrees with the other speakers that it's too early to do this. Councilmember DiTullio said he seconded the motion so that discussion could happen . He does think it should go to the voters, but he thinks the ballot language can wait until June when we have the plan back from the consultant and have a solid cost. Councilmember Urban spoke about getting the process started so we have good language. It's a significant expenditure and deserves adequate input from citizens. Details can be added as they become available. Motion failed 1-7, with Councilmembers Wooden, Langworthy, Fitzgerald, Pond, Davis, Starker, and DiTullio voting no. Kristi Davis thanked councilmembers for the good discussions at the retreat this past weekend. Topics included 38th Avenue, improving housing stock, and funding mechanisms. - From Renewal Wheat Ridge she reported that Perrin's Row is under construction at 38th & Depew and that 38th & Kipling will have a Sprouts and a Starbucks. -She thanked Ms. Allen for coming in to talk about the property next to the Kendall Park. -She also thanked folks for all the emails she's getting and encouraged people to come to the Town Meeting next Monday. Mr. DiTullio agreed about the vacant building at 44th & Kendall. He suggested that Urban Renewal or the Housing Authority look into purchasing the property, scraping it, and marketing it to the private sector. It might require some help from the City, but he'd encourage that because it's been an eyesore for years. Colorado Information Sharing April 14 , 2014 Page 2 FINANCIAL IMPACT: This IGA is intended to formalize the CJSC into a legal entity in order to pennit them to enter into contracts and utilize economies of scale for the purchase of future services, products and maintenance in the public's best interest. Since the inception of the first IGA, the police department provides our node administrator with the number of sworn personnel. This information is utilized by the node administrator to create the next year's budget, which is then presented for approval to the Jefferson County Emergency Communications Authority (JCECA). It is expected the JCECA will continue to pay these costs . In the event the JCECA chooses not to pay these costs; the City will be expected to pay them . BACKGROUND: The CISC was created seven years ago to link disparate records management systems and other databases of law enforcement agencies across the state in a way that provides for instant and ad hoc state-of-the-art analysis in order to generate leads and solve crimes. It allows users to search for suspects via name , description , unique characteristics, methods of operation, vehicles , and numerous other fields . Since its creation, the ClSC has expanded to 89 agencies throughout Colorado and is in the process of adding access to agencies in Arizona and California. Under the current organizational structure, the capacity for one chairperson to run the organization has been exceeded . There is a need to create the position of executive director in order for the consortium to thrive and move forward. The CISC currently maintains four COPLINK nodes (physical computer system databases) throughout the state, in order to share the data between agencies. This means that when new data sources or users are added , the process must be completed four separate times. Consolidating the four nodes into one private cloud computing environment, and upgrading the current hardware, will result in cost savings , increased efficiency, and speed of access to data. It would also allow more law enforcement agencies to gain access to the consortium's data. The consolidation would only require equipment for one site, rather than four , and would allow for a more equitable sharing of equipment and maintenance costs between the consortium. Currently each node is supported by its individual member agencies. RECOMMENDATIONS: Staff recommends approval of Resolution No. 25-2014, approvmg the proposed Intergovernmental Agreement. RECOMMENDED MOTION: "I move to approve Resolution No. 25-2014 , a resolution approving the Intergovernmental Agreement of the Colorado Information Sharing Consortium." Colorado Infonnation Sharing April 14, 2014 Page 3 Or, "I move to postpone indefinitely approval of_Resolution No. 25-2014, a resolution approving the Intergovernmental Agreement of the Colorado Information Sharing Consortium for the following reason(s) " REPORT PREPARED/REVIEWED BY: Joseph Cassa, Division Chief Daniel Brennan, Chief of Police Patrick Goff, City Manager ATTACHMENTS: I. Resolution No. 25-2014 2. Intergovernmental Agreement 3. IGA Signature Page CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 25 Series of 2014 TITLE: A RESOLUTION APPROVING THE INTERGOVERNMENTAL AGREEMENT OF THE COLORADO INFORMATION SHARING CONSORTIUM WHEREAS, the City of Wheat Ridge, Colorado (the City), acting through its City Council ("Council") is a home rule municipality with statutory and constitutional authority to enact ordinances and enter into agreements for protection of the public health, safety and welfare; and WHEREAS, C.R.S. § 29-1-203 authorizes Colorado local governments to cooperate and contract with one another to provide functions and services and to establish separate legal entities in connection therewith; and WHEREAS, the City previously entered into a memorandum of understanding with other Colorado local jurisdictions and law enforcement entities to establish the statewide Colorado Information Sharing Consortium (CISC), the purpose of which is to share law enforcement information among the parties; and WHEREAS, the parties to said memorandum of understanding have determined that it is now desirable and appropriate to establish the CISC as a separate legal entity to, among other things, permit the entity to enter into contracts, apply for grants and manage its personnel; and WHEREAS, the Council finds and determines that the sharing of law enforcement information through the CISC is a valuable public safety resource and that it is therefore desirable for the City to continue as a member of the CISC as it transitions to and functions as a separate legal entity; and WHEREAS, the Council therefore desires to approve the Intergovernmental Agreement of the Colorado Information Sharing Consortium and thereby permit the City's continued participation in said entity; and WHEREAS, Section 14.2 of the Wheat Ridge Home Rule Charter authorizes the Council, acting by resolution or ordinance, to enter into contracts or agreements with other governmental units. NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council, that: The attached Intergovernmental Agreement of the Colorado Information Sharing Consortium is hereby approved. The Mayor and City Clerk are authorized to execute the same. DONE AND RESOLVED this 141h day of April, 2014. Joyce Jay, Mayor ATTEST: Janelle Shaver, City Clerk 2 INTERGOVERNMENTAL AGREEMENT OF THE COLORADO INFORMATION SHARING CONSORTIUM Attachment 2 RECITALS DEFINITIONS TABLE OF CONTENTS QL Definitions ........................................................................................................ 2 CREATION OF THE COLORADO INFORMATION SHARING CONSORTIUM 02. Creation ofthe CISC ......................................................................................... 2 03. Principal Place of Business ............................................................................... 2 04 . CISC Purpose ................................................................................................... 3 DATA SHARING AGREEMENT 05. Data Sharing ..................................................................................................... 3 06. Data Use ........................................................................................................... 3 07. Personnel Authorized to Access Data ................................................................ 3 08. Data Security .................................................................................................... 3 09. Data Custody and Control ................................................................................. 3 l..Q.., Data Accuracy .................................................................................................. 3 lL Intelligence Information .................................................................................... 3 POWERS OF THE COLORADO INFORMATION SHARING CONSORTIUM .11., Powers of the CISC ........................................................................................... 4 rr Restrictions on Powers of the ClSC ................................................................... 4 BOARD OF DIRECTORS .l.i., Board ofDirectors ............................................................................................. 5 ~ Number of Directors, Term, and Term Limits ................................................... 5 l..Q., Eligibility, Appointment, Removal, and Vacancies ............................................ 5 l..L Compensation ................................................................................................... 5 .lli., Action ofthe Board at a Meeting ....................................................................... 5 1.2_, Committees ....................................................................................................... 6 20. Alternates and Absentee Voting ........................................................................ 6 2..L Representative 's Right to Attend Meetings ........................................................ 6 MANAGEMENT OF THE CISC 22. CISC Manager .................................................................................................. 6 23. FINANCIAL 24. 25. 26. 27. Additional Assistance from Assigned Employees .............................................. 7 Deposits and Expenditures ................................................................................ 8 Fiscal Agent ...................................................................................................... 8 Fiscal Year ........................................................................................................ 8 No Multiple Year Fiscal Obligations ................................................................. 8 RIGHTS OF PARTIES 28. No Duty to Pay Membership, Annual, or Other Fees ......................................... 8 29. Voluntary Assumption of Debts ........................................................................ 8 30. Financial Responsibility .................................................................................... 8 Intergovernmental Agreement of the Colorado Information Sharing Consortium ii lL Examination of Records .................................................................................... 8 32. Addition of New Parties .................................................................................... 9 33. Right to Terminate Participation ........................................................................ 9 GENERAL PROVISIONS 34. Amendments ..................................................................................................... 9 35. Construction and Jnterpretation ......................................................................... 9 36. Duplicate Counterparts ...................................................................................... 9 3 7. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I 0 38. Governing Law ............................................................................................... I 0 39. Indemnification ............................................................................................... I 0 40. Mediation ........................................................................................................ 10 ~ No Third-Party Beneficiaries ........................................................................... I 0 42. Severability ..................................................................................................... 10 43. Term ............................................................................................................... 10 44. Termination .................................................................................................... I 0 Intergovernmental Agreement of the Colorado Information Sharing Consortium iii INTERGOVERNMENTAL AGREEMENT OF THE COLORADO INFORMATION SHARING CONSORTIUM THIS INTERGOVERNMENTAL AGREEMENT (the "Agreement") is effective as of the ] day of [ ], 2014 (the "Effective Date,'· as further defined below) by and between the Adams County Sheriff's Office , the Arapahoe County Sheriff's Office, the City of Aurora, the Colorado Department of Public Safety of the State of Colorado , the City of Colorado Springs, the City of Commerce City. the City and County of Denver, the Douglas County Sheriff's Office, the City of Grand Junction , the Board of County Commissioners of the County of Jefferson , the Board of County Commissioners of the County of Mesa , and all other entities or agencies that sign this Agreement consistent with the requirements herein (individually a ''Party" and collectively the "Parties"). RECITALS WII EREAS, the Parties are each authorized to lawfully provide, establish , maintain, and operate law enforcement services ; WHE RE AS, Part 2 of Article I, Title 29 of the Colorado Revised Statutes (the "C.R.S.") encourages and authorizes intergovernmental agreements for the joint and cooperative provision ofpublic services; WH EREAS. C.R.S . § 29-1-203 authorizes governments to cooperate and contract with one another to provide any function , service. or facility lawfully authorized to each and to establish a separate legal entity to do so ; WH EREA , 21 U.S .C. § 873 and regulations promulgated thereunder authorize certain agencies within the Federal government to cooperate with local , state, tribal , and Federal agencies for the purpose of exchanging certain information; WH EREA , the Parties. along with other Colorado law enforcement ent1t1es , have previously entered into a nonbinding and voluntary memorandum of understanding (the "MOU ") to jointly develop the statewide Colorado Information Sharing Consortium (the ''CISC'") with the purpose and intent of sharing law enforcement information , primarily through a software product known as COPLINK ; WH ERE AS, the Parties, along with the other signatories ofthe MOU, have determined that it is in the public 's best interest to formalize the CISC into a legal entity in order to permit the CISC to enter into contracts and utilize economies of scale for the purchase of future services, products, and maintenance and to enter into information sharing agreements with jurisdictions outside the State of Colorado; WH EREA , the Parties and other signatories of the MOU have agreed to organize and operate a separate legal entity pursuant to C.R.S . § 29-1-203( 4), which shall be known as the Colorado Information Sharing Consortium; and Int ergovernm ental Agreement of th e Colorado Information Sharing Conso rtium Page I of 16 WHEREAS, the Parties intend for other entities or agencies to join as Parties to this Agreement by signing a separate signature page to this Agreement consistent with the requirements herein . NOW, THEREFORE, for good and valuable consideration , the receipt and adequacy of which is hereby acknowledged , the Parties hereby agree as follows: DEFINITIONS 1. Definitions. In addition to the above defined terms , the following terms shall have the meaning ascribed to them. a. "Assigned E mployee" shall mean a Party's employee assigned to work full-or part-time on behalf of the CISC. b. "Board " shall mean the Board ofDirectors ofthe CISC. c. "Data" shall mean facts , detailed information , police report narratives, supplemental report narratives, other text-related information as determined and released by each Party 's internal information sharing policy, and other materials provided by a Party to the CISC. "Data" shall not mean Intelligence Information (defined below). d. "Director" shall mean a director on the Board of the CISC. e. "Effective Date" shall be the date written in the preamble, which shall be the date on which the sixth Party signed this Agreement. f. "Intelligence Information" shall mean evaluated data relevant to the identification of criminal activity engaged in by an individual or organization reasonably suspected of involvement in criminal activity that meets criminal intelligence system submission criteria as set forth in Part 23 of Title 28 of the Code of Federal Regulations . Intelligence Information is a criminal justice record pursuant to C.R.S. § 24-72-302(4). g. "Manager" shall mean a person who is assigned to manage the day-to-day operations of the CI SC. h. "Representative" shall mean the chief law enforcement officer of each Party or the person designated by the chief law enforcement officer of each Party. CREATION OF THE COLORADO INFORMATION SHARING CONSORTIUM 2. Creation of the CISC. Pursuant to C.R.S. § 29-1-203(4), the Parties hereby create a separate legal entity known as the Colorado Information Sharing Consortium, or CISC , which shall have the powers, authorities, duties , privileges , immunities, rights , and responsibilities as set forth herein. 3. Principal Place of Business. The principal place of business of the CJSC shall be 1500 I East Alameda Parkway, Aurora , CO 80012, unless and until otherwise established from time to time by the Board. Int ergovernm ental Agreement of th e Co lorado Information Sharing Co nso rtium Page 2 ofl6 4. CISC Purpose. The purpose of the CISC is to facilitate the sharing of Data and Intelligence Information between the Parties and non-Party governmental entities and agencies authorized by the Board. DATA SHARING AGREEMENT 5. Data Sharing. Each Party shall share Data with the Parties and with non-Party governmental entities or agencies authorized by the Board. 6. Data Use. Shared Data shall only be used for law enforcement purposes consistent with the welfare and protection ofthe general public . 7. Personnel Authorized to Access Data. Only the Parties· employees and employees of non-Party governmental entities or agencies authorized by the Board shall be allowed to access the Data . All persons with access to the Data must first pass an adequate background screen. The Board shall determine what constitutes an adequate background screen for the purpose of access to Data. 8. Data Security. The Parties and any non-Party governmental entitles or agencies authorized by the Board shall maintain , enforce, and follow securit y requirements for the Data as specified by the Board. including requirements on network configuration and network access. 9. Data Custody and Control. Each Party shall retain custody and control and shall remain the official custodian of any Data shared by that Party. The CISC shall not have custody and control and shall not be the official custodian of any Data. The CISC shall not release any Data pursuant to a request under Part 2 or Part 3 of Article 72 , Title 24 , C.R .S. or pursuant to a subpoena unless specifically ordered to do so by a cou11 of competent jurisdiction. l 0. Data Accuracy. The Parties understand that the Data shared by the Parties may not be accurate. The Board may set standards and requirements for Parties to correct inaccurate Data. 11. Intelligence Information. a. No Obligation to Share. No Party shall be required to share Intelligence Information and may deny a request to share Intelligence Information for any reason. b. Standard for Sharing. When Intelligence Information is disseminated through the CISC, it shall be disseminated consistent with Part 23 of Title 28 of the Code of Federal Regulations. c. Policies and Procedures. The Board may set policies and procedures regarding Intelligence Information use , receipt , maintenance, security, and dissemination not inconsistent with Part 23 of Title 28 of the Code of Federal Regulations. d. Intelligence Information Custody and Control. All Intelligence Information shall remain the sole proprietary information of the Party contributing that Intelligence Information. Each Party shall retain custody and control and shall remain the official custodian of any Intelligence Information shared by that Party . The CISC shall not have custody and control and shall not be the official custodian of any Intelligence Information. The CISC shall not release any Intelligence Information pursuant to a Int ergovernm ental Agreement of th e Co lorado Information Sharin g Con sortium Page 3 of 16 request under Part 2 or Part 3 of Article 72 , Title 24 , C.R.S. or pursuant to a subpoena unless specifically ordered to do so by a court of competent jurisdiction. POWERS OF THE COLORADO INFORMATION SHARING CONSORTIUM 12. Powers of the CISC. In order to enable the CISC to carry out its functions and provide the services described herein , the CISC shall have the power: a. Acquire Property. To acquire , hold , lease (as lessor or lessee), sell , or otherwise dis pose of any legal or equitable interest in real or personal property ; b. Add Parties . To approve other governmental entities or agencies authorized to lawfully provide, establish, maintain , or operate law enforcement services to join the CISC on the conditions determined by the Board; c. Adopt Rules and Regulations. To adopt rules and regulations regarding the exercise of its powers and the carrying out of its purposes ; d. Apply for Grants. To apply for and receive grants in its own name ; e. Conduct Business. To conduct its business and affairs for the benefit of the Parties and their residents ; f. Contract. To enter into , make , and perform contracts of every kind ; g. Engage Agents. To engage, employ, or appoint agents , including but not limited to accountants , architects , attorneys , consultants , employees , engineers , and managers and to pay the direct and indirect reasonable costs of such agents for services rendered to the CJSC ; h. Fees and Charges. To assess , fix , maintain , and revise fees and charges for functions , services, or facilities provided by the CISC or to cover the cost of operating and managing the CJSC ; however, pursuant to paragraph 28 , neither the CISC nor any Party shall have the power to compel a Party to pay any fees , rates , or charges; i. Incur Debt. To incur debts and obligations , deliver bonds or notes for monies borrowed or other obligations of the CISC, and to secure the payment of such bonds or obligations, except that no party shall be liable for any debts or obligations of the CISC ; j. Legal Process. To litigate , arbitrate , or mediate in its own name; k. Receive Contributions. To receive contributions of gifts , grants , or services; and I. Terminate a Party's Participation in this Agreement. To terminate or limit a Party's participation in this Agreement. 13. Restrictions on Powers of the CISC. The CISC shall not have the power: a. Eminent Domain. To take property by eminent domain ; Int ergo vernm ental Agreement of th e Colorado Information Sharing Cons ortium Page 4 of 16 b. Obligate Payment. To obligate a Party to pay any money to the CISC or to another Party, except that the CJSC may enter into contracts with Parties for the payment ofmoney; or c. Tax. To impose taxes. BOARD OF DIRECTORS 14. Board of Directors. The governing body of the CISC shall be the Board, in which all administrative and legislative power of the CISC is vested. The purpose of the Board is to set policy for the CISC and decide important issues ofthe CISC. 15. Number of Directors, Term, and Term Limits. There shall be eleven (II) Directors on the Board. Six (6) Directors shall have terms that expire on March 31 of every even numbered year. Five (5) Directors shall have terms that expire on March 31 of every odd numbered year. There shall be no limit to the number ofterms an individual may serve as a Director. 16. Eligibility. Appointment, Removal, and Vacancies. Each Director must be an employee of a Party. If a Director is no longer employed by a Party, the Director shall no longer be a Director. A Director may resign at any time and for any reason by giving two weeks prior written notice to the Board. A vacant Director position shall be filled by majority vote of the Representatives as soon as practicable. a. Initial Appointment. The initial Directors shall be appointed by the Representatives of the eleven named Parties listed in the preamble of this Agreement. The Representatives of the first six (6) named Parties that agree to and sign this Agreement shall each appoint one Director, whose terms shall expire on March 31. 2016. The Representatives of the next five (5) named Parties that agree to and sign this Agreement shall each appoint one Director, whose terms shall expire on March 31. 2015. b. Subsequent Appointment. After the initial Directors' terms expire, all subsequent Directors shall be appointed by a majority vote ofthe Representatives. 17. Compensation. A Director shall not receive compensation for the Director's service to the CISC. The Board may provide for reimbursement to a Director, Representative, or other person for actual and reasonable expenses incurred while performing duties for the CISC. At no time shall a Director or a Representative be considered an employee ofthe CISC. 18. Action by the Board at a Meeting. Meetings ofthe Board may be held at any place that a majority of the Directors on the Board may determine. Directors may attend the meeting in person or by conference telephone or similar communications equipment, and such participation at a meeting shall constitute attendance. The following rules shall apply. a. Quorum. The attendance of at least a majority of the Directors of the Board shall constitute a quorum for the transaction of business. b. Voting. The affirmative vote of a majority of the Directors on the Board that are present at any meeting at which there is a quorum shall be an act of the Board, unless a supermajority is specified herein or by rules adopted by the Board. Intergovernmental Agreement of the Colorado Information Sharing Consortium Page 5 of16 c. Minutes. Minutes of each meeting and a record of each decision shall be kept by the Board. 19. Committees. The Board may designate one or more committees that shall serve at the pleasure ofthe Board. Any committees shall have the powers and responsibilities granted by the Board to that committee . 20. Alternates and Absentee Voting. A Director may appoint an alternate who will have the same voting rights as the Director when participating in Board meetings in the absence of the Director. Alternates must be employed by a Party. Absentee voting , where a Director votes without attending a meeting (whether in person or by other communications equipment) or without appointing an alternate , is not allowed. 21. Representative 's Right to Attend Meetings. Each Representative, or an alternate, shall have the right to attend , whether in person or by conference telephone or similar communications equipment , any meeting of the Board and to voice opinions on any matter concerning the CISC. MANAGEMENT OF THE CISC 22. CISC Manager. a. Appointment. Upon request from the Board , the Representatives shall jointly nominate one or more persons to be the Manager and submit those persons ' names to the Board. Based on those nominations, the Board shall select one or more persons to be the Manager. The appointment of a Manager shall be contingent upon the approval of the Representative of the Party employing the Manager. b. CISC Manager. The Manager shall manage the day-to-day operations of the CISC and undertake and execute the Board 's instructions and directions . The Manager shall have the administrative authority necessary to perform the tasks and responsibilities assigned pursuant to this Agreement. The Board may grant to the Manager any additional administrative authority as the Board deems necessary. The Manager shall attend all meetings ofthe Board and follow the Board 's instructions and directions. c. Eligibility and Employment. The person(s) serving as the Manager must be an employee of a Party at all times during that person 's tenure as the Manager. The Manager shall not be considered an employee of the CISC. The Board may hire an employee of the CISC under terms written and negotiated by the Board to perform the duties of the Manager under the supervision and direction of the Board. d. Term. The Manager 's term is expected to last for two (2) years , but the actual length (whether longer or shorter) shall be determined by agreement between the Board and the Representative of the Party employing the Manager . Whether the Manager works full-or part-time on CISC matters shall be determined by agreement between the Board and the Representative of the Party employing the Manager. The Board may remove the Manager at any time and for any reason. The Representative of the Party employing the Manager may recall the Manager at any time and for any reason by giving sixty (60) days prior written notice to the Board , unless the Representative and the Board agree to other notification requirements. Int ergovernm ental Agreement of th e Co lorado Information Sharin g Co nso rtium Page 6 of 16 e. Compensation. The Party employing the Manager shall bear the full cost of the Manager. The CISC shall not be obligated to reimburse the Party employing the Manager for the cost of the Manager. However, the Board may assess an annual fee on the Parties to reimburse the Party employing the Manager (or the CISC, if the CISC hires an employee to perform the duties of the Manager) for all or part of the costs associated with employing the Manager. As is stated in paragraph 28 of this Agreement , and consistent with that paragraph , no Party is obligated to pay any annual fees but may be denied access to the CISC or face other non-monetary penalties. 23. Additional Assistance from Assigned Employees. a. Appointment. The Board may seek an Assigned Employee from the Parties. Upon request from the Board , any Representative may volunteer one or more Assigned Employees to work full-or part-time on behalf of the CISC. The Board may accept or decline the person volunteered to become an Assigned Employee. b. As s igned Employees. Each Assigned Employee shall work under the supervision and direction of the Manager. Each Assigned Employee shall have the administrative authority necessary to undertake and execute the tasks and responsibilities assigned by the Manager and the Board . The Board may grant to any Assigned Employee any additional administrative authority as the Board deems necessary. An Assigned Employee shall attend meetings of the Board if and when the Board or the Manager requests that Assigned Employee 's presence . c. Eligibility and Employment. Any person serving as an Assigned Employee must be an employee of a Party at all times during that person·s tenure as an Assigned Employee. The Assigned Employee shall not be considered an employee of the CISC. The Board may hire one or more full-or part-time employees of the CISC under terms written and negotiated by the Board to work under the supervision and direction of the Manager and the Board. d. Term. The Assigned Employee·s term shall be determined by agreement between the Board and the Representative of the Party employing the Assigned Employee. Whether the Assigned Employee works full-or part-time on CISC matters shall be determined by agreement between the Board and the Representative of the Party employing the Assigned Employee. The Board may remove the Assigned Employee at any time and for any reason. The Representative of the Party employing the Assigned Employee may recall the Assigned Employee at any time and for any reason by giving thirty (30) days prior written notice to the Board , unless the Representative and the Board agree to other notification requirements. e. Compensation. The Party employing an Assigned Employee shall bear the full cost of that Assigned Employee . The CISC shall not be obligated to reimburse the Party employing the Assigned Employee for the cost of the Assigned Employee. However, the Board may assess an annual fee on the Parties to reimburse the Party employing the Assigned Employee (or the CISC, if the CISC employs an employee to perform the duties of the Assigned Employee) for all or part of the costs associated with employing the Assigned Employee. As is stated in paragraph 28 of this Agreement , and consistent Int ergovernm ental Agreement of th e Colo rado Info rmation Sharing Consortium Page 7 of 16 with that paragraph , no Party is obligated to pay any annual fees but may be denied access to the CISC or face other non-monetary penalties. FINANCIAL 24. Deposits and Expenditures. All funds of the CISC shall be deposited to the credit of the CISC in an interest bearing account. No payments or withdrawals of such funds in an amount over five hundred dollars ($500) shall be allowed without prior approval of the Board and the written authorization of two (2) Directors. Payments or withdrawals of such funds in amounts up to and including five hundred dollars ($500) may be authorized by the Manager. 25. Fiscal Agent. The Board may request that a Party or other entity be the fiscal agent for the CISC. 26. Fiscal Year. The fiscal year of the Cl SC shall be January I through December 31 of each year. 27. No Multiple Year Fiscal Obligations. The Parties do not intend to create a multiple year fiscal obligation for any Party by virtue of this Agreement. The Parties acknowledge that any future monetary obligations of any Party are subject to sufficient appropriations by each Party and such appropriations are not guaranteed to be made. RIGHTS OF PARTIES 28. No Duty to Pay Membership, Annual, or Other Fees. No Party shall be required by this Agreement to pay any membership, annual , or other fees or charges imposed by the Board. The sole remedy for the failure of a Party to pay any fees or charges shall be , at the Board 's discretion , (a) exclusion from the CISC, (b) denial of Data and Intelligence Information sharing with other Parties through the CISC , (c) loss of any or all of the privileges and rights of a Party, (d ) termination ofthe non-paying Party's participation in thi s Agreement , or (e) any combination ofthe foregoing as determined by the Board. 29. Voluntary Assumption of Debts. A Party may voluntarily elect to be liable , in whole or in part, for any or all of the debts, liabilities, or obligations of the CISC at the sole discretion of that Party. 30. Financial Responsibility. The CISC shall not be required to pay any Party's costs associated with acquiring or maintaining any hardware or licensed software necessary for that Party to participate in the CISC. The Board may agree to pay for ex penses incurred by a Party that, in furtherance of the CISC 's purposes, (a) maintains goods for use by other Parties or (b) provides services to other Parties. 31. Examination of Records. Any authorized agent of a Party, including an authorized auditor or his or her representative, has the right to access and the right to examine any pertinent fiscal books, documents, papers , and records of the CISC involving fiscal transactions for three (3) years after the date of the fiscal transaction. Int ergovernm enta l Agreement of th e Co lorado Information Sharing Co nsortium Page 8 of 16 32. Addition ofNew Parties. a. Law Enforcement Requirement. All Parties, and any entity or agency that becomes a Party, must be governmental entities or agencies that are authorized to lawfully provide, establish , maintain , and operate law enforcement services . b. Signatories of the MOU. All entities and agencies that signed the MOU prior to the Effective Date are vested with approval to become Parties by signing a separate signature page to this Agreement that states that the new Party agrees to the terms and conditions of this Agreement. Upon delivery of the signed signature page to the Manager, satisfaction of any conditions imposed by the Board , and payment of any CISC membership fees , if applicable, such entity or agency shall be a Party. c. Non-Signatories of the MOU. Any entity or agency that did not sign the MOU prior to the Effective Date may become a Party by (i) gaining approval of the Board and (ii) signing a separate signature page to this Agreement that states that the new Party agrees to the terms and conditions of this Agreement. Upon delivery of the signed signature page to the Manager, satisfaction of any conditions imposed by the Board , and payment of any CISC membership fees, if applicable , such entity or agency shall be a Party. d. CISC Membership Fee. Any entity or agency that signed the MOU prior to the Effective Date and paid a CISC membership fee at that time shall not be required to pay an additional membership fee in order to join the CISC. Any entity or agency that (i) signed the MOU prior to the Effective Date but did not pay a CISC membership fee at the time or (ii) did not sign the MOU prior to the Effective Date may be required to pay a CISC membership fee in an amount determined by the Board as a condition of becoming a Party. 33. Right to Terminate Participation. A Party may terminate its part1c1pation in this Agreement by giving written notice to the Board at least sixty (60) days prior to the date of termination, unless the Board and a specific Party have agreed on a different notice period. GENERAL PROV I SIONS 34. Amendments. This Agreement shall not be amended unless seventy-five percent (75%) of the Representatives approve such amendment in writing. The sole remedy for any Party that disagrees with any amendments is to terminate its participation in this Agreement. 35. Construction and Interpretation. The table of contents and the section and other headings and subheadings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties, and shall not in any way affect the meaning or interpretation of this Agreement. 36. Duplicate Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be considered an original. The signature of any Party to any counterpart shall be deemed a signature to , and may be appended to, any other counterpart. Int erg overnm ental Agr eement of th e Colorado Information Sharin g Consortium Page 9 ofi6 37. Entire Agreement. This Agreement embodies the entire understanding and agreement among the Parties concerning the CISC and supersedes any and all prior negotiations, understandings, or agreements, including the MOU. 38. Governing Law. This Agreement shall be governed by and construed under the laws of the State of Colorado to the extent not inconsistent with Federal law. 39. Indemnification. Without waiving the protections , limitations, and requirements of the Colorado Governmental Immunity Act in Article I 0, Title 24, C.R.S., each Director, Representative , Manager, Assigned Employee, officer, agent, and volunteer shall be provided with a legal defense and indemnification as provided by that person's employer to the extent not inconsistent with Federal law. 40. Mediation. In the event of a dispute between the Parties regarding the interpretation of this Agreement or regarding any issue arising under this Agreement, the Parties hereby agree to the following mediation procedure. First, the disagreeing Parties will submit the issue to the Representatives, who will mediate the disagreement and try to devise an acceptable solution. If that process fails , the disagreeing Parties will submit the issue to the highest elected officials of each Party (e.g , the Mayor of a city or the County Commissioners of a county) who will mediate the disagreement and try to devise an acceptable solution. The highest elected official of each Party may approve a designee to mediate on behalf of that Party. The Parties agree to mediate in good faith. If any disagreeing Party requests a mediator, the disagreeing Parties shall jointly select a mediator and share the cost of the mediator equally. Decisions by the Board are not subject to mediation. This paragraph shall apply to the extent not inconsistent with Federal law. 41. No Third-Party Beneficiaries. Nothing in this Agreement shall be deemed to create any third-party benefits or beneficiaries or create a right or cause of action for the enforcement ofthis Agreement 's terms in any entity or person not a Party to this Agreement including any agents, employees, officers, or volunteers of any Party or any entity with whom the CISC contracts. 42. Severability. In the event that any of the terms , covenants, or conditions of this Agreement or their application shall be held invalid as to any Party, entity, or person by a court of competent jurisdiction, (a) the remainder of this Agreement shall not be affected thereby , (b) such determination shall not affect or impair the validity or enforceability of any other provision , and (c) the remaining provisions shall be interpreted and applied so far as possible to reflect the original intent and purpose of this Agreement. 43. Term. The term ofthis Agreement shall be unlimited and shall extend until terminated as provided herein. 44. Termination. This Agreement may be terminated upon agreement in writing of seventy- five percent (75%) of the Representatives. Upon termination of the CISC , any monetary funds held by the CISC shall be distributed, after paying the debts and obligations of the CISC, to the Parties proportionate with the number of sworn law enforcement officers employed by each Party. Additionally, upon termination of the CISC, any non-monetary assets shall become the property of the Party in possession ofthose assets. (SIGNATURE PAGES TO FOLLOW) Intergovernmental Agreement of the Colorado Information Sharing Consortium Page 10 of 16 IN WITNESS WHEREOF , the Parties have executed this Agreement effective as of the Effective Date. The Adams County Sheriff's Office By: Name: Doug Darr Title: Adams County Sheriff Date : Attest: _____________ _ Name: ---------------- The Arapahoe County Sherifrs Office By : Name: David C. Walcher Title : Arapahoe County Sheriff Date: Attest: _______________ __ Name: ---------------- Int ergovernm en tal Agreement of th e Colorado Information Sharin g Co nsortium Page 11 of 16 Attest: Name: Attest: Name: The City of Aurora By: Name: Title: Date: ------------------------------ ------------------------------ The Colorado Department of Public Safety By: Name: Title: Date: ------------------------------ ------------------------------ Intergovernmental Agreement of the Colorado Information Sharing Consortium Page 12 of 16 Attest: Name: Attest: Name: The City of Colorado Springs By: Name: Title: Date : ------------------------------ ------------------------------ The City of Commerce City By: Name: Title: Date: ------------------------------ ------------------------------ Int ergovernm ental Agreement of th e Co lorado Information Sh arin g Co n sortium Page 13 of 16 The City and County of Denver By: Name: Title: Date : Attest: _____________ _ Name: --------------- The Douglas County Sheriff's Office By: Name: David Weaver Title: Douglas County Sheriff Date: Attest: --------------- Name: ______________ _ Intergovernmental Agreement of the Colorado Information Sharing Consortium Page 14 of 16 Attest: Name: Attest: Name: The City of Grand Junction By: Name: Title: Date : ------------------------------- ------------------------------- The Board of County Commissioners of the County of Jefferson By: Name: Title: Date: ------------------------------- ------------------------------- Intergovernmental Agreement of the Colorado Information Sharing Consortium Page 15 of 16 Attest: Name: The Board of County Commissioners of the County ofMesa By: Name: Title: Date: ------------------------------- ------------------------------- Intergovernmental Agreement of th e Colorado Information Sharing Consortium Page 16 of 16 SEPARATE SIGNATURE PAGE TO THE INTERGOVERNMENTAL AGREEMENT OF THE COLORADO INFORMATION SHARING CONSORTIUM By signing this separate signature page to the Intergovernmental Agreement of the Colorado Information Sharing Consortium (the "Agreement"), the undersigned agrees to be bound by the terms and conditions of the Agreement. Consistent with paragraph 32 of the Agreement, upon delivery of this signed signature page to the Manager of the CISC, satisfaction of any conditions imposed by the Board, if applicable, and payment of any CISC membership fees, if applicable, the undersigned shall be a Party to the Agreement with all the rights and responsibilities thereunder. This signature page shall be appended to the Agreement and shall become part of the Agreement as ofthe date listed below. Name of Entity: CITY OF WHEAT RIDGE By: Name: Joyce Jay Title: Mayor Date: Aprill4, 2014 Attest: Name: Janelle Shaver Attachment 3 Intergovernmental Agreement of the Colorado Information Sharing Consortium Separate Signature Page Council Action Form April 14 ,2014 Page2 (pavement markings condition), Tree View (tree inventory), Park View (park equipment inventory), Fleet (fleet maintenance) and GIS integration. In mid-20 13 we completed a major upgrade to the software from Cartegraph. Support and maintenance was required to purchase the upgrade. The continued renewal of the annual licensing and support contract is a strategic move to maintain and keep the Cartegraph software up to date. RECOMMENDATIONS: Staff recommends approval of the annual renewal for the Cartegraph system. RECOMMENDED MOTION: "I move to approve the annual support and licensing renewal for the Cartegraph system to Cartegraph , Inc. in the amount of $44,290." Or, "I move to deny the annual support and licensing renewal for the Cartegraph system to Cartegraph Inc. in the amount of $44 ,290 for the following reason(s) ________ " REPORT PREPARED AND REVIEWED BY: Michael Steinke, IT Manager Heather Geyer, Administrative Services Director Patrick Goff, City Manager ATTACHMENTS: 1. Cartegraph Invoice # R-0921214 Council Action Form April14, 2014 Page2 Older gear is more susceptible to connectivity and hardware issues that result in the loss of productivity. To prevent additional staff time and effort, the upgrade and replacement allows for more current technology and for IT to optimize performance and reliability of the fleet. The last 10 MDCs were purchased in 2012. IT budgets to replace 1/3 of the MDCs per year. RECOMMENDATIONS: Staff recommends the procurement of the replacement Mobile Data Computers in the amount of $50 ,385. These funds are budgeted in the 2014 budget for $80,000. RECOMMENDED MOTION: "I move to award the purchase of 15 mobile data computer replacements to Counter Trade Products , Inc. in the amount of$50,385 ." Or, "I move to deny the purchase of 15 mobile data computer replacements to Counter Trade Products , Inc. for the following reason(s) " REPORT PREPARED/REVIEWED BY: Michael Steinke, IT Manager Heather Geyer, Administrative Services Director Jennifer Nellis , Purchasing & Contracting Agent Patrick Goff, City Manager ATTACHMENTS: 1. Bid Tab Sheet ••• • ity or -p'Wh atR8g PROJECT : RFIH4-09 Mobile Data Centers -COmputers ~ R£QUESTEOOY, MIKESmNK£-ITOI\IISION DUE DAT£/TIM£: TUESDAY, MARCH 27,2014 AT 1 P.M. LOCAL TIME EO BY: JENNIFER NELUS, PURCHASING AGENT Y\VITNESS£0 BY : MIKE STEINKE · IT MANAGER VENDOR PCSMobile COunter Trade Products Apng T echnlogy LOCATION Denve r, CO AlVada, CO Roslyn, NY BIDDER ACKNOWI.EOGMENT FORM Ye.s Yes Ye s ' ACKNOWLEDGEMENT OF ADDENDA N/A N/A N/A PRIONG: QTY I UNIT PRICE I TOTA L QTY I UNIT PR ICE I TOTAL QTY I UI\I IT PR ICE I TOTAL GETAC S400 Lapt op,~~ specified 15 I $ 3,519.00 I s 52 ,785 .00 15 I s 3,359 .00 I s 50,385.00 15 1 s 3,572 .00 1 s 53,580.00 Oettv~ry Tnne 14-21 Days 4-6Weeks 30Days l·Yn~ w .,..•ntyor L.onat!t Yes Yes No Details Wtrnnt:v r tt urn process det aile d Yes Yes Non-Respons ive DELIVERY, IF APPUCABLE : N/A N/A N/A TOTAL : s 52 ,785.00 s 50,385 .00 s 53 ,580 .00 VENDOR Bhayana Brothe rs, llC. GovWa re LLC Scan Technology, Inc. lOCATION Prttsbui'Jlh , PA I Scottsdale , A1. Ga i nsville, FL BIDDER ACKNOWLEDGMENT FORM Ye s Ye s Yes i ACKNOWLEDGEMENT OF ADDENDA N/A N/A N/A PIUQNG: QTY I UN IT PRICE I TOTAL QTY I UN IT PR ICE I TOTAL QTY I UNIT PR ICE l TOTAL GElAC SACIO Lap top, as spedfitd 15 I s 3,307.38 1 s 49,610.70 15 I s 3,4oo.oo I s s1 .ooo.oo 15 I s 3,678.82 I s 55 ,182.30 ~Jiv~ty Tlme 4 -6 Weeks 30 Days (ARO ) 6-8 Weeks l·Ytar W•n1nt:yor LO!iltr No Deta ils No Deta ils Yes w"ranty ·~ p rOCtiS CltUI!fll Non -Respon sive Non-Responsive Yes I DE LIVERY , IF APPLICAB LE : s 50.00 $ 1,000.00 N/A I TOTAL: s 49,660.70 $ 52,000.00 $ 55,182.30 i 1 V£NOOR G2 D ig i ~l Solu tions LOCATION xen ia,OH BIDDER ACKNOWI.EOGMENT FORM Yes I ACKNOWLEDGEMENT OF ADDENDA N/A I PRICING : QTY I UNIT PRI CE I TOTAL QTY I UN ITPRI CE I TOT At QTY J UN IT PR ICE I TOTAL ' GET AC SA OO Laptop, as spedlitd 15 I s 3,495.oo 1 s 52,425.oo 15 I IS -1s I IS . Oetl¥tr¥ runt 30 Days 3·Y t lr W...anry 0< l.Of1Cer No Details w ,.,nry rttum procw de tailed Non-Responsive DE LIVERY, IF APPLICABLE : N/A TOTAL: $ 52 ,425.00 s . s - Attachment 1 Po~Joj J Council Action Fonn April 14 ,2014 Page2 FINANCIAL IMPACT: Fees in the amount of $1,106 were collected for the review and processing of Case No. WZ-14-0 1. The proposed rezoning could advance the City's economic development goal of creating a diverse and resilient tax base and new housing stock. BACKGROUND: The subject parcel is located at 6405-6409 W. 44th Avenue, in the northeast quadrant ofthe City. Subject Property Based on Jefferson County records, the subject property is made up of three lots, all listed under the Parcel ID: 392-42-24-063 with a total area of 19 ,680 square feet. The properties are part of the Lakeview subdivision. There are two structures located on the three lots. The western building is 2,162 square feet and was built in 1967. The eastern building was built in 1960 and is 680 square feet in size. Both buildings are used as antique stores, which are permitted in the R-C zoning district. Surrounding Land Us es The property in question is zoned Restricted-Commercial (R-C) and is surrounded by a mix of residential and commercial zoning and uses. Properties to the west are zoned Neighborhood- Commercial (N-C) and properties to the east are zoned C-1. To the south across 441h A venue is a mix ofRC and NC zoning . To the north are multi-family properties zoned R-3. The property is one lot away from the future site of the new Kendall Park owned by the City of Wheat Ridge. Construction on the new park has begun and should be finished by the end of summer. Current and Propos ed Zoning Under the current RC zoning, permitted uses include office, retail and service. New residential uses are not allowed. The MU-N zone district allows office, service and retail uses as well as residential. The flexibility of uses allowed in the MU-N is attractive for property owners as it could allow multi-family and live/work opportunities . No site changes are anticipated at this time. The application has been through the standard referral process with no concerns raised by any outside agencies or City departments . A separate referral process will be required as part of future site redevelopment. RECOMMENDED MOTION: "I move to approve Council Bill No. 01-2014, an ordinance approving the rezoning of property located at 6405-6409 W. 44th Avenue from Restricted Commercial (RC) to Mixed Use Neighborhood (MU-N) on second reading and that it take effect 15 days after final publication, for the following reasons: 1. City Council has conducted a proper public hearing meeting all public notice requirements as required by Section 26-109 of the Code of Laws. Council Action Form April 14, 2014 Page 3 Or, 2. The requested rezoning has been reviewed by the Planning Commission, which has forwarded its recommendation. 3. The requested rezoning has been found to comply with the "criteria for review" in Section 26-112-E ofthe Code of Laws." "I move to deny Council Bill No. 01-2014, an ordinance approving the rezoning of property located at 6405-6409 W. 441h Avenue from Restricted Commercial (RC) to Mixed Use Neighborhood (MU-N) for the following reasons: 1. 2. 3. and direct the City Attorney to prepare a Resolution of Denial, to be scheduled for Council consideration at the next available regular business meeting." REPORT PREPARED/REVIEWED BY: Meredith Reckert, Senior Planner Kenneth Johnstone, Community Development Director Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill No. 01-2014 2. Planning Commission Staff Report with attachments 3. Planning Commission minutes CITY OF WHEAT RIDGE INTRODUCED BY COUNCIL MEMBER URBAN COUNCIL BILL NO. 01 ORDINANCE NO. ___ _ Series of 2014 TITLE: AN ORDINANCE APPROVING THE REZONING OF PROPERTY LOCATED AT 6405-6409 W. 44th AVENUE FROM RESTRICTED COMMERCIAL (RC) TO MIXED USE- NEIGHBORHOOD (MU-N) (CASE NO. WZ 14-01/LOMBARDI) 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, Mario Lombardi has submitted a land use application for approval of a zone change to the Mixed Use-Neighborhood zone district for property located at 6405-6409 W. 44th Avenue; and, WHEREAS, the subject property has long been underutilized, and the mixed use zone district will allow for a wider range of uses; and, WHEREAS, the proposed zone change is supported by the City's Comprehensive Plan-Envision Wheat Ridge and the zone change criteria specified in Section 26-112. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Upon application by Mario Lombardi for approval of a zone change ordinance from Restricted Commercial (RC) to Mixed Use-Neighborhood (MU-N) for property located at 6405-6409 W. 44th 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: Parcel A: That part of the East Y2 of Block 8, Lakeview Subdivision described as follows: Beginning at a point at the southwest corner of the East Y2 of said Block 8, thence East 195.23 feet to the true point of beginning; Thence East 56 feet; Thence North 160 feet; Thence West 56 feet; Thence South 160 feet to the true point of beginning, excepting the right-of-way described in Book 46 at Page 464, County of Jefferson, State of Colorado . Parcel 8: The South 10 feet of the East ~ of Block 8, Lakeview Subdivision , except the West 253.23 feet thereof, County of Jefferson , State of Colorado . Parcel C: The South 160 feet of the East 2 feet of the West 253.23 feet of the East~ of Block 8, Lakeview Subdivision , County of Jefferson , State of Colorado . 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 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 publicat ion, 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 241h day of March , 2014 , ordered it published with Public Hearing and consideration on final passa~e set for Monday, April 14, 2014 at 7 p.m., in the Council Chambers , 7500 West 291 Avenue , Wheat Ridge, Colorado , and that it takes effect 15 days after final publication. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to , this day of , 2014. SIGNED by the Mayor on this ___ day of _______ , 2014. ATTEST: Janelle Shaver, City Clerk 151 publication: March 27, 2014 2nd publication: Wheat Ridge Transcript: Effective Date: Joyce Jay, Mayor Approved as to Form: Gerald Dahl, City Attorney All notification and posting requirements have been met ; therefore, there is jurisdiction to hear this case. I. REQUEST This application is for approval of a zone change from Restricted-Commercial (RC to Mixed Use- Neighborhood (MU-N) for property located at 6405-09 W. 44th Avenue. (Exhibit I, AJJ. licant letter) The zone change is the first step in the process for approval of a future mixed use development on the 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. The ro osed zone change includes three parcels, the total of which is approximately .45 acres . (Exhibit 2, Aerial photo) II. EXISTING CONDITIONS/PROPERTY HISTORY Surrounding Zoning and Land Use The property is located at 6405-09 West 44th Avenue in the northeast quadrant of the City. The site is zoned Restricted-Commercial (R-C) and is surrounded by a mix of residential and commercial zoning and uses. Properties to the west are zoned Neighborhood-Commercial (N-C) and properties to the east are zoned C-1. To the south across 44th A venue are a mix of RC and NC zoning. To the north are multi-family properties zoned R-3. The property is one lot away from the future site of the new Kendall Park owned by the City of Wheat Ridge. Construction on the park will begin this spring. (Exhibit 3, zoning map) Subject Property Based on Jefferson County records , the subject property is made of three lots all listed under the Parcel ID: 392-42-24-063 with a total area of 19 ,680 square feet. The properties are part of the Lakeview Subdivision. There are two structures located on the three lots. The western building is 2,162 square feet in size and was built in 1967. The eastern building was built in 1960 and is 680 square feet in size. Both buildings ARE used as antique stores which are permitted in the R-C zoning district. (Exhibit 4, site hotos) 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 uses are permitted , in addition to a limited range of neighborhood-serving commercial and retail uses. Under the current RC zoning, permitted uses include office, retail and service. New residential uses are not allowed. Planning Commi ss ion WZ-14-0 I /Lombardi 2 The MU-N zone district also allows office, service and retail but residential uses as well. The flexibility of uses allowed in the MU-N is attractive for property owners as it could allow multi-family and live/work opportunities. The following table compares the proposed and existing standards that apply to the subject property . :\ll'-:\ RC Uses Allows new residential , commercial , Allows office, service and retail. No or mixed uses -includes multi-new residential development is family and live/work facilities. allowed. ArchitJ...rat High quality architecture required ; High quality architecture required ; Standards standards related to articulation, standards related to articulation , variation , materials , transparency variation , materials , transparency Balldbag Height 35 feet if building has residential use 50 feet for all uses (max) 50 feet for all other uses BaUd-to I Setbaeks Front 0 -12 foot build-to area 0' -12 foot build-to area Rear setback 5 feet 1 0 feet for first story + 5' each addtl. Side setbaek, west 0 feet 0 feet Side setbaek, east 1-2 story = 10 feet 5 feet per story 3 story = 15 feet Lot Coverage (max) 90 % for mixed use 80% 85% for single use Ludscape I OpeD 1 0% for mixed use 20% Spaee(miD) 1 5% for single use Given the proximity of the single-family home on the east side , it should be noted that the MU-N zone district includes standards which offset the potential impacts of new commercial development and taller buildings and include parking lot screening, landscape buffers and building step backs. At this point, the property owner does not intend on expanding the building or redeveloping the site. IV. ZONE CHANGE CRITERIA Staff has 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: Planning Commiss ion WZ-14-0 I /Lombardi 3 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. The change of zone will not result in adverse effects on the surrounding area . While the new zoning would allow for residential , commercial and mixed uses on the lot, any proposed new development will require site plan review through which traffic impacts , drainage, and buffering wi II be analyzed. 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. Both the existing and proposed zonings may continue to provide a revenue source for the City due to sales tax collected. 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. Although no specific building expansions or redevelopment are proposed at this time, prior to any 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 utility capacity is not adequate, the property owner/developer will be responsible for utility upgrades. There is minimal landscaping on the western property. If the properties are redeveloped, they would have to conform to the landscaped coverage specified in the MU-N zone district. Staff concludes that this criterion has been met. 3. The Planning Commission shall also fmd 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 City's comprehensive plan-Envision Wheat Ridge which was adopted in 2009. 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. 44th Avenue is shown as being a "neighborhood commercial corridor'' transitioning into Neighborhood. 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 area, as well as continued revenues to the city through sales tax collected. Goals identified for neighborhood commercial corridors include: • Encouraging improvement ofunderutilized properties. Planning Commiss ion WZ -14-0 1 /Lombardi 4 • Attracting quality retail development and actively retaining existing retailers • Increasing housing options • Ensuring quality design for development and redevelopment • Maintaining a healthy and active community Staff concludes that this 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 Restricted Commercial 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. West 441h Avenue carries between 11 ,000 and 12 ,000 vehicles per day and land use on the corridor includes a variety of residential , multi-family and small businesses. There have been substantial improvements in the area as a result of construction of a Walmart center in the Town of Lakeside just four blocks to the east. Since Walmart provides a regional shopping draw , additional development is expected. A zone change on the subject property may encourage similar applications and investment in the area. The City continues to invest in infrastructure with the proposed development of the Kendall Street park just one parcel to the east of the subject site . The proximity of the property to the new park could offer unique opportunities for either commercial or residential redevelopment. 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 The required pre-application meeting for neighborhood in ut was held on December 18 , 2013. There were four persons from the neighborhood in attendance. (Exhibit 5, Neighborhood meeting recap) VI. AGENCY REFERRALS Planning Commi ss ion WZ-14-0 1 /Lombardi 5 All affected service agencies were contacted regarding their ability to serve the property. The developer will be responsible for any needed upgrades to accommodate the proposed development. Specific referral responses follow. Xcel Energy: Has no objections to the zone change. Will assess service at time of future site plan application. Wheat Ridge Fire Protection District: Will review at the time of site plan application for fire access , water supplies and hydrant locations. Wheat Ridge Sanitation District: Can serve the property. Wheat Ridge Public Works: The proposed zone change does not trigger traffic or drainage requirements ; therefore, Public Works has no comments at this time. Wheat Ridge Police: No concerns with crime or traffic. VII. STAFF CONCLUSIONS AND RECOMMENDATION Staff concludes that the proposed zone change is consistent with Envision Wheat Ridge and that there are changing conditions in the immediate area including development in the Town of Lakeside and construction of the Kendall Street Park . Staff further concludes increasing the potential land use options through a zone change to MU-N will be a benefit for the city and may serve as a catalyst for other similar requests in the area. Finally, staff concludes that the proposed zone change will not adversely affect public health , safety, or welfare. Because the zone change evaluation criteria support the zone change request, staff is recommending approval for Case No. WZ-14-0 1. VIII. SUGGESTED MOTIONS: Option A: "I move to recommend APPROVAL of Case No. WZ-14-0 1, a request for approval of a zone change from Restricted Commercial to Mixed Use-Neighborhood for property located at 6405- 09 W. 44th Avenue, for the following reasons: 1. The proposed zone change is consistent with Envision Wheat Ridge. 2. There are changing conditions in the immediate area including development in the Town of Lakeside and construction of the Kendall Street Park. 3. Increasing the potential land use options will be a benefit for the city and may serve as a catalyst for other similar requests in the area. 4. The evaluation criteria support the zone change request." Option B: "I move to recommend DENIAL of Case No . WZ-14-01 , a request for approval of a zone change from Restricted Commercial to Mixed Use-Neighborhood for property located at 6405-09 W. 44th Avenue, for the following reasons: 1. 2." Planning Commission WZ-14-0 1 /Lombardi 6 Looking north from West 44th A venue at building fronts Looking northwest from West 44th Avenue with 6405 W. 44th in foreground Planning Commission WZ-14-01 /Lombardi 11 EXHIBIT 5-NEIGHBORHOOD MEETING RECAP '~I.; -.. City of ret!~Wheat&_dge ~OMMUNllY DEVELOPMENT C'll) of Wheal Ridge Municipal Buildong 7500 W. 29'• Ave. Wheal Ridge. CO 80033-8001 P: 303.235 .2846 F: 303.235 .2857 Meeting Date : Attending Staff: Location of Meeting: Property Address: Property Owner(s): Property Owner(s) Present? Applicant: Existing Zoning: Existing Comp. Plan: NEIGHBORHOOD MEETING NOTES December 18 , 2013 Lauren Mikulak, Planner II City of Wheat Ridge Municipal Building 7500 W. 29th Avenue Wheat Ridge, CO 80033 6405-6409 W. 441h Avenue MGL Properties LLC (Mario Lombardi) Yes Mario Lombardi Restricted Commercial (RC) eighborhood Commercial Corridor Existing Site Conditions: TI1e property is located at 6409 West 44'h Avenue in the northeast quadrant oflhe City. The site is zoned Restricted Commercial (RC) and is surrounded by a mix of residential and commercial uses . Surrounding properties are zoned RC, eighborhood Commercial (NC), Commercial-One (C-1 ), and Residential-Three (R-3). The property is one lot west of the future site of the 44 1h and Kendall Park owned by the City of Wheat Ridge . Based on Jefferson County records, the subject property is made of three parcels all listed under the ParceliD 392-42-24-063; the total area of the three parcels is 19,680 square feet (0.45 acres). There are two structures that span the three parcels. The western building is 2,162 square feet in size and was built in 1967 . The building was previously used as a veterinary clinic, but most recently it is used as an antique store. The eastern building was built in 1960 and is smaller in size at 680 square feet . The building is used as an antique store. Antique stores are considered permitted uses in the RC zone district. Applicant/Owner Preliminary Proposal: The applicant is proposing to rezone the property from Restricted Commercial (RC) to Mixed Use- Neighborhood (MU-N). The purpose of the rezone is to expand possible uses for the property, including the option of converting the structure backs to a residential occupancy. Planning Commission WZ-14-0 1 /Lombardi Wl\ \\ .ri.\\ hHtridgt.("O,US 12 The fo ll owing is a su mmary of the neighborhood meeting: • In addition to staff, three members of the public attended the neighborhood meeting: Mary Kay Massey (4360 Lamar), Lisa Testaverde (4360 Lamar), and Marcie Emile (6410 W. 44th Ave). Each is an owner and resident of the neighborhood. • Staff explained the zoning of the site and neighborhood and the considerations related to a rezoning. • The members of the public were informed of the process for a zone change. • The members of the public were informed of their opportunity to make comments during the process and at the public hearings. • o concerns were expressed by the attending neighbors; all expressed hope that the applicant fill any vacancies and that the proposed uses be compatible with other commercial properties in the area. • After discussion of the proposal. staff responded to questions regarding other city projects and codes related to 44th and Kendall Park, 38th A venue, and residential development and density standards. The fo llow ing iss ues were d jscussed regarding the zon e change request a nd pr oposed d eve lopm en t: • How does RC compare with MU-? The two zone districts are very similar-both allow lower-impact commercial businesses such as offices or neighbor/rood-oriented retail. One difference is that the current RC zoning does not allow any type of automotive use, bur the MU-N zoning would allow a lifo-oriented businesses which are indoors. • What is the difference between RC and the other commercial zone districts along 44th? The zoning code includes a range of standard commercial zone districts-NC, RC. C-1. C-2. and /-£-which range _from most to least restrictive in terms of the type and intensity of businesses that are allowed. Businesses in the NC and RC zone districts typica/~y serve a smaller geographic area. have smaller spaces, less traffic, and fewer overall impacts. • Why does the applicant want to rezone if the districts are so similar? The mixed use district allows a similar range of commercial uses because botlr RC and MU-N are intended for areas that are neighborhood-oriented commercial corridors. The MU-N district holl'ever is more flexible in terms of permitted residential uses and the applicant is interested in exploring the option of converting the property to residential, in whole or in part, in the future . • Is a residential use currently allowed on the property? Residential uses are permiued in a very limited capacity in straight commercial zone districts. The code requires that a residence be secondary to a commercial function , be located in the rear or second floor of a business, and there are conditions related to number and size of dwelling units. The MU zone district is more .flexible regarding the size and location of a residential use. • Does the applicant need to know more specifically what the future use is before applying for a zone change? No, an applicant may request a rezoning to any mixed use zone district without certain redevelopment plans. The mixed use code was designed with strict standards in terms of design, so while the applicant may not have firm .future pia liS, they are agreeing to .follow all mixed use standards ((a zone change is approved. • What is the maximum height allowed? Under the current and proposed zoning a building could be up to 50 .feet if it was entirely commercial or up to 35 .feet if it included residential uses. • Will there be physical changes to the site? Will the applicant scrape and rebuild? Potentially. but there are no firm plans at this time. One tenant space on the property is vacant and the other is occupied. so plans will evolve if or when the zone change is approved. Staff received no written comment from others in the area regarding the proposal. P lanni ng Commission WZ-14-01/Lombardi 2 13 A. Case No. WZ-14-01: An application filed by Mario Lombardi for approval of a zone change from Restricted Commercial (RC) to Mixed Use Neighborhood (MU-N) for property located at 6405 -6409 W. 44th Ave. This case was presented by Meredith Reckert. She entered all pertinent documents into the record and advised the Commission there was jurisdiction to hear the case. She reviewed the staff report and digital presentation. Staff recommends approval of the zone change. Commissioner TIMMS asked how Neighborhood Commercial (NC) differs from Restricted Commercial (RC) and Commercial-One (C-1) zone districts. Ms. Reckert replied that NC is the least intensive commercial district which allows office and smaJl service uses. RC allows all office, service and limited retail. (C-1) is more of a regional draw which allows the same uses in RC and NC and more intensives uses such as liquor stores, shopping centers and auto repair facilities. None of the zone districts allow new residential development. She stated residential use of this property would not help the city financially on a sales tax level but it would provide new housing which the City needs. There was some discussion about another parcel that was rezoned to Mixed Use on 44lh Avenue. Commissioner TIMMS stated there seems to be some discrepancy on the intended use between the staff report, applicant's narrative and minutes from the neighborhood meeting. The staff report states there are opportunities for the corridor to go commercial, the applicant's letter states, "With the commercial aspect of 441h A venue slowly evaporating, it is important for business owners to adapt." The neighborhood meeting minutes state the applicant is interested in exploring the option to convert the property to residential. Ms. Reckert stated the applicant can address this. Commissioner TIMMS asked if the properties were originally built as residential or commercial. Ms. Reckert stated the property on east was probably a residential property. One of them might have had a unit on the rear. When the city incorporated, zoning was inherited from Jefferson County. Commissioner TIMMS reiterated that prior to any future development a site plan review will be required. He asked if a site plan review would be required for conversion to a single family home or a duplex. Ms. Reckert stated if the building envelope didn't change and if interior remodeling occurred, a site plan would be required because the landscape and parking standards are different. Both properties are currently non- conforming due to landscaping and parking. A site plan would be reviewed with a change of use or redevelopment. Commissioner POPP inquired about the commercial component of the current use and limited range of neighborhoods serving commercial and retail uses. Planning Commission Minutes February 20, 2014 Attachment 3 -2- Commissioner BUCKNAM inquired about the use ofthe parcel to the east and asked if it is being used as a non-conforming use. Ms. Reckert stated she believed it is being used as a residence but the zoning is commercial. Vice Chair OHM asked about the zoning for the new park. Ms . Reckert stated it is C-l in the front two-thirds and Residentiallbree (R-3) in the rear. Parks are allowed in all zone districts. Mario Lombardi 4571 Grove St. Mr. Lombardi stated he had no concrete plans for the property in the future but thought the zoning would be a good addition based on the 38tli Avenue zoning which is similar. Commissioner TIMMS asked Mr. Lombardi about his history with the property, how long he has owned it and the tenant history. Mr. Lombardi stated he owned the property since October 2008. He used the eastern property as a Cricket cell phone store for a few years and at this point it is an antique shop . The western building has been an antique store for 3 years. Commissioner TIMMS ask if there is a greater chance for residential conversion in the future . Mr . Lombardi stated he liked the option for both residential and commercial with the mixed use zoning. He stated he had no plans to sell the property and he understands that a site plan would be required for conversion to residential. No one wished to speak under the public testimony. It was moved by Commissioner TIMMS and seconded by Commissioner BUCKNAM to recommend approval of Case No. WZ-14-01, a request for approval of a zone change from Restricted Commercial to Mixed Use Neighborhood for property located at 6405-6409 W. 44th Avenue, for the following reasons: 1. The proposed zone change is consistent with Envision Wheat Ridge. 2. There are changing conditions in the immediate area including development in the Town of Lakeside and construction of the Kendall Street Park. 3. Increasing the potential land use options will be a benefit for the city and may serve as a catalyst for other similar requests in the area. 4. The evaluation criteria support the zone change request. Motion carried 5-0. Ms. Reckert stated the case will be heard by City Council and the recommendation from Planning Commission will be forwarded . 8. OTHER ITEMS Planning Commission Minutes February 20, 2014 -3 - Council Action Form April 14 ,2014 Page 2 FINANCIAL IMPACT: The proposed ordinance is not expected to have a notable financial impact on the City. The procedural changes may result in shorter review times for some applications and therefore less staff time. BACKGROUND: A subdivision entails the creation or reconfiguration oflots, tracts , or parcels for the purpose of sale or development. Subdivisions are considered quasi-judicial, land-use applications , but unlike zoning, over which the City has broad discretion , a subdivision application is a technical document that, to a large extent, is non-discretionary in nature. Subdivision approvals do not change zoning or pennitted uses , and do not address development design. Instead, subdivision regulations prepare land for development. A plat defines property lines, establishes rights-of-way , and delineates easements. In the case of Wheat Ridge much of this occurs within an infill or redevelopment context, so the proposed amendment seeks to align the City's regulatory environment with these physical realities. The proposed ordinance provides simplified review procedures, more administrative review, clear design standards , uniform and defensible exactions and fees , and improved organization . Below is a summary of the three central amendments that are proposed ; these relate to subdivision review , parkland dedication, and public improvements. Subdivision Revie w The proposed ordinance features a simplified classification of subdivisions with more administrative review. Based on feedback from the Planning Commission and City Council study sessions , the ordinance retains three levels of review, but redefines these three groups as administrative, minor, and major subdivisions. The table below outlines the three classifications and respective review procedures. Proposed Classification of Subdivisions Type Criteria Reviewed by Must meet all criteria : Administrative -Involves 3 lots or less Staff -Conforms to all subdivision and zoning regulations -Does not include dedication of a full public street Must meet all criteria : Minor -Involves 4 or 5 lots Planning Commission -Conforms to all subdivision and zoning regulations -Does not include dedication of a full public street Any plat that exceeds administrative or minor review: Major -Involves more than 5 lots, or Planning Commission -Includes a variance or waiver , or and City Council -Dedicates a full public street Council Action Form April 14 ,2014 Page 3 Currently, administrative review is limited only to two-lot consolidations or lot line adjustments ; and the proposed ordinance expands administrative plats to include those involving 3 lots or fewer. This is recommended as an appropriate change in large part because a subdivision plat is a technical document that does not change the underlying land use entitlements . Regardless of size, any application with a variance or waiver request will automatically be processed as a major subdivision requiring review by Planning Commission and City Council. This is consistent with current practice and ensures that administrative review remains entirely objective. Sections 26-405 and -406 in the attached ordinance outline the types of plats and the review procedures. While more subdivision applications would qualify for administrative review , the process itself remains unchanged. Because the plat is a non-discretionary technical document (similar to a building permit), administrative review will not include a neighborhood meeting or public noticing. Non-administrative review of minor and major plats will follow the noticing procedures required for all public hearings. Parkland Dedication Parkland dedication is currently required for all new residential subdivisions or developments and is based on the assumption that additional residents create additional demands on parks, open space, and recreational facilities. The parkland dedication provisions are significantly revised to ensure that requirements are aligned with standard planning practices and to ensure consistent implementation . To this end , the ordinance includes three fundamental changes: how land dedication is calculated , how fees- in-lieu of dedication are calculated , and whether or not an applicant can seek relief. Up to now , the land dedication formula has been based on 0.016 acres per dwelling unit. The revised calculation is based on projected population . This type of metric or density multiplier is more common and is more defensible because it is related to actual impact. When land is not available to dedicate or the City does not desire a dedication , a fee is assessed in-lieu. Historically, the fee amount has been assessed inconsistently because it is based on "fair market value"- a relatively ambiguous term. As an alternative, the ordinance proposes that City Council establish a fair and defensible per acre fee or land value. This will allow the fee-in-lieu to be assessed uniformly and will result in a predictable cost. This fee will be set by resolution by City Council at the same time or shortly after the second reading of the ordinance. In the past, applicants have routinely sought relief from parkland requirements by requesting reduced fees , complete waivers , or credit for on-site facilities. Very few communities fully exempt projects from parkland dedication , but several incorporate reduced requirements as a means of offering relief. Reductions are provided in the proposed ordinance by lowering the density multipliers , as shown in the table below. Council Action Form April 14 ,2014 Page4 ' Proposed Density Multipliers I Category · Persons per dwelling unit Residential Within Y2-mile of transit Within an urban renewal area Within a mixed use development Senior housing • Definitions for each category are provided in section 26-414. 2.12 1.7 1.7 1.7 1.5 •• This number is based on the city-wide average household size . It will not be codified so it can be updated annually based on census data . Through the use of reductions, relief can be offered to broad classes of development instead of assessed on a case-by-case basis. Based on these categories, higher density projects are less likely to be penalized with a disproportionately high land dedication. In addition , reductions will help to incentivize or direct higher density and mixed use development to appropriate areas of the City. In the same spirit, this type of incentive supports the regionally adopted goal of locating fifty percent of all new housing units in designated urban centers; the City has two designated urban centers-along Wadsworth and the Northwest Subarea. Public Improvements Public improvements can include but are not limited to the installation of curb , gutter, sidewalk , drainage facilities , amenity zones , utilities, street lights , and paving. Provision of public improvements (or a fee-in-lieu) is a condition of approval for certain types of subdivisions and development where adjacent improvements are substandard or nonexistent. This requirement is authorized by a series of code sections and documents, and this plurality has ultimately created inconsistencies, confusion, and inequities . With this in mind , the approach to public improvements has been revised to balance several goals: ensure consistency when requiring public improvements versus fees-in-lieu, support the City's goals of providing bicycle and pedestrian facilities , ensure all developers and residents bear an equal and proportionate cost of enhancing the city 's roadways , and promoting fair and equitable requirements and fees. Under the revised approach , public improvement provisions are consolidated into one section in the code (sec. 26-417). Street improvements are based on the type of development being proposed, and these standards are unifonn for any type of development application (such as platting or building permits). This approach is summarized in the table below. Consistent with current practice, only certain types of projects will trigger the provision of street improvements. These include new roads, new lots, new development, and additions that increase floor area by more than 60%. Smaller projects that do not meet these thresholds do not generally trigger street improvements. Council Action Form April 14 , 2014 Page 5 Project Type Any project with new public streets Multifamily residential or commercial Single-or two-family residential Required Street/Streetscape Improvements An applicant must build the new street to current city standards . The timing of construction is determined by a subdivision improvement agreement or is deferred with a development covenant. An applicant is responsible for all streetscape improvements if frontage does not meet current right-of-way standards. Applicants are required to construct improvements or pay a fee-in-lieu based on the decision of the Public Works Director. If fees are paid in lieu of construction, they are calculated for the specific improvements that would otherwise be built and are based on an engineer's estimate of all removal and installation costs . An applicant is responsible for curb , gutter, sidewalk. In most circumstances applicants may choose to build the improvements or pay a fee-in-lieu. Where construction would be impractical an applicant may be required to pay the fee-in-lieu. If fees are paid in lieu of construction , they are calculated based on the linear frontage of the lot and the cost of curb , gutter, and a 5-foot attached sidewalk (the minimum local street standard). Where partial improvements are existing, the fee will be adjusted accordingly. Because the single-and two-family fee calculation represents a development fee that will apply uniformly to a broad class of projects, an impact fee study is included as an attachment to this report. The study documents the fee calculation and establishes a legislative basis for such requirements. Staff estimates the single-/two-family fee for installation of curb, gutter, and sidewalk is about $52 per linear foot. Fees will be based on prevailing costs and may rise or fall accordingly. For a typical 75-foot wide R-2 zoned lot, the resulting fee would be $3900. Other amendments In addition to the revisions described above, the ordinance includes the following changes: • Subdivision design standards are consolidated and reorganized to ensure appropriate infrastructure, connectivity and logical lot layouts. • The street naming and numbering regulations are removed from Article IV and relocated to Article VI of Chapter 26 (supplementary regulations) because they apply to all development within the City. • The definitions section is updated and includes the addition of several new tenns related to the subdivision process. • Outdated quantitative standards are removed from the code; where these standards are still relevant they will be provided by the Community Development or Public Works Departments. • Appendix A is removed from Chapter 26. This includes an outdated fee schedule that was codified in 2003. Current administrative fees associated with development applications are maintained in the Community Development Department. • All references to the subdivision regulations throughout the code of laws are updated to reflect the changes within Article IV. Council Action Fonn April 14 ,2014 Page6 RECOMMENDATIONS: Staff recommends approval ofthe ordinance. The purpose of this code amendment is to establish a more logical and efficient review procedure, and to update subdivision regulations to reflect the infill environment of the City of Wheat Ridge. Ultimately, the proposed ordinance supports City goals by creating a regulatory environment that is reasonable, efficient, contemporary, and predictable. RECOMMENDED MOTION: "I move to approve Council Bill No. 02-2014, an ordinance amending Chapter 26 of the Wheat Ridge Code of Laws conceming the subdivision regulations and making certain related amendments to Chapters 2 and 5 in association therewith , on first reading, order it published , public hearing set for Monday, Ap1il 28 , 2014 at 7:00p.m. in City Council Chambers , and that it take effect 15 days after final publication. Or, "I move to postpone indefinitely the ordinance amending Chapter 26 of the Wheat Ridge Code of Laws conceming the subdivision regulations and making certain related amendments to Chapters 2 and 5 in association therewith, for the following reason(s) , REPORT PREPARED BY; Lauren Mikulak , Planner II Meredith Reckert, Senior Planner Ke1meth Johnstone, Community Development Director Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill No. 02-2014 2. Streetscape Impact Fee Study CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER-------- COUNCIL BILL NO. 02 ORDINANCE NO. ___ _ Series 2014 TITLE: AN ORDINANCE AMENDING CHAPTER 26 CONCERNING THE SUBDIVISION REGULATIONS AND MAKING CERTAIN RELATED AMENDMENTS TO CHAPTERS 2 AND 5 IN ASSOCIATION HEREWITH (CASE NO. ZOA-14-01) WHEREAS, the City Council of the City of Wheat Ridge is authorized by the Home Rule Charter and the Colorado Constitution and statutes to enact and enforce ordinances for the preservation of the public health, safety and welfare; and WHEREAS, in the exercise of that authority, the City Council of the City of Wheat Ridge has previously enacted Chapter 26 of the Wheat Ridge Code of Laws (the "Code") pertaining to zoning, land use, and development; and WHEREAS, the City has identified a need to simplify land use processes so review is efficient and costs are predictable; and WHEREAS, the City wishes to amend Article IV of Chapter 26 pertaining to subdivision regulations; and WHEREAS, the City has determined that additional sections of the Code should be amended for the sake of clarification. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Article IV of Chapter 26 of the Code is hereby repealed in its entirety and reenacted to read as follows: ARTICLE IV.-SUBDIVISION REGULATIONS Sec. 26-401. -Intent and purpose. A. Citation. This article shall be known and cited as the "subdivision regulations" of the City of Wheat Ridge, Colorado, or "these regulations," or "this article." B. Authority. No final plat of a subdivision shall be approved and accepted by staff, the planning commission or the city council unless it conforms to the provisions of these regulations. Pursuant to the authority contained in Article XX, Section 6 of the Colorado Constitution and in Colorado Revised Statutes sections 29-20-101 et seq., 31-23-101 et seq., and 24-67-101 et seq., the Wheat Ridge planning commission and city council are vested with the power and authority to adopt and amend these subdivision regulations Attachment 1 C. Purpose. The intent of these regulations is to prepare land for development and to recognize that the arrangement of parcels, streets, and infrastructure has a direct impact on the character and environment of the city. The general purposes of this article are as follows: 1. To protect the health, safety, and welfare of present and future residents of the city . 2. To promote orderly growth and good planning practice. 3. To guide land development that is consistent with the city's adopted plans and zoning regulations. 4. To ensure the provision of adequate public facilities and utility service . 5. To promote efficient circulation, logical lot layout, and necessary roadway and pedestrian connections. 6. To conserve natural resources and provide reasonable protection from flood and other hazards. 7. To provide open space and recreation facilities for residents. 8. To establish consistent and reliable land records and monumentation . 9. To provide a process for review and substantive requirements for approval. Sec. 26-402. -Applicability. A. Jurisdiction. These subdivision regulations shall be applicable within the following areas: 1. All land located within the City of Wheat Ridge. 2. Land in the process of annexation to the City of Wheat Ridge. 3. All unincorporated land located within three (3) miles of the corporate limits of the City of Wheat Ridge for major street plan purposes when a major street plan has been approved in accordance with the requirements of C.R.S. § 31-23-212. B. General Applicability. 1. These subdivision regulations shall apply to the creation or boundary modification of lots, tracts, parcels or other divisions of land for any purpose, including but not limited to its immediate or future sale, transfer, or development, whether residential, industrial, office, business or otherwise . 2. This article shall apply to a resubdivision or any division of land previously subdivided or platted, as well as to a lot line adjustment or consolidation of two or more lots, tracts, or parcels. 3. The transfer of any portion of land by the use of description for the purpose of sale, transfer, lease or development is prohibited until the division of land is approved and recorded in accordance with these subdivision regulations. 4. No subdivision plat shall be used for purposes of sale or development until the plat is approved and recorded in accordance with these subdivision regulations. 2 C. Exemptions. This article shall not apply to the following: 1. Any division of a tract of land into separate parcels of at least thirty-five (35) acres each for the purposes of sale; 2. Any division of land which is created by order of any court in this state or by operation of law, such as settlement of an estate; 3. Any division of land which is created by a foreclosure of a deed of trust, lien, mortgage or any other security instrument; 4. Any division of land which is created by a security or unit of interest in any investment trust regulated under the laws of this state or any other interest in any investment entity; 5. Any division of land which creates cemetery plots; 6. Any sale of any interest in a lot or parcel of land which has located upon it a single main structure, which structure and associated land is to be divided into separate ownership, and so long as required parking and access to a public street is guaranteed to each owner by direct access, or through a recorded ingress/egress easement of at least ten (1 0) feet in width, or parking easements, as may be necessary. The intent of this exception is to ensure that the area and setback requirements for structures are met, but to allow subsequent division of an individual structure and associated land into separate ownership, as with duplex splits or condominium plats. This exception shall not apply whenever it is desired to sell off land for the purpose of creating a new building site; 7. Vacant nonconforming parcels of record as described in section 26-120; 8. The division of land for the purpose of conveyance of real property to the city in satisfaction of land dedication, condemnation, annexation, or other city requirements, including a city-approved land trade; 9. Acquisition of an interest in land in joint tenancy, or as tenants in common, or a joint venture. 10.A consolidation of eligible lots through a property merger agreement in accordance with section 26-117. D. Pending applications. Any application for a subdivision plat filed on or after May 16, 2014 shall be controlled by the provisions of these regulations. Any application for a subdivision plat filed prior to and pending on that date shall be controlled by the provisions of the subdivision regulations in effect at the time of the filing of the application (which regulations are retained in force solely for that limited purpose), unless the applicant chooses to have the application processed under the provisions of these regulations. E. Private covenants. These regulations are not intended to abrogate any easement, covenant, or any other private agreement or restriction. It is not the intent of these regulations that the city will enforce any private easement, covenant, agreement, or restriction; such provisions being a function of the right of individual property owners to further or separately restrict the use of their property as one (1) of the rights attendant upon property ownership. These regulations shall not be interpreted to either enhance 3 or diminish such private restrictions, and the existence of such private restrictions shall neither enhance nor diminish the application or enforceability of these regulations. Sec. 26-403. -Enforcement and penalties. A. General. It shall be unlawful for any person to sell, convey, transfer, or otherwise dispose of or subdivide any property within the city without compliance with this article or where such sale, conveyance, transfer, disposition, or division would otherwise result in the creation of a nonconforming lot or nonconforming parcel of land as such term is defined by section 26-120. In addition to any other remedy available to the city, the city shall not recognize or permit the use of a lot or parcel created in violation of these regulations unless and until such lot or parcel is properly subdivided and meets all applicable requirements of the Wheat Ridge Code of Laws. B. Permits withheld. No permits shall be issued by any administrative officer of the City of Wheat Ridge for the construction or occupancy of any building, or other improvement requiring a permit, upon any land for which a plat is required by these regulations, unless and until the requirements of the subdivision regulations have been met. C. Penalties. 1. Any subdivider or agent of a subdivider who transfers or sells or agrees to sell or offers to sell any subdivided land before a final plat for such subdivided land has been approved by the city and recorded in the office of the Jefferson County Clerk and Recorder shall be guilty of a misdemeanor and, upon conviction of such violation, shall be subject to a fine not to exceed one thousand dollars ($1 ,000.00), or imprisonment not to exceed one (1) year, or both such fine and imprisonment. 2. This fine or sentence shall be applicable for each parcel or interest in subdivided land which is sold, agreed to be sold, negotiated to be sold and/or transferred. 3. The city shall have the power to bring an action to enjoin any subdivider from selling, agreeing to sell, offering to sell, use, occupy or develop unsubdivided land before a final plat for such subdivided land has been approved by the city. D. Sale voidable. Any deed of conveyance, sale or contract to sell made contrary to the provisions of these regulations is voidable at the sole option of the grantee, buyer, or person contracting to purchase, his heirs, personal representatives, or trustee within one (1) year after the date of execution of the deed of conveyance, sale, or contract to sell is binding upon any assignee or transfer of the grantee, buyer, or person contracting to purchase, other than those above enumerated. Sec. 26-404. -Definitions. As used in these regulations, the following words shall be interpreted and defined in accordance with the provisions set forth in this article: Adjacent property owners: Those persons who are shown in the then current records of the Jefferson County Assessor, as owning real property adjoining the land being 4 proposed for subdivision platting; disregarding intervening public streets, alleys, or other public right-of-way;. Administrative subdivision: See subdivision, administrative. Alley: A right-of-way, dedicated to public uses, which gives a primary or secondary means of vehicular access to the rear or side of properties otherwise abutting a street, and which may be used for public vehicular and/or utility access. Bicycle and pedestrian route: A street or trail that is part of the city's existing or proposed bicycle and pedestrian network as designated in the City of Wheat Ridge Bicycle and Pedestrian Master Plan. Block: A unit of land within a subdivision containing two or (2) more lots which is bounded by public or private streets, highways, railroad rights-of-way, public walks, alleys, parks or open space, rural or vacant land, drainage channels, subdivision boundaries, property boundaries or a combination thereof, and which is customarily divided into lots. City datum: Those three-dimensional coordinate values established during the state plane coordinate conversion program for all quarter corners, and section corners, and permanent high accuracy control (PHAC) points within and adjacent to the City of Wheat Ridge. Colorado Revised Statutes: The current edition of the laws governing the State of Colorado; hereinafter referred to as "C.R.S." Dedication: The intentional conveyance of land by the owner to the city for use as public right-of-way or easement. Dedication, fees in lieu of: Cash payment that may be required of an owner or developer as a substitute for a dedication of land or physical improvement. Duplex split: The process by which a single existing structure with two legal dwelling units is divided into separate units of ownership for the purpose of selling an interest in the existing structure and associated land. This process is not subject to the subdivision regulations per section 26-402.C. Easement: A nonpossesing legal interest in land, granted by a land owner to another person or entity which allows that beneficiary the use of all or a portion of the owners' land, for a stated purpose such as access, drainage, or placement of utilities. Geodetic surveying: The performance of surveys in which measure or account is taken of the shape, size, and gravitational forces of the earth to determine or predetermine the horizontal or vertical positions of points, monuments, or stations for use in the practice of professional land surveying or for stating the geodetic position of control points, monuments, or stations by using a coordinate system or derivative thereof recognized by the National Geodetic Survey. Lot merger: See plat, consolidation. Lot, through: An interior lot abutting on more than one (1) street or corner lot abutting on more than two (2) streets. Major subdivision: See subdivision, major. 5 Minor subdivision: See subdivision, minor Monuments: Actual points set into the ground to locate, delineate, or describe tracts of land . These include: a) United States Land Survey Monuments, the points or corners established by the survey of public lands for the United States Government, also the reestablishment or restoration of said corners; b) the points or corners set by a Colorado registered land surveyor in accordance with the Colorado Revised Statutes. Mylar: A clear plastic material on which the plat is "photographically" reproduced. It shall be a minimum of four one thousandths (.004) of an inch thick and have a matte finish on both sides. PHAC points: Permanent high accuracy control points established during the City of Wheat Ridge State Plane Coordinate Conversion Program by and for use in global positioning surveys. Plat, condominium: A plat which shows the division of land based on condominium ownership of an existing structure. This process is not subject to the subdivision regulations per section 26-402 .C. Plat, consolidation : A plat which aggregates two (2) or more parcels or portions of land into a single lot , development or building site. See also section 26-117 . Plat, final : A map of a land subdivision with necessary affidavits , dedications , and acceptances and with complete bearings and dimensions of all lines defining lots and blocks , streets and alleys , public areas and other dimensions of land for the recording of real estate interests with the Jefferson County Clerk and Recorder's office . All final plats shall comply with C.R.S . Article 51, Title 38. Plat, land survey: A plat which shows the information developed by a monumented land survey and includes all information required by C.R.S. § 38-51-106. Plat, lot line adjustment: A plat which adjusts the common property line or boundaries between two (2) or more parcels or portions of land , through which an equal or lesser number of lots are created. Plat, recorded: The official document which is filed with the Jefferson County Clerk Recorder's office . Plat, townhouse: A plat which shows the division of land based on a townhouse ownership structure . Townhouse development is subject to these regulations and requires a subdivision plat. Preapplication conference : A nonbinding, informative meeting between an applicant and staff that is required prior to submitting any plat application , in accordance with section 26-104. Private drive: A thoroughfare for vehicular traffic which provides access to no more than four (4) dwelling units. Public street: A dedicated public thoroughfare for vehicular traffic in accordance with the requirements as set forth in the subdivision regulations , the comprehensive plan, the Bicycle and Pedestrian Master Plan, and the Streetscape Design Manual of the City of Wheat Ridge. 6 Rep/at: See resubdivision. Resubdivision: The changing of any existing lot, tract, or parcel of any subdivision plat previously recorded with the Jefferson County Clerk and Recorder. Right-of-way: An area of land granted, acquired, or dedicated by deed or plat for public use and travel. In addition to a roadway, it may also include curbs, gutters, sidewalks, streetscape amenities, traffic signs and signals, lighting, and public utilities. Sketch plan: A rough sketch of a proposed subdivision indicating tentative lot layout and thoroughfare alignment to be used for the purpose of discussion at a preapplication conference. Subdivider: Any person, partnership, joint venture, association, corporation, person in a representative capacity, or other legal entity or legal representative who shall participate in any manner in the dividing of land for the purpose, whether immediate or future, of sale or building development. Subdivision or Subdivide: The creation or boundary modification of lots, tracts, parcels, or other divisions of land for any purposes whether immediate or future, including for sale or building development, whether agricultural, residential, industrial, commercial or other use. The term shall also include and refer to any division of land previously subdivided or platted but shall not include nor refer to a transaction or transactions which is or are exempt under these regulations. Subdivision, administrative: Any subdivision, consolidation, or lot line adjustment that involves 3 or fewer lots or parcels, conforms to all subdivision and zoning regulations, and does not include the dedication of a public street. See section 26-405. Subdivision, major: Any subdivision, consolidation, or lot line adjustment that does not meet the definition of an administrative or minor plat, including any plat with a right- of-way vacation or the dedication of public streets. See section 26-405. Subdivision, minor: Any subdivision, consolidation, or lot line adjustment that involves 4 or 5 lots or parcels, conforms to all subdivision and zoning regulations, and does not include the dedication of a public street. See section 26-405. Subdivision Improvement Agreement: An agreement between the city and developer that clearly establishes the developer's responsibility to construct any required public improvements for a subdivision, such as street or drainage facilities, and to provide financial security to ensure completion of the improvements. Tract: A portion of land that is part of a subdivision which is designated for some purpose other than a building site or lot, sometimes known as an outlot. Vacation: The termination of, or termination of interest in, an easement , right-of-way, or public dedication of land by resolution, plat or separate instrument. Variance: A deviation from the strict application of the development standards contained in these regulations due to unusual or atypical site conditions or characteristics. See section 26-115. Waiver: A waiver is a permitted exemption or reduction from a design principle or required improvement based on the specific conditions, circumstances or design context of a development proposal. 7 Sec. 26-405. -Types of plats. These regulations recognize a variety of platting circumstances and provide specific requirements and procedures for each. These types of plats are set forth below. A. Administrative plat. 1. Any subdivision , consolidation , or lot line adjustment meeting all of the following criteria: a. Involves 3 or fewer lots or parcels , b. Conforms to all subdivision and zoning regulations , includes no waiver or variance , and c. Does not include the dedication of a full-width ("Full ") public street right-of- way, but may include a partial , less than Full dedication of right-of-way adjacent to an existing public street or for other purposes. See section 26- 415. 2. Review and approval of this type of subdivision plat is an administrative process that does not require a public hearing ; the review procedure is outlined in section 26-406.8 . B. Minor plat. 1. Any subdivision , consolidation , or lot line adjustment meeting all of the following criteria : a. Involves 4 or 5 lots or parcels , b. Conforms to all subdivision and zoning regulations , includes no waiver or variance, and c. Does not include the dedication of a full-width public street right-of-way , but may include a partial , less than full-width dedication of right-of-way adjacent to an existing public street or for other purposes. See section 26-415. 2. Review and approval of a minor subdivision plat requires one (1) a public hearing; the review procedure is outlined in section 26-406 .C. C. Major plat. 1. Any subdivision, consolidation , or lot line adjustment that does not meet the definition of an administrative or minor plat , including any plat with a right-of-way vacation or dedication of new or full-width public streets. 2. Review and approval of a major subdivision plat requires two (2) public hearings; the review procedure is outlined in section 26-406 .C. Sec. 26-406. -Review procedures. All applications are subject to the following review procedures . 8 A. Preapplication conference. Prior to submitting any plat application, the applicant must participate in a preapplication conference, as described in section 26-104. A sketch plan shall be provided to the community development department for review prior to the preapplication conference. B. Administrative plat review procedure. 1. Application filing. An application packet shall be submitted to the community development department. Staff will review the application for completeness in accordance with the submittal requirements in section 26-410. If staff determines the application is not complete, it will be returned to the applicant and not further processed until the incomplete items have been supplied. 2. Review and referral. Upon receipt of a complete application packet the community development department will review the application and refer the application to affected departments and agencies for review and comment. The applicant must address all comments and resubmit relevant documents. 3. Decision. After the review period, staff will prepare written findings with a recommendation. The community development director shall review the plat and approve, approve with conditions, or deny the plat. C. Minor and major plat review procedure. 1. Application filing. An application packet shall be submitted to the community development department. Staff will review the application for completeness in accordance with the submittal requirements in section 26-410. If staff determines the application is not complete, it will be returned to the applicant and not further processed until the incomplete items have been supplied. 2. Review and referral. Upon receipt of a complete application packet the community development department shall proceed with the following process: a. Staff will review the application and refer the application to affected departments and agencies for review and comment. The applicant must address all comments and resubmit relevant documents. b. After the review period, staff will give notice of scheduled public hearings on the application before the planning commission and, if needed, the city council. Notice shall be by publication, letter, and site posting in the manner provided in section 26-109. c. Staff will prepare a written report to the planning commission which evaluates the proposal, makes findings, and makes a recommendation. 3. Public hearing. a. Planning commission review. The planning commission shall hold a public hearing to review the plat and to hear and consider any evidence or statement presented by the applicant, city staff, or by any person in attendance at the public hearing. Any recommendation or decision shall be based upon the facts presented in the public hearing and in consideration of the regulations and standards of this article and article II of this chapter. 9 i. Minor subdivision. The planning commission shall make a decision to either approve , approve with conditions , or deny the application . The decision by planning commission is final for minor subdivisions. ii. Major subdivision. The planning commission shall make a recommendation of approval , approval with conditions, or denial of the application . The recommendation shall be forwarded to city council for final action . b. City council review . City council shall review and decide upon all major subdivision applications at a public hearing . Upon receipt of the final plat and accompanying recommendations , the city council shall either approve, approve with conditions, deny, or refer the plat back to planning comm ission for further review . City council shall base its decision upon all evidence presented , with due consideration of the regulations and standards of this article and article II of this chapter. D. Recording approved documents . 1. All approved plats shall be recorded with the Jefferson County Clerk and Recorder. A recordable mylar of the plat and associated recording fees shall be submitted to the community development department within ninety (90) days of final action . 2. A subdivision improvement agreement , if required , shall be executed and recorded with the Jefferson County Clerk and Recorder concurrently with recordation of the final plat. Guarantee shall be provided as required by section 26-418 . 3. If public land dedications or easements are not conveyed by final plat, deeds or other documents of conveyance for such dedications shall be executed and recorded with the Jefferson County Clerk and Recorder concurrently with recordation of the final plat. 4. Fees in lieu of parkland dedication , if required by section 26-414 , shall be paid at time a recordable document is submitted . 5. Fees in lieu of constructing public improvements , if required , shall be paid at time a recordable document is submitted. 6. For lot line adjustments , a deed to transfer title of property from one owner to the other must be recorded along with the plat. 7. If the applicant fails to provide all required recordable documents within ninety (90) days of final action , the approval shall expire . The community development director is authorized to grant, in writing , one (1) or more extensions of time, for period of not more than thirty (30) days each. The extension shall be requested in writing and justifiable cause shown. 8. No building permits shall be issued until the plat is recorded . E. Review considerations. Decisions on subdivision applications are technical and non-discretionary in nature. The regulations and standards of this article shall be used 10 by the city council, planning commission, and community development director in judging the merits of the application submitted for review. F. Appeal. Because of the technical and non-discretionary nature of subdivision decisions, an appeal may be filed only when a decision is based in whole or in part on an incorrect finding of compliance with these regulations. 1 . Appeals may be filed by the applicant or property owner. 2. A written appeal shall be submitted to the community development department within ten (1 0) days of a decision. 3. Any appeal of the community development director's decision shall be heard by the planning commission at a public hearing in accordance with section 26-109. 4. Any appeal of the planning commission's decision shall be heard by the city council at a public hearing in accordance with section 26-109. Sec. 26-407. -Error correction. Occasionally errors may be discovered on a recorded plat, and revisions are necessary which do not affect the character of the subdivision. It is the intent of the city to establish reasonable standards and administrative procedures to correct such errors in order to protect the interests of affected property owners. A. Types of errors. Minor errors which are eligible for administrative correction include, but are not limited to, the following: 1 . Typographical and spelling errors or transpositions. 2. Incorrect seals. 3. Incorrect dates. 4. Monumentation incorrectly noted, drawn or missing. 5. Incorrect or missing bearings and/or dimensions on the drawing. 6. Missing or incorrectly displayed arrows or symbols. 7. Street name changes or corrections. 8. Removal of or revisions to utility easements upon approval of all affected utility companies. 9. Additions to or deletions from the legal description or dedicatory language that are not typographical in nature. 1 O.lncorrect certificates or signatures. 11 . Other items or circumstances to be determined by the community development director and/or the director of public works. B. Correction procedure. Corrections approved by the community development director and any affected agencies are made by an affidavit of correction. The affidavit is prepared by city staff, and any necessary exhibits are prepared, signed and sealed by the professional land surveyor of record. The affidavit is signed as needed and 11 appropriate by the owner, land surveyor, community development director, mayor, and city clerk. The affidavit shall reference the title of the original subdivision and be recorded with the Jefferson County Clerk and Recorder's office. C. In no instance shall additional parcels be created, lot lines adjusted or the general character of the subdivision be altered by an affidavit of correction. Sec. 26-408. -Resubdivision. The redivision of any lot, tract, or parcel or the relocation of public streets within an approved subdivision shall be considered a resubdivision or replat and shall require a new application subject to the procedures described in section 26-406. Sec. 26-409. -Variances and waivers. A. Review procedure. Any subdivision application that includes a request for a variance or waiver shall be processed as a major subdivision and reviewed by planning commission and city council. B. Variance . Where a subdivider proposes a plat that does not fully comply with the development standards contained in these regulations or in the zoning code, the subdivider must provide a written variance request as part of the application contents. The variance request shall be considered pursuant to the procedures, review criteria, and voting ratios set forth in sections 26-115 and 2-53 (d). C. Waiver. A waiver is a permitted exemption or reduction from a design principle or required improvement based on the specific conditions, circumstances or design context of a development proposal. The burden of demonstrating that a waiver is justified falls on the applicant. 1 . Process. The applicant shall submit to the community development department a letter requesting the waiver and providing justification addressing the review criteria in subsection 2 below. The waiver shall be considered concurrently with review of the final plat. Final action on the request shall be made by city council. 2. Review criteria. a. Unique physical circumstances exist that limit the ability of the property to comply with the regulations set forth in this article. Special circumstances or conditions include narrowness, unusual shape, exceptional topographic conditions, floodplains, or other extraordinary situations. Financial difficulties, loss of prospective profits and previously approved exceptions in other subdivisions shall not be considered as special circumstances or conditions; or b. An alternative design exists that will meet the intent of the standards and requirements set forth in this article. The waiver: i. Shall provide for orderly subdivision of land; ii. Shall benefit the public without detriment to public interest or surrounding properties; 12 iii. Shall not be in conflict with the comprehensive plan or the spirit of approved policies and regulations; and iv. Shall not endanger public safety. Sec. 26-410.-Application contents. A. Application contents. A complete subdivision application shall include: 1. Complete and notarized application form. 2. Appropriate fee. 3. Proof of ownership, such as copies of deeds. 4. Written authorization from property owner(s) where an agent acts on behalf of the owner(s). 5. A written description of the request. 6. Mineral rights certification form. 7. Commitment for title insurance, if applicable. 8. Geodetic surveying requirements checklist, completed and signed by surveyor. 9. Closure sheet(s) for the exterior boundary and all individual lots, with the area rounded to the nearest square foot and acreage to four ( 4) decimal places. 10. Final plat. The application shall include the appropriate number of copies and electronic files, as determined at the pre-application conference. All final plats shall comply with C.R.S. Article 51, Title 38. All form and content requirements shall be met, as described below in subsections 8 and C. 11. Supplemental reports. In addition to the information contained on the final plat supportive information may be required in the format of hard copies, electronic files, or both. These may include, but are not limited to: a. Trip generation or traffic report; b. Final drainage report and plan; c. Grading, drainage, and erosion control plan; d. Stormwater management plan (SWMP); e. Stormwater operations and maintenance manual (O&M Manual); f. Civil construction plans; g. Subdivision improvement agreement or development covenant agreement; h. Exhibit and deed for partial right-of-way dedications; i. Homeowner's association declaration or agreement. B. Form of final plat. 1. Maps of the subdivision plat shall be drawn at not less than a scale of one (1) inch equals one hundred (100) feet. 13 2. Outer dimensions of the map shall be twenty-four (24) inches by thirty-six (36) inches with the following minimum margins: at least one ( 1) inch along the top and at least one-half (/'2) inch on the bottom and right sides. 3. Once a plat is approved, the plat shall be photographically reproduced or computer plotted on four millimeter (.004) thick mylar. No sticky-backs, transfer lettering, or labels shall be used on the mylar. All signatures must be permanent black ink. No ball point pens shall be used . 4. Maps of two (2) or more sheets shall be referenced to an index map placed on the first sheet and each sheet shall be numbered (e.g. sheet 1 of 3). C. Content of final plat. 1. Project information. a. Title of document. The title of the subdivision shall not duplicate another subdivision plat title in the records of the Jefferson County Clerk and Recorder's office. b. A surveyed metes and bounds legal description of the platted boundary, with section ties to two (2) section corners in conformance with city geodetic surveying requirements. Coordinates for all section corners, and quarter- section corners, and PHAC points used shall be consistent with the City of Wheat Ridge current city datum, and are available from the public works department. c. Basis of bearing statement, consistent with current city datum. d. Small scale location map, with north arrow and scale. e. Name, address, and phone number of architect, engineer, or surveyor associated with the project. f. Appropriate signature and certification blocks as determined by the community development department, such as for owners, lenders, and city officials . g. Signature and seal of the Colorado licensed professional land surveyor along with a statement that the survey was performed by him/her or under his/her direct responsibility, supervision, and checking, and in accordance with all City of Wheat Ridge requirements and applicable Colorado Statutes, current revised edition, as amended. h. Release of areas dedicated to public use by mortgage or lien holder. i. Standard easement notes as determined by the community development department. j. Dedicatory statement, if applicable. k. Case history box with reference case numbers . 2. Graphical information. a. All items on the City of Wheat Ridge geodetic surveying requirements for final plats shall be adhered to and provided on the plat. 14 b. Graphical representation of property boundary consistent with legal description. c. Lot areas and dimensions for each lot, tract, and parcel. d. Accurate dimensions for all lines, angles, and curves used to describe boundaries, streets, alleys, easements, areas to be reserved for public use, and other important features. i. Distance and bearings shall be on current city datum. ii. All curves shall be circular arcs and shall be defined by all of the following: the radius, central angle, arc length, chord length, and chord bearing. iii. All dimensions, both linear and angular, are to be determined by an accurate control survey in the field which must balance and close within a limit of at least one (1) in fifty thousand (50,000). iv. No final plat showing plus or minus dimensions will be approved. v. Total area shall be rounded to the nearest square foot and acreage to four ( 4) decimal places . e. Monument information, including: i. A description of all monuments that mark the boundaries of the property, both found and set, and a description of all control monuments used in conducting the survey. ii. Right-of-way survey monuments shall be established per City of Wheat Ridge standard specifications for all new roadways or relocation of existing roadways, at all new road right-of-way centerline intersections, center of radius for cui-de-sacs, and at the end of the centerline for dead end streets. Right-of-way survey monuments may also be required at roadway centerline points of curvature, points of reverse or compound curvature, and points of tangency, as determined by the department of public works. iii. Coordinates for all control monuments used shall be consistent with the current city datum. f. Identification of all proposed lots, blocks, and street names. Tentative addresses for each lot shall be provided by the city. g. Identification of existing streets, alleys, parks, and other public facilities. h. Identification of all easements within and abutting the subject property, including the purpose and dimensions. If any easement already of record cannot be definitely located, a statement of its existence and its recorded reference shall appear on the plat title sheet. i. Identification of adjacent property by subdivision name, lot, and block . If adjoining land is unplatted, it shall be identified as such. j. Identification of zoning within and adjacent to subject property. k. Identification of areas reserved for future public acquisition. 15 I. Extent of 1 00-year floodplain and floodway, if applicable. m. Legend , north arrow, and scale (not to exceed 1" = 1 00 '). Sec. 26-411. -Subdivision design. A. General requirements . 1. Name of subdivision. The title of the subdivision shall not duplicate another subdivision plat title in the records of the Jefferson County Clerk and Recorder's office. 2. Compliance with other provisions. All subdivisions shall comply with applicable zoning, design, and development regulations set forth in Chapter 26. B. Blocks. 1. Block lengths and widths shall be suitable for the proposed land uses and for the zoning requirements pertaining to minimum lot sizes and dimensions. 2. In blocks over one thousand (1 ,000) feet long , mid-block pedestrian crosswalks may be required as determined by the department of public works. 3. For property in a mixed use zone district, block size shall also conform to requirements in section 26-1108.B. C. Lots. 1. All lots shall be developable and capable of being built upon. Where undevelopable tracts are necessary for purposes other than building, the plat should designate the tract and identify the purpose, maintenance, and ownership of such. 2. Lots shall meet all applicable zoning requirements. a. Individual townhouse lots shall be exempt from minimum lot size, lot width, and interior side yard setback requirements , so long as the development parcel for the entire multi-unit townhouse building meets all standards of article II. Individual townhouse lots shall not be developed for any purpose other than town homes, and the plat shall include a note to this effect. 3. Through lots shall be avoided, except where essential to provide separation from major arterials. 4. Side lot lines shall be substantially at right angles or radial to street lines when feasible. 5. Reverse corner lots shall be avoided where possible. 6. All lots or parcels created by subdivision shall have access to or frontage upon a public street as required by 26-609. 7. Flag lots are not encouraged but are permitted when they are the most appropriate development option as determined by the community development director. Use of a flag lot design shall meet the following criteria: a. The minimum width of the pole portion abutting a public street is 25 feet. 16 b. Use of a flag lot design is necessary for effective development of land. c. The proposed design does not negatively affect public safety and includes clearly defined access for private use and for emergency service . D. Transportation and connectivity. 1. In all subdivisions, the vehicle access and circulation system shall accommodate the safe, efficient, and convenient movement of vehicles, bicycles, pedestrians and transit through the development as well as to and from adjacent properties and land uses. 2. The layout and design of all sidewalks, trails and bicycle paths shall be consistent with the Bicycle and Pedestrian Master Plan and all other adopted plans and policies. 3. The creation of reserve strips adjacent to the right-of-way which may be used to deny access to a street shall not be permitted. 4. See section 26-412 for street design standards. E. Stormwater, drainage, and floodplains. 1. Drainage, wetland, and floodplain areas shall be preserved in their natural state. No encroachments shall be made on existing channels to preserve the natural and beneficial functions. 2. Where drainage and wetland areas are encroached upon, acceptable mitigation shall be provided. 3. The platting of wetland or floodplain areas that are under federal jurisdiction shall be subject to applicable federal review. 4. Any subdivision must allow continued historic flow of waters, and provide drainage easements and stormwater facilities for proposed and actual on-and off-site runoff. 5. Any land within the regulated 1 00-year floodplain or other areas subject to the 1 00-year flood shall not be platted for development unless adequate provisions are made to provide for, to eliminate, or control flood hazards. 6. For any land within a special flood hazard area, the plat shall include base flood elevations and the limits of the 1 00-year floodplain and floodway. 7. All subdivision proposals shall be consistent with the need to minimize flood damage as outlined in Article VIII. F. Slope. 1. Steep land (ten percent slope or greater), unstable land, and areas having inadequate drainage, are problems that may endanger health, life or property. Areas with such problems shall not be subdivided unless acceptable provisions are made by a registered engineer qualified in the particular field which eliminate or control the problems. 2. Such areas may be included as part of a lot or lots where there is a building portion free of such problems. 17 G. Easements. 1. Utility. Utility easements shall be designed to minimize the encumbrance to the lot, to minimize maintenance problems, and to avoid anticipated locations of buildings or street trees. For new streets, utilities may be located within the right- of-way as approved by the public works department. 2. Drainage and irrigation facilities. All proposed on-site stormwater detention facilities shall lie within a stormwater detention easement. Where a subdivision is traversed by an irrigation ditch or channel, natural creeks or streams, an easement sufficient for drainage and to allow for maintenance of the ditch shall be provided. The width and location of this easement shall be approved by the controlling irrigation ditch company or lateral ditch users. When off-site detention, retention or conveyance is required, a recorded easement from the affected off-site property owner is required at the time of plat recordation. 3. Sidewalk. Sidewalk and landscape easements may be required when the sidewalk or streetscape improvements required by the Streetscape Design Manual or Bicycle and Pedestrian Master Plan are not within a dedicated street right-of-way . The width of this easement shall be determined by the public works department. 4. Access. When it is required to have circulation between adjacent properties, cross access/ingress-egress easements shall be provided on the plat. 5. Other easements may be required by the community development or public works departments. 6. All easement areas shall be maintained by the underlying fee simple property owner or appropriate owners' association. All improvements located in, on, over or under the easements shall be maintained by the applicable and/or designated agency. Other improvements provided by the fee simple property owner shall not interrupt nor in any way interfere with the designated and continued use of the easements and improvements located thereon. The city shall not be responsible for maintenance of easements and/or improvements thereon, unless otherwise approved by the city council. H. Nonresidential subdivisions. 1 . Applicants shall demonstrate that street, block, and lot layout in a nonresidential subdivision is appropriate for the anticipated uses. 2. Lots proposed for commercial or industrial development shall be suitable in area and dimension for the types of anticipated development. 3. Vehicular access and circulation should be designed to minimize the number of curb cuts, increase connectivity, and encourage shared access points from the street. 4. Nonresidential subdivisions shall designate areas for appropriate cross access easements. 18 Sec. 26-412.-Street design. A. General. 1. Streets shall conform to the requirements set forth in the subdivision regulations, the comprehensive plan, the Bicycle and Pedestrian Master Plan, and the Streetscape Design Manual of the City of Wheat Ridge. 2. All public streets shall be designed and constructed according to the city's current design and construction standards, the Streetscape Design manual, and the Bicycle and Pedestrian Master Plan. 3. Private streets shall not be allowed. 4. Fire apparatus access roads shall comply with the requirements of the appropriate fire protection district. 5. Street names shall conform to the standard metropolitan grid pattern, as outlined in section 26-639. B. Access. 1. For residential subdivisions, all lots shall have frontage on a public street with the exception of those lots served by private drive or easements. Private drives shall have a minimum width of 25 feet, shall be designated by recorded easement, and shall provide access to no more than four (4) dwelling units. 2. Whenever possible, residential lots shall not front on arterials (Class 3) or collectors (Class 4). Access to a freeway, arterial or collector shall occur only at intersections approved by planning commission and city council. Such design shall be reviewed by the director of public works in consultation with the city traffic engineer. 3. Any use providing access to an expressway, arterial, collector, state highway or interstate frontage roads, may require the subdivider to construct and dedicate acceleration and/or deceleration lanes along those streets upon which access is obtained. This requirement shall be determined at the time of subdivision, site plan approval for planned developments, rezoning or building permit review and shall be in accordance with the criteria of section 26-620. C. Connectivity. 1. The proposed street layout shall provide for the continuation of existing, planned or platted streets in the surrounding area unless the city determines that such extension is undesirable for specific reasons of topography or design. 2. Proposed streets shall be extended to the boundary of a subdivision to provide for future connections to adjoining lands. 3. If a dedicated or platted half-street or partial right-of-way is adjoining or parallel to a subdivision boundary, the other half of the street shall be dedicated. D. Design. 1. Right-of-way standards. 19 a. Street and alley rights-of-way shall conform to the city's current standards for width, grade, and design as determined by the public works department. 2. Cui-de-sacs. a. Cui-de-sacs shall have a turnaround right-of-way diameter of at least ninety (90) feet. b. For cui-de-sacs less than two hundred (200) feet in length in a single family area, an alternate design such as a "Y", "T", "L", or loop may be considered and approved by the city if the standard design is not feasible. c. The center of the cul-de-sac bulb shall not be longer than seven hundred fifty (750) feet from center line of the intersecting street. d. Surface drainage on cui-de-sacs shall be directed toward the accompanying street or where necessary to a natural watercourse or natural drainage basin if approved by the director of public works. Drainage easements may be required through abutting lots where no alternative is capable of carrying drainage. e. In the case of temporary cui-de-sacs, the provision for reduced lot widths does not apply. Temporary cul-de-sac eyebrows shall be dedicated as tracts on the subdivision plat. Radial lot lines shall not be allowed on temporary cui- de-sacs. 3. Dead-ends. a. Dead-end streets, with the exceptions of cui-de-sacs , shall be prohibited unless they are designed to connect with future streets in adjacent land that has not been platted, in which cases a temporary cul-de-sac bulb shall be required. The "eyebrows" of temporary cul-de-sac bulbs shall be designated as tracts on the plat. 4. Intersections. a. Arterial and collector streets shall be aligned to join with planned or existing streets. b. Additional right-of-way or pavement width may be required at intersections. The design of intersections shall be determined by the public works director, or when applicable, the Colorado Department of Transportation. c. Intersections of streets shall be at right angles whenever possible and shall not exceed a variation of ten (1 0) degrees from a right angle. d. When "T" intersections are used, the center lines of the streets not in alignment must be offset a minimum of three hundred (300) feet when connected to a collector street and one hundred fifty (150) feet when connected to a local street. 5. Reverse ("S") curves. a. Reverse curves on arterials shall be joined by a tangent section at least two hundred (200) feet in length. Reverse curves on collectors shall be joined by a tangent section at least one hundred (100) feet in length. 20 6. Grade and Topography. a. Streets shall be designed to bear a reasonable relationship to the topography of the land to the maximum extent feasible. b. The maximum grade by street classification shall not be exceeded; maximum grade is determined by the public works department. Sec. 26-413.-Dedications and exactions, general provisions. A. Plat dedications. 1. Dedications of rights-of-way for public streets, utility easements, drainage and maintenance easements, and other interests required under the provisions of this article shall be made by the subdivider on the plat unless otherwise directed by these regulations or city council. B. Expansion or redevelopment of existing developments. 1. When existing development does not meet current design standards or is insufficient regarding current service capacities, the city shall require dedications or exactions to adequately meet the current standard or need upon development, redevelopment or expansion of these properties. 2. Dedications required at the time of issuance of a building permit for development, redevelopment, expansion or change of use shall include up to a half-width street dedication and/or construction based on street standards in the subdivision regulations, comprehensive plan, Bicycle and Pedestrian Master Plan, and Streetscape Design Manual. These construction improvements could include street reconstruction, paving, curb, gutter, sidewalk or other improvements deemed necessary by the director of public works. See section 5-45. 3. These dedications or exactions can be required at the time of rezoning, subdivision or building permit. Sec. 26-414.-Dedication of public parks and sites. A. Public parks and trails. 1. Purpose. Parkland dedication is based on the presumption that new residents create additional demands for and burdens on park, trail, open space, and recreation facilities . Land dedication for park facilities or cash-in-lieu fees are roughly proportional to the demands created by new residential development and contribute to the cost of acquisition and/or improvement of new or existing facilities. 2. Applicability and exemptions. a. The requirements of this section apply to the following types of development and subdivision: i. Residential subdivisions. ii. Residential development. 21 iii. Replatting or redevelopment that results in an increase in the number of dwelling units . b. Exemptions. Nursing homes and similar confined care or skilled nursing facilities are exempt from the requirements of this section . 3. Process for assessing parkland needs. a. As part of the subdivision review process, an application shall be referred to the parks and recreation director to determine whether land dedication or cash-in-lieu payment is appropriate. b. A determination shall be based on the available land area within the development or subdivision and based on the city 's Parks and Recreation Master Plan. 4. Requirement for parkland dedication. a. Land dedication or cash-in-lieu required. The owner/developer of land to which this section applies shall, at the option of the city, either: i. Convey to the city in fee simple no less than seven and one-half (7.5) acres per one thousand ( 1 000) people based on the projected population for the development and determined in accordance with this subsection; or ii. Pay to the city a sum of money based on a per acre fee adopted by resolution of the city council. A cash-in-lieu fee schedule shall be established with consideration for the per acre costs of acquiring and improving park land . b. Population density standards . For the purpose of determining park land dedication requirements, the projected population of a residential development or subdivision shall be based on the following density factors: i. Residential development: citywide average household size (a) This density factor shall be based on city housing and population data , expressed as a number of persons per dwell i ng unit , as established by the community development director on an annual basis and published in the manner provided for publication of ordinances under the Wheat Ridge Home Rule Charter. ii. Housing within a designated urban renewal area: 1. 7 persons per dwelling unit iii. Housing within a mixed use development: 1. 7 persons per dwelling unit (a) For the purposes of this section, mixed use shall mean the development of a parcel or parcels that includes residential and non- residential primary uses on the same site. iv. Housing within ~-mile of a transit station: 1.7 persons per dwelling unit (a) For the purposes of this section , a transit station shall mean the property of any RTD Gold Line commuter rail station , RTD Park-n- Ride, or RTD Transfer Station. 22 v. Housing for seniors: 1.5 persons per dwelling unit (a) For the purposes of this section, senior housing shall be limited to a development qualifying as intended for, and qualifying as, "housing for older persons" pursuant to the Federal Fair Housing Act (42 U.S.C. Section 3607(b)(2), as amended). In the event that a development intended for "housing for older persons" fails to qualify for such status under the applicable provisions of the Fair Housing Act or pertinent regulations, or having achieved such status thereafter relinquishes or otherwise fails to maintain such status, additional land dedication or cash-in-lieu payment shall be required, based upon the appropriate density factor set forth in this subsection. c. Calculation. The following formula shall be used to determine the minimum amount of land to be dedicated: [(number of proposed dwelling units) x (density factor) x (7.5 acres)]+ 1000 people d. Form and timing of dedication. If land dedication is acceptable, the site shall be free of all liens and encumbrances and shall be conveyed to the City either on the plat or by warranty deed at the time the plat is recorded, accompanied by a current title commitment showing the property free from liens and encumbrances, in a form approved by the community development director. e. Form and timing of cash-in-lieu payment. Cash-in-lieu payments shall be paid to the City by certified check and deposited in the City account to be used solely for the acquisition, development, or improvement of parks, open space, bicycle and pedestrian trails, and related facilities. For subdivisions, payment shall be made at the time the plat is recorded. For development, payment shall be made prior to building permit issuance. 5. Required improvements on and adjacent to park land dedication. The subdivider shall be responsible for the cost of park development and all of the required public improvements for streets adjacent to dedicated parks, as outlined in an improvement agreement per section 26-418. 6. Required improvements on existing park land. The city shall be responsible for road construction improvements on or adjacent to existing park land or other publicly-owned property. 7. Prior dedications. In the event the land being subdivided has been annexed and as part of the annexation proceedings has been subject to a park land contribution, or a cash payment in lieu thereof, or a dedication for public purposes, then the requirements as herein set forth for land or cash in lieu of land shall be waived. B. Dedications for other public sites. 1. Dedication of sites for public use, such as schools and fire stations, shall be delineated on the final plat with appropriate dedicatory statements on the plat. 2. At the discretion of the public agency requiring the dedication , cash in lieu of land dedication may be required. The cash-in-lieu fee shall be equivalent to the full 23 market value of the acreage required for park land dedication. Value shall be based on anticipated market value after completion of platting and construction of public improvements. Sec. 26-415.-Dedication of public streets. A. Dedication. Street dedication requirements shall be based on the city's adopted comprehensive plan, the Bicycle and Pedestrian Master Plan, and the Streetscape Design Manual of the City of Wheat Ridge. 1. Full. Dedication of a public street shall be by plat and shall be processed as a major subdivision. 2. Partial. A partial right-of-way dedication is acceptable if it is required to complete a substandard street already in existence. a. Half streets. For streets on the perimeter of a subdivision, the subdivider may be permitted to dedicate sufficient right-of-way to provide an adequate street width for two (2) lanes of traffic in accordance with the city's standards and specifications. In such instances, the subdivider shall be required to construct one-half of the street width plus six (6) feet or other design as determined and approved by public works department. If on street parking is desired, more right-of-way will be required. b. Administrative or minor subdivision. Where a partial right-of-way dedication is required as part of an administrative or minor subdivision application, the right-of-way may be dedicated to the city by separate document. On the plat, the right-of-way to be designated shall be labeled as a tract, and a plat note shall indicate that the dedication of the tract will be by separate instrument. An exhibit and deed shall be prepared, signed and sealed by the professional land surveyor of record and submitted to the community development department as part of the application packet. B. Future right-of-way expansion note. 1. When a development parcel is adjacent to a public street for which widening is not imminent but is contemplated in adopted plans of the city, county, Denver Regional Council of Governments, and/or the Colorado Department of Transportation, a note shall be placed on the plat identifying the proposed expanded right-of-way line. 2. By identifying the proposed expanded right-of-way line, the subdivider acknowledges there may be a future reduction in the usable area of the site in connection with a future roadway widening. Buildings are strongly discouraged within this area. Sec. 26-416. -Vacation of right-of-way and removal of easements. A. Right-of-way vacation. 24 1. Any subdivision application including a request for right-of-way vacation shall be processed as a major subdivision in accordance with sections 26-406 and 26- 118. 2. Right-of-way vacations by plat shall be noted as being "hereby vacated by this plat." B. Easement removal. 1. Easements vacated by plat shall be noted as being "hereby vacated and released by this plat." 2. Easements requested to be vacated separately from a plat application may be processed as error correction. The applicant shall include written and notarized approval from affected property owners and utility agencies. See section 26-407 C. Separate sheets for vacation and rededication may be necessary for clarity. Sec. 26-417.-Required public improvements. A. Applicability. Provision of public improvements may be required as a condition of approval of a subdivision or development application. B. Compliance with city standards. 1. Specifications for all public improvements are to be determined by the public works department, or in the case of utilities, by other reviewing agencies. 2. No public improvements shall be made until all engineering plans and specifications have been reviewed and approved by the department of public works and all applicable permits have been obtained. C. Types of public improvements: 1. Street and/or streetscape improvements. Construction of street improvements or payment in lieu is required only for certain types of subdivision or development applications as outlined in subsection E below. Street improvements include, but are not limited to, the following: a. Paved streets. b. Paved alleys (when platted). c. Curbs and gutters. d. Sidewalks, attached or detached. e. Streetscape enhancements, including but not limited to street lights, amenity zones, and street furniture. Refer to the city's Streetscape Design Manual. f. Traffic control devices, including but not limited to street name signs and signals. g. Landscaping. h. Other improvements as specified by the director of public works or other reviewing agencies. 25 2. Drainage improvements. The subdivider/developer is responsible for installing drainage improvements including, but not limited to, the following: a. Storm drainage improvements, storm sewers, open drainage channels, water quality/detention and related facilities. b. Erosion control measures, in accordance with sections 20-1 through 20-4 of the municipal code and based on the current Urban Drainage and Flood Control District Criteria Manual. 3. Utilities. The subdivider/developer is responsible for installing utilities. a. All new development shall be served by public water and sanitary sewer lines through the appropriate district. b. The following utilities shall be provided : i. Water lines. ii. Sanitary sewer lines. iii. Electric and natural gas lines. iv . Telephone, cable, and similar utility services. v. Fire hydrants. Fire hydrant location, spacing and fire flow shall be determined by the fire chief of the local fire district with due consideration of their possible use as may be reflected by the hazards of the locality. c. The placement of utilities shall be as follows: i. All new utilities shall be placed underground. ii. Certain components may be placed above ground, including transformers , switching boxes, terminal boxes, meter cabinets, pedestals, ducts, and other facilities necessarily appurtenant to such underground utilities. Electric transmission and distribution feeder lines and communication long distance trunk and feeder lines and necessary appurtenances thereto may be placed above ground. Such above ground facilities shall be placed within easements or public rights-of-way provided for particular facilities. 4. Monuments . The subdivider is responsible for installing the following monumentation in compliance with Colorado State Statutes and with current city standard: a. Permanent survey monuments, range points, and lot pins. b. Monumentation of right-of-way. City will furnish right-of-way monument and range box hardware upon request. 5. Other improvements. The subdivider is responsible for installing other improvements required by the city, utility or special districts. D. As-built plans upon completion. 1 . After installation of public improvements, the owner shall provide to the city a copy of "as-built" plans on the current City of Wheat Ridge datum showing the public improvements and specifications in their as-built locations. 26 2. As-built drawings shall be prepared and certified by a registered professional engineer in accordance with the requirements of Wheat Ridge and be submitted prior to the city's issuance of the first certificate of occupancy in the subdivision. 3. As-built drawings shall be provided in hard copy and electronic format. Hard copy drawings shall be signed and sealed by the engineer-of-record. Electronic files shall be an appropriate file format as determined by the public works department. 4. Upon completion of on-or off-site drainage improvements, the engineer-of-record shall provide to the city a letter of certification stating that the various improvements as defined in the approved final drainage report and plan and approved civil construction plans have been accurately surveyed to confirm their construction is in accordance with these documents. The letter of certification shall be written and stamped by the registered engineer-of-record, and shall be submitted for review and approval by the city prior to the issuance of the first certificate of occupancy in the subdivision. E. Required street improvements. 1 . Applicable projects. The provision of street and/or streetscape improvements may be required as a condition of approval for any subdivision or development application that results in the following: a. Dedication or construction of new roads, b. Platting of new lots, c. New development or redevelopment, or d. Additions that increase existing floor area by 60% or more. 2. Construction or payment-in-lieu. Where street improvements are required based on subsection 1 above, construction of improvements or payment-in-lieu is required as follows: a. New public streets. For any subdivision or development that includes a new public street, the applicant shall be responsible for construction of the street and associated public improvements based on current city standards. b. Multifamily residential and non-residential. i. For any subdivision or development associated with multifamily residential or non-residential land uses, the applicant shall be responsible for construction of public improvements based on current city standards. ii. In the event that construction of required improvements would be impractical and if it is recommended by the director of public works and the community development director, the applicant may be required to pay a fee-in-lieu of construction. iii. If fees are paid in lieu of construction, the fee shall be based on an engineer's estimate of the cost the public improvements that would otherwise be built. c. Single-or two-family residential. 27 i. For any subdivision or development associated with single-or two-family residential land uses, the applicant shall be responsible for construction of curb, gutter, and five-foot sidewalk. ii. An applicant may choose to install the improvements or pay a fee in lieu of construction, however in the event that construction of improvements would be impractical and if it is recommended by the director of public works and the community development director, then an applicant may be required to pay a fee in lieu of construction. iii. If fees are paid in lieu of construction, the fee shall be based on the linear frontage of the lot and the prevailing cost of curb, gutter, and sidewalk as determined by the public works department. 3. Timing of payment. If fees are paid in lieu of construction, the fee shall be paid to the city as condition of approval. The timing of payment shall be as follows: a. For subdivision plats, prior to the recordation of an approved subdivision plat. b. For planned developments, prior to the recordation of an approved planned development. c. For other development, fees shall be paid prior to issuance of a building permit or at the time specified in a condition of approval by the community development director, planning commission or city council. Sec. 26-418.-Agreement and financial security for required improvements. In the event that public improvements are required by section 26-417, an applicant shall enter into an agreement with the City that clearly establishes the responsibility of the subdivider/developer to construct any required public improvements. A. Subdivision improvement agreement. 1. The community development department and the subdivider shall prepare an agreement in a format provided by the city which details the obligations of the city and the subdivider/developer, the estimated costs of public improvements to the property, and the amount of letter of credit which is to be supplied by the subdivider/developer. 2. After final action on the final plat, the agreement shall be executed and recorded with the Jefferson County Clerk and Recorder concurrently with recordation of the final plat. 3. In the event that public improvements are required by section 26-417 separately from a subdivision application, this agreement shall be called a public improvement agreement. All provisions of this section shall apply. B. Requirement for financial security. 1. With the subdivision improvement agreement, a letter of credit acceptable to the city must be furnished by the subdivider to ensure the installation and construction of the required improvements in a manner approved by the city and in a reasonable period of time. 28 2. The amount of the letter of credit shall be based upon an itemized cost estimate prepared by the developer and approved by the city. 3. The minimum guarantee shall be for one (1) clearly defined block or one (1) filing of the subdivided area. Each filing shall be clearly defined on the plat and be addressed in the agreement. 4. Form of guarantee: a. The guarantee shall be for one hundred twenty-five (125) percent of the estimated costs of the required public improvements as computed by the subdivider and approved by the director of public works and/or the community development director. b. No security drawn upon a bank or financial institution having any relationship to the subdivider or any principal, director, officer or shareholder of the subdivider (other than the relationship of depositor or checking account holder), shall be acceptable. The city may reject any security for any reason. c. The guarantee shall be in the form of an irrevocable letter of credit in a form satisfactory to the city attorney which guarantees the city that the financial backing is available so that improvements will in fact be completed and paid for. i. The letter of credit may be from any financially responsible lender that is not directly or indirectly owned or controlled by the subdivider. ii. The letter of credit shall be in effect for a minimum period of one (1) year and shall be renewable for subsequent one-year periods at the city's sole discretion. iii. The letter of credit shall be such that the city is assured that the subdivider has funds committed to the amount and for the purpose stated in the agreement and that in the event of a default by the subdivider, the city shall have available to it, upon demand, funds necessary to construct any/or all of the public improvements and pay for the same. 5. Release of guarantee: a. Guarantee shall be held in perpetuity until released by the director of public works. b. The city may release portions of the letter of credit in increments of no less than twenty-five percent (25%) at the discretion of the director of public works upon written request of the subdivider. In such case, an amended letter of credit shall be required. C. Deferred construction/development covenant. 1 . Where prior construction of required improvements under section 26-417 would be impractical and if it is recommended by the director of public works and the community development director, a development covenant may be entered into by the City of Wheat Ridge and the owner. 29 2. The development covenant shall be signed by the director of public works and attested by the city clerk and shall be recorded in the office of the Jefferson County Clerk and Recorder. 3. The development covenant shall be in a format provided by the community development and public works departments. 4. Financial guarantee may not be required in associated with a development covenant. D. Violation of agreement. In the event the subdivider fails to complete or pay for the improvements outlined in the subdivision improvement agreement or development covenant or commits any other breach of the terms of the agreement, the city may enforce the agreement by any suit in law or equity. The city shall have the power to enjoin any subdivider from selling, agreeing to sell or offering to sell subdivided land before a final plat and all required improvements for such subdivided land has been approved by the city . Sec. 26-419. -Forms. A. The community development director shall maintain forms of signature blocks, plat notes and certifications for use in connection with approved plats. B. The community development director shall maintain a fee schedule for the processing of subdivision applications. Fees will be assessed in accordance with section 26-108 and the established schedule. Sees. 26-420-26-500. Reserved. Section 2. Section 2-60 , subsections (i) through (m) of the Code, pertaining to the functions of the planning commission , are hereby amended (with appropriate re- lettering) to read : (i) Minor subdivision plats without public street dedications or public reservations shall be heard and approved by the planning commission at a public hearing . Public hearings shall be conducted following procedures outlined in the subdivision regulations. U) Minor subdivision plats with public street dedications or public reservations shall be heard by the planning commission at a public hearing and shall then be forviarded with their recommendations to city council for final approval. Public hearings shall be conducted following procedures outlined in the subdivision regulations. (k) Wherein the planning commission has denied a minor subdivision, an applicant may appeal that decision to city council in accordance with paragraph (f) of this section. Wherein the planning commission has approved such a minor subdivision, aggrieved adjacent property o•.vners may appeal that decision to city council in accordance with paragraph (f) of this section. (I) Special use permits for curb cut modification, parking lot buffering and parking in front of multifamily developments shall be decided by the planning commission. 30 (m)Amendments to the subdivision regulations shall be initiated by the planning commission or referred to it by the oity oounoil. The commission's recommendation shall be forwarded to tho oity oounoil for amendment andJor approval within thirty (30) days of referral of a proposed amendment by the oity oounoil. The date of referral shall be the date on whish the oounoil makes its dooision to refer the proposed amendment to the planning commission. Failure to make any recommendation to the oity oounoil within the thirty day time period shall be deemed a recommendation for approval of the proposed regulation without comment and a referral of the proposed amendment bask to the oity oounoil for necessary action. The oity oounoil may extend the thirty day period based upon a finding that suoh extension would serve the best interests of the oity. Section 3. Section 5-45 of the Code, pertaining to required public improvements and building permits, is hereby repealed and reenacted to read: (a) Applications for building permits shall be reviewed by the director of public works to determine whether the proposed construction will require the installation or construction of public improvements including, but not limited to, street paving, curbs, gutters, sidewalks, drainage facilities, or other improvements as may be required by this section or the subdivision regulations. (b) The requirements of sections 26-413,26-414, 26-415,26-417, and 26-417 pertaining to public improvements and the dedication of streets, parks, and public sites shall apply to any site development regardless of whether the application is subject to subdivision review. (c) If a fee-in-lieu of parkland dedication is required by section 26-414, the requirement shall be included as a condition of approval on the building permit and payment shall be made to the city prior to issuance of a building permit. (d) If public improvements are required by section 26-417, the requirement shall be included as a condition of approval on the building permit. If fees are paid in lieu of construction as provided in section 26-417, payment shall be made to the city prior to issuance of a building permit. (e) Any owner, contractor or developer who is aggrieved by a decision of the director of public works requiring installation of such public improvements or payment of funds in lieu of construction shall have the right to appeal the director's determination to the board of adjustment pursuant to section 2-61. (f) The public works director shall have the authority to close any escrow held by the city under the prior version of this section, for commercial or industrial projects and refund the monies to the original depositor, upon satisfaction of the following conditions: (1) The escrow has been held by the city for ten (1 0) years or more; (2) Written notice and an opportunity for hearing before the public works director shall be given by certified mail to the last known address of the developer; (3) The director must find that the original purpose of the escrowed funds has been or cannot be fulfilled. 31 Section 4. Section 26-106 of the Code, entitled "Review process chart" is hereby amended to read: TABLE INSET: Pre -Application Final Approval Requested Notes Staff Neighborhood Staff PC cc BOA URPC [ ... ] Major Subdivision X H H URA ART IV § ~e 4Q4.G Minor Subdivision X M M YAA § ~e 4Q4 .B (•.Wdedisations) Minor Subd ivi sion Appeal to CC (wlo dedisations) X H URA ART IV § ~e 4Q4.B ADMINISTRATIVE X A ART IV SUBDIVISION Minor Plat Gorrestion , § ~e 4QQ X A Affiendffient , Revision bot bine .A.djustffient X A § ~e 4~g Gonsolidation Plat +§ 2e 4Q4 .D X M M YAA (vlfdedisatien) Gonsolidatien Plat 4X A YAA § ~e ~ 11 (wl-o dedisatien) [ ... ] ~ If five (5) or fewer parcels , minor subdivision process applies. If more than fi'le (5) parcels, major subdivision process applies . Section 5. Section 26-108 , subsection A of the Code , pertaining to site development fees, is hereby amended to remove reference to an outdated fee schedule: A. Procedure for payment. At the time the application for site development is first submitted to the city , and prior to any review, the applicant shall pay to the city the fee necessary to cover the administrative and review costs for each project requiring review. The amount of the fee shall be established by the community development department and KEPT is shown on Appendix A [on file in the office of the city clerk}. Section 6. Section 26-110 , subsection A of the Code , pertaining to public dedications and improvements, is hereby amended to read: 32 A. PUBLIC DEDICATIONS AND IMPROVEMENTS MAY BE REQUIRED IN CONNECTION WITH SEVERAL TYPES OF SITE DEVELOPMENT APPLICATIONS. The requirements of sections 26-413, 26-414, 26-415, 26-417, and 26-418 26 412, 26 413 and 26 421, pertaining to subdivision review PUBLIC IMPROVEMENTS AND THE DEDICATION OF STREETS, PARKS, AND PUBLIC SITES, shall apply to public dedications and improvements and security therefore required in connection with any site development APPLICATION, INCLUDING THOSE not requiring subdivision review. Section 7. Section 26-115 of the Code is hereby amended to remove reference to waivers: Sec. 26-115. Variance/waivers/temporary permits/interpretations. [ ... ] B. Application requirements. All requests for a variance, wai•;er, temporary permit or interpretation, as described herein, shall be made by the filing of an application, together with the required fee and supporting documentation. [ ... ] C. Variances and v;aivers: 1. Administrative variances fifty (50) percent or less: The director of community development is empowered to decide upon applications for administrative variances from the strict application of any of the "development standards" pertaining to zone districts in article II and sections 26-501 (Off-street parking) and 26-502 (Landscaping requirements), and 26-603 (Fencing) and Article VII (Signage) of this chapter, which apply throughout the various zone district regulations and in other situations which may be specifically authorized in the various sections, without requirement of a public hearing, under the following conditions: [ ... ] d. That no additional dwelling units would result from approval of such variance or waiver. [ ... ] 3. Variances of more than fifty (50) percent: The board of adjustment is empowered to hold public hearings to hear and decide only upon appeals for variances from the strict application of the development standards pertaining to zone districts in article II, sections 26-501, 26-503, 26-603 or Article VII of this chapter. Where a variance is made a part of another administrative process, such as a change of zone, subdivision or a formal site plan or development plan review which requires a public hearing before the planning commission and/or city council, then the planning commission and/or city council shall be empowered to decide upon such variance request concurrent with such other process; however, in deciding such variance or waiver the planning commission and/or city council shall be subject to the voting ratio as applies to the board of adjustment, set forth in Wheat Ridge Code of Laws section 2-53. In no instance shall the board of 33 adjustment hear or grant a variance as to use or as to an activity or development which is prohibited by this chapter or by section 5.1 0.1 of the Charter. [ ... ] D. Temporary permit for uses, buildings, signs and nonoperative vehicles. [ ... ] 2. One-month temporary permit: The director of community development is empowered to decide upon applications for temporary buildings, uses or signs which would not otherwise be permitted in a particular district, without requirement of a public hearing, under the following conditions: [ ... ] d. The director of community development has notified adjacent property owners in a form and manner as required for minor variances and waivers as set forth in section 26-109, and has received no objections. Any objections must be received in writing and be directly related to concerns regarding the request. General objections regarding existing land use conditions or issues not related to the request will not be considered grounds for objection; and [ ... ] E. Appeals. Appeal of any decision of the board of adjustment or city council which either grants or denies applications for variances, wai'lers, temporary permits, or interpretations may be made by the applicant, the city council or any aggrieved party to district court within thirty (30) days of the decision. Appeal of any such decision of the planning commission may be made by the applicant, or any aggrieved party to the city council within ten (1 0) working days of the decision. Section 8. Section 26-116, subsections C, G and H of the Code, pertaining to planned building groups, is hereby amended as follows: C. Application procedures. All applications for planned building groups shall be filed with the department of community development by the owner of the entire land area to be included and shall be accompanied by the APPROPRIATE APPLICATION fee set forth in Appendix A (which is on file and available for inspection in the office of the city 61efk1, adequate proof of ownership, a certified survey of the parcel, and a site plan under section 26-111. [ ... ] E. Subdivision of land subject to planned building group plan. Where it is desired to subdivide a parcel of land, exclusive of condominium subdivision, which is either currently subject to, or is proposed to be subject to, the provisions of a planned building group plan, all requirements of the underlying zone district shall apply, except that setback from interior lot lines (that is lot lines not abutting public streets or abutting adjacent separately owned property) may be less than normally required if approved by the planned commission at the time of subdivision approval. [ ... ] 34 F. It is the intent of this section that subdivision review may be carried out simultaneously with the review of planned building group plans permitted herein. All requirements of the subdivision regulations for either minor (four (4) or fewer lots) or for major (five (5) or more lots) subdivisions, in addition to those of a planned building group plan, must be satisfied if there are any parcel divisions created, or if there are any dedications for streets or other public purposes. In cases where subdivision requirements are to be met as described herein, the applicant must submit separate sheet(s) in addition to the planned building group plan. Section 9. Section 26-117 of the Code, pertaining to consolidation plats and deeds, is hereby amended by the addition of subsection b (with appropriate re-lettering) as follows: A. REQUIREMENT FOR CONSOLIDATION PLAT. It is the intent of the City of \/'/heat Ridge that where WHEN a development entails REQUIRES the aggregation or consolidation of two (2) or more lots or parcels of land or portions thereof in order to accommodate such development, such shall be considered a development lot. Prior to issuance of a building permit in such instances, the owner shall file a consolidation plat. ALL REQUIREMENTS OF THE SUBDIVISION REGULATIONS MUST BE SATISFIED. Or a eonsolidation deed, together with eertified boundary survey, whish plat or deed and survey shall be reviewed by the department of public works for aecuracy and, if found to be accurate, shall be recorded by the owner with the Jefferson County Clerk and Recorder. See artiele IV for plat requirements. B. PROPERTY MERGER COVENANT. NONCONFORMING LOTS OF RECORD MAY BE MERGED AS A CONDITION OF A PERMIT OR OTHER DEVELOPMENT APPROVAL BY A PROPERTY MERGER COVENANT. A PROPERTY MERGER COVENANT MAY BE USED IN THE EVENT THAT AN OWNER OF TWO OR MORE ADJACENT LOTS WHICH CONTAIN AN EXISTING RESIDENTIAL USE WISHES TO OBTAIN A BUILDING PERMIT FOR AN ACCESSORY STRUCTURE ON THE PROPERTY OR AN ADDITION TO THE EXISTING STRUCTURE. THE COVENANT SHALL ENSURE THAT THE PROPERTY BE HELD AS ONE PARCEL AND SHALL RESTRICT ANY PORTION FROM BEING SOLD SEPARATELY. THE COVENANT SHALL BE IN A FORM APPROVED BY THE CITY ATTORNEY, RECORDED IN THE OFFICE OF THE JEFFERSON COUNTY CLERK AND RECORDER, AND SHALL RUN WITH THE LAND. THE COMMUNITY DEVELOPMENT DIRECTOR SHALL HAVE THE AUTHORITY TO EXECUTE ANY SUCH COVENANT AND ANY RELEASE OF THE COVENANT ON BEHALF OF THE CITY. C. All consolidation plats or consolidation deeds for multifamily dwelling development shall be accompanied by a site plan, as set forth by section 26-111. Such consolidation plats and deeds, together with the site plan, shall be subject to review by the planning commission and city council following the same application procedures, notice 35 requirements and approval procedures and standards for review as for a planned building group. The purpose of these provisions is to avoid the construction of overly large buildings which may negatively impact surrounding neighborhoods by increasing traffic, creating congestion by ingress/egress points, obstructing light and air and by making access for fire protection difficult, and to prevent construction of one ( 1) large building to avoid compliance with the subdivision regulations, and to encourage construction of smaller buildings which could give opportunities for better design of setbacks, landscaping, parking, vehicular and pedestrian circulation and drainage facilities. [ ... ] Section 10. Section 26-118 , subsection A of the Code , pertaining to right-of-way vacations, is hereby amended to read: A. Vacation by plat. When a street is being vacated as part of the platting process it shall be graphically shown and shall be designated as being "hereby vacated". The document for vacation in this instance shall follow the form and content of a final plat outlined in section 26 407 and shall be processed as a major subdivision in accordance with article IVsection 26 4078. All submittal requirements of the platting process shall be provided by the applicant. There shall not be an additional charge for the processing of the vacation in this instance . Section 11. Section 26-210, subsection B of the Code, pertaining to Residential- Two A zone district regulations , is hereby amended by the addition of footnote (h) as follows: Max Min Min Min Min Min Max Bldg Lot Lot Front Side Rear Height Coverage Area Width Setback Setback Setback (a) (b) (c) (c) Principal [ ... ] Buildings Multifamily (3 /more 35 ' 40% 13 ,050sf 100' 25 ' 5' 10' dwelling units) (e) (d) per story (h) [ ... ] (h) INDIVIDUAL TOWNHOUSE LOTS SHALL BE EXEMPT FROM MINIMUM LOT SIZE, LOT WIDTH, AND INTERIOR SIDE YARD SETBACK REQUIREMENTS, SO LONG AS THE DEVELOPMENT PARCEL FOR THE ENTIRE MULTI-UNIT TOWNHOUSE BUILDING MEETS ALL STANDARDS OF THIS SECTION. SEE SECTION 26-411.C REGARDING THE REQUIRED PLAT NOTE FOR TOWNHOUSE LOTS. 36 Section 12. Section 26-211 of the Code, pertaining to Residential-Three zone district regulations, is hereby amended by the addition of footnote (h) as follows: Max Min Min Min Min Min Max Bldg Lot Lot Front Side Rear Height Coverage Area Width Setback Setback Setback (a) (b) (d) (d) Principal [ ... ] Buildings Multifamily (3/more 35' 40% 12,500sf 100' 25' 15' 15' dwelling units) (f) (e) (c) (c) (h) [ ... ] (h) INDIVIDUAL TOWNHOUSE LOTS SHALL BE EXEMPT FROM MINIMUM LOT SIZE, LOT WIDTH, AND INTERIOR SIDE YARD SETBACK REQUIREMENTS, SO LONG AS THE DEVELOPMENT PARCEL FOR THE ENTIRE MULTI-UNIT TOWNHOUSE BUILDING MEETS ALL STANDARDS OF THIS SECTION. SEE SECTION 26-411.C REGARDING THE REQUIRED PLAT NOTE FOR TOWNHOUSE LOTS. Section 13. Section 26-212 of the Code, pertaining to Residential-Three A zone district regulations, is hereby amended by the addition of footnote (h) as follows: Max Min Min Min Min Min Max Bldg Lot Lot Front Side Rear Height Coverage Area Width Setback Setback Setback (a) (b) (d) (d) Principal [ ... ] Buildings Multifamily (3/more 35' 40% 12,500sf 100' 25' 15' 15' dwelling units) (f) (e) (c) (c) (h) [ ... ] (h) INDIVIDUAL TOWNHOUSE LOTS SHALL BE EXEMPT FROM MINIMUM LOT SIZE, LOT WIDTH, AND INTERIOR SIDE YARD SETBACK REQUIREMENTS, SO LONG AS THE DEVELOPMENT PARCEL FOR THE ENTIRE MULTI-UNIT TOWNHOUSE BUILDING MEETS ALL STANDARDS OF THIS SECTION. SEE SECTION 26-411.C REGARDING THE REQUIRED PLAT NOTE FOR TOWNHOUSE LOTS. Section 14. Article VI of Chapter 26 of the Wheat Ridge Code of Laws, concerning supplementary development regulations, is hereby amended by the addition 37 of a new Section 26-639 (previously part of the subdivision regulations) to read in its entirety: Sec. 26-639. -Street naming and numbering. A. Designation. The community development director shall designate the proper street names and numbers and addresses for all structures. B. Guidelines for street naming. 1. The city-wide street numbering system is based upon the Denver Metropolitan system. 2. Streets running east and west are avenues. 3. Streets running north and south are streets. 4. Streets running east and west, halfway between established grids, shall take the name of the avenue preceding, with the suffix "place." 5. Streets running north and south halfway between established grids shall take the name of the street preceding, with the suffix "court." 6. Streets running east and west and connecting with an east and west avenue shall be a "drive ." 7. Streets running north and south and connecting with a north-south street shall be a "way." 8. Horseshoe-shaped streets beginning and ending within a major block, or dead end streets, shall be a "circle." It is suggested that the term "circle" should be used sparingly. If at all possible, a "way" or "drive" should be used except in the case of absolute necessity. 9. Streets should line up on a grid with existing streets and avenues preferably with those existing prominently in the metropolitan area. 10 . Street signs should be readable from each direction of travel. 11. Temporary signs shall be required during construction period. 12. Names should be of simple spelling for easy pronunciation . C. Guidelines for structure numbering (addressing). 1. Structures including those on private drives shall be addressed to the street from which primary access is gained. 2. Numbers shall continue north and south from the base street, Ellsworth, and east and west from the base street, Broadway. 3. Numbers should be systematically spaced from 0 to 99 on each "major" block so that the 50 will be in the middle of the block. 4. Odd numbers shall be on the west and north sides of the street. Even numbers shall be on the east and south sides. 5. All address numbers shall be readable from the street. 38 6. Developments with multiple main structures. In cases where a single development that is under common or unified control or ownership has more than one (1) main structure, each such structure shall be assigned a single address based upon orientation of the primary building access and with regard to the normal grid system for address numbering. 7. Developments with a single building and with multiple units. Except for two-, three-, or four-family residential structures where a single building is divided into multiple units, either for residential or nonresidential, and either as units occupied by renters/lessors or by ownership, (i.e., a condominium or townhouse), each such building shall have a single address with the various units indicated by different means, such as by unit letter or number. A two-, three-or four-family dwelling structure may either have individual addresses, or one (1) address for the building with unit designation as defined above. 8. For circle or horseshoe-shaped streets, numbering shall be in accordance with the numbering on the street or avenue where the horseshoe or circle originates, and numbers should not duplicate those on the major street. D. Notice to place number. 1. It shall be the duty of any owner/occupant of any premises, upon notice from the community development director to cause the official number to be placed on any building so owned or occupied. Such numbering shall be accomplished in the manner required within thirty (30) days after service of such notice. For establishments where fire access is gained from the rear, both rear and front doors shall have the addresses posted . 2. It is unlawful for any owner/occupant to retain or use or to permit to be retained or used upon any building, any number other than the number designated by the community development director. E. Renumbering and renaming. 1. In all cases where a street has been named or numbered or renamed or renumbered pursuant to any other legal requirement, as the same may be required from time to time by action of the city council, it shall be the duty of the community development director to adjust and rename or renumber such streets . 2. The community development director may require or approve a request for a change of address , after proper notification of the owner and all affected agencies, on any property under one ( 1) or more of the following instances: a. In response to a street rename or change in number as described above . b. If an address is out of proper sequence. c. If an odd or even number is on the wrong side of a street. d. If the number series presently in use is incorrect or misleading. e. If a change in a street intersection or street location makes a present address outmoded or misleading . 39 f. Where identical numbers are found on the same street, or on streets which have the same number or name but different suffixes (i.e. street, avenue , place, etc.) g. Where the assigned address is not being used. h. Where subdivision or building development on one (1) large parcel would make an existing address misleading or out of sequence . i. Where the structure is not addressed to the street from which primary access is gained. j. Other situations not stated above which may cause problems with mail delivery, emergency service , or other public safety or service reason as determined appropriate by the community development director. F. Adjustments. In all cases where there is a mistake or conflict in names or numbers , or where some special arrangement varying from the general terms of this chapter is necessary, the community development director shall direct and make the proper adjustment of the same in harmony with the spirit and intention of this chapter. Section 15. Section 26-705 , subsection C of the Code , is hereby amended to remove reference to an outdated fee schedule : C. Fees for the erection of signs ARE ASSESSED AS PART OF BUILDING PERMIT REVIEW AND ISSUANCE shall be established and set forth in Appendix A Permit fees and city use tax will be waived where a nonconforming sign is removed and replaced by a sign conforming with these regulations Section 16. Section 26-708, subsection A of the Code , pertaining to building addresses, is hereby amended as follows: A. Building addresses. 1. House or building address number signs shall be consistent with section ~ 419 C. E. 26-639 of the zoning and development code . Section 17. Section 26-709 , subsection 13.g of the Code , pertaining to residential signs, is hereby amended as follows : TABLE INSET: Table 1. SIGN STANDARDS IN RESIDENTIAL , AGRICULTURAL , AND PUBLIC FACILITIES ZONES (R-1, R-1A , R-1B , R-1C , R-2 , R-2A, R-3 , R-3A , A-1 , A-2 , PF) Permit Maximum Maximum Minimum Type of Sign Allowed Required Size and Number Setback Other Requirements Height [ ... ) g. House or Yes No N/A N/A N/A Must meet the 40 building provisions of Gl=laf3teF address 26 , /\rtiele IV , Sec. 26 number ~SEE § 26-639 signs Section 18. Section 26-710 , subsection 13.g of the Code , pertaining to residential signs, is hereby amended as follows: TABLE INSET: Table 2. SIGN STANDARDS IN COMMERCIAL, INDUSTRIAL AND MIXED USE DISTRICTS (NC , RC , C-1 , C-2, 1-E , MU-C, MU-C TOO , MU-C Interstate , MU-N) Maximum Permit Maximum Minimum Type of Sign Allowed Required Size and Number Setback Other Requirements Height [ ... ] g. House or Must meet the building address number signs provisions of GRaf3teF Yes No N/A N/A N/A 26 , /\rtiele IV, See. 26 ~SEE § 26-639 Section 19. Appendix A of Chapter 26, pertaining to a proposed fee schedule , is hereby repealed. Section 20. Safety Clause. The City Council 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 City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be attained . Section 21. 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 22. Effective Date. This Ordinance shall take effect fifteen (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_ to _ on this 14th day of April, 2014 , ordered published with Public Hearing and consideration on final passa~e set for Monday, April 28 , 2014 at 7:00 p.m., in the Council Chambers , 7500 West 29 1 Avenue , Wheat Ridge, Colorado . 41 READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of_ to _, this day of , 2014. SIGNED by the Mayor on this __ day of _____ , 2014. ATTEST: Janelle Shaver, City Clerk First Publication: Second Publication: Wheat Ridge Transcript Effective Date: Joyce Jay, Mayor Approved as to form Gerald E. Dahl, City Attorney 42 Streetscape Impact Fee Study City of Wheat Ridge, Colorado Prepared March 19 ,2014 Attachment 2 ~""" .... r City of ~WheatR.i_dge I. Introduction The City of Wheat Ridge has identified a need for public streets to include (at a minimum) curb , gutter, and attached sidewalk. This study evaluates a streetscape impact fee that will apply to certain types of development for the purpose of financing curb, gutter, and sidewalk improvements. A development fee or impact fee is a legislatively created , one-time fee that applies to a broad class of development. Impact fees are a common means of generating revenue to finance public improvements. Local governments are specifically authorized by state statute (C.R.S. §29-20-1 04.5) to adopt, calculate , and collect impact fees or other similar development charges for the purpose of capital facilities . The purpose of this study is to establish a reasonable fee that meets three goals: • Ensures consistency when requiring fees-in-lieu of construction for public improvements, • Supports the City's goals of providing bicycle and pedestrian facilities , and • Promotes fair and equitable requirements and fees . II. Level-of-Senrice Standards for Public Streets Among local streets in the Wheat Ridge , curb and gutter are intermittent and sidewalks are rare. Even along arterial and collector roadways , sidewalks are sparse and segmented . Given these existing conditions, the City 's comprehensive plan , Envision Wheat Ridge (2009), includes several goals and policies related to transportation. These address the City 's desire to offer expanded travel options, improve the bicycle and pedestrian network, provide multi-modal connections , and identify funding sources to implement bicycle and pedestrian improvements. In order to implement the comprehensive plan and promote high-quality streets, the City has adopted two guiding documents. The Bicycle and Pedestrian Master Plan (BPMP) was adopted by City Council by motion on August 9, 2010, and the Streetscape Design Manual (SDM) was adopted by City Counci I on March 28 , 20 II through Ordinance 1481. These documents establish cross-sections and minimum design standards for public streets in the City. They also affirm the policy goal of improving street infrastructure and accommodating all users and travel modes within the right-of-way . While the cross-sections in these documents range in size and amenities , the minimum standard provides curb , gutter, and a five-foot attached sidewalk . Ill. Applicability of Deve lopment Fee Funding for implementation of bicycle and pedestrian improvements continues to be a challenge, but incremental improvements have been made with new development. Section 26-417 of the Wheat Ridge Municipal Code addresses public improvement requirements. Where adjacent improvements are substandard or nonexistent, the provision of streetscape improvements can be required as a condition of approval for any subdivision or development application that results in one or more of the following : a. Dedication or construction of new roads , b. Platting of new lots , c. New development or redevelopment, or d. Additions that increase existing floor area by 60% or more. 2 The code differentiates between construction requirements or fees-in-lieu for three categories of development: projects with new public streets , projects for multi-family or commercial land uses , and projects for single-or two-family homes. Of these, the third category is the subject of this impact fee study. When single-and two-family residential development triggers streetscape improvements, an applicant is responsible for construction of curb, gutter, and a five-foot attached sidewalk. This is the minimum standard for a local street and will be required regardless of whether the subject property is adjacent to a local , collector, or arterial roadway. In most circumstances, an applicant may choose to build the improvements or pay a fee-in-lieu. ln the event that construction of improvements would be impractical and if it is recommended by the director of public works and the community development director, then an applicant may be required to pay a fee in lieu of construction. IV. Calculation of Fee Amount If fees are paid or required in lieu of construction , they are calculated based on the linear frontage of the lot and the cost of curb , gutter, and a 5-foot attached sidewalk. Where partial improvements already exist, the fee will be adjusted accordingly. The calculation for a street improvement fee includes four components; these are described below and summarized in Table 1. I. Excavation & Embankment-This includes site grading and ground preparation , including the removal or import of less than one-foot of fill material. The excavated area is area is 7.5 feet wide ; for each linear foot this area is 0.83 square yards in size (7 .5 feet ~ 9 square feet or 1 square yard). 2. Reconditioning-This includes the compaction and stabilization of the ground area prior to installation of improvements. This area is also 7.5 feet wide or 0.83 square yards in size. 3. Sidewalks-This include the material costs for a sidewalk that is 6 inches in depth and 5 feet in width. For each linear foot this area is 0.56 square yards in size (5 feet ~ 9 square feet). 4. Curb and Gutter-This includes the material costs for a standard vertical curb and gutter. Table 1 on the following page shows the median cost of each component as determined by the Public Works Department. These costs will be used to determine the streetscape impact fee and will be adjusted annually based on price fluctuations and inflation. 3 Table 1. Streetscape improvement cost per linear foot, as of March 2014 Quantity Unit Unit Item Item Cost Cost 1 Excavation & Embankment Earthwork-rough grade -7.5' wide 0.83 SY $ 5.98 $ 4.96 Earthwork-fine grade -7.5' wide 0.83 SY $ 1.23 $ 1.02 2 Reconditioning Recondit ioning & proofrolling-7.5' wide 0.83 SY $ 1.97 $ 1.64 3Sidewalk Concrete sidewalk-6" thick and 5' wide 0.56 SY $43.02 $24.09 4 Curb & Gutter Vertical curb & gutter 1 LF $20.64 $20.64 Total cost per linear foot $52.35 SY = square yard LF = linear feet Appendix A includes the City 's standard construction details that are associated with these cost estimates. Using the costs outlined above , the following formula shall be used to determine the street improvement fee for each applicable property: (linear feet of public street frontage) x (streetscape improvement cost per linear foot) V. Timing and Collection of Fees State statute (C.R.S. §29-20-1 04.5) allows fees to be collected at the time of final approval of any development application including for any rezoning, planned development, conditional or special use permit, subdivision , development or site plan , or similar application for new construction. Likewise, Section 26-417 of the Wheat Ridge Municipal Code provides that fees will be collected at the time of final approval. For an approved subdivision plat or planned development this is prior to recordation of an approved document. For other development, fees shall be paid prior to issuance of a building permit or at a time specified as a condition of approval. C.R.S. §29-1-803 provides for the collection of land development fees and allows such fees to be aggregated. All collected fees will be deposited into a city account dedicated for streetscape improvements . 4 APPENDIX A PAY ITEMS : CONCRETE SIDEWALK (6") (SY) ~5-0" • 1 6" l I 2% TO S~"REET . T tiiirk· ~ • ... I SUBGRADE COMPACTED TO MINIMUM DENSITY PER SOIL CLASSIFICATION, COOT SECTION 203.07 SIDEWALK SECTION SIDEWALK SECTION ~ ~ ~ ~ -... .,. City of ~WheatRt_dge DEPTARTMENT OF PUBLIC WORKS ENGINEERING DIVISION APPROVED BY: SNN c Council Action Form April 14 ,2014 Page 2 practices, not only for the community as a whole, but also for municipal operations. Three categories organize municipal goals: waste reduction and recycling, natural resource conservation and management , and energy and transportation. The proposed amendment of section 26-109 builds on an effort of the Community Development Department to further the City's goals related to sustainability and increased efficiency. Letter Notice Section 26-109 of the zoning code establishes the public hearing notice procedure. These provisions require that a letter be sent to each property owner within 300 feet of a subject property. The code specifically requires letters to be sent via USPS certified mail. This service allows a sender to know when an item is delivered or delivery is attempted , but delivery requires the signature of a recipient. Each certified letter now costs the City $3.78 . In addition to cost considerations , certified mailings are no longer an efficient method of notice. The post office attempts to deliver each certified letter three times , and if an adult recipient is not available to sign for it the mailing is returned to the post office and must be picked up there. Many letters are not retrieved resulting in a waste of money and a failure to notify property owners . lfthe City sent public hearing notices by first class mail , savings could be in the thousands of dollars each year. In addition , the likelihood of delivery is increased because a recipient signature would no longer be required. Staff would like to remove the certifi ed mailing requirement from the code and specify that first class mail is acceptable for letter notice. Staff will continue to send mail from the post office to provide evidence of the date that letters were presented to the post office for mailing. Publish ed and Post ed Notice In addition to mailing letters , public hearings are announced through publications and sign postings. The proposed code amendment will include cleanup of two items in the code which are unclear and inconsistent with current practice. Regarding published notice, a public hearing is announced in two places: in a local newspaper (typically the Wheat Ridge Transcript) and also in the Legal Notices section of the City's website. For the last several years , the newspaper publication has included the property address , the land use request, and the hearing details. The website publication includes this same information, in addition to the full legal description. The legal description is excluded from the newspaper because it can be lengthy, confusing, and add cost. The proposed code amendment simply clarifies that this is the current practice. Regarding posted notice, applicants are provided a sign that is displayed on the property for 15 days prior to the public hearing. The code includes an inconsistency in which it mentions a I 0- day and 15-day posting period . Staff is recommending this error be corrected , so the code consistently refers to a 15-day posting period. Council Action Form April 14 , 2014 Page 3 RECOMMENDATIONS: Staff recommends approval of the ordinance. RECOMMENDED MOTION: "I move to approve Council Bill No. 03-2014 , an ordinance amending Section 26-109 of Chapter 26 of the Wheat Ridge Code of Laws, concerning public noticing requirements, on first reading, order it published , public hearing set for Monday, April 28 , 2014 at 7:00 p.m. in City Council Chambers , and that it take effect 15 days after final publication. Or, "I move to postpone indefinitely the ordinance amending Section 26-109 of Chapter 26 of the Wheat Ridge Code of Laws , concerning public noticing requirements , for the following reason(s) " REPORT PREPARED BY; Lauren Mikulak , Planner II Meredith Reckert, Senior Planner Kenneth Johnstone, Community Development Director Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill No . 03-2014 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER-------- COUNCIL BILL NO. 03 ORDINANCE NO. ___ _ Series 2014 TITLE: AN ORDINANCE AMENDING SECTION 26-109 OF CHAPTER 26 OF THE WHEAT RIDGE CODE OF LAWS, CONCERNING PUBLIC NOTICING REQUIREMENTS (CASE NO. ZOA-14-02) WHEREAS, the City Council of the City of Wheat Ridge is authorized by the Home Rule Charter and the Colorado Constitution and statutes to enact and enforce ordinances for the preservation of the public health, safety and welfare; and WHEREAS, in the exercise of that authority, the City Council of the City of Wheat Ridge has previously enacted Chapter 26 of the Wheat Ridge Code of Laws (the "Code") pertaining to zoning, land use, and development; and WHEREAS, the Wheat Ridge City Council ("Council") has previously enacted regulations concerning the noticing requirements associated with public hearings for land use applications; and WHEREAS, the City has identified a need to update these requirements for the purposes of clarity, cost savings, sustainability, efficiency; and WHEREAS, the City believes that this update does not diminish the quality, duration, or extent of public notification; NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Subsection 26-109.8 of the Code, concerning published notice, is hereby amended as follows: B. Newspaper publication PUBLISHED NOTICE. At least ten (10) days prior to any public hearing for a specific site or development which requires approval by the planning commission, board of adjustment or city council, the director of community development shall cause to be published, ON THE CITY'S WEBSITE AND in the legal section of a newspaper of general circulation within the city, a notice of public hearing. The notice shall specify the kind of action requested; the hearing authority; the time, date and location of hearing; and the location of the parcel under consideration by betR STREET address and legal description. A LEGAL DESCRIPTION OF THE PARCEL UNDER CONSIDERATION SHALL ALSO BE SPECIFIED IN THE NOTICE PUBLISHED ON THE CITY'S WEBSITE. [ ... ] Section 2. Subsection 26-1 09.C of the Code, concerning posted notice, is hereby amended as follows: Attachment 1 C. Posted notice . At least ten (10) FIFTEEN (15) days prior to any public hearing for a specific site development which requires approval by the planning commission , board of adjustment or city council , the director of community development shall cause to be prepared , and the applicant shall post , a sign (one (1) per street frontage) upon the parcel under consideration for approval which provides notice of the kind of action requested; the hearing authority; the time , date and location of hearing ; and the location of the parcel under consideration by address or approximate address . The sign shall be posted within the property boundaries , shall be affixed to a flat surface , shall measure twenty-two (22) inches in height by twenty-eight (28) inches in width , shall be elevated a minimum of thirty (30) inches from the ground (however, not more than six (6) feet above ground), shall be visible from the street without any obstructions , shall be legible and displayed for fifteen (15) days prior to the public hearing. The sign shall be maintained in good condition by the applicant throughout the ten (10) FIFTEEN (15) day posting period. The sign shall be removed within seventy-two (72) hours from the date the public hearing is concluded. The fact that a parcel was not continuously posted the full ten (10) FIFTEEN (15) days may not , at the discretion of the hearing authority , constitute grounds for continuance where the applicant can show that a good faith effort to meet this posting requirement was made . Section 3. Subsection 26-109 .0 of the Code , concerning letter notice , is hereby amended as follows: D. Letter notice. At least ten (1 0) FIFTEEN (15) days prior to any public hearing which requires notification by letter, the director of community development shall cause to be sent , by certified FIRST CLASS mail , a letter to adjacent property owners within three hundred (300) feet of the property under consideration and to owners of property included within the area under consideration . The letters shall specify the kind of action requested; the hearing authority; the time , date and location of hearing ; and the location of the parcel under consideration by address or approximate address. Failure of a property owner to receive a mailed notice will not necessitate the delay of a hearing by the hearing authority and shall not be regarded as constituting inadequate notice . Section 4. Subsection 26-115.A of the Code , concerning variances , is hereby amended as follows: A. Purpose. Where it is desired to gain relief from the strict application of any provision of this chapter or to seek an interpretation of the provisions or associated official maps , appeal to the appropriate authority as described below shall be made in accordance with the requirements relating to the specific type of appeal. Where a public hearing is requ i red , notification shall occur by newspaper publication , posting , and certified letter as prescribed in section 26-109 . Section 5. Safety Clause. The City Council 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 City 2 Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be attained. Section 6. 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 7. Effective Date. This Ordinance shall take effect fifteen (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_ to _ on this 14th day of April, 2014, ordered published with Public Hearing and consideration on final passa~e set for Monday, April 28, 2014 at 7:00p.m., in the Council Chambers, 7500 West 29t Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of_ to_, this day of , 2014. SIGNED by the Mayor on this __ day of _____ , 2014 . ATTEST: Janelle Shaver, City Clerk First Publication: Second Publication: Wheat Ridge Transcript Effective Date: Joyce Jay, Mayor Approved as to form Gerald E. Dahl, City Attorney 3 SRC Circulator Bus Service April 14 ,2014 Page 2 BACKGROUND: The City has had a continued partnership with the SRC since its beginning in 1978 and especially after the organization moved into its current headquarters at 3227 Chase Street in 1982. The W11eat Ridge facility serves as the center of operations for all of SRC 's organizational services provided in W11eat Ridge and the rest of the Denver metro area. The circulator bus service makes stops at different senior communities and takes seniors to the Applewood Shopping Center or other stops that are requested , such as Safeway, Super Target and the Fanners' Market. FINANCIAL IMPACT: A total of $30 ,000 was appropriated in the 2014 budget for the SRC circulator bus service for the 2014 fiscal year . A supplemental budget appropriation from General Fund reserves in the amount of $12 ,000 is required to fund the program above the $30 ,000 level. RECOMMENDATIONS: None RECOMMENDED MOTION: "I move to approve Resolution No. 22-2014 a resolution amending the fiscal year 2014 General Fund budget to reflect the approval of a supplemental budget appropriation for the purposes of funding the expansion of the Seniors' Resource Center circulator bus service in the amount of$12 ,000." Or, "I move to postpone indefinitely the approval ofResolution No. 22-2014 for the following reason(s): " REPORT PREPARED BY; Patrick Goff, City Manager ATTACHMENTS; I. Resolution No. 22-2014 CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 22 Series of 2014 TITLE: A RESOLUTION AMENDING THE FISCAL YEAR 2014 GENERAL FUND BUDGET TO REFLECT THE APPROVAL OF A SUPPLEMENTAL BUDGET APPROPRIATION FOR THE PURPOSE OF FUNDING THE EXPANSION OF THE SENIORS' RESOURCE CENTER CIRCULATOR BUS SERVICE IN THE AMOUNT OF $12,000 WHEREAS, the Seniors' Resource Center (SRC) operates a Senior Circulator Bus transportation service in partnership with the City of Wheat Ridge; and WHEREAS, the City wishes to expand the support for this transportation option for older adults in the community, thereby providing assistance in getting to medical/dental appointments, grocery shopping, meal sites, community-based care programs and personal trips; and WHEREAS, the City 's contribution to SRC for this transportation service supports the SRC's efforts in ensuring individual independence, mobility for self-sufficiency and providing the opportunity for our older adults to participate fully in the life of the community; 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 City Council of the City of Wheat Ridge, Colorado, as follows: The City Council authorizes the transfer of $12,000 from the General Fund undesignated reserves to account number 01-102-700-780 and amend the 2014 Fiscal Year revenues accordingly. DONE AND RESOLVED this 14th day of April2014. Joyce Jay, Mayor ATTEST: Janelle Shaver, City Clerk Attachment 1 Council Action Form April 14 , 2014 Page 2 PRIOR ACTION: The Council enabled R WR to secure the April 17, 2008 loan with First Bank by depositing funds with the bank as security for the loan . The loan modification request was presented to Council at a study session on January 27 , 2014. Council provided guidance to bring this item back to a regularly scheduled meeting. FINANCIAL IMPACT: At the January 27, 2014 study session , the amount required to pay down the loan was estimated to be $1 ,397 ,500. This was based on an appraisal previously conducted by First Bank. A subsequent appraisal completed in March , 2014 indicated a lower property value than the existing appraisal. This lower valuation devalued the property from $877 ,500 to $780,000. Therefore, additional funds are required to pay down the loan to the new land valuation. The new pay down amount required is an amount not to exceed $1 ,500 ,000 . These additional funds will not impact the City 's 17% reserve policy. BACKGROUND: RWR, with the assistance ofWheat Ridge 2020 acquired three separate parcels at Wadsworth Boulevard and 44th A venue in order to remove blight and provide redevelopment opportunities. R WR negotiated purchase agreements with the following: • Stancoll , LLC-7300 W. 44th Avenue located at the comer of 44th Avenue and Upham Street. In 2008 , this parcel housed a transmission shop and prior to that , a gas station. RWR paid $390,000 in cash for this parcel. • Milloie Karl-7340 W. 44th Avenue was occupied by the Stage Stop Antique Mall. RWR paid $1 ,950,000 in loan proceeds and cash for the parcel. • Vernon and Marjorie Vohaska-7540 W. 441h Avenue. RWR paid $1,500,000 in loan proceeds and cash for the parcel. At the time of acquisition the 6.2 acre parcel had two structures: a transmission shop at the corner of 44th and Upham Street and the Stage Stop Antique Mall located on the southern portion nearest the Big Lots shopping center. RWR had a tentative land deal identified with Jefferson County for the sale of a majority of the land for construction of a four-story building to house county services including a library, department of motor vehicles, county health facility and other services. In order to prepare the site for development, R WR entered into a Master Development Agreement in 2010 with Weston Solutions, Inc. to assist RWR in platting, subdividing and marketing the site for redevelopment. Over time and due to the recession , the county determined it was not economically feasible to build on the site. In early 2011 the county tenninated negotiations with RWR. RWR elected to continue with remediation and infrastructure improvements on the site for future redevelopment. In May 2011 , the buildings were demolished . Throughout 2011 , Weston worked with staff on the plat , subdivision process and preparing the parcel for development. Council Action Fonn April 14 , 2014 Page 3 In February 2011, RWR entered into a purchase agreement with Wazee Partners, LLC for the sale of what would become Lot 2 of the subdivision, now named Town Center North (TCN). Wazee paid $704,000 for the 2.1 acre site and $176,000 for development fees for a total acquisition price of$880,000. The terms ofthis purchase agreement required RWR to furnish Wazee with a fully-improved , legally-subdivided lot. The proceeds from the sale of Lot 2 to Wazee were used to satisfy the terms of this purchase agreement as well as a September 26 , 2011 Subdivision Improvement Agreement between RWR and the City ofWheat Ridge. The terms of the two agreements required RWR to complete the infrastructure providing services to each lot, complete the roadway system within the subdivision , landscape all the parcels , and to provide street and pedestrian lighting, and other elements. Construction ofWazee's Town Center Apartments, an 88-unit affordable senior facility , began in the spring of 2012. The doors were opened to residents in October of that same year. With the success of the Town Center Apartments on Lot 2, Wazee entered into a purchase agreement for Lot 3 to build a project of similar scope, including 6,000 square-feet of retail development. Late last year, Wazee elected to downsize the project, purchase Lot 1 at TCN for $350,000 with $75 ,000 in development impact fees , and construct a 50-unit, affordable senior facility , contingent on receiving a tax-credit award from the Colorado Housing and Finance Authority. RWR has also executed a third amendment to the purchase agreement for Lot 3. This third amendment provides for the purchase of Lot 3 for $730,000 with $195,000 in development impact fees. The land will be placed on hold until such time market demand dictates development of the site. The sale of both lots to Wazee will provide a gross sale price of $1 ,350,000 and should net RWR approximately $1,286 ,700 after commissions are paid. RWR is still responsible for repayment of a $350,000 loan from the City for public infrastructure expenses. In addition , the future placement of traffic signals at the intersection ofVance Street and 44111 Avenue, if traffic warrants allow , will cost an estimated $280,000. This should leave RWR with $656 ,700 remaining cash on hand after the land sale , repayment of the loan to the City, and installation of the traffic signals. These remaining funds will be used to pay down all or a portion of the outstanding loan balance. LOAN SUMMARY AND OPTIONS: The $3,285,000 First Bank Loan was executed on April 17 , 2008 at 4% interest for the term of the loan. The debt service on the loan is approximately $24,390 a month which includes about $8 ,000 for accrued interest. Last year RWR paid $96 ,141 in interest alone on the account. As stated earlier, this loan has a call date of April 15 , 2014. The loan is securitized by a cash deposit from the City in the amount of$1 ,953,338 and a deed of trust on the unsold property. At the time of the loan, RWR intended to repay the loan through the land sale to Jefferson County. When those land purchases did not occur, RWR was able to continue paying debt Council Action Form April 14 , 2014 Page4 service with sales tax increment proceeds from the Town Center Shopping Center. Additional repayment was anticipated with the sale of other parcels within Town Center North. As stated above, the current loan has an outstanding balance of$2,220,748 as of March 27, 2014. At maturity RWR will be expected to fully repay the loan, extend the loan or go into default. In November, 2013, staff met with representatives from First Bank to renegotiate the loan. First Bank provided two options for consideration. These are the options provided to Council on January 27, 2014: Loan Maturity Interest Security Pay Down Debt Balloon Amount Date Rate Required Amount Service Payment Option I $2,275,000 3 years 3.5 % $1 ,397,500 $0 $24,587/mo $1,574 ,709 Option 2 $877,500 3 years 3.5% $0 $1 ,397,500 $9 ,484/mo $607 ,388 • Option 1-Enter into a new loan of$2,275,000; amortized over nine years; maturity of three years and a 3.5% fixed-interest rate. The security requirement would include deeds oftrust and a decrease in cash to $1,397,500 , which would release back to the City $555,838 to unrestricted General Fund Reserves. Monthly debt service would remain at $24,587 with a balloon payment in three years of$1,574,709. • Option 2-Enter into a new loan of$877,500; amortized over nine years; maturity of three years and a 3.5% fixed interest rate. A pay down of$1 ,397,500 would be required utilizing the cash security . Security requirement would include deeds of trust. $555,838 of cash security would be released back to the City unrestticted General Fund Reserves. Monthly debt service would decrease to $9,484 with a balloon payment in 3 years of $607,388. Since the time these two options were provided, First Bank conducted an appraisal on the property. As stated earlier in this report, the most recent appraisal valued the property at $780,000 . This is $97,500 lower than what is quoted in Option 2. The new appraisal and the 65% loan to value ratio provides a loan amount of$780,000 compared to $877 ,500. This would require the use of additional funds to pay down the loan to the new appraised value. The total amount of reserve funds required to pay down the loan increased from $1,397,500 to approximately $1,500,000. If the new terms are approved, $513,338 of cash security would be released back to the City's unrestricted General Fund Reserves. This new calculation will not adversely affect the City's 17% reserve requirement. Under this revised option , the following terms would exist: Loan Maturity Interest Pay Down Debt Balloon Collateral Amount Date Rate Amount Service Payment $780 ,000 3 years 3.5% $1 ,500,000 $8 ,515 /mo . $553, I 02 Deed of Trust , and Sales Tax Pledge Council Action Form April 14 , 2014 Page 5 RECOMMENDATIONS: Staff recommends approving a supplemental budget appropriation for the following reasons: 1. The loan is due on April 15, 2014 and R WR does not have the funds to make the balloon payment. 2. The anticipated future land sales will not net enough revenue to repay the loan in its entirety. 3. The loan pay down of an amount not to exceed $1.5 million will come from restricted general fund reserves which will not impact the City's minimum 17% reserve policy. 4. The renegotiated loan Option 2 will decrease RWR's monthly debt service providing additional revenue for other urban renewal projects. RECOMMENDED MOTION: "I move to approve Resolution No. 21-2014, a resolution amending the fiscal year 2014 general fund budget to reflect the approval of a supplemental budget appropriation in an amount not to exceed $1.5 million to pay down a Renewal Wheat Ridge loan for the property at Town Center North." Or, "I move to postpone indefinitely Resolution No. 21-2014, a resolution amending the fiscal year 2014 general fund budget to reflect the approval of a supplemental budget appropriation in an amount not to exceed $1.5 million to pay down a Renewal Wheat Ridge loan for the property at Town Center North for the following reason(s) " REPORT PREPARED/REVIEWED BY: Steve Art, Urban Renewal Manager Patrick Goff, City Manager/Urban Renewal Executive Director ATTACHMENTS: 1. Resolution No. 21-2014 2. First Bank Term Sheet and Debt Modification Agreement CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 21 Series of 2014 TITLE: A RESOLUTION AMENDING THE FISCAL YEAR 2014 GENERAL FUND BUDGET TO REFLECT THE APPROVAL OF A SUPPLEMENTAL BUDGET APPROPRIATION IN AN AMOUNT NOT TO EXCEED $1,500,000 TO PAY DOWN A RENEWAL WHEAT RIDGE LOAN FOR THE PROPERTY AT TOWN CENTER NORTH WHEREAS, on April 17, 2008 Renewal Wheat Ridge (RWR) obtained a $3,285,000 loan from First Bank of Wheat Ridge to purchase property at the southeast corner of Wadsworth Boulevard and 441h Avenue for redevelopment purposes and the removal of blight; and ; and WHEREAS, public infrastructure was installed and an 88-unit affordable, senior apartment building was built on the site which became known as Town Center North; and WHEREAS, the loan with First Bank of Wheat Ridge has a maturity date of April 15,2014 and RWR does not have the funds to make the required balloon payment before the maturity date; and WHEREAS, RWR has entered into negotiations with First Bank of Wheat Ridge and desires to renegotiate the loan terms; and WHEREAS, First Bank of Wheat Ridge has provided a commitment letter as described in Exhibit A describing terms of a new loan; and WHEREAS, The City of Wheat Ridge has reserves on account with First Bank of Wheat Ridge that currently secures the loan in an amount of approximately $1 ,953,338; and WHEREAS, RWR will utilize these reserves in an amount not to exceed $1,500,000 to pay down a portion of the loan; and WHEREAS, the Wheat Ridge Charter requires that amendments to the budget be effected by the City Council adopting a Resolution. Attachment 1 NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE , COLORADO, AS FOLLOWS: A. The City Council authorizes the transfer of $1 ,500 ,000 from the General Fund designated reserves to account number 37-120-800-801 and amending the General Fund revenues accordingly. DONE AND RESOLVED this 141h day of April , 2014. Joyce Jay, Mayor ATIEST: Janelle Shaver, City Clerk Interest Rate: Loan Fee: Expenses: Documentation Requirements: Debt Service Ratio: Escrows: Rate Lock: Miscellaneous : Rev.3/2012 The rate will be fixed at 3.5% for the 3 year maturity The quoted rates assume the Borrower and or related parties will establish or maintain primary banking accounts with the Bank. Interest on the loan will accrue using an Actual/360 accounting method. 1% ofthe loan amount In addition to the above loan fee, Borrower shall be responsible for payment of all reasonable costs including, but not limited to: appraisal, title insurance, environmental investigation/insurance, filing fees, third- party inspection fees and survey. The following will be required prior to closing: 1. Acceptable appraisal 2. Operating agreements for all borrowing entities 3. Any other documents reasonably required by Bank or its legal counsel The loan will require an on-going minimum debt service coverage ratio (DSR) of 1.0. The DSR will be calculated by dividing the actual annual net operating income, before depreciation and interest expense, by the annual loan payments. Bank will monitor compliance on an annual basis. Bank will not be escrowing for taxes and insurance. Borrower will be responsible for the payment of property taxes and hazard insurance. In addition, Borrower will be responsible for ensuring the collateral is fully insured in an amount equal to the full replacement cost of the property for the entire term of the loan. The rate will be held for 60 days. After the 60 day time period, the interest rate will be re-calculated according to interest rates at that time. The quoted rates and fees assume the borrower is eligible for bank qualified -double tax exempt financing. If this loan is not bank qualified or double tax exempt from the bank perspective, pricing will change. Page 2 of 3 LOAN NUI!iaR ACCT. Nu.IEII NOTE DATE NOTE AMOUNT MAT\JIITY DATE IWIOII oatiiiJA TION 88311688 1046332&0 04/17108 t2,1166,261 .111 04/16/14 MlfOIIIfA 710N LOANN~ ACCT. NUI'oaR NODIRCAnoN DATE NOTE AMOUNT 88311688 104633260 April 16, 2014 t780,000.00 AMIMJo!l) oatiiiJA TION MAT\8JY DATE INDEX (w/nwglrll INTEREST RATE INITWI M&"OIIIM710N 04116/17 Not Appllc:.oble 3.600'11o OMS c-llorU..~ DEBT MODIFICATION AGREEMENT DATI! AND ,AIIlll!l. The d~e of thl8 Debt Modlflc:.otlon Agr-.t !Modlflc:atlonll-l April 111. 2014. The penl• and their edd,.... .... , LENDER: l'lftiTIIAIIIK 10403 Weflt Colfea Avenue u..~.co 80216 Telephone: (3031 232·2000 BDMOWEil: WHEAT IIIJOE URBAN IENEWAL AUTHOfiTY • Colorado Urban Renewlll Authority D/B/A Renewal Wh~ Ridge 71500 Weflt 28th A- wt..t Ridge, CO 80033 1. DERNITIONI. In Ita Modification, -t....,a halve the following m11811inga : A. ~-"The pronoun. "1," •me." end •my• refer to MCh Borrower signing this Modlflc:.otlon, lndhlkluelly end together with their heirs, uecutors, admlrifltr~ora. auccuaora, end .-lgna, and each other perwon or legal wrtlty (Including guarantors, endoraeno, and sureties) who aar-to pay this Loan. "You" ..,d •yow• refer to the Lender, with Ita penlelpanta or ayndicatora, aucceaaora end eaigne, or any pereon or entity thet acquil"lll .., intereat In the Modification or tho Prior Obligation. B. "'-'cced Obligation. Amended Obligation Ia the reaW!lng 11111'-.-t th~ It created when the Modlfic:.otlon emends the Prior Obligation. It is ducrfbold 8bova In the AMENDED OBUGATION INFORMATION aec:tfon. C. ~ Property. Exlellng Propony meant any r•l or pereon.l property that ..,.. .. my obrogatlona under the Prior Obligation, end fMY tunlen reluaodl secure my obligations under the Amended Obligation . D . ..._._ Loan refers to this transection generally. It lncludae the obligatlone and duties arfang from the torma of 1111 document• prepared or aubmitt11d In ... oclellon with the Prior Obligation and this modlf"ocation, such •• ..,r.c:.otlons, •curfty agr..nenta, dlaclo.,.ee, notee, agrosnsrta, end this Modlf!c:.otlon. E. -· Modlflc:.ollon refers to thlt Debt Modifioetlon Agreement. F. Prior Ollllgllllon. Prior Obligation refers to my original ag,_,ent daacribed above In the PRIOR OII..IGAllON INFORMATION section, and any aubaaquent ext-rona, .-w.la, modiflc:.otlonl or auballtutlona of it. 2. BACKGROUND. You and I hava pravloualy en-Into a Prior Obligation . Aa of the data of thlo ModHicatlon, the outotandlng, mpald balance of the Prior Oblgatlon lo t780,000.00. Conditione halve changod alnce the OllC8Cution of the Prior Obl"tgatlon lnatrumento. In ruponoe, end for value rec:elvad, you end I egrae to modify the termo of the Prior Obligation, • provided for In thlo Modlflc:.otlon . 3. CONTINUATION OF TERNS. I agree end mderfltand that ell other t.,.. and provlolono In the Prior Obligation ourvive end contl,...., In ful force ..,d effect, except to the extent that they are apaclf!cally and expre1aly amended by thl1 Modtflcatjon. The axprua ernanmnMit of a term doao not wn..,d related or other tarmo -evan If the related or other tarma era contained In thai 1erne section or ~agreph of tha Prior Obligation. For Oluatration purpooeo only, • modlflc:.otlon of the lntoreat rate to be pllld during the term of the loan would not modify the default r~e of lntereet evMI though both of thoae torma -deacrtbld In the Prior Obligation In a common eectlon titled "lnteraat•. 11le term "Prior Obligation" lnc:ludee the orlglnellnetrument end any modlficatlono prior to thlo Modification . 4. TERMS. "The Prior Obl igation 11 modified u folowa: A. 1-..t. Our agr........,t for tho payment of lnteroat Ia modified to read: (1) INTEREST. lntoreflt wll accrue on the unpelcl Principal balance of the loerl at the me of 3.100 ...-rt 0"'-t RNI. B. Matwtty end ....,._,._ 11le maturity end payment provlajon1 ere modlfiad to reed : (1) PAYMENT. I egree to pay the l.oor1 In 3S payments. The Loen Ia emortbed over 107 peymenta. I wll make 31 peymenta of M,15115.81 bolglnning on May 16, 2014. and on the 16th day of each month thalreeftar. A alngle "belloon payment• of the entire unpaid balance of Principal end lntereflt will boo due April 16, 2017. Payments wll be rounded to the neereat t.01 . With the ftnlll payment I eloo agree to pay any additional f-or charQ8I owing end the amount of any edwncee you halve made to otharo on my behalf. Paymenta ochodulad to be paid on the 28th, 30th or 31flt day of a month that oonteine no auoh clay will, lnatoad, be made on the leat clay of IUCh month. c. lec:urtty, The nc:urlty provlelon 11 modified to rud: 111 Reloued Colateral. The folowlng Exlating Propwty hao been reluoed • oecurtty: Aulgrment of DopoeltJShare Account • Ac:oount Number 23181001184 Aolignment of Depoalt/Siwe Account · Account Number 23111788882 Aoligrwnent of Dapoalt/Siwa Account-Account Number 23180011809. D. Fe. and a..-. Ao eddltlonll conolderallon for YOU' conaent to enter Into thla Modlflc:.ollon, I aura• to pay, or have paid th- addltlonol f-and charges: 111 Nonrefundable FMs end Charges. The folowng f-are earned when collected end will not be refunded If I prepay the loen before the ac:hacluled maturity elate. -ltldto Urban -of Au1hortty Debt Modlflcotlon AQr.....rt CO~Sl.BILUNOOOOOOOOOOOI74007040714N Wo!Ww K"-Rnonolol s.w-•1111, 2014 lonU.. ~,. ..... , Return to: FirstBank-Loan Operations, 1 0403 West Colfax Avenue, Lakewood, CO 80215 Space Above This Line For Recording Data MODIFICATION OF DEED OF TRUST DATE AND PARTIES. The date of this Real Estate Modification (Modification) is April 1 5, 2014. The parties and their addresses are: GRANTOR: WHEAT RIDGE URBAN RENEWAL AUTHORITY A Colorado Urban Renewal Authority D/B/A Renewal Wheat Ridge 7500 West 29th Avenue Wheat Ridge, CO 80033 TRUSTEE: PUBLIC TRUSTEE OF JEFFERSON COUNTY. COLORADO LENDER: FIRSTBANK Organized and existing under the laws of Colorado 1 0403 West Colfax Avenue Lakewood. CO 80215 1. BACKGROUND. Grantor and Lender entered into a security instrument dated April 17, 2008 and recorded on April 17, 2008 (Security Instrument). The Security Instrument was recorded in the records of Jefferson County, Colorado at Reception# 2008036969 and covered the following described Property: The property is located in Jefferson County at 7340 West 44th Avenue, Wheat Ridge, Colorado 80033. 2. MODIFICATION. For value received, Grantor and Lender agree to modify the Security Instrument as provided for in this Modification. The Security Instrument is modified as follows: A. Secured Debt. The secured debt provision of the Security Instrument is modified to read: (1) Secured Debts. The term "Secured Debts" includes and this Security Instrument will secure each of the following: (a) Specific Debts. The following debts and all extensions, renewals, refinancings, modifications and replacements. A promissory note or other agreement, No. 8836566, dated April 17, 2008, from Grantor to Lender, with a modified loan amount of $780,000.00, with an interest rate of 3.500 percent per year and maturing on April 1 5, 2017. (b) Sums Advanced. All sums advanced and expenses incurred by Lender under the terms of this Security Instrument. 3. WARRANTY OF TITLE. Grantor warrants that Grantor continues to be lawfully seized of the estate conveyed by the Security Instrument and has the right to irrevocably grant, convey and sell the Property to Wheat Ridge Urban Renewal Authority Co lorado Real Eatata Modltlca1lon C0/4SLBILLIN00000000000674007040714N Woltera Kluwer Fln~~nciel Servicea •1998, 2014 Bankers Syatema"' Page 1 Trustee, in trust, with power of sale. Grantor also warrants that the Property is unencumbered, except for encumbrances of record. 4. CONTINUATION OF TERMS. Except as specifically amended in this Modification, all of the terms of the Security Instrument shall remain in full force and effect. SIGNATURES. By signing, Grantor agrees to the terms and covenants contained in this Modification. Grantor also acknowledges receipt of a copy of this Modification. GRANTOR: Wheat Ridge Urban Renewal Authority By~~~~~--------------­ Kristi Davis, Chair LENDER: FirstBank By~~~~~~~~~~---­ David M. Schafer, Vice President ACKNOWLEDGMENT. -----------OF OF ss. This instrument was acknowledged before me this 31st day of March 2014 by Kristi Davis-Chair of Wheat Ridge Urban Renewal Authority, a(n) Urban Renewal Authority on behalf of the Urban Renewal Authority. My commission expires: (Notary Public) Wheat Ridge Urban Renewal Authority Co lorado Real &ute Modification C0/45LBILLIN00000000000674007040714N Wolters Kluwer Financial Servicl!ll 0 1996, 2014 Bankers Systems"' Pege 2 (lender Acknowledgment) ------OF-------------OF-------ss. This instrument was acknowledged before me this 31st day of March 2014 by David M. Schafer -Vice President of FirstBank, a corporation, on behalf of the corporation. My commission expires: Whellt Ridge Urban Renew.J Authority Colorado "-! Emta Modltlca1lon C0/4SLBILLIN00000000000874007040714N (Notary Public) Wolter& Kluwer Financial Service& 0 1998, 2014 Bankera Syatema"' Page3 Return to: FirstBank -Loan Operations, 1 0403 West Colfax Avenue, Lakewood, CO 80215 Space Above This Line For Recording Data MODIFICATION OF DEED OF TRUST DATE AND PARTIES. The date of this Real Estate Modification !Modification) is April 15, 2014. The parties and their addresses are: GRANTOR: WHEAT RIDGE URBAN RENEWAL AUTHORITY A Colorado Urban Renewal Authority D/B/A Renewal Wheat Ridge 7500 West 29th Avenue Wheat Ridge, CO 80033 TRUSTEE: PUBUC TRUSTEE OF JEFFERSON COUNTY, COLORADO LENDER: FIRSTBANK Organized and existing under the laws of Colorado 10403 West Colfax Avenue Lakewood, CO 80215 1. BACKGROUND. Grantor and Lender entered into a security instrument dated April 17, 2008 and recorded on April 17, 2008 (Security Instrument). The Security Instrument was recorded in the records of Jefferson County, Colorado at Reception# 2008036967 and covered the following described Property: The property is located in Jefferson County at 4331 Vance Street, Wheat Ridge, Colorado 80033. 2. MODIFICATION. For value received, Grantor and Lender agree to modify the Security Instrument as provided for in this Modification. The Security Instrument is modified as follows: A. Secured Debt. The secured debt provision of the Security Instrument is modified to read: (1) Secured Debts. The term "Secured Debts" includes and this Security Instrument will secure each of the following: (a) Specific Debts. The following debts and all extensions, renewals, refinancings, modifications and replacements. A promissory note or other agreement, No. 8836566, dated April 17, 2008, from Grantor to Lender, with a modified loan amount of $780,000.00, with an interest rate of 3.500 percent per year and maturing on April 15, 2017. (b) Sums Advanced. All sums advanced and expenses incurred by Lender under the terms of this Security Instrument. 3. WARRANTY OF TITLE. Grantor warrants that Grantor continues to be lawfully seized of the estate conveyed by the Security Instrument and has the right to irrevocably grant, convey and sell the Property to Wheat Ridge Urban Renewal Authority Colorado Real Elltllta Mocllflca1lon C0/4SLBILLIN()()()()()()()(74007040714N Wolter• Kluwer Anenclal Servicea •1998, 2014 Banker• SyaternaTII Pege 1 Trustee, in trust, with power of sale. Grantor also warrants that the Property is unencumbered, except for encumbrances of record. 4. CONTINUATION OF TERMS. Except as specifically amended in this Modification, all of the terms of the Security Instrument shall remain in full force and effect. SIGNATURES. By signing, Grantor agrees to the terms and covenants contained in this Modification. Grantor also acknowledges receipt of a copy of this Modification . GRANTOR: Wheat Ridge Urban Renewal Authority By ________ ~~--------------- Kristi Davis, Chair LENDER: FirstBank By~~~~~~--~~------ David M. Schafer, Vice President ACKNOWLEDGMENT. -----------OF OF ss. This instrument was acknowledged before me this 31st day of March 2014 by Kristi Davis -Chair of Wheat Ridge Urban Renewal Authority, a(n) Urban Renewal Authority on behalf of the Urban Renewal Authority. My commission expires: Wheat Ridge Urban Renewal Authority Colorado AMI Eatata Modification C0/4SLBILLIN00000000000674007Q.40714N (Notary Public) Wolters Kluwer Financial Servicea •1996, 2014 Blinkers Syatemsno Page2 (Lender Acknowledgment) ------OF OF ss. This instrument was acknowledged before me this 31st day of March 2014 by David M. Schafer -Vice President of FirstBank, a corporation, on behalf of the corporation. My commission expires: Wheat Ridge Urban Renewal Authority Colorado RNI Eatata Modification C0/4SLBILLIN00000000000674007040714N (Notary Public) Wolters Kluwer Financial Services 0 1996, 2014 Bankers Systernl"' Page 3 ~ ~ ~ ~ ... , .,. City of • JP"Wheat~ge ITEM NO:~ DATE: April 14 ,2014 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 23-2014 - A RESOLUTION CONCERNING THE PROPOSED REDEVELOPMENT AT THE SOUTHWEST CORNER OF WEST 38TH A VENUE AND KIPLING STREET, AND THE PROPOSED INCURRENCE OF A LOAN BY THE WHEAT RIDGE URBAN RENEWAL AUTHORITY TO BE SECURED BY CERTAIN TAX INCREMENT REVENUES GENERATED BY THE PROJECT; DECLARING THE CITY COUNCIL'S PRESENT INTENT TO APPROPRIATE FUNDS TO REPLENISH THE RESERVE FUND SECURING SUCH LOAN, IF NECESSARY; AND AUTHORIZING A REDEVELOPMENT AGREEMENT, A COOPERATION AGREEMENT AND OTHER RELATED ACTIONS IN CONNECTION WITH 0 PUBLIC HEARING D BIDS /MOTIONS I:8J RESOLUTIONS ISSUE: D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2 ND READING [gi NO The City and Renewal Wheat Ridge (R WR) have negotiated a Redevelopment Agreement with Millennium Venture Group (MVG), Inc. for a project at the southwest corner of West 38 1h Avenue and Kipling Street. The project is expected to include a 27,000 square foot Sprouts Farmers Market grocery store, a drive-through Starbucks , a quick-service restaurant and a 64- unit MorningStar Senior Living facility. MVG has identified a financial gap in the project budget of approximately $3.0 million . The gap exists due to extraordinary development expenses that would make the project unfeasible from an economic standpoint. These expenses include numerous improvements to the property that would have public benefit, for example, public 38 1h and Kipling Redevelopment Agreement April 14 , 2014 Page2 right-of-way improvements, such as widening Kipling Street for improved traffic flow, new storm water drainage infrastructure, adding sidewalks and landscape buffers , as well as demolition of blighted buildings , remediation of on-site environmental contamination and greatly improved building standards across the site. To cover the identified financial gap, an economic development incentive package totaling $3.0 million has been negotiated with MVG. RWR will enter into a loan with Colorado State Bank and Trust for a maximum amount of $2.615 million , which will net $2.0 million in available funds for the project. The loan will be payable from 100% of the property tax increment (minus the Wheat Ridge Fire District 7.5 mills) and sales tax increment revenues to be generated from the redevelopment project for a maximum period of 10 years. The City will contribute between $800,000 and $1.0 million from the General Fund reserves to the project for public improvements . Adoption of this resolution 1) approves the proposed Redevelopment Agreement between the City, RWR and MVG , 2) approves the Cooperation Agreement between the City and RWR and 3) declares the City Council's present intent to replenish the Reserve Fund for the RWR loan if property and sales tax increment revenues are not adequate to cover the loan debt service. PRIOR ACTION: Council received a staff memo and a presentation from MVG on this project at their study session on March 3, 2014. Consensus was reached by City Council at that time to move forward with the proposed financing structure including a 1 0-year, tax-exempt bond for about $2.4 million and a subordinate note for about $1.0 million from the General Fund . City Council approved a resolution on March 24, 2014 authorizing the City Manager to negotiate a Redevelopment Agreement with MVG . FINANCIAL IMPACT: The adoption of this resolution and approval of the Redevelopment Agreement will obligate the City to contribute between $800,000 and $1.0 million from General Fund reserves for the construction of eligible public improvements. The exact amount will be detennined when the interest rate and loan documents are finalized. In addition, the approval of the Cooperation Agreement will obligate the City to share with RWR 100 % ofthe property tax increment (minus the Wheat Ridge Fire District 7.5 mills) and sales tax increment revenues to be generated from the redevelopment project for a maximum period of 1 0 years to pay the debt service on the loan . Projections of property and sales tax increment revenues were very conservatively estimated and it is anticipated there will be significant excess revenues on an annual basis which allow for the loan to be paid off in a much shorter time frame than the 10-year tenn ofthe loan. The loan terms allow for prepayment without penalty after three years. Once the loan is fully paid , the City will receive I 00% of the sales tax generated from the site, estimated at $500,000 per year. R WR will continue to receive the incremental property tax revenue from the site, estimated at $225 ,000 per year, until the 25-year Tax Increment Financing agreement expires. 38th and Kipling Redev elopment Agreement April 14 , 2014 Page 3 BACKGROUND: The subject property, a blighted and under-perfonning commercial comer, was identified by RWR in the I-70/Kipling Corridors Urban Renewal Plan and by the community in the City's Comprehensive Plan, Envision Wheat Ridge as an area in need of a transformative redevelopment project. During its 40 years of operation , the entire shopping center has fallen into disrepair. Code enforcement issues are continually addressed by the City, including potholes and weeds in the parking lot, illegal dumping, transient occupancy of the vacant buildings , and general maintenance issues. In addition, the site has poor drainage which leads to occasional flooding of the structures located at the northern portion of the property. There are additional site constraints related to circulation , access , site sloping, inadequate parking in proximity to the Starbucks, and there is no significant landscaping anywhere on the 6.3 acre site. MVG proposes construction of a new 6.3-acre, mixed-use development including over 33 ,000 sq. ft. of retail and a 64-unit senior care facility . The retail components would consist of a Sprouts Fanners Market grocery store; a new drive-thru Starbucks and one additional pad for a food service restaurant. The senior housing component would consist of a 64-unit assisted living and memory care facility. RECOMMENDATIONS: Staff recommends approval of the resolution. RECOMMENDED MOTION: "I move to approve Resolution No . 23-2014 - A resolution concerning the proposed redev elopment at the southwest comer of West 38th Avenue and Kipling Street, and the proposed incurrence of a loan by the Wheat Ridge Urban Renewal Authority to be secured by certain tax increment rev enues generated by the project; declaring the City Council 's present intent to appropriate funds to replenish the reserve fund securing such loan, if necessary; and authoriz ing a Redevelopment Agreement, a Cooperation Agreement and other related actions in connection with." Or, "I move to postpone indefinitely Resolution No. 23-2014 for the following reason(s) " REPORT PREPARED/REVIEWED BY: Patrick Goff, City Manager ATTACHMENTS: 1. Resolution No. 23-2014 a. Exhibit A -Redevelopment Agreement b. Exhibit B -Cooperation Agreement CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 23 Series of2014 TITLE: A RESOLUTION CONCERNING THE PROPOSED REDEVELOPMENT AT THE SOUTHWEST CORNER OF WEST 38TH A VENUE AND KIPLING STREET, AND THE PROPOSED INCURRENCE OF A LOAN BY THE WHEAT RIDGE URBAN RENEWAL AUTHORITY TO BE SECURED BY CERTAIN TAX INCREMENT REVENUES GENERATED BY THE PROJECT; DECLARING THE CITY COUNCIL'S PRESENT INTENT TO APPROPRIATE FUNDS TO REPLENISH THE RESERVE FUND SECURING SUCH LOAN, IF NECESSARY; AND AUTHORIZING A REDEVELOPMENT AGREEMENT, A COOPERATION AGREEMENT AND OTHER RELATED ACTIONS IN CONNECTION WITH WHEREAS , the City is a home rule municipality and political subdivision of the State of Colorado organized and existing under a home rule charter pursuant to Article XX of the Constitution of the State of Colorado ; and WHEREAS, the City Council of the City (the "City Council") established the Wheat Ridge Urban Renewal Authority d/b/a/ Renewal Wheat Ridge (the "Authority") on October 18 , 1981 , as an urban renewal authority pursuant to Colorado Revised Statutes, Part 1 of Title 31 , Article 25 , as amended ; and WHEREAS , the City Council has adopted the 1-70/Kipling Corridors Urban Renewal Plan , as amended (the "Urban Renewal Plan " or the "Plan") for the area described therein (the "Urban Renewal Area"); and WHEREAS, Millennium Venture Group , Inc., a Delaware corporation (the "Developer") has one or more contracts to purchase certain real property consisting of approximately 6.5 acres which is located at the southwest comer of West 38 1h Avenue and Kipling Street (the "Property"), which is in the Urban Renewal Area; and WHEREAS , the Developer has submitted a proposal to the City and the Authority to redevelop the Property (the "Project"); and WHEREAS , the City has determined and hereby determines that it is in the best interests of the City and its citizens to assist in the redevelopment of the Project in order to promote employment and increase sales tax revenues ; and WHEREAS , the Authority has determined that the redevelopment of the Project in order to remediate blight is consistent with and in furtherance of the purposes of the Authority and the Plan ; and Attachment 1 WHEREAS, the Urban Renewal Plan contemplates that a primary method of financing projects within the Urban Renewal Area will be through the use of property tax increment revenues and City sales tax increment revenues; and WHEREAS, the Plan adopted the utilization of property and sales tax increment for the Property and authorizes the Authority to pledge all or any portion of such property tax increment revenues and City sales tax increment revenues to finance public infrastructure that benefits the Urban Renewal Area pursuant to one or more Cooperation Agreements (as defined therein); and WHEREAS , the City, the Authority and the Developer desire to enter into a Redevelopment Agreement (the "Redevelopment Agreement"), attached hereto as Exhibit A, that sets forth the rights and responsibilities of each party with respect to the financing and construction of the Project; and WHEREAS, in order to finance certain eligible improvements for the Project, the Redevelopment Agreement provides that, upon compliance with certain conditions precedent, the Authority will issue bonds or enter into a loan with a bank or other financial institution (the "Lender") in the maximum amount of $2.6 million (the "Loan") with such Loan to be payable from property tax increment revenues and sales tax increment revenues to be generated from the redevelopment of the Project; and WHEREAS , it is expected that the Loan will be secured by a reserve fund (the "Reserve Fund") to be held by the Lender and that such Reserve Fund will be required to be maintained in an amount equal to the Reserve Fund Requirement (as defined in the Redevelopment Agreement); and WHEREAS , in connection with the closing on the Loan and in order to help facilitate the redevelopment of the Project, the City Council wishes to make a non-binding statement of its present intent with respect to the appropriation of funds for the replenishment of the Reserve Fund, if necessary, and to authorize and direct the City Manager to take certain actions for the purpose of causing requests for any such appropriation to be presented to the City Council for consideration; and WHEREAS, in order to help facilitate the redevelopment of the Project, the City desires to appropriate between $800,000 and $1,000,000 of City moneys to finance a portion of certain eligible improvements for the Project in accordance with the terms and provisions of the Redevelopment Agreement; and WHEREAS, in connection with the redevelopment of the Project and the incurrence of the Loan by the Authority, it is necessary and in the best interests of the City to enter into a Cooperation Agreement (the "Cooperation Agreement"), attached hereto as Exhibit B, between the City and the Authority; and WHEREAS , there has been filed with the City Clerk of the City (the "City Clerk") the proposed form of the Redevelopment Agreement and the proposed form of the Cooperation Agreement; and 2 WHEREAS , capitalized terms used herein and not otherwise defined shall have the meanings given to them in the Redevelopment Agreement. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado , that: Section 1. Finding of Best Interests and Public Purpose. The City Council hereby finds and determines , pursuant to the Constitution, the laws of the State and the City's home rule charter (the "Charter"), and in accordance with the foregoing recitals , that adopting this Resolution , entering into the Redevelopment Agreement and the Cooperation Agreement, and facilitating the issuance of the Loan by the Authority to finance the redevelopment of the Project are necessary, convenient, and in furtherance of the City 's purposes and are in the best interests of the inhabitants of the City. Section 2. Replenishment of Reserve Fund; Declaration of Intent. To the extent that the Authority enters into the Loan with the Lender in accordance with the terms and provisions of the Redevelopment Agreement and the Loan is secured by a Reserve Fund that is held by the Lender, the following provisions shall apply. Within 90 days after the City's receipt of a written notice from the Lender (the "Written Notice") of a draw on the Reserve Fund , to the extent that such draw has not been replenished by another source, the City shall replenish the Reserve Fund to the Reserve Fund Requirement from legally available funds ofthe City, subject to appropriation by the City Council in its sole discretion. Any such City payment (the "City Payment") shall be made directly to the Lender for deposit in the Reserve Fund in immediately available funds pursuant to the instructions set forth in the Written Notice. It is the present intention and expectation of the City Council to appropriate the City Payment requested in any such Written Notice received by the City, within the limits of available funds and revenues , but this declaration of intent shall not be binding upon the City Council or any future City Council in any future fiscal year. The City Payments shall constitute currently appropriated expenditures of the City. This Resolution shall not create a general obligation or other indebtedness or multiple fiscal year direct or indirect debt or other financial obligation of the City within the meaning of its Charter or any constitutional debt limitation, including without limitation Article X, Section 20 of the Colorado Constitution. Neither this Resolution nor the issuance of the Loan by the Authority shall obligate or compel the City to make City Payments in the event of a draw on the Reserve Fund beyond those appropriated in the City Council 's sole discretion . Section 3. Direction to City Manager. In the event of a draw on the Reserve Fund that has not been replenished from another source, the Lender may submit the Written Notice to the City Manager, with such Written Notice setting forth the amount required to be paid by the City to restore the Reserve Fund to the Reserve Fund Requirement after replenishment from all other available sources . The Written Notice shall also include instructions for making the City Payment. Upon receipt of a Written Notice by the City Manager, the City Council hereby authorizes and directs the City Manager to prepare and submit to the City Council a request for an appropriation of the amount set forth in the Written Notice. Such request shall be made in sufficient time to enable the City to make the City Payment within 90 days of receipt of the Written Notice as provided in Section 2 hereof. 3 Section 4. Repayment of Amounts Appropriated. In the event that the City Council appropriates funds to make the City Payment as contemplated by Section 2 hereof, any amounts actually transferred by the City to the Lender in accordance with the provisions of Section 2, shall be treated as an advance under the Cooperation Agreement and shall be repaid by the Authority in accordance with the provisions of the Cooperation Agreement, on a basis expressly subordinate and junior to that of the Loan and any other obligations or indebtedness that are secured or payable in whole or in part by the Pledged Revenues on a parity with the Loan. Section 5. Limitation to Loan . Unless otherwise expressly provided by a subsequent resolution of the City Council , the provisions of this Resolution relating to the replenishment of the Reserve Fund shall apply only to the replenishment of the Reserve Fund that secures the payment of the Loan and shall not apply to any other reserve funds established in connection with the issuance of any other obligations. Section 6. Approval of Redevelopment Agreement and Cooperation Agreement. The Redevelopment Agreement and the Cooperation Agreement, in substantially the forms on file with the City Clerk, are in all respects approved , authorized and confirmed . The Mayor is hereby authorized and directed to execute and deliver the Redevelopment Agreement and the Cooperation Agreement, for and on behalf of the City, in substantially the forms and with substantially the same contents as are on file with the City Clerk , provided that such documents may be completed , corrected or revised as deemed necessary by the parties thereto in order to caJTY out the purposes of this Resolution . The execution of the Redevelopment Agreement and the Cooperation Agreement by the Mayor shall be conclusive evidence of the approval by the City Council of such documents in accordance with their respective terms. Section 7. Direction to Act. The City Clerk is hereby authorized and directed to attest all signatures and acts of any official of the City in connection with the matters authorized by this Resolution and to place the seal of the City on any document authorized and approved by this Resolution . The Mayor, the City Manager, the City Clerk, the City Attorney, and all other appropriate officials or employees of the City are hereby authorized and directed to execute and deliver for and on behalf of the City any and all additional certificates , documents , instruments and other papers , and to perform all other acts that they deem necessary or appropriate, in order to facilitate the redevelopment of the Project and implement and carry out the transactions and other matters authorized by this Resolution. Section 8. Ratification. All actions (not inconsistent with the provisions of this Resolution) heretofore taken by the City Council or the officers , employees or agents of the City directed toward the redevelopment of the Project, the issuance of the Loan by the Authority, and the execution and delivery of the Redevelopment Agreement and the Cooperation Agreement are hereby ratified , approved and confinned. Section 9. Severability. If any section , subsection , paragraph, clause or provision of this Resolution or the documents hereby authorized and approved shall for any reason be held to be invalid or unenforceable, the invalidity or unenforceability of such section , 4 subsection , paragraph, clause or provision shall not affect any of the remaining provisions of this Resolution or such documents , the intent being that the same are severable. Section 10. Repealer. All prior resolutions , or parts thereof, inconsistent herewith are hereby repealed to the extent of such inconsistency . Section 11 . Effectiveness. This Resolution shall take effect immediately. DONE AND RESOLVED this 14th day of April , 2014. Joyce Jay , Mayor [SEAL] Attest: Janelle Shaver, City Clerk 20657842 v2 5 EXHIBIT A REDEVELOPMENT AGREEMENT THIS REDEVELOPMENT AGREEMENT (this "Agreement") dated as of April _, 2014, is made by and among WHEAT RIDGE URBAN RENEWAL AUTHORITY d/b /a! RENEWAL WHEAT RIDGE, an urban renewal authority and a body corporate and politic of the State of Colorado (the "Authority"), MILLENNIUM VENTURE GROUP, INC., a Delaware corporation (the "Developer") and the CITY OF WHEAT RIDGE, COLORADO, a home rule municipality and political subdivision of the State of Colorado (the "City"). The Authority, the Developer, and the City are sometimes collectively called the "Parties ," and individually, a "Party." RECITALS All capitalized terms used , but not defined , in these Recitals, have the meanings ascribed to them in this Agreement. The Recitals are incorporated to this Agreement as though fully set forth in the body of this Agreement. WHEREAS, the City is a home rule municipality and political subdivision of the State of Colorado organized and existing under a home rule charter pursuant to Article XX of the Constitution of the State of Colorado; and WHEREAS , the City Council of the City (the "City Council") established the Authority on October 18, 1981 ; and WHEREAS , the City Council has adopted the 1-70/Kipling Corridors Urban Renewal Plan , as amended (the "Urban Renewal Plan" or the "Plan"); and WHEREAS , the Developer has a contract to purchase all of the real property described in Exhibit A attached hereto , consisting of approximately 6.5 acres , which is located at the southwest corner of West 38th Avenue and Kipling Street (the "Property"), which is in the Urban Renewal Area and in the TIF Area; and WHEREAS , the Developer has submitted a proposal to the City and the Authority to redevelop the Property (the "Project"); and WHEREAS , the City has determined that it is in the best interests of the City and its citizens to assist in the redevelopment of the Project in order to promote employment and increase sales tax revenues ; and WHEREAS , the Authority has determined that the redevelopment of the Project in order to remediate blight is consistent with and in furtherance of the purposes of the Authority and the Urban Renewal Plan ; and Exhibit A WHEREAS , in order to facilitate the acquisition , construction and installation of the Project, the City and the Authority desire to finance certain Eligible Improvements related to the Project in the aggregate amount of$3 ,000,000 ; and WHEREAS, pursuant to the Act and the Urban Renewal Plan, the Authority may finance undertakings pursuant to the Plan by any method authorized under the Act or any other applicable law, including without limitation, issuance of notes , bonds and other obligations in an amount sufficient to finance all or part of the Plan; borrowing of funds and creation of indebtedness; ad vancement of reimbursement agreements ; agreements with public or private entities ; and loans , advances and grants from any other available sources ; and the Plan authorizes the Authority to pay the principal , interest, costs and fees on any indebtedness with any lawfully available funds of the Authority; and WHEREAS , the Urban Renewal Plan contemplates that a primary method of financing projects within the Urban Renewal Area will be through the use of property tax increment revenues and City sales tax increment revenues ; and WHEREAS, the Plan adopted the utilization of property and sales tax increment for the properties located in the TIF Area and authorized the Authority to pledge all or any portion of such property tax increment revenues and City sales tax increment revenues to finance public infrastructure that benefits the Urban Renewal Area pursuant to one or more Cooperation Agreements (as defined therein); and WHEREAS, in order to finance a portion of the Eligible Improvements for the Project, the Authority desires to enter into a loan with BOKF, NA, d/b/a Colorado State Bank and Trust (the "Lender") in the maximum amount of $2 ,615 ,000 (the "Loan") with such Loan to be repayable solely from property tax increment revenues and sales tax increment revenues to be generated from the redevelopment of the Project; and WHEREAS , in connection with the Closing on the Loan and in order to help facilitate the redevelopment of the Project, the City will adopt a resolution (the "Replenishment Resolution") setting forth it s non-binding statement of present intent to appropriate funds to replenish the Reserve Fund securing the Loan in the event of a draw on such Reserve Fund ; and WHEREAS , in order to help facilitate the redev elopment of the Project, the City desires to contribute between $800,000 and $1 ,000,000 (the "City Contribution") of City moneys to finance a portion of the Eligible Improvements for the Project; and WHEREAS , the Parties have agreed to enter into this Agreement for the redevelopment of the Property in accordance with the Urban Renewal Plan and the Act. NOW THEREFORE, In consideration of the mutual covenants and promises of the Parties contained in this Agreement, and other valuable consideration, the receipt and adequacy of which are acknowledged , the Parties agree to the terms and conditions in this Agreement. 2 AGREEMENT I. DEFINITIONS. ln this Agreement, unless a different meaning clearly appears from the context, capitalized tenns mean: "Act" means the Colorado Urban Renewal Law, Part I of Article 25 of Title 3I of the Colorado Revised Statutes. "Agreement" means this Redevelopment Agreement, as it may be amended or supplemented in writing. References to sections or exhibits are to this Agreement unless otherwise qualified. All exhibits are incorporated to this Agreement. "Authority" means Wheat Ridge Urban Renewal Authority d/b/a Renewal Wheat Ridge, an urban renewal authority and a body corporate and politic of the State of Colorado which has been duly created, organized, established and authorized by the City to transact business and exercise its powers as an urban renewal authority, all under and pursuant to the Act, and its successors and assigns. "Closing" shall mean the date of the Closing of the Loan and the deposit of the net proceeds ofthe Loan into the Loan Proceeds Account ofthe Project Fund. "City" means the City of Wheat Ridge , Colorado, a home rule municipality and political subdivision of the State of Colorado organized and existing under a home rule charter pursuant to Article XX of the Constitution of the State of Colorado. "City Contribution" means moneys appropriated by the City to finance the City Financed Improvements, in an amount not less than $800,000 nor more than $1,000,000. The actual amount of the City Contribution shall be determined as set forth in Section 6.2 of this Agreement. "City Contribution Account" means that certain account of the Project Fund held by the City into which the net proceeds of the City Contribution shall be deposited, and from which the Developer shall be reimbursed for the Eligible Costs associated with the City Financed Improvements after the submission of a Requisition meeting the requirements of Exhibit E. "City Financed Improvements" means the Eligible Improvements that are eligible for reimbursement from the City Contribution, which the Developer will acquire, construct or install on the Property as part of the Project, as further described in Exhibit D, as amended in accordance with this Agreement. "City Manager" means the City Manager of the City. "City Requirements" means, collectively, the Wheat Ridge Zoning and Development Code, Architectural and Site Design Manual , Subdivision Improvement Agreement, Streetscape Design Manual, International (Building) Codes and Site Drainage Requirements, except as may be amended at the City's sole discretion through site plan or building permit approvals. 3 "Commence Construction" or "Commencement of Construction" means the commencement by the Developer of actual physical work on the Project, including, but not limited to , deconstruction , demolition and site grading on the Property as required to carry out the Project. "Complete Construction" or "Completion of Construction" means construction acceptance in accordance with the City Requirements, applicable laws, ordinances , and regulations of the City and any other governmental entity or public utility with jurisdiction, subject to any applicable conditions of maintenance and warranty, including without limitation, the issuance of a certificate of occupancy by the City so that the portion of the Project described in such certificate may open for permanent occupancy and utilization for its intended purposes. "Costs of Issuance" means the reasonable and necessary costs incurred in connection with the Loan , the City Contribution and this Agreement, including, without limitation, funding the Reserve Fund , capitalized interest on the Loan , financial consultant fees , fees and expenses of bond counsel , fees and expenses of the City and the Authority, including but not limited to counsel to the City and the Authority, and economic analysis and financial consulting services for the City and the Authority, and fees and eligible expenses of the Developer related to this Agreement and financing the Eligible Improvements. "Default" or "Event of Default" means any of the events described in Section 17; provided, however, that such events will not give rise to any remedy until effect has been given to all grace periods , cure periods and periods of enforced delay provided for in this Agreement. "Developer" means Millennium Venture Group , Inc., a Delaware corporation and any successors and assigns approved in accordance with this Agreement. "Developer Advances" means , collectively, amounts advanced or incurred by the Developer to pay any Eligible Costs. "Effective Date" means the date of this Agreement. "Eligible Costs" means collectively, the reasonable and customary expenditures for the acquisition , design , construction and installation of the Eligible Improvements as set forth in Exhibit D, as it may be amended hereunder, which shall be certified and approved in accordance with Exhibit E. The maximum amount of Eligible Costs to be paid or reimbursed pursuant to this Agreement shall be $3 ,000 ,000 . Eligible Costs shall not include interest on Developer Advances. "Eligible Improvements" means, collectively, the City Financed Improvements and the Loan Financed Improvements , as set forth on Exhibit D, as amended in accordance with this Agreement. Eligible Improvements includes both improvements that are financed by the City Contribution and improvements that are financed by the proceeds of the Loan . "Executive Director" means the Executive Director of the Authority. "Exhibits" The following Exhibits are a part of this Agreement: 4 Exhibit A: Legal Description ofthe Property Exhibit B: Description ofTIF Area Exhibit C: Description of the Project Exhibit D: Eligible Improvements Exhibit E: Procedure for Documenting, Certifying and Paying Eligible Costs Exhibit F: Loan Commitment from Lender Exhibit G: Form of Subdivision Improvement Agreement "Lender" means BOKF , NA, d/b /a Colorado State Bank and Trust, and its successors ; provided , however, that if the Authority determines to enter into the Loan with an alternative lender, the term "Lender" shall mean such alternative lender and its successors. "Loan" means the loan in the maximum amount of $2 ,615 ,000 from the Lender to the Authority, which is repayable from the Pledged Revenues; provided , however, that if the Lender does not fund such loan for any reason and the Authority determines to enter into an alternative loan with an alternative lender, "Loan " shall mean any such alternative loan that is satisfactory to the Authority and the City Manager. "Loan Agreement" means the agreement between the Lender and the Authority to be executed and delivered in connection with the Closing on the Loan. "Loan Commitment" means the commitment from the Lender to the Authority to make the Loan , as set forth in Exhibit F. "Loan Documents" means the Loan Agreement and any other agreements or documents , including an opinion of bond counsel as to the tax-exempt status of the interest on the Loan , as are necessary or desirable to effectuate the making of the Loan. "Loan Financed Improvements " means the improvements that are eligible for reimbursement from the Loan proceeds , which improvements the Developer intends to acquire , construct or install on the Property as part of the Project, as further described in Exhibit D, as amended in accordance with this Agreement. "Loan Proceeds Account" means that certain account of the Project Fund held by the City into which the net proceeds of the Loan shall be deposited , and from which the Developer shall be reimbursed for the Eligible Costs associated with the Loan Financed Improvements after the submission of a Requisition meeting the requirements of Exhibit E. "Party" or "Parties" means one or all of the parties to this Agreement. "Pledged Property Tax Increment Revenue" means the annual ad valorem property tax revenue received by the Authority from the Jefferson County Treasurer in excess of the 5 amount produced by the levy of those taxing bodies that levy property taxes against the Property Tax Base Amount in the TIF Area in accordance with the Act and the regulations of the Property Tax Administrator of the State of Colorado , but not including, (a) the 7.5000 mills imposed by the Wheat Ridge Fire District; and (b) any offsets collected by the Jefferson County Treasurer for return of overpayments or any reserve funds retained by the Authority for such purposes in accordance with Sections 31-25-1 07 (9)( a)(III) and (b) of the Act. "Pledged Sales Tax Increment Revenues" means , for each year that the Loan is outstanding, that portion of the Sales Tax revenue received by the City, and remitted to the Authority in accordance with the Act and the Plan, equal to the product of the Sales Tax rate of 3.00% times the an1ount of the taxable transactions subject to the Sales Tax in the TIF Area, less the Sales Tax Base Amow1t. "Pledged Revenues" means , collectively, the Pledged Property Tax Increment Revenues and the Pledged Sales Tax Increment Revenues . "Project" means the redevelopment of approximately 6.5 acres of land located at the southwest corner of West 38 1h Avenue and Kipling Street, as further set forth in Exhibit C. "Project Fund" means the fund to be created and held by the City that will include: (a) the Loan Proceeds Account, into which net proceeds of the Loan will be deposited to pay all or a portion of the Eligible Costs of the Loan Financed Improvements , and (b) the City Contribution Account , into which the net proceeds of the City Contribution will be deposited to pay all or a portion of the Eligible Costs of the City Financed Improvements. "Property" means the real property described in Exhibit A, which is either owned by Developer or the Developer has a contract to purchase such property. "Property Tax Base Amount" means the amount certified by the Jefferson County Assessor as the valuation for assessment of all taxable property with the TIF Area in accordance with Section 31-25-1 07(9)(a)(l) of the Act. The Property Tax Base Amount and increment value shall be calculated and adjusted from time to time by the Jefferson County Assessor in accordance with Section 31-25-1 07(9) of the Act and the rules and regulations of the Property Tax Administrator of the State of Colorado . "Replenishment Resolution" means that certain resolution to be adopted by the City on or prior to the Effective Date setting forth the City's present intention to consider appropriating funds to replenish the Reserve Fund securing the Loan in the event of a draw on the Reserve Fund. Any such replenishment of the Reserve Fund shall be subject to annual appropriation in the sole discretion of the City Council , and shall not create a debt or indebtedness or other multiple fiscal year financial obligation of the City. The Replenishment Resolution shall take effect on the date of Closing on the Loan. "Requisition" means a request for reimbursement for Eligible Costs submitted by the Developer in accordance with Exhibit E. "Reserve Fund" means the Reserve Fund held by the Lender in the amount of the Reserve Fund Requirement and securing the payment of the Loan. 6 "Reserve Fund Requirement" means an amount equal to the least of: (a) I 0% of the original principal amount of the Loan; (b) 125% of the average annual debt service requirements of the Loan ; and (c) 1 00% of the maximum annual debt service requirements of the Loan. The Reserve Fund Requirement may be recalculated in the event of a prepayment of a portion of the Loan , or as otherwise set forth in the Loan Documents. "Sales Tax" means the municipal sales tax of the City imposed at the rate of 3.00% on sales of goods and services that are subject to municipal sales taxes pursuant to the Wheat Ridge City Code. In the event that the Sales Tax is subsequently increased above 3.00%, the amount of Sales Tax subject to this Agreement shall not be increased above 3.00% unless otherwise authorized by the City Council. "Sales Tax Base Amount" means the total collection of sales taxes levied at the rate of 3.00% within the TIF Area for the applicable twelve-month period in accordance with Section 31-25-l 07(9)(a)(I) of the Act. "Senior Housing Component" means a 64-unit assisted living and memory care senior housing facility, which is expected to be a joint venture between the Developer and MorningStar Senior Living, which will be located on the Property. "Special Fund" means the special fund of the Authority defined in Section 1 07(9)(a)(II) of the Act. "Subdivision Improvement Agreement" means that Subdivision Improvement Agreement for the Project to be submitted by the Developer to the City in substantially the form set forth hereto as Exhibit G. "TIF Area" means that part of the urban renewal area described in the Urban Renewal Plan as described and depicted in Exhibit B, within which the tax increment provisions of Section 31-25-1 07(9) of the Act apply. "Urban Renewal Plan" or "Plan" means the 1-70/Kipling Corridors Urban Renewal Plan approved by the City Council , as amended , and as may hereinafter be amended from time to time. 2. FINANCING AND CONSTRUCTION OF PROJECT. 2.1 Construction of Project. As set forth in Section 4 of this Agreement, the Developer shall construct the Project, including without limitation , all Eligible Improvements , and shall be responsible for compliance in all respects with the City Requirements. 2.2 Financing the Eligible Improvements. There shall be deposited in the Project Fund net proceeds of the Loan and the City Contribution in the amount of $3 ,000 ,000, which shall be applied to the payment or reimbursement of Eligible Costs in accordance with this Agreement and Exhibit E hereto . The City Contribution and the Loan may also be used to pay Costs of Issuance, but shall be in addition to the $3 ,000 ,000 of net proceeds deposited in the Project Fund. The net proceeds from the City Contribution shall be deposited in the City Contribution Account and applied to the payment or reimbursement of City Financed 7 Improvements upon compliance with the provisions of this Agreement and Exhibit E attached hereto. The net proceeds from the Loan shall be deposited in the Loan Proceeds Account of the Project Fund and applied to the payment or reimbursement of the Loan Financed Improvements, upon compliance with the provisions of this Agreement and Exhibit E attached hereto. The Project Fund shall be held by the City as a separate trust account and moneys therein shall be disbursed to pay Eligible Costs in accordance with the terms and provisions of this Agreement. 3. CONDITIONS PRECEDENT. 3.1 Conditions Precedent. Unless waived in writing by the City Manager and the Executive Director, the following conditions precedent shall be satisfied prior to (i) the deposit of the net proceeds of the City Contribution into the City Contribution Account; (ii) the Closing on the Loan and the deposit of the net proceeds thereof into the Loan Proceeds Account ; and (iii) the effective date of the Replenishment Resolution: (a) The Developer shall have acquired the Property or have in its possession a fully-executed purchase and sale agreement for all of the parcels of land comprising the Property and shall have provided evidence of the same in a fonn satisfactory to the City Manager and the Executive Director. (b) The Developer shall provide to the City Manager evidence satisfactory to the City Manager that the Developer has obtained the equity and private financing above the $3 ,000,000 provided for in this Agreement necessary to acquire the Property and construct a 27 ,000 square foot retail grocery store and horizontal improvements necessary to support such store on the Property. (c) The Developer shall have obtained an executed lease agreement from SFM , LLC, a Delaware limited liability company, for a retail grocery store known as "Sprouts Farmers Market" on the Property consisting of at least 27 ,000 square feet (the "Sprouts Store"). (d) The Developer shall have obtained , or shall have shown progress toward obtaining in a manner satisfactory to the City Manager, an executed lease agreement from Starbucks for a drive-thru Starbucks store on the Property. (e) The Developer shall have obtained an executed purchase and sale agreement with MVG-MS (Wheat Ridge) LLC for the sale of a portion of the Property for the Senior Housing Component. (f) The Developer shall have submitted Site Plans to the City for the Sprouts Store and for the Senior Housing Component, and the Site Plans for the Sprouts Store shall be substantially complete to the satisfaction of the City Manager. (g) No Events of Default shall have occurred and be continuing under this Agreement. (h) To the extent that any portion of the Loan is tax-exempt, the Authority shall receive an opinion of nationally recognized bond counsel selected by the Authority 8 that the interest on such portion of the Loan is excludable from gross income under federal income tax laws pursuant to Section 103 of the Internal Revenue Code of 1986 , as amended to the date thereof. 4. DEVELOPER. 4.1 Acquisition, Construction and Installation of Project. The Developer shall be responsible for the financing , design , acquisition , construction and installation of the Project. The design and construction of the Project shall comply in all material respects with all applicable codes and regulations of entities having jurisdiction, including the City Requirements . The Developer will pay or cause to be paid all required fees and costs , including those imposed by the City, in connection with the design , construction , applicable warranty requirements , and use of the Project. The Developer agrees to Commence Construction of the Project by May 31 , 2014 and to reasonably proceed with the Project until Completion of Construction of the Project, which shall be no later than December 31 , 2015 , unless otherwise agreed to in writing by the City Manager and the Executive Director. 4.2 Construction of Eligible Improvements. The Developer shall acquire, construct and install the Eligible Improvements set forth in Exhibit D hereto , as it may be amended in accordance with this Agreement. Such Eligible Improvements shall be financed with the moneys available in the Project Fund , and , if necessary, other financing sources obtained by the Developer. The list of Eligible Improvements set forth in Exhibit D may be amended at the written request of the Developer with the written consent of the City Manager and the Executive Director, provided , however, that in connection with any amendment of the Loan Financed Improvements , that the Developer obtain an opinion of nationally recognized bond counsel that such amendment will not adversely affect the tax-exempt status of interest on the portion of the Loan that is tax-exempt. 4.3 Access to Property. Developer will permit representatives of the City and the Authority access to the Property and the Project at reasonable times during regular business hours and with prior notice as necessary for the purpose of carrying out or determining compliance with this Agreement , the Urban Renewal Plan , the City Requirements or any City code or ordinance, including, without limitation , inspection of any work being conducted. 4.4 Maintenance of Project. The Developer shall be responsible for the maintenance of those portions of the Project owned by Developer, except as hereinafter provided. The City shall be responsible for the maintenance of any portions of the Project that are dedicated to the City, subject to any applicable warranty periods. 4.5 Appeal of Property Taxes . The Developer shall provide written notice to the City and to the Authority of any requested reduction by the Developer in any portion of the Property's real property tax assessed valuation or abatement of any portion of the Property's real property tax es. 9 4.6 Notification of Sale of Property. The Developer shall provide written notice to the City and the Authority of any sale of all or any portion of the Property by the Developer during the term of this Agreement. 4.7 Conditions Precedent to Developer's Obligations. Notwithstanding anything to the contrary in this Agreement , Developer's obligations in this Section 4 are conditioned upon (i) the deposit of the net proceeds of the City Contribution into the City Contribution Account and (ii) the Closing on the Loan and the deposit of the net proceeds thereof into the Loan Proceeds Account. 5. THE AUTHORITY. 5.1 Origination and Repayment of Loan. The Authority covenants and agrees that within thirty (30) days after compliance with the condition s precedent set forth in Section 3 hereof, it will use good faith efforts to enter into the Loan with the Lender substantially in accordance with the Loan Commitment attached hereto as Exhibit F and it will execute and deliver the Loan Agreement and any other Loan Documents necessary or desirable to effectuate the Closing on the Loan , a nd that it will pledge the Pledged Revenues for the repayment of the Loan substantially in accordance with the terms and provisions of this Agreement and the Loan Commitment. The Loan shall be a special and limited obligation of the Authority payable solely from the Pledged Revenues . Notwith s tanding the foregoing , however, or anything to the contrary contained herein , in the event that the Lender informs the Authority that it will not fund the Loan for any reason , the Authority agrees to use good faith efforts to obtain an alternative loan from an alternative lender on terms and conditions s atisfactory to the Developer, the City and the Authority. In the event that the Loan does not Close and the Authority is not able to obtain an alternative loan that is satisfactory to the Developer, the City and the Authority, the Parties agree that they will negotiate in good faith to enter into a sharing agreement pursuant to which the Pledged Revenues will be remitted to the Developer as recei ved by the Authority to pay or reimburse the Developer for eligible costs incurred in connection with the acquisition , construction and installation of the Eligible Improvements plus reasonable interest thereon. 5.2 Special Fund. The Authority agrees to establish the Special Fund in accordance with the provisions of the Act and to deposit the Pledged Revenues into the Special Fund upon receipt of the same. All Pledged Revenues on deposit in the Special Fund shall be pledged to the repayment of the Loan for as long as the Loan remains outstanding. The Loan Agreement shall set forth the process for remitting the Pledged Revenues to the Lender in repayment of the Loan. 5.3 No Election Required. The Parties acknowledge that , according to the decision of the Colorado Court of Appeals in Olson v. City of Golden , 53 P.3d 747 (2002), an urban renewal authority is not a local government and therefore is not subject to the provisions of Article X, Section 20 of the Colorado Constitution. Accordingly, the Authority may enter into the Loan with the Lender and agree to remit the Pledged Revenues to the Lender in accordance with the provisions of this Agreement and the Loan Documents without electoral authorization , and such obligations are not subject to annual appropriation. 10 5.4 No Impairment. The Authority will not enter into any agreement or transaction that impairs the rights of the Parties , including, without limitation , the right to receive and apply the Pledged Revenue in accordance with the terms and provisions of this Agreement and the Loan Documents. 6. THECITY. 6.1 Replenishment Resolution. On or prior to the Effective Date, the City shall have adopted the Replenishment Resolution evidencing its present intention of considering the appropriation of funds to replenish the Reserve Fund to the Reserve Fund Requirement in the event of a draw on the Reserve Fund ; provided , however, that the Replenishment Resolution shall take effect only upon the Closing of the Loan. If the Loan or an alternative loan satisfactory to the Developer, the City and the Authority does not Close for any reason , the Replenishment Resolution shall be of no force and effect. 6.2 City Contribution. On or prior to the Effective Date, the City shall have appropriated the City Contribution. Upon compliance with the conditions precedent set forth in Section 3 hereof and the Closing of the Loan , the City shall deposit the net proceeds of the City Contribution into the City Contribution Account. The net amount of the City Contribution to be deposited in the City Contribution Account shall be equal to the difference between $3 ,000 ,000 and the net proceeds of the Loan to be deposited in the Loan Proceeds Account , provided that the gross amount ofthe City Contribution shall not be less than $800 ,000 nor more than $1 ,000 ,000. In the event that the Loan does not Close, the City shall not be required to apply all or any portion of the City Contribution to the payment or reimbursement of Eligible Costs for Eligible Improvements. Notwithstanding the foregoing , however, in the event that the conditions precedent set forth in Section 3 hereof have been satisfied , but the Loan does not Close, the City Manager, in his sole discretion , may apply all or any portion of the City Contribution , in an amount not exceeding $1 ,000 ,000 , to the payment or reimbursement of Eligible Costs incurred in connection with Eligible Improvements. Upon a determination by the City Manager to apply the City Contribution to such payment or reimbursement, the City Manager shall determine the process by which such payment or reimbursement shall be made. Neither the Authority nor the Developer shall have any obligation to repay the City for the City Contribution and the Pledged Revenues shall not be pledged to the repayment of the City Contribution. 6.3 Collection of Pledged Sales Tax Increment Revenues. The City covenants and agrees to collect the Pledged Sales Tax Increment Revenues and remit the same to the Authority in accordance with th.e Act , this Agreement and the Urban Renewal Plan for so long as the Loan remains outstanding in accordance with the terms and provisions of the Loan Agreement. Upon payment in full of the Loan in accordance with the Loan Documents , the lien on the Pledged Sales Tax Increment Revenues shall be discharged and the City shall no longer be required to remit any Sales Tax increment revenues from the Property to the Authority. In the event that the Loan does not Close, but the Parties enter into an agreement to share the Pledged Revenues in accordance with Section 5.1 hereof, the City shall comply with the 11 terms and provisions of any such sharing agreement relating to collecting and remitting the Pledged Sales Tax Increment Revenues to the Authority. 6.4 Administration of the Proiect Fund. The City covenants and agrees that it will create the Project Fund , and the City Contribution Account and the Loan Proceeds Account therein , and administer the Project Fund as a trust account in accordance with the terms and provisions of this Agreement and Exhibit E hereto . The City shall not be paid a fee for administering the Project Fund. 7. PAYMENT OR REIMBURSEMENT OF ELIGIBLE COSTS. The Developer shall be paid or reimbursed for Eligible Costs from moneys on deposit in the Project Fund held by the City upon compliance with the requirements of this Agreement and the Requisition process set forth in Exhibit E hereto , or as otherwise agreed to in writing by the Parties. In the event that Dev eloper Ad vances are made to finance Eligible Costs , the Developer may seek reimbursement for the principal amount of any Developer Advances , but shall not be reimbursed for any interest accruing on Developer Advances. 8. BOOKS AND ACCOUNTS; INSPECTION OF RECORDS. The City and the Authority will keep proper and current itemized records , books , and accounts in which complete and accurate entries will be made of the receipt and use of all amounts of revenue received from any and all sources and such other calculations required by this Agreement, the Loan Documents , and any applicable law or regulation. The Developer shall keep accurate books and record s of all co s ts incurred in connection with the design , management, acquisition, construction and warranty (as applicable) of the Eligible Improvements , and the receipt of payment or reimbursement of Eligible Costs . During regular business hours and upon reasonable advance notice, the City, the Authority or its respective designee is hereby authorized to review the Developer's books and records relating to the Eligible Improvements and the receipt of payment or reimbursement of Eligible Costs. All books , records and reports (except those allowed or required by applicable law to be kept confidential) in the possession of the City and the Authority relating to the collection and disbursement of the Pledged Revenues and the payment of the Eligible Costs shall at all reasonable times be open to inspection by s uch accountants or other agents as the respecti ve Parties may from time to time des ignate. 9. INSURANCE. On or prior to the Commencement of Construction the Developer will provide the City and the Authority with certificates of insurance showing that the Developer is carrying, or causing prime contractors to carry, the following insurance: General Liability, with a general aggregate of $2 ,000 ,000 ; fire damage of $1 00 ,000; medical expense of $5 ,000 ; products/completed operations aggregate of $2 ,000 ,000 ; personal and advertising injury of $1 ,000 ,000 with each occurrence up to $1 ,000 ,000 , with deductible of $2 ,500 per claim. Excess liability shall be covered in an amount equal to $1 0,000 ,000 per occurrence/$] 0,000,000 aggregate. 10 . INDEMNIFICATION. From Commencement of Construction of the Project through Completion of Construction of the Project, and for any action arising during that time period , 12 Developer agrees to indemnify, defend and hold harmless the City and the Authority, its officers , agents and employees , from and against all liability, claims , demands , and expenses , including fines imposed by any applicable state or federal regulatory agency , court costs and attorney fees , on account of any injury , loss , or damage , which arise out of or are in any manner connected with any of the work to be performed by Developer, any subcontractor of Developer, or any officer, employee, agent , successor or assign of Developer under this Agreement , if such injury, loss , or damage is caused in whole or in part by, the negligent act or omission , error, professional error, mistake, accident, or other fault of Developer, any subcontractor of Developer, or any officer, employee, agent , successor or assign of Developer, but excluding any injuries , losses or damages which are due to the gross negligence , breach of contract or willful misconduct of the City or the Authority, as the case may be. 11. REPRESENTATIONS AND WARRANTIES. 11 .1 Representations and Warranties by the Authority. The Authority represents and warrants as follows: (a) The Authority is a body corporate and politic of the State of Colorado , duly organized under the Act , and has the power to enter into and has taken all actions to date required to authorize this Agreement and to carry out its obligations . (b) The Authority knows of no litigation, proceeding, initiative, referendum , investigation or threat of any of the same contesting the powers of the Authority or its officials with respect to this Agreement that has not been disclosed in writing to the Parties. (c) The execution and delivery of this Agreement and the documents required and the consummation of the transactions contemplated by this Agreement will not (a) conflict with or contravene any law , order, rule or regulation applicable to the Authority or to its governing documents , (b) result in the breach of any of the terms or provisions or constitute a default under any agreement or other instrument to which the Authority is a party or by which it may be bound or affected , or (c) permit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of the Authority. (d) The Pledged Revenues are not subject to any other or prior pledge or encumbrance , and the Authority will not pledge or encumber it except as specified herein or as may be provided in the Loan Documents or the documents related to the origination of the Loan. (e) This Agreement constitutes a valid and binding obligation of the Authority, enforceable according to its terms , except to the extent limited by bankruptcy , insolvency and other laws of general application affecting creditors' rights and by equitable principles , whether considered at law or in equity. 13 11.2 Representations and Warranties by the Developer. Developer represents and warrants as follows: (a) Developer is a corporation duly organized , validly existing and in good standing under the laws of the State of Delaware and in good standing and authorized to do business in the State of Colorado and has the power and the authority to enter into and perform in a timely manner its obligations under this Agreement. (b) The execution and delivery of this Agreement has been duly and validly authorized by all necessary action on its part to make this Agreement valid and binding upon Developer. (c) The execution and delivery of this Agreement will not (a) conflict with or contravene any law , order, rule or regulation applicable to Developer or to Developer's goveming documents , (b) result in the breach of any of the tenns or provisions or constitute a default under any agreement or other instrument to which Developer is a party or by which it may be bound or affected , or (c) pennit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of Developer. (d) Developer knows of no litigation , proceeding, initiative, referendum , or investigation or threat or any of the same contesting the powers of the Developer or any of its principals or officials with respect to this Agreement that has not been disclosed in writing to the other Parties. (e) The Developer has prepared or caused to be prepared a financing and development plan for the Project and the Developer reasonably expects that the Pledged Revenues to be generated from the Project will be sufficient in each year to pay the principal of and interest on the Loan , in accordance with the Loan Commitment set forth as Exhibit F. (f) This Agreement constitutes a valid and binding obligation of the Developer, enforceable according to its terms , except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles , whether considered at law or in equity. 11.3 Representations and Warranties by the City. The City represents and warrants as follows : (a) The City is a body corporate and politic and a home rule municipality of the State of Colorado , and has the power to enter into and has taken all actions to date required to authorize this Agreement and to carry out its obligations under this Agreement. (b) The City knows of no litigation , proceeding, initiative, referendum, investigation or threat of any of the same contesting the powers of the City or its officials with respect to this Agreement that has not been disclosed in writing to the Parties. 14 (c) The execution and delivery of this Agreement and the documents required hereunder and the consummation of the transactions contemplated by this Agreement will not (a) conflict with or contravene any law , order, rule or regulation applicable to the City or to its governing documents , (b) result in the breach of any of the tenns or provisions or constitute a default under any agreement or other instrument to which the City is a party or by which it may be bound or affected , or (c) permit any party to terminate any such agreement or instruments or to accelerate the maturity of any indebtedness or other obligation of the City. (d) This Agreement constitutes a valid and binding obligation of the City, enforceable according to its terms , except to the extent limited by bankruptcy, insolvency and other laws of general application affecting creditors' rights and by equitable principles , whether considered at law or in equity. 12. TERM . The term of this Agreement is the period commencing on the Effective Date and terminating on the date of payment in full of the Loan ; provided , however, that the Authority 's obligation to remit the Pledged Revenues to the Lender to repay the Loan shall terminate upon the expiration of the time period that the Authority is authorized pursuant to the Act to receive the Pledged Revenues , and provided , further , that the following provisions , without limitation , shall continue beyond the term of this Agreement: (A) any rights and remedies that a Party has for an Event of Default hereunder, and (B) any rights that a Party has to inspect books and records as set forth in Section 8 hereof for a period of four (4) years following termination of this Agreement. 13 . CONFLICTS OF INTEREST. None of the following will have any personal interest , direct or indirect, in this Agreement: a member of the governing body of the Authority or the City, an employee of the Authority or of the City who exercises responsibility concerning the Urban Renewal Plan , or an individual or firm retained by the City or the Authority who has performed consulting services to the Authority or the City in connection with the Urban Renewal Plan, this Agreement, or the Loan Agreement. None of the above persons or entities will participate in any decision relating to the Agreement that affects his or her personal interests or the interests of any corporation , partnership or association in which he or she is directly or indirectly interested. 14. ANTIDISCRIMINATION. Developer, for itself and its successors and assigns , agrees that in the construction of the Eligible Improvements and in the use and occupancy of the Property and the Eligible Improvements , Developer will not discriminate against any employee or applicant for employment because of race , color, creed , religion , sex , sexual preference , disability, marital status , ancestry, or national origin. 15. NOTICES. Any notice required or permitted by this Agreement will be in writing and will be deemed to have been sufficiently given for all purposes if delivered in person, by prepaid overnight express mail or overnight courier service, by certified mail or registered mail , postage prepaid return receipt requested , addressed to the Party to whom such notice is to be given at the address set forth on the signature page below or at such other or additional addresses as may be furnished in writing to the other Parties. The Parties may also agree on a different means of providing written notice hereunder, including, without limitation , notice via electronic mail. 15 16. DELAYS; FORCE MAJEURE. Subject to the following provisions, time is of the essence. Any delays in or failure of perfonnance by any Party of its obligations under this Agreement shall be excused if such delays or failure are a result of acts of God , fires , floods , earthquake , strikes , labor disputes , regulation or order of civil or military authorities, or other causes , similar or dissimilar, which are beyond the control of such Party. 17 . EVENTS OF DEFAULT. The following events shall constitute an Event of Default under this Agreement: (a) Any representation or warranty made by any Party in this Agreement proves to have been untrue or incomplete in any material respect when made and which untruth or incompletion would have a material adverse effect upon any other Party ; (b) Any Party fails in the performance of any covenant in this Agreement and such default continues for thirty (30) days after written notice specifying such default and requiring the same to be remedied is given by a non-defaulting Party to the defaulting Party. If such default is not of a type which can be cured within such thirty (30) day period and the defaulting Party gives written notice to the non-defaulting Party or Parties within such thirty (30) day period that it is actively and diligently pursuing such cure, the defaulting Party shall have a reasonable period of time given the nature of the default following the end of such thirty (30) day period to cure such default , provided that such defaulting Party is at all times within such additional time period actively and diligently pursuing such cure in good faith. 18. REMEDIES. Upon the occurrence and continuation of an Event of Default, the non- defaulting Party's remedies will be limited to the right to enforce the defaulting Party's obligations by an action for injunction , specific performance, or other appropriate equitable remedy or for mandamus, or by an action to collect and enforce payment of sums owing hereunder, and no other remedy, and no Party will be entitled to or claim damages for an Event of Default by the defaulting Party, including, without limitation , lost profits , economic damages , or actual , direct, incidental , consequential , punitive or exemplary damages. ln the event of any litigation or other proceeding to enforce any of the tenns , covenants or conditions of this Agreement , the prevailing party in such litigation or other proceeding may receive, as part of its judgment or award , its reasonable attorneys ' fee s and costs . The occurrence and continuation of an Event of Default will not affect the obligation of the City or the Authority to collect and remit Pledged Revenues or the obligation of the Authority to remit the Pledged Revenues to the Lender to repay the Loan in accordance with the terms and provisions of this Agreement and the Loan Documents. 19. TERMINATION. In the event that the Developer has not Commenced Construction of the Project on or prior to July 31 , 2014 , then the City, the Authority, and the Developer shall each have the option to terminate this Agreement. In order to terminate this Agreement, a Party shall provide written notice of such termination to the other Parties. Such termination shall be effective thirty (30) days after the date of such notice unless prior to such time , the Parties are able to negotiate in good faith to reach an agreement to avoid such termination. Upon such termination , this Agreement shall be null and 16 void and of no effect, and no action , claim or demand may be based on any term or provision of this Agreement. In addition the Parties agree to execute a mutual release or other instruments reasonably required to effectuate and give notice of such termination. 20. PAYMENT OF FEES AND EXPENSES. The Parties intend that the fees, costs and expenses incurred by each of the Parties in connection with the execution and delivery of this Agreement, the Loan, the City Contribution and the Replenishment Resolution, and related agreements and documents, will be paid from the proceeds of the City Contribution or the Loan as Costs of Issuance. To the extent that any fees , costs or expenses of any Party are not eligible to be paid as Costs of Issuance, or to the extent that the Loan does not Close, each Party agrees to pay for its own fees , costs and expenses. 21. NONLIABILITY OF OFFICIALS, AGENTS, MEMBERS, AND EMPLOYEES . Except for willful or wanton actions, no trustee, board member, commissioner, official , employee, consultant, manager, member, shareholder, attorney or agent of any Party, nor any lender to any Party or to the Project, will be personally liable under the Agreement or in the event of any default or for any amount that may become due to any Party. 22. ASSIGNMENT. This Agreement shall not be assigned in whole or in part by any Party without the prior written consent of the other Parties; provided, however, that subject to written notice to the City and the Authority from Developer containing the name and address of the lender or other party, Developer may pledge, collaterally assign or otherwise encumber all or any part of its rights under this Agreement, including its right to receive any payment or reimbursement, to any lender or other party that provides acquisition , construction, working capital , tenant improvement or other financing to Developer in connection with development of the Property and/or construction of the Eligible Improvements. 23. COOPERATION REGARDING DEFENSE. In the event of any litigation or other legal challenge in volving this Agreement, the Loan, the validity of the Urban Renewal Plan, or any other material part or provision of this Agreement or the ability of any Party to enter into this Agreement, the Parties will cooperate and jointly defend against such action or challenge, to the extent permitted by law. 24. SECTION CAPTIONS . The captions of the sections are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit, or describe the scope or intent of this Agreement. 17 25 . ADDITIONAL DOCUMENTS OR ACTION. 25.1 The Parties agree to execute any additional documents or take any additional action, including but not limited to estoppel documents requested or required by third parties, including without limitation, lenders, tenants or potential purchasers , that is necessary to carry out this Agreement or is reasonably requested by any Party to confinn or clarify the intent of the provisions of this Agreement and to effectuate the agreements and the intent. Notwithstanding the foregoing, however, no Party sha11 be obligated to execute any additional document or take any additional action unless such document or action is reasonably acceptable to such Party. 25.2 If all or any portion of this Agreement, or other agreements approved in connection with this Agreement are asserted or determined to be invalid , illegal or are otherwise precluded, the Parties, within the scope of their powers and duties, will cooperate in the joint defense of such documents and, if such defense is unsuccessful , the Parties will use reasonable, diligent good faith efforts to amend , refonn or replace such precluded items to assure, to the extent legally permissible, that each Party substantially receives the benefits that it would have received under this Agreement. 25.3 The City Manager shall have the authority to act on behalf of the City under this Agreement and the Executive Director shall have the authority to act on behalf of the Authority under this Agreement. 26. AMENDMENT. This Agreement may be amended only by an instrument in writing signed by the Parties. 27. WAIVER OF BREACH. A waiver by any Party to this Agreement of the breach of any tenn or provision of this Agreement must be in writing and will not operate or be construed as a waiver of any subsequent breach by any Party. 28. GOVERNING LAW. The laws of the State of Colorado govern this Agreement. 29. BINDING EFFECT. This Agreement will inure to the benefit of and be binding upon the Parties and their respective legal representatives , successors, heirs , and assigns , provided that nothing in this paragraph permits the assignment of this Agreement except as set forth in Section 22. 30. EXECUTION IN COUNTERPARTS. This Agreement may be executed in several counterparts, each of which will be deemed an original and all of which will constitute but one and the same instrument. 31. LIMITED THIRD-PARTY BENEFICIARIES. Except as hereinafter provided , this Agreement is not intended and shall not be deemed to confer any rights on any person or entity not named as a Party to this Agreement; provided, however, that the Lender shall be deemed to be a third-party beneficiary under this Agreement with respect to any provisions relating to the Loan, the repayment of the Loan and the Pledged Revenues. 32. NO PRESUMPTION. The Parties and their attorneys have had a full opportunity to review and participate in the drafting of the final form of this Agreement. Accordingly, this 18 Agreement will be construed without regard to any presumption or other rule of construction against the Party causing the Agreement to be drafted. 33. SEVERABILITY. If any provision of this Agreement as applied to any Party or to any circumstance is adjudged by a court to be void or unenforceable , the same will in no way affect any other provision of this Agreement, the application of any such provision in any other circumstances or the validity , or enforceability of the Agreement as a whole. 34 . MINOR CHANGES . This Agreement has been approved in substantially the form submitted to the governing bodies of the Parties. The officers executing this Agreement are authorized to make and may have made , minor changes to this Agreement and attached exhibits as they have considered necessary. So long as such changes were consistent with the intent and understanding of the Parties at the time of approval by the governing bodies , the execution of the Agreement will constitute the approval of such changes by the respective Parties. 35 . DAYS. If the day for any performance or event provided for herein is a Saturday, a Sunday, a day on which national banks are not open for the regular transactions of business , or a legal holiday pursuant to Section 24-11-101(1), C.R.S., such day will be extended until the next day on which such banks and state offices are open for the transaction ofbusiness. 36 . GOOD FAITH OF PARTIES. In the performance of this Agreement or in considering any requested approval , consent, acceptance , or extension oftime, the Parties agree that each will act in good faith and will not act unreasonably, arbitrarily, capriciously, or unreasonably withhold , condition , or delay any approval , acceptance, or extension of time required or requested pursuant to this Agreement. 37. PARTIES NOT PARTNERS. Notwithstanding any language in this Agreement or any other agreement , representation , or warranty to the contrary, the Parties will not be deemed to be partners or joint venturers , and no Party is responsible for any debt or liability of any other Party. 38. NO WAIVER OF IMMUNITY. Nothing contained in this Agreement constitutes a waiver of sovereign immunity or governmental immunity by the City or the Authority under applicable state law . 19 IN WITNESS WHEREOF, this Agreement is executed by the Parties as of _____ , 2014. WHEAT RIDGE URBAN RENEWAL AUTHORITY ATTEST: Kristi Davis , Chairperson Patrick Goff, Executive Director Notice Address: Wheat Ridge Urban Renewal Authority 1 500 West 291h A venue Wheat Ridge , Colorado 80033 Attention: Patrick Goff, Executive Director Email: pgoff@ ci.wheatridge.co.us 20 (SEAL) Attest: Janielle Shaver, City Clerk APPROVED AS TO FORM Gerald Dahl , City Attorney Notice Address: City of Wheat Ridge 1500 West 29th A venue Wheat Ridge , Colorado 80033 Attention: Patrick Goff, City Manager Email : pgoff@ ci .wheatridge.co.us CITY OF WHEAT RIDGE , COLORADO By: _______________ _ Joyce Jay, Mayor 21 Notice Address: MILLENNIUM VENTURE GROUP , INC. a Delaware corporation By: Title: 22 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY 10101 W. 37th Place Ou.r Order No: ABB70393418 LEGAL DESCRIPTION TIIAT PART OF THE NORTHEAST ONE-QUARTER OF TilE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE-QU.A.RTER OF SECTION Z8 , TOWNSHIP 3 SOUTH, RANGE 69 WESI' OF mE 61H P.M., DESCRIBED AS FOLLOWS: BEGINNING AT THE NORTHEAST CORNER OF SAID SECTION 28; TIIENCE SOUTHERLY , AIDNG 1HE EAST LINE OF SAID SECilON, 230 FEET; THENCE WESTERLY, PARAllEL WITH THE NORTH LINE OF SAID SECTION, ZOO FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING WESTERLY, PARALLEL WITH THE NOR'Ill LINE OF SAID SECTION, 109.99 FEET, MORE OR LESS, TO A POINT ZO FEET EAST OF THE WEST LINE OF THE EAST ONE-HALF OF THE NORTHEAST ONE-QU.A.RTER OF THE NORTHEAST ONE -QUARTER OF THE NORTHEAST ONE-QUARTER OF SAID SECTION 28; TIIENCE SOUTHERLY PARALLEL WITH THE WEST LINE OF 1liE EAST ONE-HALF OF THE NORTHEAST ONE-QU.A.RTER OF TilE NOR'IliEAST ONE-QU.A.RTER OF THE NORTHEAST ONE-QUARTER OF SAID SECTION, 124.86 FEET, MORE OR LESS, TO A POINT 355 FEET SOUnl OF 1liE NORTH UNE OF SAID SECTION Z8; THENCE WESTERLY, PARALLEL WITH THE NORTH UNE OF SAID SECTION, 40 FEET; TIIENCE SOUTIIERL Y, PARALLEL WITH AND ZO FEET WEST OF THE WEST LINE OF THE EAST ONE-HALF OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF THE NORTHEASf ONE-QU.A.RTER, 75 FEET; THENCE WESTERLY, PARALLEL wrrn THE NORTH UNE OF SAID SECTION, 290.19 FEET, MORE OR LESS, TO THE EAST LINE OF LEE STREET; TIIENCE NORTHERLY ALONG SAID EAST LINE , PARALLEL WITH AND ZO FEET EAST OF 1HE WEST LINE OF SAID NORTIIEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE-QU.A.RTER, 400 FEET, MORE OR LESS , TO 1HE SOUTH LINE OF 381H AVENUE; TIIENCE EASfERLY ALONG SAID SOUTH LINE, PARAllEL WITH AND 30 FEET SOUTH OF THE NOR'Ill LINE OF SAID SECTION Z8, A DISTANCE OF 440.53 FEET, MORE OR LESS , TO A POINT ZOO FEET WEST OF TilE EAST LINE OF SAID SECTION; THENCE SOUTHERLY , PARALLEL wrm 1HE EAST LINE OF SAID SECilON, 200 FEET TO THE TRUE POINT OF BEGINNING, COUNTY OF jEFFERSON, STATE OF COLORADO , EXCEPTING THEREFROM THE PORTIONS DESCRIBED IN BOOK 1579 AT PAGE 296 AND IN BOOK 1969 AT PAGE 800 AND IN BOOK 1970 AT PAGE 1 OF 1HE JEFFERSON COUNTY RECORDS . EXHIBIT B LEGAL DESCRIPTION OF THE TIF AREA 10101 W. 371h Place Our Order No : ABB70393418 LEGAL DESCRIPTION THAT PART OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF SEcriON 28 , TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6TH P.M ., DESCRJBED AS FOLLOWS : BEGINNING AT THE NORTHEASf CORNER OF SAID SECTION 28 ; THENCE SOUTHERLY, ALONG 1liE EAST LINE OF SAID SECTION , 230 FEET; THENCE WESTERLY , PARAUEL WITII THE NORTII LINE OF SAID SECTION, 200 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING WESTERLY , PARALLEL WITH THE NORTII LINE OF SAID SEcriON , 109.99 FEET, MORE OR LESS , TO A POINT 20 FEET EAST OF THE WEST LINE OF THE EAST ONE-HALF OF THE NORTHEAST ONE-QUARTER OF THE NORTIIEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF SAID SECTION 28; THENCE SOUTHERLY PARALLEL WITH THE WEST LINE OF THE EAST ONE-HALF OF TilE NORTHEAST ONE-QUARTER OF 1liE NORTIIEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF SAID SECTION , 124 .86 FEET, MORE OR LESS , TO A POINT 355 FEET SOUTH OF THE NORTIIUNE OF SAID SECTION 28 ; THENCE WESTERLY , PARAUEL WITH THE NORTII LINE OF SAID SECTION, 40 FEET ; THENCE SOUTHERLY, PARALLEL WITH AND 20 FEET WEST OF THE WEST LINE OF THE EAST ONE-HALF OF THE NORTIIEAST ONE-QUARTER OF THE NORTIIEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER, 75 FEET ; THENCE WESTERLY , PARAUEL WITH THE NORTII LINE OF SAID SECTION, 290 .19 FEET, MORE OR LESS , TO 1liE EAST LINE OF LEE STREET ; THENCE NORTHERLY ALONG SAID EAST LINE, PARAUEL wrrn AND 20 FEET EAST OF 1liE WEST LINE OF SAID NORTHEASf ONE-QUARTER OF THE NORTHEAST ONE-QUARTER OF THE NORTHEAST ONE-QUARTER, 400 FEET, MORE OR LESS , TO THE SOUTH LINE OF 38TH AVENUE ; THENCE EASTERLY ALONG SAID SOUTH LINE, PARAUEL WTill AND 30 FEET SOUTH OF THE NORTII LINE OF SAID SECTION 28 , A DISfANCE OF 440.53 FEET, MORE OR LESS , TO A POINT 200 FEET WEST OF 1liE EAST LINE OF SAID SECTION ; 111ENCE SOUTHERLY, PARALLEL WITH 1liE EAST LINE OF SAID SECTION , 200 FEET TO 1liE TRUE POINT OF BEGINNING, COUNTY OF JEFFERSON , STATE OF COLORADO , EXCEPTING THEREFROM THE PORTIONS DESCRIBED IN BOOK 1579 AT PAGE 296 AND IN BOOK 1969 AT PAGE 800 AND IN BOOK 1970 AT PAGE 1 OF THE JEFFERSON COUNTY RECORDS . 3785 Kipling LEGAL DESCRIPTDI 0... Order No: A.Bj70397564 A PARCEL OF LAND IN TilE EAST liZ OF niE NORTHFAST 1/4 OF THE NORllffiAST 114 OF THE NORIHEAST 1/4 OF SECTION 28 , TOWNSHIP 3 SOlJJH , RANGE 69 WEST , COUNfY OF ,JEFFERSON. STATE OF COLORADO , DESCRIBED AS I'UllOWS: BEGINNING AT A POINT WHICH IS 30 FEIIT smrm AND 30 FEET WEST OF TilE NOR111EAST CORNER OF SAID SECDON Z8; THENCE SotiTH 100 FEEf ALONG THE WEST UNE OF KIPLING STREET TO rnE TRUE POINT OF BEGINNING ; THENCE SQUill ALONG TilE WEST LINE OF KIPLING STREET A DISTANCE OF 100 FEET ; THENCE WEST AND PARAllEL TO THE SOUTII LINE OF WEST :«rnA VENUE A DISTANCE OF IZ5 FEET: THENCE NORTH AND PARALLEL TO THE WEST llNE OF KIPLING STREEf A DISTANCE OF 100 FEET : THENCE EAST AND PARAU.Fl. TO 11IE SOlJJH LINE OF OF WEST 3B11f A VENUE , A DISf ANCE OF IZ5 FEET TO rnE TRUE POINT OF BEGINNING , EXCEPT rnAT PORTION CONVEYED TO THE DFJIARTMENT OF IUGHWA YS BY DEED RECORDED AUGUST ?:I , I~ IN BOOK 2128ATPAGE 357. COUNIYOF jEFFERSON, STATE OF COWRADO. 3795 Kipling The South 100 feet of the North 130 feet of the West 115 feet of the East 155 feet of the East half of the Northeast Quarter of the Northeast Quarter of the Northeast Quarter of Section 28, Township 3 South, Range 69 West of the 6th Prlndpal Meridian, EXCEPT that portion thereof conveyed to The aty of Wheat Ridge, Colorado by Deeds recorded November 10, 1972 in Book 2444 at Pages 376 and 3n, B-3 EXHIBITC DESCRIPTION OF THE PROJECT The Project consists of the redevelopment of approximately 6.5 acres of land located at the southwest corner of West 38 th Avenue and Kipling Street, in accordance with the City Requirements . The Project is expected to include a 27 ,000 square foot Sprouts Market grocery store, a drive-through Starbucks, and a quick serve restaurant , and the construction and installation of an additional half-acre of right-of-way for Kipling Street and 38th Avenue , which will be dedicated to the City. The Project will also include the construction of a 64-unit senior housing facility known as MorningStar Senior Living. Public improvements to be constructed , acquired or installed as part of the Project include the abatement and demolition of existing structures, upgrades to City storm water and sewer systems, expansion of and upgrades to public rights of way including the widening of Kipling Street with the dedication and the construction of turning lanes , sidewalks and streetscaping, and the burying of overhead electrical power lines . EXHIBIT D ELIGIBLE IMPROVEMENTS The Eligible Improvements consist of the Loan Financed Improvements , which shall be eligible to be paid from the net proceeds of the Loan , and City Financed Improvements , which shall be eligible to be paid from the City Contribution. The total Eligible Improvements to be paid or reimbursed from the combination of the City Contribution and the Loan shall be equal to $3 ,000 ,000 notwithstanding that the amounts set forth below total $4 ,474 ,424 . Set forth below are estimates of the costs of the Loan Financed Improvements and the City Financed Improvements based on budgeted numbers provided by the Developer. As actual costs are incurred for each line item , the amounts eligible to be paid or reimbursed as Loan Financed Impro vements or City Financed Costs may change, as hereinafter set forth. Loan Financed Improvements Land Acquisition Costs Demolition and Abatement for entire site Grading & Site Preparation for entire site Stonn Water Infrastructure for entire site Concrete, Asphalt & Roadway Improvements Utilities Work (Water, Fire, Electrical) Landscaping Amenity Benches, Etc . Architectural & Engineering Pennit Fees TOTAL (1) Not subject to change. $ 417 ,798 (1 ) 348 ,655 (2) 511 ,544(2) 265 ,060(2) 126 ,779 (3) 132 ,240(3) 84 ,974(3) 6,960(3) 76 ,387(1) 118,097(4) $ 2.088.495 (2) These amounts can increase or decrease based on the actual amount spent on this line item as certified by the Developer in the Requisition. (3) These amounts can increase or decrease based on the actual amount spent on thi s line item , but such amounts shall not exceed the percentage of costs in this line item attributable to costs incurred in the right-of-way to be dedicated to the City, as certified by the Developer in the Requisition. ( 4) These amounts can increase or decrease, but shall be based on the actual permit fees attributable to the Loan Financed Improvements , as certified by the Developer in the Requisition. City Financed Improvements()) Concrete, Asphalt & Roadway Improvements Utilities Work (Water, Fire, Electrical) Landscaping Architectural Upgrades to Sprouts Building Amenity Benches, Etc. Architectural & Engineering Permit Fees TIF Consultants TOTAL $443,587 168,293 111,707 406,706 8,700 153,450 91,120 20,164 $ 1.403.727 (1) These amounts can increase or decrease based on the actual amount spent on this line item for the Project (not including any amounts paid or reimbursed as Loan Financed Improvements) as certified by the Developer in the Requisition. In addition, to the extent that amounts remain in the City Contribution Account after the line items set forth above have been paid or reimbursed from the City Contribution, then such excess amount may be applied to the reimbursement of the costs of acquiring the Property in an amount not exceeding $982,202. EXHIBIT E PROCEDURE FOR DOCUMENTING, CERTIFYING AND PAYING ELIGIBLE COSTS 1. Applicability. All capitalized terms that are not specifically defined in this Exhibit E will have the same meaning as defined in the Agreement. The procedures set forth herein shall apply to both Requisitions submitted by the Developer to the City for reimbursement from the City Contribution Account for the City Financed Improvements , and Requisitions submitted for reimbursement from the Loan Proceeds Account for the Loan Financed Improvements. The foregoing notwithstanding, the Parties recognize and acknowledge that in connection with origination of the Loan , the Loan Documents may establish a different procedure for the requisition of moneys from the Loan Proceeds Account , in which event that procedure shall be substituted for the procedure in this Exhibit E to the extent that they conflict with the procedures in this Exhibit E. 2. Documentation. The Developer will be responsible for documenting all Eligible Costs. Eligible Costs may be certified when (i) an expenditure for an Eligible Cost, including, without limitation , land acquisition costs, has been made by the Developer, (ii) a pay application has been submitted by a contractor that complies with the procedure set forth in this Exhibit E, or (iii) upon Completion of Construction of an Eligible Improvement. All such submissions shall include a certification signed by an authorized representative of the Developer. The certificate shall state that the infonnation contained therein is true and accurate to the best of each individual's infonnation and belief and , to the best knowledge of such individual , qualifies as an Eligible Cost. Such submissions will include copies of backup documentation supporting the listed cost items , including bills, statements , pay request forms from first-tier contractors and suppliers, conditional lien waivers , and copies of each check issued by the Developer for each item listed on the statement. The Developer will allocate the Eligible Costs to the Eligible Improvements according to the category for each listed in Exhibit D, and each requisition shall contain an aggregate running total of the Eligible Costs in each category. Unless required by a Developer construction contract then being performed , statements for payment of Eligible Costs shall not include advance payments of any kind for unperformed work or materials not delivered and stored on the Property. 3. Verification, Submission, and Payment. Each payment request will be submitted to the Executive Director of the Authority and the City Manager for review . Such review is for the purpose of verifying that the expenditure or work represented in each payment request and supporting documentation complies with the requirements of this Agreement. Upon the earlier of approval of such documentation or expiration of the ten (1 0) business day period , the City will make payments of Eligible Costs as set forth in such requisition request from moneys on deposit in the applicable account of the Project Fund. If the City or the Authority dispute all or any portion of the requisition , the City or the Authority, as the case may be, shall provide the Developer with a written dispute , setting forth the reasons for such dispute. If the objection is made on the basis of incomplete or insufficient documentation , the Developer shall promptly provide complete and sufficient documentation in a good faith effort to facilitate resolution. The Parties shall cooperate in good faith to resolve any dispute concerning the payment or reimbursement of Eligible Costs , but without being obligated to waive or relinquish any rights hereunder. If the Parties have not satisfactorily resolved any such dispute within ten (1 0) business days , the City may withhold the amounts in dispute from payment and shall process and pay the rema inder of the undisputed Eligible Costs , and the Parties may proceed as hereinafter provided. 4. Dispute Resolution. If the Parties have not resolved a dispute pertaining to payment or reimbursement of Eligible Costs (a "Payment Objection") within thirty (30) calendar days of the submission of the Requisition , at the written request of any of the Parties involved in the dispute , the Parties shall comply with the following procedures: (a) The Parties involved in the dispute shall select an independent decision-maker ("Independent Decision-maker") for purposes of resolving the dispute. If the Parties are unable to mutually agree on an Independent Decision-maker, the Developer shall select a decision- maker ("Developer Decision-maker"), the City shall select a decision-maker ("City Decision- maker") and the Authority shall select a decision-maker (the "Authority Decision-maker"), and the Developer Decision-maker, the City Decision-maker and the Authority Decision-maker shall collectively select an individual or firm with expertise in the field of construction or construction litigation to serve as the Independent Decision-maker who shall comply with the procedures hereinafter set forth , as if such decision maker was selected directly by the Parties. The Independent Decision-maker shall have no material affiliation or relationship with any of the Parties. If the Developer Decision-maker, the City Decision-maker and the Authority Decision- maker are unable to so select the Independent Decision-maker, any Party may file an action in the District Court for Jefferson County, Colorado , to have the Court select the Independent Decision-maker in accordance with the foregoing provisions . In the event that only two of the Parties dispute all or any portion of a Requisition, then only those two Parties shall be involved with this dispute process and the selection of the Independent Decision-maker. (b) The Independent Decision-maker shall review the information pertaining to any Payment Objection and shall provide an opinion in writing to the Parties involved with the dispute within ten (1 0) calendar days of submittal of the dispute as to whether the cost items in dispute constitute Eligible Costs. If the Independent Decision-maker determines that the disputed cost items constitute Eligible Costs, then within five (5) business days of receipt of the opinion, the City shall disburse the applicable amounts to the Developer from moneys on deposit in the applicable account of the Project Fund. In the event the Independent Decision-maker determines all or a portion of the disputed payments do not qualify as Eligible Costs , then the City shall have no obligation to disburse such amounts to the Developer from amounts on deposit in the Project Fund. (c) While each Party agrees to the process under this Exhibit E, Section 4 for purposes of facilitating payments and the construction process, it shall do so under a complete reservation of its rights under this Agreement and otherwise and without prejudice to any claims it may have against the other Parties or others , which may include as applicable, and without limitation , recovery of any costs paid under Section 4(d) below. (d) Each Party to any dispute agrees to pay its pro-rata share of any retainer required by the Independent Decision-maker. If a dispute is addressed by the process under this Section 4, the non-prevailing Party shall pay all reasonable costs and expenses incurred by the Independent Decision-maker with respect to such dispute , and also the reasonable costs and expenses incurred by the prevailing Party or Parties in connection with such dispute. The non- prevailing Party 's obligation to pay such costs and expenses shall be paid promptly after the decision is rendered . Notwithstanding the foregoing , the City's obligation to pay costs and expenses hereunder shall be subject to appropriation by the City Council. If a portion of each Parties ' position is upheld , the Independent Decision-maker shall make a corresponding allocation between the Parties of the applicable costs and expenses. 5. Retainage. Notwithstanding any provisions to the contrary contained herein , an amount equal to five percent (5 %) of each periodic payment requested for work performed on Eligible Improvements may be retained in the Project Fund until the Eligible Improvements have been accepted in accordance with the City Requirements ; provided , however, that for any contractor or subcontractor who perfonns a discrete portion of the work ( eg. grading, storm drainage or other utility facilities), the retainage allocable thereto shall be released from the Project Fund when such portion of the work has been accepted in accordance with the City Requirements. Renewal Wheat Ridge ~COLORADO STATE ~BANK AND TRUST Commitment Letter April 7, 2014 Mr . Patrick Goff City Manager, City of Wheat Ridge ; and Executive Director, Renewal Wheat Ridge 7500 West 29 1h Avenue Wheat Ridge, Colorado 80033 Via E-mail: pgoff@ci .wheatridqe .co .us Subject: Commitment Letter for up to $2,615 ,000 Financing Dear Mr . Goff, Colorado State Bank and Trust is pleased to commit to Renewal Wheat Ridge the following credit facility . Colorado State Bank and Trust's commitment shall be subject to and contingent upon full and complete compliance with the following terms and conditions ("Commitment"). This commitment is based on your representation of intent to use the credit accommodations as described herein . Client: Financial Institution: Financing Renewal Wheat Ridge ("Client" or "Authority"). BOKF , NA dba Colorado State Bank and Trust ("Bank") Facility Amount: Up to $2,615,000. Credit Facility(ies): Debt shall be comprised of Bank Qualified tax exempt financing and/or taxable financing (collectively referred to as "Facility" or "Loan "). Tax exempt financing and taxable finance would be evidenced by separate promissory notes . Use of Proceeds: The proceeds of the Loan will be used to fund public infrastructure improvements associated with the redevelopment of the southwest corner of 38 th and Kipling Street ("Development") in Wheat Ridge . Proceeds may also be used for cost of issuance. Bank Qualification: The interest on a Bank Qualified tax exempt financing will be tax exempt for tax purposes . Collateral: Municipal Banking The Loan will be secured by a pledge of all the property tax and retail sales tax increment generated by the Development (excluding the Wheat Ridge Fire District 7.5 mill levy property tax) 1 Renewal Wheat Ridge ~COlORADO STATE ~BANK AND TRUST Credit Enhancement: Contribution: Maturity Date: Repayment: Rate of Interest And Optional Redemption: Municipal Banking and pledged by the Client. The Loan will also be secured by the Debt Service Reserve Fund. The City of Wheat Ridge ("City'') will provide a formal written moral obligation pledge to replenish the Debt Service Reserve Fund on an annual basis (subject to annual appropriation) when, and if, the Debt Service Reserve Fund is ever drawn upon . The City will provide the Authority with a contribution totaling a minimum of $800,000. December 1, 2023 Interest (computed on the basis of a 360-day year of twelve 30- day months) due semi-annually on June 1st and December 1st of each year , beginning December 1, 2014 . Annual payments of principal will be due on December 1st of each year, beginning December 1, 2015 . Projected annual principal payments for the Loan on each December 1 are as follows: 2015 $110,000 2016 265,000 2017 275,000 2018 280,000 2019 290,000 2020 300,000 2021 310,000 2022 320,000 2023 465,000 Final payment structure to be mutually agreed upon based on final Loan amount. For a Bank Qualified Tax Exempt Loan : Indexed fixed interest rate of 3.26%. Indicative rate quoted herein is indexed to the like term 10 year Swap Rate, and is subject to change. The Tax Exempt indicative interest rate quoted above may change, up or down, based upon changes in the like term interest rate swap rate from March 21, 2014, to the date of closing or the date the Authority elects to fix the interest rate, whichever occurs first. The fixed rate will be the sum of the indicative rate quoted 2 Renewal Wheat Ridge ~COlORADO STATE ~BANK AND TRUST above plus the net change in the sum of (i) the like term interest rate swap rate change since March 21 , 2014 (ii) multiplied by 0.65 . For a Taxable Loan : Indexed fixed interest rate of 5.02%. Indicative rate quoted herein is indexed to the like term 10 year Swap Rate , and is subject to change . The taxable indicative interest rate quoted above may change , up or down , based upon changes in the like term interest rate swap rate from March 21, 2014, to the date of closing or the date the Authority elects to fix the interest rate , whichever occurs first. Terms applicable to all Loans : The Facility shall not be subject to optional redemption prior to 3 years from loan closing . Repayable at par at any time after three years , plus accrued interest. After three years, the Client may prepay loan principal which prepayment amount shall be applied in reverse order to principal payments due as outlined within the Facility Documents . Rate may be locked within 30 days of funding , upon written acceptance of this proposal by the Authority . The interest rate swaps are reported at the following website : http://www.federalreserve.gov/releases/h15/update/ The following examples for the tax exempt interest rate are provided for illustrative purposes only : The interest rate quoted is indexed to and will increase or decrease by 65% of the change in the 10 Year Interest Rate Swaps rate from March 21 to the date the rate is locked by the Client. To clarify , if the 10 Year Interest Rate Swaps rate was 2.90% (assumed and used for illustrative purposes only) on March 21 , and the 10 Year Interest Rate Swaps rate was 3.00% on April 4 (assumed date the rate is locked), then the 3.26% indicative rate quoted on March 21 would be increased by 65% of the 10 basis point increase in the swap rate (3.00%-2.90% = .10% x .65% = 0.065%) to a final rate of 3.325% (3.26% + 0.065% = 3.325%). Likewise, if the 10 Year Interest Rate Swaps rate decreased by 10 basis points to 2.80%, then the indicative rate quoted on March 21 would decrease by 0.065% to a rate of 3.195%. Documentation Fees All costs and expenses incurred in the due diligence, preparation and administration of this Facility, including all legal expenses, shall be for the account of the Authority. An estimate of Bank costs are as follows : Facility Fee: $0 Municipal Banking 3 Renewal Wheat Ridge ~COLORADO STATE ~BANK AND TRUST Bank Documentation Review Fee: Client to pay legal fees of the Bank, anticipating that such fees will not exceed $7,000. Client shall pay all fees incurred for work done regardless of the closing of the Facility. Fees may be paid from Facility proceeds. It is anticipated that Mary Groves with Peck Shaffer will represent the Bank with respect to the subject Facility. Other Conditions and Covenants of the Client Usual and customary for credit facilities of this size, type , and purpose, including , but not limited to: Conditions Precedent: Those conditions stipulated in Section 3 of the Financial Reporting: REDEVELOPMENT AGREEMENT among WHEAT RIDGE URBAN RENEWAL AUTHORITY d/b/a/ RENEWAL WHEAT RIDGE, MILLENNIUM VENTURE GROUP, INC ., and the CITY OF WHEAT RIDGE, COLORADO . • Authority to provide annual audited financial statements within 210 days of fiscal year end . • Authority to provide an approved annual budget for the following fiscal year within 60 days after each fiscal year end . • Client to provide quarterly TIF Sales and Property Tax reporting . • Other information as requested by the Bank. Financial Covenants: • Authority shall maintain with Bank a Debt Service Reserve Fund equal to the lower of: 1. 10% of the Loan Principal 2. Maximum annual debt service 3. 125% of the average annual debt service • The Debt Service Reserve Fund shall be maintained at the Bank . • Default interest rate shall be the stated rate of interest of the Loan plus 4.0%. • Events of Default that are usual and customary for credit facilities of this size, type and purpose . Facility Documents: The Facility shall be evidenced by Facility documents, promissory note , and other such documents as the Bank and its counsel may require in their sole and absolute discretion (collectively , the "Facility Documents "). The Facility Documents shall contain such further representations, warranties, covenants , events of default, remedies and general provisions that the Bank may deem necessary, including for any tax exempt financing , an opinion stating that interest on the Facility is excludable from gross Municipal Banking 4 Renewal Wheat Ridge ~COLORADO STATE ~BANK AND TRUST Event of Default: income for Federal and Colorado State income tax purposes, and shall otherwise be satisfactory in form and substance to the Bank. Failure of Client to comply with or to perform when due any term, obligation , covenant or condition contained in this Commitment or in any related documents or in any other agreement between Bank and Client , shall constitute an Event of Default. If an Event of Default shall occur, all commitments and obligations under this Commitment , the Facility Documents, any related documents, or any other agreement immediately will terminate (including any obligation to make Facility Advances or disbursements). The Bank reserves the right to withdraw this Commitment prior to closing as follows : A) If Bank determines that a material adverse change has occurred in the financial condition or assets of the Client and or City. B) If Bank is advised prior to closing of the Facility of any law or regulation which prevents or prohibits the Bank from making the Facility in accordance with the terms and conditions contained herein or other conditions which , in the judgment of the Bank , have a material adverse effect upon the Client, the City, or the Bank 's ability to make the Facility. C) This Commitment presumes full disclosure and accuracy of all pertinent information submitted by the Client to the Bank and may be canceled by the Bank if any such information is false, incomplete or inaccurate in any material respect or if the conditions represented or indicated to exist shall change in any material respect. The above terms and conditions are intended to be a substantive outline of the transactions rather than a full and complete description of all terms of the Facility Documents, which shall contain such representations , warranties, covenants , events of default and other provisions as the Bank deems necessary. The Bank reserves the right and specifically indicates that it may require additional conditions and documents prior to funding of the Commitment. By signing this letter you are authorizing the Bank to begin documenting the Facility. This written Commitment Letter represents the final agreement between the Client and the Bank with respect to the Commitment described herein and may not be contradicted by evidence of prior , contemporaneous or subsequent oral agreements of the parties. There are no unwritten oral agreements between the parties. This Commitment Letter may not be assigned to, or relied upon by any person or entity not a party to this Commitment. This Commitment shall be governed by and construed in accordance with the laws of the State of Colorado and applicable federal laws. Municipal Banking 5 I EXHIBITG FORM OF SUBDIVISION IMPROVEMENT AGREEMENT SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT made this of , 2014 by and between the CITY OF WHEAT RIDGE, COLORADO, a home rule municipal corporation (the "City"), and Millennium Venture Group, Inc., a Delaware corporation, (the "Developer"), together referred to as the "Parties". RECITALS The Developer is the owner of certain real property located in the City of Wheat Ridge, which is more particularly described in Exhibit A and made a part hereof (the "Property"), commonly known as--------------- On , the City Council of the City of Wheat Ridge, after holding all required public hearings, approved the final plat for the Property titled A copy of the Final Plat is attached hereto as Exhibit B and incorporated herein. The approvals cited above are contingent upon the express condition that all duties created by this Agreement be faithfully performed by the Developer. AGREEMENT NOW , therefore, for and in consideration of the mutual promises and covenants contained herein , the sufficiency of which are mutually acknowledged , the parties hereto agree as follows: 1. Purpose. The purpose of this Agreement is to set forth the terms, conditions, and fees to be paid by the Developer upon subdivision of the Property. All conditions contained herein are in addition to any and all requirements of the City of Wheat Ridge Subdivision Ordinance and Zoning Ordinance, the City of Wheat Ridge Charter, any and all state statutes , and any other sections of the City of Wheat Ridge Municipal Code and are not intended to supersede any requirements contained therein. 2. Intentionally deleted. 3. Fees. The Developer hereby agrees to pay City Development Review fees to the City for engineering, hydrological, surveying, legal , and other services rendered in connection with the review of the subdivision of the Property. 4. Title Policy. Prior to recording of the final plat (or, if no plat is associated with the development; prior to and as a condition of final approval of the development by the City), a title commitment for all those portions of the Property, as well as any other interests in real property (easements, etc.) to be reserved for public purposes or dedicated to the City shall be provided to the City. The title commitment shall show that all such property is or shall be, subsequent to the execution and recording of this Agreement, free and clear of all liens and encumbrances (other than real estate taxes which are not yet due and payable) which would make the dedication or reservation unacceptable as the City determines in its reasonable discretion. The City, in its sole discretion , may accept any dedication regardless of encumbrances . The title policy evidenced by the title commitment shall be provided within thirty (30) days after the recording of this Agreement, in an amount equal to the fair market value of the property so dedicated or reserved . 5. Breach by the Developer; the City's Remedies. In the event of a breach of any of the terms and conditions of this Agreement by the Developer, the City Council shall be notified immediately and the City may take such action as permitted and/or authorized by law, this Agreement, or the ordinances and Charter of the City as the City deems necessary to protect the public health, safety and welfare; to protect lot buyers and builders; and to protect the citizens of the City from hardship and undue risk. These remedies include, but are not limited to: (a) The refusal to issue any building permit or certificate of occupancy; (b) The revocation of any building permit previously issued under which construction directly related to such building permit has not commenced, except a building permit previously issued to a third party, (c) A demand that the security given for the completion of the Public Improvements be paid or honored, or (d) Any other remedy available at law or in equity. Unless necessary to protect the immediate health, safety and welfare of the City or to protect the City's interest with regard to security given for the completion of the Public Improvements, the City shall provide the Developer thirty (30) days written notice of its intent to take any action under this paragraph during which thirty day period the Developer may cure the breach described in the notice. 6. Public Improvements and Warranty. All storm sewer lines, drainage structures, paved streets, including curb, gutter and sidewalk, and necessary appurtenances as shown on the subdivision plat and the associated construction documents (the "Public Improvements" or "Improvements") as approved by the Director of Public Works or designee of the City, shall be installed and completed at the expense of the Developer within the timeframes set forth on Exhibit C. The Public Improvements required by this Agreement and shown on the construction documents approved by the Director of Public Works of the City, the timeframes for construction of the Improvements and the itemized costs of these Improvements are set forth on Exhibit C if applicable . All Public Improvements covered by this Agreement shall be made in accordance with the construction documents drawn according to regulations and construction standards for such improvement and approved by the Director of Public Works of the City. It is understood by the Parties that the description of the Public Improvements may be general in nature, and that reasonable modifications of the scope, nature, costs, and similar aspects of the Public Improvements may be necessary to secure final approval of the Public Improvements . The quantities and locations for the Public Improvements are based on information that was available at the time of approval of the Final Plat. Additional Public Improvements may be required, and Developer shall be responsible for submitting revisions to the Final Plat approved by the City. The Public Improvements shall be substantially complete and granted construction acceptance, with only such exceptions as shall be approved in advance by the Director of Public Works in the exercise of his or her sole discretion, prior to the issuance of the first certificate of occupancy. The Developer shall also warrant any and all Public Improvements which are conveyed to the City pursuant to this Agreement for a period of two (2) years from the date the City's Director of Public Works certifies that the same conform with the specifications approved by the City. Specifically, but not by way of limitation , the Developer shall warrant the following: (a) That the title conveyed shall be marketable and its transfer rightful; Any Public Improvements conveyed shall be free from any security interest or other lien or encumbrance; and (b) Any Public Improvements so conveyed shall be free of defects in materials or workmanship for a period of two (2) years as stated above. (c) To the degree the Developer is required to install and maintain landscaping on public or private property, it is the obligation of Developer to maintain the required landscaping for two (2) growing seasons . The City will finally accept for maintenance all Public Improvements after the warranty period has expired provided all warranty work has been completed . The City shall accept for snow removal purposes only, all dedicated public streets after the City issues the first certificate of occupancy. 7. Installation of Traffic Signal on 38th Avenue . A traffic signal on 38th Avenue may be required to serve this development. Determination of the need for the signal shall be made by the City's Public Works Director, hereinafter "Director", prior to building permit issuance and based upon a traffic study for this development approved by the City. The Developer shall provide collateral for the estimated cost of installation of the traffic signal prior to building permit issuance, if the Director has determined that a signal is needed. Prior to building permit issuance, the Developer shall provide traffic signal plans for approval by the Developer and the Colorado Department of Transportation. The Developer shall notify the City in writing, a minimum of one hundred sixty (160) days prior to the desired time of installation/modification of the traffic signal in order to allow the City to coordinate the timing of the traffic signal improvements. If the Director approves installation of the signal based on meeting traffic warrants, the City shall then notify the Developer in writing of the exact amount required for the traffic signal improvements. The Developer shall then make payment to the City in cash for the required amount within sixty (60) days of receipt of such letter. The City will not commence traffic signal improvements until the Developer has paid to the City the total amount determined by the Director to be the total cost of improvements. 7. Intentionally Deleted. 8. Observation. Inspection and Testing. The City shall have the right to require reasonable engineering observations and testing at the Developer's expense. Observation and testing, acquiescence in, or approval by any engineering inspector of the construction of the Public Improvements at any particular time shall not constitute the approval by the City of any portion of the construction of such Public Improvements. Such approval shall be made by the City, only after completion of construction and in the manner hereinafter set forth. The Director is designated by the City to exercise authority on its behalf under this Agreement and to see that this Agreement is performed according to its terms. Work under this Agreement may, without cost or claim against the City, be suspended by the Director for substantial cause. The Director shall, within a reasonable time after presentation, make decisions in writing on all claims of Developer and on all other matters relating to the execution and progress of the work or the interpretation of this Agreement, the master plan and specifications. All such decisions of the Director shall be final. The Director shall make all determinations of amounts and quantities of work performed hereunder. To assist him in this work Developer shall make available for inspection any records kept by Developer. The Director and his authorized representatives shall have free access to the work at all times, and Developer shall furnish them with facilities for ascertaining whether the work being performed, or the work which has been completed, is in accordance with the requirements of the Agreement. The Director will make periodic observations of construction (sometimes commonly referred to as "supervision"). The purpose of these observations and construction checking is to determine the progress of the work and to see if the work is being performed in accordance with the plans and specifications. He will in no way be responsible for how the work is performed, safety in, on, or about the job site, methods of performance, or timeliness in the performance of the work. Inspectors may be appointed to inspect materials used and work done. Inspections may extend to all or any part of the work and to the preparation or manufacture of the materials to be used. The inspectors will not be authorized to alter the provisions of this Agreement or any specifications or to act as foreman for Developer. The Inspector will have authority to reject defective materials and to suspend any work that is being done improperly, subject to the final decision of the Director. 9. Completion of Public Improvements . The obligations of the Developer provided for in paragraph 6 of this Agreement, including the inspections hereof, shall be performed on or before December 31 , 2015 , and proper application for acceptance of the Public Improvements shall be made on or before such date . Upon completion of construction by the Developer of such Improvements , the City's Director of Public Works or designee , shall inspect the Improvements and certify with specificity its conformity or lack thereof to the City's specifications . The Developer shall make all corrections necessary to bring the Improvements into conformity with the City's specifications. Once approved by the City's Director of Public Works , the City shall accept said Improvements upon conveyance ; provided , however, the City shall not be obligated to accept the Public Improvements until the actual costs descri bed in this Agreement are paid in full by the Developer. 10 . Protection . Developer, at its expense , sha ll cont i nuously maintain adequate protection of all Improvements from damage prior to acceptance by the City and shall protect the City 's property from injury and loss arising in connection with this Agreement. Developer shall make good any such damage , injury or loss except such as may be caused directly by authorized agents or employees of the City . Developer shall adequately protect adjacent property and shall provide and maintain all passageways, guard fences , lights and other facilities for protection required by public authority or local conditions. Developer shall be responsible for damage to any public and private property on and adjacent to the site of Developer's Improvements caused by negligent or wi llful acts of Developer, its agents or subcontractors . Developer shall take all reasonable effort necessary to prevent damage to pipes , conduits , and other underground structures and to overhead wires , and to water quality. Developer shall protect carefully from disturbance or damage all land monuments and property marks until an authorized agent of the City has witnessed or otherwise referenced their location , and shall not remove them until directed . When any direct or indirect damage or injury is done to public or private property by or on account of any act , omission , neglect or misconduct in the construction of Improvements , or in consequence of the non-execution thereof on his part , such damaged property shall be restored by Developer at its own expense to a condition similar or equal to that existing before such damage or injury. Developer shall at all times , whether or not so specifically directed by the Director, take necessary precautions to insure the protection of the public. Developer shall furnish, erect and maintain , at its own expense, all necessary barricades , suitable and sufficient red lights, construction signs , provide a sufficient number of watchmen , and take all necessary precautions for the protection of the work and safety of the public through or around his construction operations as Developer and the Director shall deem reasonably necessary. 11. Related Costs -Public Improvements. The Developer shall provide all necessary engineering designs, surveys , field surveys , testing and incidental services related to the construction of the Public Improvements at its sole cost and expense, including final drainage study letter certified accurate by a professional engineer registered in the State of Colorado. 12. Improvements to be the Property of the City. All Public Improvements for roads , concrete curb and gutters, public storm sewers and public drainage improvements accepted by the City shall be dedicated to the City and warranted for a period of twenty-four (24) months following acceptance by the City, as provided above. 13. Performance Guarantee. The Parties have entered into that certain Redevelopment Agreement dated April _, 2014 and because of the Redevelopment Agreement , there is no performance guaranty required to secure the completion of the Public Improvements. After the City 's acceptance of the Public Improvements , Developer shall provide an irrevocable letter of credit to the City in the amount of twenty-five percent (25%) of the total cost of construction and installation of the Public Improvements , to be held by the City during the warranty period . The letter of credit shall be substantially in the form and content set forth in Exhibit D. 14. Indemnification. The Developer shall indemnify and hold harmless the City and its officers , employees, agents or servants from any and all suits , actions , and claims of every nature and description caused by, arising from or on account of this Agreement any act or omission of the Developer, or of any other person or entity for whose act or omission the Developer is liable, with respect to the Public Improvements; and the Developer shall pay any and all judgments rendered against the City as a result of any suit, action , or claim , together with all reasonable expenses and attorney's fees and costs incurred by the City in defending any such suit , action or claim . The Developer shall pay all property taxes on the Property dedicated to the City and shall indemnify and hold harmless the City for any property tax liability. 15. Waiver of Defects . In executing this Agreement, the Developer waives all objections it may have concerning defects , if any, in the formalities whereby it is executed, or concerning the power of the City to impose conditions on the Developer as set forth herein , and concerning the procedure , substance, and form of the ordinances or resolutions adopting this Agreement. 16 . Third Party Beneficiaries . There are and shall be no third party beneficiaries to this Agreement. 17 . Modifications. This instrument 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. There shall be no modification of this Agreement except in writing, executed with the same formalities as this instrument. Subject to the conditions precedent herein, this Agreement may be enforced in any court of competent jurisdiction. 18. Release of Liability. It is expressly understood that the City cannot be legally bound by the representations of any of its agents or their designees except in accordance with the City of Wheat Ridge Code of Ordinances and the laws of the State of Colorado. 19. Captions . The captions to this Agreement are inserted only for the purpose of convenient reference and in no way define, limit, or prescribe the scope or intent of this Agreement or any part thereof. 20. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, successors , and assigns as the case may be. 21. No Waiver. No waiver of any of the provisions of this Agreement shall be deemed or constitute a waiver of any other provisions herein, nor shall such waiver constitute a continuing waiver unless otherwise expressly provided, nor shall the waiver of any default hereunder be deemed a waiver of any subsequent default hereunder. 22. Invalid Provision. If any provision of this Agreement shall be determined to be void by any court of competent jurisdiction , then such determination shall not affect any other provision hereof, all of the other provisions shall remain in full force and effect. It is the intention of the Parties that if any provision of this Agreement is capable of two constructions , one of which would render the provision void, and the other which would render the provision valid , then the provision shall have the meaning which renders it valid . 23. 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, venue of such suit or action shall be in Jefferson County, Colorado. 24 . Attorney Fees. Should any party hereto institute an action or proceeding to enforce any provision of this Agreement or for damages by reason of an alleged breach of any provision hereof, the prevailing party shall be entitled to recover from the party not prevailing all costs and expenses (including reasonable attorneys ' fees) incurred by such prevailing party in connection with such action or proceeding and the enforcement of any judgment or settlement obtained in such action or proceeding and, the provisions of any such judgment shall expressly provide for the recovery of such post-judgment costs and expenses. A "prevailing party" includes one who dismisses an action brought under or with respect to this Agreement in exchange for the payment of the sums alleged to be due, performance of the covenants alleged to have been breached or other consideration substantially equal to that sought in such action. 25. Notice. All notices required under this Agreement shall be in writing and shall be hand delivered or sent by registered or certified mail, return receipt requested, postage prepaid, to the addresses of the parties herein set forth. All notices so given shall be considered effective seventy-two (72) hours after deposit in the United States mail with the proper address as set forth below. Either party by notice so given may change the address to which future notices shall be sent. Notice to Developer: Notice to City: Millennium Venture Group, Inc Attn: Jon Rankin 1509 York Street, 3rd Floor Denver, CO 80206 Director of Public Works 7500 West 29th Avenue Wheat Ridge, CO 80033 26. Force Majeure. Whenever the Developer is required to complete the construction, repair, or replacement of Public Improvements by an agreed deadline, the Developer shall be entitled to an extension of time equal to a delay in completing the foregoing due to unforeseeable causes beyond the control and without the fault or negligence of the Developer including, but not restricted to, acts of God, weather, fires and strikes. 27. Assignment or Assignments. There shall be no transfer or assignment of any of the rights or obligations of the Developer under this Agreement without the prior written approval of the City. 28. Recording of Agreement. This Agreement shall be recorded in the real estate records of Jefferson County and shall be a covenant running with the Property in order to put prospective purchases or other interested parties on notice as to the terms and provisions hereof. 29. Title and Authority. The Developer expressly warrants and represents to the City that it is the record owner of the property constituting the Property and further represents and warrants, together with the undersigned individual(s) that the undersigned individual(s) has or have full power and authority to enter into this Subdivision Improvement Agreement. The Developer and the undersigned individual(s) understand that the City is relying on such representations and warranties in entering into this Agreement. WHEREFORE , the parties hereto have executed this Agreement on the day and year first above written. CITY OF WHEAT RIDGE, COLORADO By: Joyce Jay , Mayor ATTEST : Janelle Shaver, City Clerk APPROVED AS TO FORM : Gerald Dahl , City Attorney STATE OF COLORADO Millennium Venture Group, Inc., a Delaware corporation By: __________________________ __ ) ) ss. COUNTY OF ________________________ ) The foregoing instrument was acknowledged before me this __ day of _____________ ,2014,by ,as ______________ __ of Millennium Venture Group, Inc., a Delaware corporation . Witness my hand and official seal. My commission expires:-------------------- Notary Public (SEAL) 20668744 v3 EXHIBIT B COOPERATION AGREEMENT BETWEEN THE CITY OF WHEAT RIDGE AND WHEAT RIDGE URBAN RENEWAL AUTHORITY THIS COOPERATION AGREEMENT (this "Agreement") dated as of April _, 2014, is made and entered into between the CITY OF WHEAT RIDGE , COLORADO (the "City") and the WHEAT RIDGE URBAN RENEWAL AUTHORITY d/b /a/ RENEWAL WHEAT RIDGE (the "Authority"). WHEREAS , the City is a Colorado home rule municipality with all the powers and authority granted pursuant to Article XX of the Colorado Constitution and its home rule charter (the "Charter"); and WHEREAS , the Authority is a Colorado Urban Renewal Authority, with all the powers and authority granted to it pursuant to Title 31 , Article 25 , Part 1, Colorado Revised Statutes ("C.R.S.") (the "Urban Renewal Law"); and WHEREAS , pursuant to Article XIV of the Colorado Constitution , and Title 29 , Article 1, Part 2, C.R.S ., the City and the Authority are authorized to cooperate and contract with one another to provide any function , service or facility lawfully authorized to each governmental entity; and WHEREAS , the City Council of the City (the "City Council ") has previously adopted the 1-70/Kipling Corridors Urban Renewal Plan , as amended (the "Urban Renewal Plan" or the "Plan") for the area described therein (the "Urban Renewal Area"); and WHEREAS , Millennium Venture Group , Inc., a Delaware corporation (the "Developer") has one or more contracts to purchase certain real property consisting of approximately 6.5 acres which is located at the southwest comer of West 38th Avenue and Kipling Street (the "Property"), which is in the Urban Renewal Area ; and WHEREAS , the Developer has submitted a proposal to the City and the Authority to redevelop the Property (the "Project"); and WHEREAS , the Project is being undertaken to facilitate the elimination and prevention of blighted areas and to promote redevelopment, conservation and rehabilitation of the Urban Renewal Area ; and WHEREAS , pursuant to section 31-25-112 , C.R.S., the City is specifically authorized to do all things necessary to aid and cooperate with the Authority in connection with the planning or undertaking of any urban renewal plans, projects, programs, works , operations, or activities of the Authority, to enter into agreements with the Authority respecting such actions to be taken by the City, and appropriating funds and making such expenditures of its funds to aid and cooperate with the Authority in undertaking the Project and carrying out the Plan; and Exhibit B WHEREAS, the City, the Authority and the Developer expect to enter into a Redevelopment Agreement (the "Redevelopment Agreement") that sets forth the rights and responsibilities of each party with respect to the financing and construction of the Project; and WHEREAS, in order to finance certain eligible improvements for the Project, the Redevelopment Agreement provides that, upon compliance with certain conditions precedent, the Authority will issue bonds or enter into a loan with a bank or other financial institution (the "Lender") in the maximum amount of $2,615,000 (the "Loan") with such Loan to be payable from property tax increment revenues and sales tax increment revenues to be generated from the redevelopment of the Project; and WHEREAS, it is expected that the Loan will be secured by a reserve fund (the "Reserve Fund") to be held by the Lender and that such Reserve Fund will be required to be maintained in an amount equal to the Reserve Fund Requirement (as defined in the Redevelopment Agreement); and WHEREAS, in order to help facilitate the redevelopment of the Project, the City Council has adopted a Resolution declaring its nonbinding intent and expectation that it will appropriate any funds requested, within the limits of available funds and revenues, in a sufficient amount to replenish the Reserve Fund to the Reserve Fund Requirement in the event of a draw thereunder (the "Replenishment Resolution"); and WHEREAS , capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Redevelopment Agreement. NOW, THEREFORE, in consideration of the mutual promises set forth below, the City and the Authority agree as follows: 1. LOAN. If the City Council appropriates funds pursuant to the Replenishment Resolution to replenish the Reserve Fund as set forth therein, such funds shall be a loan from the City to the Authority to be repaid as provided herein. 2. PAYMENT. All amounts payable by the Authority to the City hereunder shall be repaid from and to the extent of available Pledged Revenues or from other available revenues of the Authority, provided that any such repayment from Pledged Revenues shall be made on a basis expressly subordinate and junior to the payments due on the Loan. 3. FURTHER COOPERATION. (a) The City shall continue to make available such employees of the City as may be necessary and appropriate to assist the Authority in carrying out any authorized duty or activity of the Authority pursuant to the Urban Renewal Law, the Plan, or any other lawfully authorized duty or activity of the Authority. (b) The City agrees to assist the Authority by pursuing all lawful procedures and remedies available to it to collect and transfer to the Authority on a timely basis all Pledged Sales Tax Increment Revenues for deposit into the Special Fund. 2 (c) The City agrees to pay to the Authority any Pledged Property Tax Increment Revenues when, as and if received by the City, but which are due and owing to the Authority pursuant to the Plan and the Urban Renewal Law. 4. GENERAL PROVISIONS. (a) Separate Entities. Nothing in this Agreement shall be interpreted in any manner as constituting the City or its officials , representatives , consultants , or employees as the agents of the Authority, nor as constituting the Authority or its officials , representatives , consultants, or employees as agents of the City. Each entity shall remain a separate legal entity pursuant to applicable law. Neither party shall be deemed hereby to have assumed the debts , obligations , or liabilities of the other. (b) Third Parties. Neither the City nor the Authority shall be obligated or liable under the terms of this Agreement to any person or entity not a party hereto, provided , however, that the Lender is a third party beneficiary to the provisions hereof related to the collection and remittance to the Authority of the Pledged Revenues . (c) Modifications. No modification or change of any provtston in this Agreement shall be made, or construed to have been made, unless such modification is mutually agreed to in writing by both parties and incorporated as a written amendment to this Agreement. Memoranda of understanding and correspondence shall not be construed as amendments to the Agreement. (d) Entire Agreement. This Agreement shall represent the entire agreement between the parties with respect to the subject matter hereof and shall supersede all prior negotiations , representations , or agreements , either written or oral , between the parties relating to the subject matter of this Agreement and shall be independent of and have no effect upon any other contracts. (e) Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. (f) Assignment. Except for the pledge under the Loan Documents, this Agreement shall not be assigned , in whole or in part, by either party without the written consent of the other. (g) Waiver. No waiver of a breach of any provision of this Agreement by either party shall constitute a waiver of any other breach or of such provision. Failure of either party to enforce at any time, or from time to time, any provision of this Agreement shall not be construed as a wai ver thereof. The remedies reserved in this Agreement shall be cumulative and additional to any other remedies in law or in equity. 3 IN WITNESS WHEREOF, this Agreement is executed by the Parties as of April _, 2014. (SEAL) Attest: Janielle Shaver, City Clerk APPROVED AS TO FORM Gerald Dahl, City Attorney ATTEST: Patrick Goff, Executive Director 20657920 v2 CITY OF WHEAT RIDGE, COLORADO By: ______________________________ __ Joyce Jay, Mayor WHEAT RIDGE URBAN RENEWAL AUTHORITY Kristi Davis , Chairperson 4 38 1h and Kipling Redevelopment Agreement April 14 ,2014 Page 2 To cover the identified financial gap, an economic development incentive package totaling $3.0 million has been negotiated with MVG. RWR will enter into a loan with Colorado State Bank and Trust for a maximum amount of $2.615 million , which will net $2.0 million in available funds for the project. The loan will be payable from 100% of the property tax increment (minus the Wheat Ridge Fire District 7.5 mills) and sales tax increment revenues to be generated from the redevelopment project for a maximum period of 10 years. The City will contribute between $800 ,000 and $1.0 million from the General Fund reserves to the project for public improvements . PR IOR ACTI ON: Council received a staff memo and a presentation from MVG on this project at their study session on March 3, 2014. Consensus was reached by City Council at that time to move forward with the proposed financing structure including a 1 0-year, tax-exempt bond for about $2.4 million and a subordinate note for about $1.0 million from the General Fund. City Council approved a resolution on March 24 , 2014 authorizing the City Manager to negotiate a Redevelopment Agreement with MVG. FINANCIAL IM PACT: The adoption of this resolution obligates the City to contribute between $800,000 and $1 .0 million from General Fund reserves for the construction of eligible public improvements. The exact amount will be detennined when the interest rate and loan documents are finalized. There are adequate reserves available to fund this contribution and still maintain the City Council policy of a 17% reserve . R WR will also enter into a loan with Colorado State Bank and Trust for approximately $2.6 million for the construction of eligible public improvements. 100% of the property tax increment (minus the Wheat Ridge Fire District 7.5 mills) and sales tax increment revenues to be generated from the redevelopment project for a maximum period of 10 years will be payable to the loan. Projections of property and sales tax increment revenues were very conservatively estimated and it is anticipated there will be significant excess revenues on an annual basis which allow for the loan to be paid off in a much shorter time frame than the I 0- year term of the loan . The loan tenns allow for prepayment without penalty after three years. Once the loan is fully paid , the City will receive I 00% of the sales tax generated from the site, estimated at $500,000 per year. R WR will continue to receive the incremental property tax revenue from the site, estimated at $225 ,000 per year, until the 25-year Tax Increment Financing agreement expires. BACKGRO UN D: The subject property, a blighted and under-performing commercial comer, was identified by RWR in the 1-70/Kipling Corridors Urban Renewal Plan and by the community in the City's Comprehensive Plan , Envision Wheat Ridge as an area in need of a transfonnative redevelopment project. During its 40 years of operation , the entire shopping center has fallen into disrepair. Code enforcement issues are continually addressed by the City, including potholes and weeds in the parking lot , illegal dumping, transient occupancy of the vacant buildings , and general maintenance issues . In addition , the site has poor drainage which leads to occasional flooding of the structures located at the northern portion of the property . There are additional site constraints 38 1h and Kipling Redevelopment Agreement April 14 , 2014 Page 3 related to circulation, access, site sloping, inadequate parking in proximity to the Starbucks , and no significant landscaping exists anywhere on the 6.3-acre site. MVG proposes construction of a new 6.3-acre, mixed-use development including over 33 ,000 sq. ft. of retail and a 64-unit senior care facility. The retail components would consist of a Sprouts Fanners Market grocery store; a new drive-thru Starbucks and one additional pad for a food service restaurant. The senior housing component would consist of a 64-unit assisted living and memory care facility. RECOMMENDATIONS: Staff recommends approval of the resolution. RECOMMENDED MOTION: "I move to approve Resolution No. 24-2014 - A resolution amending the 2014 fiscal year General Fund budget reflecting the approval of a supplemental budget appropriation in an amount not to exceed $1.0 million for the purposes of funding public imrrovements in association with the redevelopment of the southwest comer of West 38 1 Avenue and Kipling Street." Or, "I move to postpone indefinitely Resolution No. 24-2014 for the following reason(s) " REPORT PREPARED/REVIEWED BY: Patrick Goff, City Manager ATTACHMENTS: 1. Resolution No. 24-2014 CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 24 Series of 2014 TITLE: A RESOLUTION AMENDING THE 2014 FISCAL YEAR GENERAL FUND BUDGET TO REFLECT THE APPROVAL OF A SUPPLEMENTAL BUDGET APPROPRIATION IN AN AMOUNT NOT TO EXCEED $1.0 MILLION FOR THE PURPOSES OF FUNDING PUBLIC IMPROVEMENTS IN ASSOCIATION WITH THE REDEVELOPMENT OF THE SOUTHWEST CORNER OF WEST 38TH AVENUE AND KIPLING STREET WHEREAS, the City Council has adopted the 1-70/Kipling Corridors Urban Renewal Plan, as amended (the "Urban Renewal Plan" or the "Plan") for the area described therein (the "Urban Renewal Area"); and WHEREAS, Millennium Venture Group, Inc., a Delaware corporation (the "Developer'') has one or more contracts to purchase certain real property consisting of approximately 6.5 acres which is located at the southwest corner of West 38th Avenue and Kipling Street (the "Property"), which is in the Urban Renewal Area; and WHEREAS, the Developer has submitted a proposal to the City and the Authority to redevelop the Property (the "Project"); and WHEREAS, the City has determined and hereby determines that it is in the best interests of the City and its citizens to assist in the redevelopment of the Project in order to promote employment and increase sales tax revenues; and WHEREAS, the Urban Renewal Authority has determined that the redevelopment of the Project in order to remediate blight is consistent with and in furtherance of the purposes of the Authority and the Plan; and WHEREAS, in order to help facilitate the redevelopment of the Project, the City desires to appropriate between $800,000 and $1,000,000 of City moneys to finance a portion of certain eligible improvements for the Project in accordance with the terms and provisions of the Redevelopment Agreement; 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 City Council of the City of Wheat Ridge, Colorado, that: Section 1. Effectiveness. This Resolution shall take effect immediately. Attachment 1 Section 2. The City Council authorizes the transfer of $1.0 million from the General Fund undesignated reserves to account number 01-105-700-719 and the amendment of the 2014 Fiscal Year revenues accordingly. DONE AND RESOLVED this 14th day of April, 2014. Joyce Jay, Mayor [SEAL] Attest: Janelle Shaver, City Clerk 20657842 v2 2 Council Action Form -Planning Commission Appointment April 14 , 2014 Page 2 terms for which they were appointed and shall be subject to reappointment at the discretion of City Council.( emphasis supplied) Because there was a District IV applicant for the position , the Council was not authorized to appoint Ms. Hollenbeck. RECOMMENDATIONS: In this situation , the Council should rescind Ms. Hollenbeck's appointment, after which Council has the following options: • Move to appoint Mr. Maes , assuming his application is still active ; • Re-advertise the position and consider any additional applicants at a future meeting ; or • Leave the position vacant at this time. RECOMMENDED MOTIONS: Motion 1: "I move to reconsider the appointment of Lisa Hollenbeck to the Planning Commission ." Motion 2: "I move to rescind the appointment of Lisa Hollenbeck to the Planning Commission." Motion 3: Option 1: "I move to appoint Joseph Maes to the Planning Commission, term to expire -------' 20_ " Option 2: "I move to re-advertise for applicants for membership on the Planning Conunission from District IV." Option 3: "I move to take no further action on the appointment of a District IV member on the Planning Commission at this time." REPORT PREPARED BY; Gerald Dahl , City Attorney Patrick Goff, City Manager ATTACHMENTS: 1. Hollenbeck application 2. Maes application HOME PHONE : 303 .949 .9208 BUSINESS PHONE : 303 .539 .5700 E-MAIL ADDRESS: Hollenbeckhomes@comcast.net APPLICATION WILLBE KEPT ON FILE FOR ONE YEAR