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HomeMy WebLinkAboutCity Council Agenda Packet 09/09/20136:45 – Pre-Meeting CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING September 9, 2013 7:00 p.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 August 26, 2013 PROCLAMATIONS AND CEREMONIES World Alzheimer’s disease Month 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 PUBLIC HEARINGS AND ORDINANCES ON SECOND READING 1. Resolution No. 31-2013 – approving a two-lot subdivision plat with a Right-Of-Way Dedication for property zoned residential-one (R-1) located at 3785 Independence Street (Case No. MS-13-03/Fox Hill) CITY COUNCIL AGENDA: September 9, 2013 Page -2- PUBLIC HEARINGS AND ORDINANCES ON SECOND READING (con’t) 2. Resolution No. 33-2013 – Authorizing the execution of an agreement with a Taste of Home Cooking, LLC and Wine Not, LLC for participation in the Enhanced Sales Tax Incentive Program rebating 50% of the Enhanced Sales Tax for a period of five years for the construction of a restaurant and wine bar at 4101 and 4111 Kipling St. in an amount not to exceed $73,694 3. Resolution No. 35-2013 – Authorizing the execution of an agreement with Musel Masster (The Green Herb) for participation in the Enhanced Sales Tax Incentive Program (ESTIP) rebating 50% of the Enhanced Sales Tax for a period of three years for construction of a new building at 4565 Kipling St. 4. Resolution No. 34-2013 – Authorizing the execution of an agreement with Musel Masster (The Green Herb) to participate in the Wheat Ridge Business Development Zone Program for a rebate of 100% of the eligible Use Tax in association with the Construction of new building at 4565 Kipling St. in Wheat Ridge ORDINANCES ON FIRST READING 5. Council Bill 13-2013 – Amending Chapter 11 of the Wheat Ridge Code of Laws by adding a new article XIII concerning Retail Marijuana and making certain amendments to Chapter 26 (Zoning and Development) in association therewith DECISIONS, RESOLUTIONS AND MOTIONS 6. Resolution 32-2013 – Approving the City of Wheat Ridge Coyote Management Plan 7. Motion to approve payment to Insight Public Sector, Inc. in the amount of $51,618.51 for the annual renewal of the Microsoft Enterprise Agreement 8. Resolution 36-2013- Approving an Intergovernmental Agreement between the City of Wheat Ridge and Renewal Wheat Ridge to provide funding for the purchase of certain property CITY MANAGER’S MATTERS CITY ATTORNEY’S MATTERS ELECTED OFFICIALS’ MATTERS ADJOURNMENT CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING August 26, 2013 Mayor DiTullio called the Regular City Council Meeting to order at 7 :00p.m. ROLLCALL OF MEMBERS Joyce Jay Joseph DeMott Davis Reinhart Tracy Langworthy Bud Starker George Pond Krist i Davis Mike Stites Also present: City Clerk, Janelle Shaver; City Treasurer, Larry Schulz ; City Attorney, Gerald Dahl ; City Manager Patrick Goff; Police Chief Dan Brennan ; Economic Development Manager, Steve Art; other staff, guests and interested citizens. APPROVAL OF MINUTES OF August 12, 2013 Motion by Councilmember Stites for approval of the Minutes of August 12 , 2013 ; seconded by Councilmember Starker; carried 8-0 . PROCLAMATIONS AND CEREMONIES Pol ice Department Citizen Award Presentation -Melissa Romero Chief Brennan presented Melissa Romero with the Wheat Ridge Police De~artment C it izen Award and Police Ceremonial Challenge Coin. While driving on 38 h Avenue near Newland Street last May she observed a man lying across the sidewalk. She stopped , the man was unresponsive , and she called 911 immediately. Police came and the victim was transported to the hospital by ambulance . Fortunately he survived this medical event. Melissa's brave, selfless and compassionate act may have saved the man 's life and no doubt prevented additional harm to him . GFOA Budget Presentation Award Doug Farmen, the Finance Director of the City of Littleton and acting on behalf of Government Finance Officers Association , presented the Distinguished Budget Presentation Award to the City of Wheat Ridge. Th is program encourages governments to prepare and present excellent budget documents for the benefit of citizens and other parties with a vital interest in government finance . This award is a premier indicator of excellence in governmental budget reporting. Compliance with the demanding criteria City Council Minutes August 26, 2013 Page 2 for this award reflects the professionalism and commitment of many people, numerous hours of hard work, and a high degree of dedication and leadership. This is the first time Wheat Ridge has received this award, and Mr. Farmen hopes it will be an example and encourage others to strive for the same high standards. City Manager Patrick Goff accepted the award and thanked Mr. Farmen and the GFOA on behalf of the City of Wheat Ridge. He said the City is honored, as this is the only national award program for budgeting. This is the first time Wheat Ridge has applied for this award and it reflects a significant achievement by our governing body and staff to meet the highest principles of government budgeting . He thanked staff members Heather Geyer, Nathan Moseley and Karen Van Ert for their efforts every year in completing the budget, especially this year to be recognized for this award . CITIZENS' RIGHT TO SPEAK none APPROVALOFAGENDA The Mayor noted two items that needed to be added to the agenda : Resolution 29- 2013 and Resolution 30-2013. There were no objections from the Council and they were added by unanimous consent as Items 2 and 3. PUBLIC HEARINGS AND ORDINANCES ON SECOND READING 1.:. Council Bill No . 12-2013 -submitting a ballot question to the voters of the City at the November 5, 2013 Election, concerning an increase in the Sales and Use Tax Rate Mayor DiTullio opened the public hearing . Councilmember Starker introduced Council Bill 12-2013. SHALL CITY OF WHEAT RIDGE TAXES BE INCREASED $6 .5 MILLION IN CALENDAR YEAR 2014 THROUGH AN INCREASE IN THE CITY'S SALES AND USE TAX RATE OF ONE CENT (1%) ON EACH ONE DOLLAR , AND BY WHATEVER ADDITIONAL AMOUNTS ARE RAISED ANNUALLY IN EACH SUBSEQUENT YEAR, WHICH REVENUES SHALL BE INVESTED IN THE COMMUNITY TO IMPROVE AND ENHANCE THE SAFETY AND QUALITY OF LIFE OF WHEAT RIDGE RESIDENTS AND SECURE THE CITY'S FINANCIAL FUTURE THROUGH, BUT NOT LIMITED TO THE FOLLOWING: • ROAD AND BRIDGE CONSTRUCTION; STORMWATER DRAINAGE CONSTRUCTION AND MAINTENANCE ; AND CAPITAL MAINTENANCE TO PROVIDE A SAFE AND EFFECTIVE CITY INFRASTRUCTURE SYSTEM City Council Minutes August 26, 2013 • INVESTING IN CAPITAL PROJECTS THAT SUPPORT THE BUSINESS GROWTH OF OUR COMMUNITY Page 3 AND SHALL THE CITY BE PERMITTED TO COLLECT, RETAIN AND SPEND THE REVENUES FROM SUCH INCREASE, INCLUDING ALL INTEREST DERIVED THEREFROM, WITHOUT REGARD TO THE REVENUE RAISING, DEBT LIMITATION OR OTHER RESTRICTIONS OF ARTICLE X, SECTION 20 OF THE COLORADO CONSTITUTION? City Clerk Shaver assigned Ordinance number 1542 . There was no staff presentation . Citizen comments : Tom Radigan thinks a 33% sales tax increase (up to 4%) is shameful mismanagement. • Establishing the highest sales tax rate in the area will punish senior citizens the most because they spend a greater portion of their disposable income here. • He gave specific dollar reasons why he thinks the City's reserve fund should be adequate to cover upcoming unfunded liabilities. • He doesn't think this increase will help attract brand names businesses. • He wonders if having the highest tax rate in the area will help retain existing businesses. • He suggested a rate increase of only 1/3%. Jesse Hill spoke against putting a $6.5M tax increase on the ballot. He said he wasn't speaking against the tax itself, but he doesn't think it should go on the ballot as written . • He doesn't think citizens will be able to make an informed and educated decision about this because the ballot issue has no plan , no budget, no timeline, and no accountability. • He encouraged Council to table it until more information can be provided, thereby earning the respect of citizens and also their possible support . • If it is not tabled he suggested three amendments: 1) a provision to ensure the tax money is spent only on items listed (i.e. remove the phrase "but not limited to"), 2) include a sunset, and 3) provide transparency so any citizen can monitor how this money is being spent without making a special request. • He asked why there is no plan , no budget, and no sunset, and he wonders if this will really solve any financial problems the City may have . Council comments/questions: Council member Jay said she will not be supporting this bill as it's written because it puts us in too high a range and seniors will pay more . Lakewood and Golden have 3%, Arvada 3.46%, Edgewater 3.5%. She thinks it's not in our best interest to have a 4% sales tax rate right not when we are trying so hard to create economic development. She prefers a lower percentage. She also thinks the upcoming Jefferson County school bond vote does not bode well for this ballot item . City Council Minutes August 26, 2013 Page4 Councilmember Davis said she didn't have a problem striking the words "but not limited to" because she thinks the money will go for roads, bridges and other capital projects that will attract businesses anyway. She still feels the decision from the retreat, a 1% increase in sales tax, is the fairest way to spread the burden across the spectrum of citizens. It doesn't just hit property owners. She thinks our infrastructure is wearing out.-She noted that places like Belmar and the Target on Kipling have extra development fees (shown on the sales receipts) which actually make their tax rates higher. She will continue to support this tax because it supports the vision for Wheat Ridge. She supports being transparent , but the status quo is not good. Councilmember Stites said he has not supported this tax increase from the beginning . As a WR businessman he thinks it will hurt business. We are just getting to a good point where we have some good businesses coming in and this will hurt them. He thinks it will also hurt some older businesses . -He also doesn't like the language . The 2004 tax increase was specific language about how the money would be spent and good has come from it , but this one doesn 't have enough information for people. -He also feels the City needs to cut its own budget first. After cutting our own budget then we may be able to show citizens why a tax increase is needed. Councilmember Pond had some procedural questions about the possibility of changing any wording tonight. Mr. Dahl explained how, with a short recess, some minor changes in the wording of the ordinance could easily be made tonight Mayor DiTullio closed the public hearing. Motion by Council member Starker to approve Council Bill No . 12-2013, an ordinance submitting a ballot question to the voters of the City at the November 5, 2013 Election, concerning an increase in the Sales and Use Tax Rate, and that it take effect immediately upon adoption ; seconded by Councilmember Reinhart . Motion by Councilmember Jay to amend the ordinance to provide for a 1/2% increase in the sales and use tax, and cut the total to $3.25 million . Motion failed for lack of second. Motion by Councilmember Davis to remove the words "not limited to the following"; seconded by Councilmember Reinhart. Discussion followed. Councilmember DeMott spoke about the tax being something that has been contemplated for several years. Discussion has revealed that alternatives such as road fees or storm sewer utilities are a disaster. Arvada and Lakewood have those and people enjoy that we don't have those in Wheat Ridge . He owns businesses in all three cities and he doesn't think it will hurt businesses. We also have the lowest property tax -he thinks in the whole county, which has been good for seniors and businesses. A future City Council could impose a storm water fee that will not go to the voters. He believes that putting a sales tax question on the ballot is the most fair way to ask for a City Council Minutes August 26, 2013 Page 5 tax increase and is the most open and transparent way to go. He won't support this amendment. The motion to amend failed 5-3 with Councilmembers DeMott, Stites, Langworthy, Davis, and Starker voting no. The main motion, with no amendments, carried 6-2, with Councilmembers Stites and Jay voting no. 2. Resolution 29-2013 --Authorizing the appropriate city officials to execute an "intergovernmental agreement" by and between the County of Jefferson, state of Colorado, and the City of Wheat Ridge, Colorado regarding the administration of their respective duties concerning the conduct of the coordinated election to be held on November 5, 2013. Approval of this resolution executes the City's contract with Jefferson County for our participation in the upcoming coordinated election. The County will conduct the election and the City will pay its pro-rated costs for services, equipment, forms and supplies. Motion by Councilmember Pond to adopt Resolution 29-2013; second by Councilmember DeMott; carried 8-0 ~ Resolution 30-2013-authorizing the appropriate City officials to execute an "intergovernmental agreement" by and between the County of Jefferson, state of Colorado, and the City of Wheat Ridge, Colorado, regarding the production of a mailed notice concerning ballot issues. (TABOR) Approval of this resolution will satisfy our responsibilities under TABOR (the Taxpayer Bill of Rights) which require the production of a mailed notice concerning TABOR ballot issues. Motion by Councilmember Pond to adopt Resolution 30-2013; seconded by Councilmember Starker; carried 8-0 CITY MANAGER'S MATTERS none CITY ATTORNEY'S MATTERS Mr. Dahl reported the investigation he was directed to do is in progress and his goal is to get the results to Council before the meeting on Septe~ber 9. CITY CLERK'S MATTERS Clerk Shaver reminded the public that if they would like to receive minutes from the Council Meetings and notes from the Study Sessions they can be on that email list. All they need do is call or email the City Clerk's office and give us your email. We also have a very small list of folks who don't have computers and we send them copies by City Council Minutes August 26, 2013 Page 6 regular US mail. That service is available if you need it. She assured citizens that this list is only used for this one purpose . She also reported the following list of candidates who have submitted petitions for the upcoming municipal election. Some minor curing of signatures is necessary, but it appears the candidates will be: Mayor-Joyce Jay, Mike Stites and Park Worthington City Council District 1 -Davis Reinhart , Jerry DiTullio, Monica Duran & Karen Thaler City Council District 2 -Zach Urban and Chad Harr City Council District 3 -Dick Matthews and Tim Fitzgerald City Council District 4 -Joseph DeMott and Genevieve Wooden She also reminded candidates that the Lot Drawing for ballot order will be held this Thursday at ?PM in Council Chambers . ELECTED OFFICIALS' MATTERS Mike Stites remarked that this year's Carnation Festival was great. He offered congratulations to the Festival Committee because he knows it is a lot of work . - Mike's positive thing: With school starting, folks are reminded to watch out for the kids . Tracy Langworthy announced that Curt Gilmore, a very active proponent of Wheat Ridge and many other charities, lost a battle with cancer. A memorial has yet to be scheduled, but our thoughts and prayers are with his wife and family. Kristi Davis said she was sorry to hear about Curt Gilmore. She grew up with his children . -She noted the Melrose Manor block party was a huge success and she thanked the police and fire departments for coming. The fire trucks were a big hit. She encouraged other neighborhoods to have a block party; it really brings your neighborhood together. -She announced they will be pulling citizens together to help pass the sales tax and invited anyone that wants to help. She said that whenever there are more than two councilmembers gathered for this effort they will post it. George Pond agreed that the Carnation Festival was great. His family had a great time and he appreciates the hard work that was put in. -He thanked the people who have come in for public comment in recent weeks. Although Council has hard decisions to make he thinks it's great when they get the participation. He appreciates it. Davis Reinhart said he knew Curt Gilmore and his thoughts go out to his family . He also asked for good thoughts for former Jefferson County Commissioner Kevin McCaskey, who is struggling with cancer. Joe DeMott commented on another awesome Carnation Festival this year. This was his first year as a board member and now he know what a grueling task it is . He praised the folks who work together throughout the year to put it all together. Some have been doing it literally for decades. They always welcome new ideas and new City Council Minutes August 26, 2013 Page 7 volunteers , if you have the time . Meetings are once a month on Tuesday nights . He thanked the board members, committee members , volunteers , organizations , the Rotary , the Optimists , WR High School , and all who helped . Meeting adjourned to Special Study Sess ion at 7:46pm. Janelle Shaver, City Clerk APPROVED BY CITY COUNCIL ON September 9, 2013 BY A VOTE OF __ to __ Davis Reinhart , Mayor pro tern The preced ing Minutes were prepared according to §47 of Robert 's Rules of Order, i.e. they contain a record of what was done at the meet ing, not what was said by the members. Recordings and DVD's of the meetings are available for listening or viewing in the City Clerk's Office, as well as copies of Ordinances and Resolutions. ~ ~ '~ ... , r-City of • ?WheatR!_dge ITEM NO: /. DATE: September 9 , 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 31-2013-A RESOLUTION APPROVING A TWO-LOT SUBDIVISION PLAT WITH A RIGHT-OF-WAY DEDICATION FOR PROPERTY ZONED RESIDENTIAL-ONE (R-1) LOCATED AT 3785 INDEPENDENCE STREET (CASE NO. MS-13-03/FOX IDLL) [gl PUBLIC HEARING D BIDS /MOTIONS [gl RESOLUTIONS QUASI-JUDICIAL: D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2 N° READING [gl YES D NO ~nun ~e~v~e~:o~~~~~--£~ ISSUE: The applicant is requesting approval of a two-lot subdivision plat for property zoned (R-1) and located at 3785 Independence Street. The purpose of the request is to create two lots : one lot for an existing home and a second for development of a new single-family home to the west. PRIOR ACTION: Planning Commission recommended approval of this subdivision request on August 15 ,2013. Attached are copies of the Planning Commission staff report and meeting minutes. Public testimony included concerns related to future development and potential drainage impacts. Staff will review any future building permit through the standard review process to ensure that impacts to adjacent property are minimized. FINANCIAL IMPACT: The proposed subdivision is not expected to have a direct financial impact on the City. Fees in the amount of$1 ,450 were collected for the review and processing of Case No. MS-13-03. Fees in lieu of streetscape construction and parkland dedication will also be collected. Council Action Form September 9, 2 013 Page2 BACKGROUND: The property is located at 3785 Independence Street, two lots south ofW. 38 1h Avenue. The site is embedded in a residential neighborhood and is surrounded on three sides by properties that are also zoned R-1 and contain single-family homes. To the east across Independence Street are properties zoned R-2. Based on Jefferson County assessor records , the subject property is 25 ,794 square feet in size (0.59 acres). A single family home located on the east side of the property was originally constructed in 1950 . An unimproved driveway serves the property and provides access off of Independence Street. The applicant is proposing to formally subdivide the site into two lots , such that the existing home sits on its own lot and the remaining portion of the property may be used to develop a new single family home . The property is currently owned by the applicant 's family , and the new lot would either be developed by the family or sold . Propos ed Plat The proposed subdivision plat will result in two development lots . Lot 1 will meet minimum lot size and lot width requirements for a single-family home in R-1. Lot 2 is designed as a flag lot and also meets minimum size and width requirements . A 25-foot wide "pole" portion will allow a driveway and utilities to extend directly from Independence Street to the new lot. Standard easements are created along the property lines of both lots . When new properties are created in the City through the subdivision process , staff reviews adjacent street improvements to confirm they meet current roadway design and drainage standards. In this case, Independence Street is a designated bicycle and pedestrian route and is slightly substandard in width. For this reason , a narrow 2.5-foot wide right-of-way dedication is shown on the plat. In accordance with the City's Stree ts cape D es ign Manual, the applicant will pay a fee of $3 ,215.28 in lieu of constructing streetscape improvements . The application has been through the standard referral process and all affected service agencies can serve the property. The Parks Commission is recommending fees in lieu of land dedication for parkland needs. REC OMMEN DE D M OT IO N: "I move to approve Resolution No. 31-2013 , a resolution approving a two-lot subdivision plat with a right-of-way dedication for property zoned Residential-One (R-1) located at 3875 !~dependence Street, for the following reasons: 1. City Council has conducted a proper public hearing that meets all public notice requirements as required by Section 26-109 and 26 -407 of the Code of Laws . 2 . The requested subdivision has been reviewed by the Planning Commission , which has forwarded its recommendation. Council Action Form September 9 , 2013 Page 3 3. The Subdivision plat has been found in compliance with Article IV of Chapter 26 of the Code of Laws . 4. All agencies can provide services to the property with improvements installed at the developer's expense." and with the following conditions: 1. Fees in lieu of streetscape improvements be provided prior to recording the plat, and 2 . Fees in lieu of parkland dedication be provided prior to recording the plat." Or, "I move to deny Resolution No. 31-2013 , a resolution approving a two-lot subdivision plat with a right-of-way dedication for property zoned Residential-One (R-1) located at 3875 Independence Street, 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: Lauren Mikulak, Planner II Meredith Reckert , Senior Planner Kenneth Johnstone, Community Development Director ATTACHMENTS: 1. Resolution No. 31-2013 2 . Planning Commission staff report 3. Planning Commission minutes draft TITLE: CITY OF WHEAT RIDGE, COLORADO Resolution No. 31 Series of 2013 A RESOLUTION APPROVING A TWO-LOT SUBDIVISION PLAT WITH A RIGHT -OF-WAY DEDICATION FOR PROPERTY ZONED RESIDENTIAL-ONE (R-1) LOCATED AT 3785 INDEPENDENCE STREET (CASE NO. MS-13-03/FOX HILL) WHEREAS, Chapter 26, Article I of the Wheat Ridge Code of Laws establishes the procedures for the City's review and approval of Subdivision Plats; and, WHEREAS, an application for a subdivision plat was received from Stephen Trout to subdivide property located at 3785 Independence Street in a Residential-One zone district; and, WHEREAS, all referral agencies have reviewed the request and do not have concerns; and, WHEREAS, all required publishing, posting and notification requirements for a September 9, 2013 City Council public hearing have been met. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, as follows: A TWO-LOT SUBDIVISION PLAT WITH A RIGHT-OF-WAY DEDICATION FOR PROPERTY ZONED RESIDENTIAL-ONE (R-1) LOCATED AT 3785 INDEPENDENCE STREET (CASE NO. MS-13-03 I FOX HILL) IS HEREBY APPROVED FOR THE FOLLOWING REASONS: 1. City Council has conducted a proper public hearing that meets all public notice requirements as required by Section 26-109 and 26-407 of the Code of Laws. 2. The requested subdivision has been reviewed by the Planning Commission, which has forwarded its recommendation. 3 . The Subdivision plat has been found in compliance with Article IV of Chapter 26 of the Code of Laws. 4. All agencies can provide services to the property with improvements installed at the developer's expense. Attachment 1 And with the following conditions : 1. Fees in lieu of streetscape improvements be provided prior to recording the plat. 2 . Fees in lieu of parkland dedication be provided prior to recording the plat. DONE AND RESOLVED by the City Council this g th day of September 2013 . Jerry DiTullio , Mayor ATTEST: Janelle Shaver, City Clerk TO: Planning Commission DATE OF MEETING: CASE NO. & NAME: City of \Vheat~ge CITY OF WHEAT RIDGE PLANNING DIVISION STAFF REPORT August 15, 2013 MS-13-03 I Fox Hill CASE MANAGER: Lauren Mikulak ACTION REQUESTED: Request for approval of a two-lot minor subdivision with right-of-way dedication on property zoned Residential-One (R-1) LOCATION OF REQUEST: 3785 Independence Street APPLICANT(S): Stephen W. Trout PROPERTY OWNER(S): Robert B. Trout APPROXIMATE AREA: 25 ,794 Square Feet (0.59 Acres) PRESENT ZONING: PRESENT LAND USE: ENTER INTO RECORD: Residential-One (R-1) Single-family home (X) CASE FILE & PACKET MATERIALS (X) ZONING ORDINANCE LOCATION MAP (X) (X) Planning Commission Attachment 2 Case No . MS-13-0 3 1 Fox Hill SUBDIVISION REGULATIONS DIGITAL PRESENTATION Site All notification and posting requirements have been met ; therefore , there is jurisdiction to hear this case. I. REQUEST The applicant is requesting approval of a two-lot minor subdivision with right-of-way dedication on property zoned Residential-One (R-1) and located at 3785 Independence Street. The purpose of the request is to create two lots: one lot for an existing home and a second for development of a new single family home to the west. A subdivision involving two lots is processed as a minor subdivision. In this case , because the plat includes a right-of-way dedication , Planning Commission will make a recommendation to City Council which is the final authority for approval. II. EXISTING CONDITIONS The property is zoned Residential-One (R-1) and is located at 3785 Independence Street, two lots south ofW . 381 h Avenue Exhibit 1, Aerial. The property is zoned Residential-One (R-1) and is surrounded on three sides by properties that are also zoned R-1 and contain single-family homes. To the east across Independence Street are properties zoned R-2. Based on Jefferson County Assessor records , the subject property is 25 ,794 square feet in size (0.59 acres). A single family home is located on the east side of the property which was originally constructed in 1950. An unimproved driveway serves the property and provides access off of Independence Street. The ro erty is art of the Westhaven Subdivision which was originally platted in 1950 ~=;;..;.;....;= Westhaven Subdivision . It appears that several properties in the subdivision were subsequently divided without going through a subdivision process. The subject site is comprised of the northern 125 feet of lots 4 and 5. The applicant is proposing to formally subdivide the property into two lots, such that the existing home sits on its own lot and the remaining portion of the property may be used for development of a new single family home. The property is currently owned by the applicant's family , and the new lot would either be developed by the family or sold. III. PROPOSED SUBDIVISION PLAT Lot Configuration The proposed subdivision plat will result in two development lots Exhibit 3, Pro sed Plat . Lot I will meet minimum lot size and Jot width requirements for a single-family home in R-1. The existing home will also meet minimum setback requirements from the newly created lot lines. Lot 2 is designed as a flag lot and also meets minimum size and width requirements. A 25-foot wide "pole" portion will allow a driveway and utilities to extend directly from Independence Street to the new Jot. Right-of-way Dedication When new properties are created in the City through the subdivision process, staff reviews adjacent street improvements to confirm they meet current roadway design and drainage standards. In order to promote high-quality, multi-modal streets throughout Wheat Ridge , the Bicycle and Pedestrian Master Planning Commission Case o. MS-13-03 I Fox Hill 2 Plan establishes design standards for the City's bike/ped routes and Independence Street is a designated route. When a new subdivision is platted along bicycle and pedestrian routes , right-of-way dedication and/or installation of streetscape improvements are typically required. In this case , the existing right-of-way width for Independence Street is slightly substandard , so a 2.5- foot wide right-of-way dedication is shown on the plat. Based on the adopted master plan , the standard street section in this area should include a 5-foot wide detached sidewalk and a 5-foot tree lawn. Because sidewalk is intermittent along Independence Street, the applicant was given a choice of either installing a new sidewalk and tree lawn within the right-of-way or paying a fee in lieu. The applicant has expressed preference to pay a fee in lieu. The amount owed is based on the length of the street frontage and is estimated by the Public Works Department to be $3 ,215.28. The fee will be due upon recordation ofthe plat. Easements The development covenants for the original Westhaven Subdivision established drainage and utility easements along all side and rear property lines. While the City does not enforce private covenants, this easement bisects the property and is therefore proposed to be vacated by the plat. Standard easements are created along the property lines for both lots . IV. AGENCY REFERRALS All affected service agencies were contacted for comment on the consolidation plat regarding the ability to serve the property. There were substantive comments received regarding provision of water service, and the issue has been resolved. Specifically, Independence Street is a district boundary for the water districts that serve the area. The west side of the street, including the existing home on the subject property, is served by Consolidated Mutual Water District. Wheat Ridge Water District serves properties on the east side of the street 'Exhibit 4, Water Districts . The only water main within Independence Street is maintained by Wheat Ridge Water District. For this reason , the two districts have signed an agreement allowing Lot 2 to remain within the service area boundary of Consolidated Mutual , but to be served by Wheat Ridge Water District. Wheat Ridge will sign the Water Supply License when a new tap application is submitted. Specific referral responses follow : Wheat Ridge Public Works: The plat has been reviewed and approved. Wheat Ridge Parks and Recreation Commission: A fee in lieu of parkland dedication for the new single family Jot will be required. Wheat Ridge Fire District: Can serve; no concerns. Westridge Sanitation District: Can serve; no concerns. Xcel Energy: Can serve ; no concerns. Planning C ommission Case No. MS-13-03 I Fox Hill 3 Wheat Ridge Water District: Has agreed to serve. Consolidated Mutual Water District: Has agreed to allow Wheat Ridge Water District to serve. Comcast Cable: No concerns. Qwest Communications: No comment. V. STAFF CONCLUSIONS AND RECOMMENDATIONS Staff concludes that the proposed minor subdivision plat is compliant with Article IV (subdivision regulations) of the zoning and development code. For this reason, Staff recommends approval of the plat with the conditions listed below. V. SUGGESTED MOTIONS Option A: "I move to APPROVE Case No. MS-13-03, a request for approval of a two-lot minor subdivision plat on property zoned Residential-One (R-1) and located at 3785 Independence Street, for the following reasons: 1. All agencies can provide services to the property with improvements installed at the developer's expense. 2. All requirements of Article IV of the zoning and development code have been met. With the following conditions: 3. Fees in lieu of streetscape improvements be provided prior to recording the plat. 4. Fees in lieu of parkland dedication be provided prior to recording the plat." Option B: "I move to DENY Case No. MS-13-03, a request for approval of a two-lot minor subdivision plat on property zoned Residential-One (R-1) and located at 3785 Independence Street, for the following reasons: 1. 2. 3. " Planning Commission Case No . MS-13-03 I Fox Hill 4 EXHIBIT 1: AERIAL Th e subject property is located at 3785 Independence Street and is highlighted in blue below. Planning Commission 5 Case No . MS-13-03 I Fox Hill EXHIBIT 2: WESTRA VEN SUBD. The image below is an excerpt from the Westhaven Subdivision which was originally approved in 1950. The subject property is comprised of the northern 125 feet of Lots 4 and 5. " .. .. 0 . ... . "' " WESTHAVEN A Suaoavas.oN or THE EAST THREE-FouRTHS M THE N~THWI:ST QUMTitR OF TME NoRTHWEST QUARTER OP" SECTION 27, TOWNSHIP 3 SouTH. AANQt: 69 WEST OF THE SIXTH PRINCIPAL MERID\AN, IN '-'EFYEASON COUNTY, COLORADO. ScALE~ a" • eo' u •• u. D I • I • I 0 I ---_,,,. _______________________ __!___ ________ _ .-..... ...._ __ WE.:..:..==ST v: AVENU!; ______ --:·:'--"=-';L;..:;~ .... 100' ~ ! 7 Planning Commission Case o. MS-13-03 I Fox Hill 6 )riip lete li: g ! % -< R' ~ " " 'ij ~ en c: ,., ~ z .. " ... " , ~ ~ " ! 18 17 16 1~ 14 13 12 11 10 W 36TH A'.'E. ~T 3~TH AVE. HIWtA/ SVBDMSlON IIIONITY MAP 1••300' OWNU 'S CEm'U'ICATE ~ ROBEJlT IIRUCI! TROIIT, BEJNO THE OWNEit 01' IUlAL PROPEitTY CONT AlNINO 2$.1'94 SQ. FT. (IU921 ACRES) DF3CIUBm AS RlU.OWS: t.EG.<L DESCJIJI'TION: lHI! NOitnt 12S FEET OF LOTS 4 AI<O S. BLCXX 1. WESl1IA YEN. l.OCA TED IN ntE NORlliWl!ST 14 OF SECTION 27. TOWNSHIP l SOUTH, lANCE 69 WEST OF ntll6Tlt ~~~y~~N.STATEOI'COI.OtWXl,BEINO COMMENCIHG AT TilE WEST Ul6nl CORI'IU Of SfCTIOI<S 12·27. TOWNSIUP l SOI1Tli,IANCB69WESTOI'Tllll6nl P.M., TIIENCESO'II'Ol" B.ANDALONO Tllll EASTERI.. Y LINE OF SAID NORTIIWEST 14 OF Tllll NORTIIWEST I' OF S£CT10t127 A ~'W,~~lfu.OOJWOI'T0~~.~~"6~~~~CB~2.i.oo 0'11'03" B. AI<O PARALLEL WTTll TilE EASTEII..Y LINE OF SAID i'JOlniWEST 1< OF TilE NORTliWEST 14 OF SfCTIOI< 27 AI<OON AI<O ALONO TilE WESTERLY JU()IIHli'-WAY LINE Of 1Nll£P£11D£1(CB sn£BT A1<0 TilE EASTEil.. y UN8 01' SAID ~~~r~Jm~:mv~r~~it'D NORlliWl!ST 14 OF SECT!Otl 27, A DIST ANCB OF 206.JS FEET TO A I'Oil<T ON mE WEST ~~ft'D~MhT~{!;Ji~~~J1~~6&"nJE NOil111WEST 14 OF SfCTIOI< 27, A DIST ANCB OF 12S.OO FEET TO A I'Oil<T; TllfNCB N 19"J9')j" B. AI<DPARALLEI. W!Tll TilE NOil11lEIILY LINE OF SAID NOilniWF.sT IUOF 1H£ NORTI IWEST Y.OI' S£CTION 27, A DISTANCE OF 206.JS FEET TO TilE POINT OF BEGINNINO. SAID TllACTCONTAININO 2S,1'94 SQ. fT. (0.S9 ACilES) MORE OR LESS. STATE OF COI.OtWXl ) COilNTY OF .JHFEIISON / TilE F01l£001NO INSTRUMENT WAS ACKNOWLEOOEO BEFOilli ME THIS ~A.D. 20_ BY IIDBEilT BRUCE TROIIT. WITNESS MY KANI> AI<O OFFICIAL SJW.. MY COMMISSION EXPIUS: NOtAkY POBUC COIJNTY CLUJC AND UCORD£RS C£RTIFICATI: STATE OF COLORADO l COilNTY OF JEffEIISON ) DAY OF I HEREBYCEilTlFY TltATntiS PUT WAS FILF.O IWntEOFFICE OFntECOilNTY CLERIC AND IIECORDEJt OF .JEffEIISON COilNTY ATOOLDEN, COI.OR.AOO, AT uoor~~g-·M.if1:r_WHJfrnODAYOI' A.O.m .JEFFERSON COilNTY CLEitl( AND RECORDEJt BY:.~DD\n~ftVY .................... __ FOX HILL SU BDIVISION PAGE 1 OF 1 A LOT UNE AD JU STMEN T PLAT OF LOT 4A AND 5A, BLOCK 1, WESTHAVE N SUBDIVISION PLAT BOOK 9 A T PAGE 59 LOCATED IN THE NW 1/4 OF THE NW 1/4 OF SECTION 2 7, TOWNSHIP 3 SOUTH, RANGE 69 WEST OF THE 6TH P.M ., CITY OF WHEAT RIDGE , COUNTY OF JEFFERSON , STATE OF COLORADO LOT e WESTHAVEN SUBOI'IlSION ZONING: R-1 CTTY Ct:aTlfiCATIO!'i u~ I I • • SET 1" REO PlASTIC CN' ON 20" 14 RfBAR. P\..S 20136 Ill -FOUNO SECTION CORNER IIOHUWENT AS SHOWN I --• ElC1ERlOR BOUNDARY 1 --• INTERIOR LOT LINES ......... -ElOSTlNG FENCE LINE I --• unurv EASOoJENT uNE LOT 2 'll£51liA \91 SU801'11510N ZONING: R-1 LOT 2 O.JO Acres. 12948 Sq.fL ZONING: R-1 LOT 5-8 WESTHA \91 SUBOI'IlSION ZONtiC: R-1 I APPIIOYEOTIOS OAYOF _ .... _~ BY Til E WHEAT RIOO E CTTY COUNCIL ATTEST r"CJITIVYl"Cllll!'IIRJ:r--........ -.Q/OIIXX'I'YOlrllf" ............................ _ COMMUNIN DF.VEUWMEHT DIRECIOR bikttitJI OF HJBLIC WORkS .35' ~-~"E_ 111=-~;;_84" Nil' CORNER SEC. 27, f.lS, R69W FOUND 3 1/•" BRASS CN' t1 RANGE BOX. LS 13212 OTY ~ WHEAT RIDGE POINT I 15409 H: 705773.73 E: 11~11 . .e LOT 1 0.29 Acres. 12~33 Sq ft. ZONI NG: R-1 LOT 4-8 WESlHA \91 SUBOf'llSION ZONING: R-1 PLA..'OIIXC COMMI ION CE.JtTtFlCA n ON ~ 8 BASIS ~ IIEARIHG N89'39'~"E 2851 .63' I J;l en ~ ~ i"' p :g_ t ~~ ~~ ,., N89'J!I'~"E .... ---~2.5.87 .c. WEST 1/18TH CORNER ~SEC. 2.2-27, f.lS, R69W FOUND 2" AI. ~ IN RANGE BOX. ~ ~3 § 8~ z ~ :;! I 8 :;! e ~ ;:;§ z "' .. _ ~ ee z -..~ ! ~ ~ ~ p .. :"' ~ , .. "' !IE ~0:0~ .. ~~~~ DAYOF ___ .... ~~BYTHE NORTH 1/4 CORNER SEC. 27, OS. 1!6911' FOUND 3 1/4" BRASS CN' IN RANGE BOX. LS 13212 OTY ~ WHEAT RIDCE P<»>TI 15509 N; 70~789.48 E: 113163.04 STATEMZI'o"TOF ACCURACY TilE G£006T1C COK11tOL DATA SIIOWN llEIWN liAS BEEN OEIUVEO FllOM nJE COI.OtWXl COORDINATE SYSTEM OF 1983, CEHnAI. ZO. CJm, AND liAS A IIORIZONTAL ACCURACY a.ASSIFICATION OF 0.06, US SllllVBY FEET AT TilE 95% CONFIOENC£ LEVEL AS DE>lNm IW TllEGEOSI'AllAL POSJTIONlNO ACCURACY ST AliO.UDS OF THE fEO£IIAL GEODETIC COtmtOL SUliCOMMITTEE (fGIJC.ST0.007.2-199e) ST AI<IIAJUI LUI.MINf LANCUAC& ~Wr~)~AAitlc~.u.&o~~.rnrJ~~J" ~_M~~~"t,.~ffi"'~wr~2=roALLsiOE LOT Llh'ES OF EACI LOT IN TilE SUBDIVISION OR P1.A TTEO AREA. TliESB EASDIENn AU OEOICAlm FOR TlllliNST AU.A liON, MAINTENANCE. AI<D IEPLACDCENT OF ELECT1UC. CAS. TELEVISION CABLE. OllAINAGE Al'o'D 1'U.£(XJMNIJNICA TlONS FACUTIES. 1Jl11.111ES SIIALL ALSO BE PER.MJTTEO W!Tli.JN ANY Aa:ESS EASEMENTSAI'o'DI'ItiVATESTilEETS INTI IE SUBDIVISION. PER.MA.'IENT STRut"TUI£S AI<O W A TEll METa$ SIIAU. NOT 81! PEilMlTTED WITliiN SAID l1T1LITY EASEMENTS. StlltVEYOR'S CUT IIlCA TE L ROBERT L FEIIOlDI 00 HEREBY CEI!Tif'Y ntATTliE SllllVEY Ofntl!BOUNOAAY Of FOX HILL SUBDIVISION WAS MADE BY ME OR UNDER MY DIRECT SllPEIIVISION AI<O TO THE BEST 01' MY KNOWLEDGE, OO'ORMA TlON AI<O BELIEF, fN ACCOROANCI! WTTll ALL APPLICAJILE COLOilADO ST A T\ITES, CURR.ENT llEVISEO EDITION AS AMENDED, THE ACCOMPANYlNO PUT ACCilllA TEL Y REPRESENTS SAID SllllVEY. IUUW L FEIUXbl . PU 1VIl6 CASIE HISTORY': MS-13-03 f1 7-22-1 3 f2 7 -3 1-13 13 8 -6 -13 OAT£: 5-18 -13 .d N0.8 10 3JO WG LOCAIION STA.3 •II 128/14 ORA.,~" MW/FJF EXHIBIT 4: WATER DISTRICTS The map below shows the boundaries of the water districts which serve the neighborhood. The only water main within Independence Street is maintained by Wheat Ridge Water District. For this reason , the two districts have signed an agreement allowing Lot 2 of Fox Hill Subdivision to remain within the service area boundary of Consolidated Mutual , but to be served by Wheat Ridge Water District. Planning Commission Case No . MS-13 -03 I Fox Hill 7 ~~'~ .. ~ City of JP'"VVlieatRl._dge PLANNING COMMISSION Minutes of Meeting August 15~ 2013 1. CALL THE MEETING TO ORDER The meeting was called to order by Chair BRJNKMAN at 7:00p.m. in the City Council Chambers of the Municipal Building, 7500 West 29th Avenue, Wheat Ridge, Colorado. 2. ROLL CALL OF MEMBERS Commission Members Present: Staff Members Present: 3. PLEDGE OF ALLEGIANCE 4. APPROVE ORDER OF THE AGENDA Anne Brinkman Monica Duran Tracy Guildner Dick Matthews Steve Timms Alan Bucknam Scott Ohm Amanda Weaver Lauren Mikulak, Planner II Kim Waggoner, Recording Secretary It was moved by Commissioner MATTHEWS and seconded by Commissioner TIMMS to approve the order of the agenda. Motion carried 5-0. APPROVAL OF MINUTES-June 20, 2013 5. It was moved by Commissioner MATTHEWS and seconded by Commissioner TIMMS to approve the minutes of June 20, 2013 as written. Motion carried 5-0. 6. PUBLIC FORUM (This is the time for any person to speak on any subject not appearing on the agenda.) No one wished to speak at this time. Planning Commission Minutes August 15 , 2013 - 1 - Attachment 3 Chair BRINKMAN stated there is an opening on the Planning Commission for District 3 and urged any interested audience members or television viewers to contact their local Councilperson if they are interested in applying for the open position. 7. PUBLIC HEARING A. Case No. MS-13-03: An application filed by Stephen W. Trout for a 2-lot minor subdivision with right-of-way dedication for property zoned Residential One (R-1) located at 3785 Independence Street. This case was presented by Lauren Mikulak. She entered all pertinent documents into the record and advised the Commission there was jurisdiction to hear this case. She reviewed the staff report and digital presentation. She stated no written comments were received during the 15-day posting period and the case will be heard by City Council for final approval. Staff recommends approval ofthe 2-lot minor subdivision with right-of- way dedication. Commissioner TIMMS inquired about the minimum street frontage for a flag lot. Ms. Mikulak stated the minimum width is 25 feet. She also stated the subject property can accommodate a driveway, a fire truck and utilities. Commissioner TIMMS asked if the front setback on Lot 2 can be met. Ms. Mikulak replied the code defines the front lot line as the one parallel to Independence Street and the setback would be 30-feet. It would result in a narrow developable area. A variance could be requested to recognize the southern lot line to be considered the front lot line. This would be reviewed when a site plan is submitted. Commissioner TIMMS inquired about the minimum driveway width for the proposed lot considering storm sewer and a curb cut. Ms. Mikulak replied 25 feet and there are some options for accommodating utilities and driveway within this width . Commissioner MA TIHEWS asked if a right-of-way dedication is required for a flag lot. Ms. Mikulak replied a 2-1 /2-foot right-of-way dedication will apply to both lots. Commissioner MA TIHEWS asked if the setback requirements have been met for the existing structure. Ms. Mikulak stated yes. The front setback was reduced due to the City 's request for a right-of-way dedication. Chair BRINKMAN asked if a variance for setbacks on Lot 2 should be considered now or with a site plan. Ms. Mikulak stated a variance for lot size or width is typically considered with the plat, but there is no site plan available at this time to assess setback variances. The variance would qualify for administrative review as it would meet the 50% threshold. Chair BRINKMAN asked if the runoff to the neighbor to the south due to the slope would be considered at that time. Ms. Mikulak stated the plans would be reviewed by the Planning Commission Minutes August 15 , 2013 -2 - City 's Development Review Engineer when a building permit is submitted for new development on Lot 2. Chair BRINKMAN opened the public hearing. Stephen Trout 1 00 Park Ave West, Denver, CO 80205 The applicant stated he would like to subdivide to get the value out of the property and he has spoken to most of the neighbors. Rodney Pinkney 9665 W. 37th Ave. Mr. Pinkney stated his concerns about drainage and standing water. He stated the original Westhaven subdivision has restrictive covenants associated with it. He asked why the application was a new 2-lot subdivision instead of an amendment to the original Westhaven Subdivision plat. Susan Pinkney-Todd 3233 Fenton St. Ms. Pinkney stated her concerns about privacy due to the possibility of a multi-story house being built on Lot 2 of the subject property. Commissioner DURAN asked staff what kind of housing is being proposed. Ms. Mikulak stated it is unknown at this time. Commissioner DURAN asked if the neighbors are notified when a proposed site plan is submitted and a variance request is submitted. Ms. Mikulak stated standard building permits don 't require public input. A public notice would be sent to adjacent neighbors for a variance request and a posting on the property would occur. Commissioner GUILDNER asked if there is a review for flooding. Ms. Mikulak replied that the City 's Development Engineer would review a building permit application for a new single family home. Chair BRINKMAN asked if the minor subdivision trumps the existing Westhaven covenants. Ms. Mikulak replied covenants are private agreements which the City does not enforce. The proposed plat includes only two lots because it is standard practice to include only the area affected. Commissioner GUJLDNER asked if there were any other known concerns about drainage from existing development. Ms. Mikulak stated that she was not aware of any. Chair BRINKMAN closed the public hearing. Commissioner TIMMS stated he does not typically support flag lot designs; however because the subject property meets all the zoning and subdivision requirements , he stated Planning Commission Minutes August 15 ,2013 -3 - he would vote in favor of the request. Commissioner MA TIHEWS agreed with Commissioner TIMMS and stated he would be voting yes. It was moved by Commissioner MATTHEWS and seconded by Commissioner GUILDNER to recommend approval of Case No. MS-13-03, a request for approval of a 2-lot minor subdivision plat on property zoned Residential One (R-1) located at 3785 Independence Street for the following reasons: 1. All agencies can provide services to the property with improvements installed at the developer's expense. 2. All requirements of Article IV of the zoning and development code have been met. With the following conditions: 1. Fees in lieu of streetscape improvements be provided prior to recording the plat. 2. Fees in lieu of parkland dedication be provided prior to recording the plat. Motion approved 5-0. Chair BRINKMAN stated this case will be beard by City Council on September 5th. +----- 8. OTHER ITEMS A. Discussion Regarding Land Use Case Processing & Sustainability In consideration of paper and cost savings for both the City and applicants, Ms. Mikulak proposed II" X 17" size plats in agenda packets instead of full sized copies for Planning Commission. She stated digital files could also be emailed to Commission members. Commissioners expressed support for this change. Chair BRINKMAN asked what is required to make this change. Ms. Mikulak stated this is a procedural matter. She also stated that referrals will be changing from paper requests to digital requests in the near future. She stated a new internal policy will be created for this process. There was also a brief discussion about the mailing requirements for neighborhood meetings and public hearings. Ms. Mikulak stated the staff may pursue a code amendment to include a consistent noticing requirement for neighborhood meetings and public hearings. The noticing requirement for neighborhood meetings is a 600-foot radius and the requirement for public hearings is 300-feet. Any change would require a change in the municipal code and would require additional research before an amendment is proposed. Planning Commission Minutes August 15 , 2013 -4 - ~~'~ .... " City or ~WheatRl__dge ITEM NO:~ DATE: September 9, 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 33-2013 A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH A TASTE OF HOME COOKING, LLC AND WINE NOT, LLC FOR PARTICIPATION IN THE ENHANCED SALES TAX INCENTIVE PROGRAM REBATING 50°/o OF THE ENHANCED SALES TAX FOR A PERIOD OF FIVE YEARS FOR THE CONSTRUCTION OF A RESTAURANT AND WINE BAR AT 4101 AND 4111 KIPLING STREET IN AN AMOUNT NOT TO EXCEED $73,694 ~ PUBLIC HEARING D BIDS/MOTIONS ~ RESOLUTIONS D ORDINANCES FOR 1 ST READING 0 ORDINANCES FOR 2N° READING YES ~ NO ISSUE: A Taste of Home Cooking, LLC and Wine Not, LLC have made a request to participate in the City 's Enhanced Sales Tax Incentive Program , (ESTIP), related to the redevelopment project at 4101 and 4111 Kipling Street for a new sit-down restaurant and wine bar. The request is for a rebate of 50% of the future sales tax increment for a period of five years for an amount not to exceed $73 ,694. PRIOR ACTION: At the August 26 , 2013 Special Study Session, City Council reviewed a request from A Taste of Home Cooking, LLC and Wine Not, LLC for an ESTIP agreement wherein all or a portion of the sales tax increment would be rebated back to the applicant. City Council discussed the request and directed staff to draft an ESTIP agreement to rebate V:\Forms\CAFtemp late Council Action Form -E STIP for A Taste of Home Cooking September 9 , 2 013 Page2 50% of future sales tax increment for a period of five years in an amount not to exceed $73 ,694. FINANCIAL IM PACT: It is estimated the new restaurant and wine bar will generate as much as $40 ,000 in City sales tax each year. This agreement will decrease future sales taxes to the City from A Taste of Home Cooking and Wine Not by 50% of the total City sales taxes generated for a period of five years for an amount not to exceed $73 ,694. BACKG RO UN D: Chapter 22 of the Wheat Ridge Code of Laws established the ESTIP Program. The primary purpose of the ESTIP is to encourage the establislm1ent and /or substantial expansion of retail sales tax generating businesses within the City. The ESTIP provides incentives through the rebate of future sales tax increment. In the past the Council has approved several ESTIP agreements with existing Wheat Ridge businesses and non-profits as well as an existing business in a neighboring community looking for an incentive to relocate to Wheat Ridge. Every project was unique but each was evaluated for incentives against a set of criteria outlined in the Code of Laws. The criteria for approval of an ESTIP agreement are as follows: I. The amount of enhanced sales tax which can reasonably be anticipated to be derived by the City through the expanded or new tax generating business ; 2. The public benefits which are provided by the applicant through public works, public improvements , additional employment for City residents; 3. The amount of City expenditures which may be deferred by the City based upon public improvements to be completed by the applicant ; and 4. The conformance of the applicant's property or project with the comprehensive plan and zoning ordinances of the City. This project will eliminate a blighted area along a busy stretch of roadway in Wheat Ridge and provide a new public venue that creates new sales tax , employment for local residents , and avoid leakage of sales to other communities. This redevelopment site was previously the home of Pauz Inn , a restaurant that ceased operations in 2008 and Mercedes , a restaurant which closed after a fire destroyed a large portion of the facility in 201 I. The current structure on the site was about 40 years old and was in need of a major overhaul to bring it up to current building code standards . Besides the decor improvements to the interior and exterior of the structure, the building required vast improvements to its plumbing, electrical , and mechanical systems . The building is also laden with asbestos which was remediated in order to allow for decor improvements. The on-site parking Jot has been refurbished and will provide approximately 40 parking spaces Council Action Form -E STIP for A Taste of Home Cooking September 9 , 2013 Page 3 with the required accessible spaces. The two existing restrooms have been upgraded and brought into compliance with accessibility regulations. In addition , ingress and egress accessibility issues have been addressed. Public or public-related improvements associated with this project include addressing accessibility issues throughout the building, fa9ade enhancements , roofing repairs , fire doors , electrical , plumbing work , fire suppression system and parking lot improvements. Costs for these public improvements are eligible for rebate under the ESTIP. When completed , the approximately 10 ,000 square-foot restaurant and wine bar will seat in excess of 150 customers. The restaurant will employ approximately 30 staff members and have a sit-down component on the northern side and a take-out restaurant at the southern end. A Taste of Home Cooking will have a full-service bar, and will be open seven days a week from 6 am to 9 pm on weekdays and until 10 pm on weekends. RECOMMENDATIONS: Staff recommends a 50% ESTIP for a period of five years or $73,694, whichever occurs first. Because the site has not generated any sales tax over the previous 12 months , the base level of calculation for sales tax will be zero and all subsequent sales tax will be considered as enhanced. It is estimated the restaurant could produce as much as $40 ,000 in sales tax each year. Staff recommends funding this project to the full requested amount for the following reasons: 1. The project meets the objectives of the Economic Development Strategic Plan which is to add new business and jobs to the community while revitalizing under-utilized facilities; and 2. The project could be a catalyst for the redevelopment of adjacent properties along the Kipling corridor; and 3. The project site has been vacant for 2-years. This project will aide in eliminating blight along the busy corridor; and 4 . The project will provide dining options for the area businesses and residents ; and 5. The project will bring in new sales tax revenues and employment. RECOMMENDED MOTION: "I move to approve Resolution No. 33-2013 , a resolution authorizing the execution of an agreement with A Taste of Home Cooking LLC and Wine Not, LLC for participation in the ESTIP , rebating 50% of the enhanced sales tax for a period of five years for the construction of a restaurant and wine bar at 4101 and 4111 Kipling Street, in an amount not to exceed $73 ,694 ." Or, Council Action Fonn-ESTIP for A Taste of Home Cooking September 9, 2013 Page4 "I move to postpone indefinitely Resolution No. 33-2013, a resolution authorizing the execution of an agreement with A Taste of Home Cooking LLC and Wine Not, LLC for participation in the ESTIP for the following reason(s) " REPORT PREPARED BY; Steve Art, Economic Development Manager Patrick Goff, City Manager ATTACHMENTS: 1. Re so lution No. 33-2013 2. ESTIP Agreement CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 33 Series of 2013 TITLE: A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH A TASTE OF HOME COOKING, LLC AND WINE NOT, LLC FOR PARTICIPATION IN THE ENHANCED SALES TAX INCENTIVE PROGRAM REBATING 50% OF THE ENHANCED SALES TAX FOR A PERIOD OF FIVE YEARS FOR THE CONSTRUCTION OF A RESTAURANT AND WINE BAR AT 4101 AND 4111 KIPLING STREET IN AN AMOUNT NOT TO EXCEED $73,694 WHEREAS, the City has adopted as a portion of the Wheat Ridge Code of Laws ("Code") Chapter 22 , Division 4, "Enhanced Sales Tax Incentive Program" (the Program) to encourage, in part, continued development and expansion of opportunities for employment in the private sector in the City; and WHEREAS, A Taste of Home Cooking, LLC and Wine Not, LLC (A Taste of Home Cooking) has applied to participate in the Program and a public hearing was posted and conducted; and WHEREAS , A Taste of Home Cooking is the owner and operator of a development site that will serve residents of Wheat Ridge and surrounding communities; WHEREAS, Owner plans to construct public improvements of approximately $7 4 ,000 and a total project budget of approximately $600,000 ; and WHEREAS, the project enhances services to the neighborhood and neighboring communities and brings revenue to the City from surrounding communities -a true definition of economic development; and WHEREAS; the project creates up to thirty restaurant and related jobs, and WHEREAS; the project spurs reinvestment through remodeling and new construction of a blighted structure, thus enhancing and preserving its economic viability in the City; and WHEREAS, cost-sharing at the rate prescribed herein will serve to aid the Owner in that it will alleviate a portion of the public improvement costs associated with the expansion. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, as follows: Attachment 1 An Agreement to participate in the City of Wheat Ridge Enhanced Sales Tax Incentive Program with A Taste of Home Cooking, LLC and Wine Not , LLC is hereby approved wherein an amount of 50% of enhanced sales tax generated for a period of five years, not-to-exceed $73,694, will be rebated to A Taste of Home Cooking, LLC/Wine Not, LLC . DONE AND RESOLVED this gth day of September, 2013. Jerry DiTullio, Mayor ATTEST: Janelle Shaver, City Clerk AGREEMENT PURSUANT TO ENHANCED SALES TAX INCENTIVE PROGRAM This Agreement Pursuant To Enhanced Sales Tax Incentive Program (this "Agreement") is made and entered into as of the 91h day of September, 2013 , by and between A TASTE OF HOME COOKING LLC and WINE NOT , LLC , located at 4101 and 4111 Kipling Street, Wheat Ridge, CO 80033 , hereinafter referred to as the "Owner" and the CITY OF WHEAT RIDGE, COLORADO , hereinafter referred to as the "City," collectively the "Parties ," and each individually, as a "Party." RECITALS: Whereas , the City has adopted Chapter 22 , Article 69 -84 of the Wheat Ridge Code of Laws , entitled the Enhanced Sales Tax Incentive Program (the "ESTIP Program"), a copy of which is attached hereto as Exhibit A, to encourage, in part , the establishment of retail sales tax generating businesses within the City; and Whereas , the Owner desires to participate in the ESTIP Program and to share in the enhanced sales tax derived from the property described as a Restaurant , generally located at 4101 and 4111 Kipling Street in Wheat Ridge , Colorado and more particularly described in Exhibit B, attached hereto and incorporated by this reference (the "Property''), for the installation of Public Improvements described in Exhibit C , attached hereto and incorporated by this reference (the "Public Improvements") to the extent allowed by this Agreement and the ESTIP Program. Whereas , the owners have formed two separate limited liability corporations for operations of the food service and the alcohol licensing both of which are owned and operated by the same ownership group. NOW , THEREFORE , in consideration of the foregoing premises and the covenants , promises, and agreements of each of the Parties hereto , to be kept and preformed by each of them , the Parties agree as follows: 1. Recitals. The Recitals set forth above are incorporated in this Agreement by reference. 2. Term. The term of this Agreement shall commence on the first day of the calendar month following the month in which the Owner receives their Certificate of Occupancy on the Property and shall terminate in five (5) years , unless otherwise provided in this Agreement (the "Term"). The Term of this Agreement shall automatically renew for each additional one-year period to the extent required by Section 4( d) hereof. 3. Application of City Code. This Agreement is subject to the limitations of the ESTIP Program , as found in the City of Wheat Ridge Code of Laws. In the event of conflicts between this Agreement and the ESTIP Program , the ESTIP Program shall control. Attachment 2 4. Qualification of Property for the ESTIP Program. The City agrees that the Property qualifies for the ESTIP Program and the Public Improvements are improvements for public and/or public related purposes that will stimulate the economy of and within the City, provide employment opportunities for residents of this City and others , expand the goods available for purchase and consumption by residents of the City, and increase sales taxes collected by the City. The City finds the business is reasonably likely to generate enhanced sales taxes of at least Two Hundred Thousand Dollars ($200 ,000) over the full term of this Agreement. The following provisions shall apply for each year in which the ESTIP Program is in effect for the Property: a. FIFTY percent (50%) of the "Enhanced Sales Taxes" collected by the City and derived from the Property shall be segregated by the City to be utilized for the ESTIP Program herein established and approved (the "Allocated Revenues"). For purposes of this Agreement "Enhanced Sales Taxes" shall have the meaning set forth in the ESTIP Program at Section 22-75 of the Wheat Ridge Code of Laws . The total amount of "Enhanced Sales Tax" that shall be rebated for the term of this Agreement shall not exceed to total cost of public improvements ($73 ,694) as detailed in Exhibit C . b . The amount of Enhanced Sales Taxes shall be calculated as follows: the actual amount of sales taxes collected on the Property during the period for 12-months preceding the issuance of a certificate of occupancy by the City of Wheat Ridge (the "base amount"). The excess of collections in each such year above the base amount shall be the Enhanced Sales Taxes for that year. c. The Owner shall share in the Enhanced Sales Taxes derived from the Property and the business located thereon as provided herein. d. Enhanced Sales Taxes from the Property shall be shared and the Allocated Revenues shall be disbursed to the Owner on an rumual basis with sales taxes collected on and after the Commencement Date. The maximum period of time that this Agreement shall be in effect shall be for FIVE (5) years , commencing on the Commencement Date. The Term will be automatically extended for one year for up to FOUR (4) additional one (1) year periods. e. This Agreement is a personal agreement between the City and the Owner and does not run with the Owner's property interest in the land . The obligations, benefits and/or the provisions of this Agreement may not be assigned in whole or in part without the express authorization of the City Council , acting in its sole and exclusive discretion and no third party shall be entitled to rely upon or enforce any provisions hereon. Notwithstanding the foregoing , Owner may assign its interests in this Agreement to an affiliate or to a successor by consolidation. For the purposes of this Paragraph , an affiliate means an entity which controls , is controlled by, or is under common control with the Owner. This Agreement shall 2 never constitute a debt or obligation of the City within any constitutional or statutory provision . f. Any Enhanced Sales Taxes subject to the Agreement shall be escrowed in the event there is a legal challenge to the ESTIP Program or to the approval of this Agreement. g. At the end of the Term of this Agreement as provided for herein , any monies segregated by the City which have not been expended as hereunder provided may be transferred to another account of the City or used in a manner determined by the City in its sole discretion, excluding any amounts escrowed under Paragraph 4.fabove. h. The Owner shall be deemed the "owner or proprietor" of the Property for the purposes of this Agreement and the ESTIP Program , whether or not the Owner owns all or any portion of the Property at any relevant time , since the Owner is coordinating the installation of the Public Improvements. 5. City's Budget Process. Each year, the City Manager shall include in a budget presented to the City Council pursuant to Chapter X, Sec . 10 .2 of the Wheat Ridge Home Rule City Charter, the appropriation of the Allocated Revenues for payment to the Owner as provided in this Agreement. Nothing in this Agreement shall be construed as obligating the City Council to appropriate the Allocated Revenues in any fiscal year. 6. No Debt or Pecuniary Liabilitv. Notwithstanding anything in the Agreement to the contrary, the Agreement is specifically subject to annual appropriation of sufficient funds to pay the Allocated Revenue as provided in the ESTIP Program . No multiple year fiscal obligation is created hereby. The decision of the City Council not to appropriate funds in any given year shall not affect , impair or invalidate any of the remaining provisions of this Agreement. None of the obligations of the City hereunder shall be payable from any source other than Enhanced Sales Taxes . 7. Subordination. Notwithstanding anything in this Agreement to the contrary, the Owner shall have no right , claim , lien , or priority, in or to the City's sales tax revenue that would be superior to or on parity with the rights , claims , or liens of the holders of any sales tax revenue that would be bonds, notes , certificates , or debentures payable from or secured by any sales taxes, outstanding as of the Effective Date of this Agreement. All rights of the Owner are , and at all time shall be , subordinate and inferior to the rights , claims and liens of the holders of any and all such sales tax revenue bonds , notes , certificates, or debentures , issued by the City and payable from or secured by any sales taxes. 8. No Covenant to Construct or to Open. The intent of this Agreement is to provide for Owner's participation in the ESTIP Program , in the event that Owner constructs the Public Impro vements. Notwithstanding any provision in this Agreement to the contrary, Owner shall have no obligation under this Agreement to construct the Public 3 Improvements , and in that event, the City shall have no obligation to share any of the Enhanced Sales taxes with Owner. 9. Remedies. The Owner waives any constitutional claims against the City arising out of a breach of this Agreement. The Owner's remedies against the City under this Agreement are limited to breach of contract claims . In no event shall the Owner be entitled to a claim , nor shall the City be liable for , any special , exemplary, punitive or consequential damages of any kind , including economic damages or lost profits . 10. Severability. lt is understood and agreed by the Parties that if any part, term or provision of this Agreement is held by the courts to be illegal or in conflict with any law of the State of Colorado , the validity of the remaining portions or provisions shall not b e affected , the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular part , term or provision held to be invalid , and the Parties shall cooperate to cure any legal defects in the Agreement or the ESTIP . Should the allocation of the Enhanced Sales Tax , or the payment of the Allocated Rev enues be judicially adjudged illegal , invalid or unenforceable under the present or future laws effective during the Term of this Agreement by a court of competent jurisdiction in a final , non-appealable judgment, the Parties shall utilize their best, good faith efforts to restructure this Agreement or enter into a new agreement consistent with the purposes of thi s Agreement. Should the Parties be unsuccessful in their efforts , the Agreement shall terminate without penalty or recourse to the City. 11. Governing Law. The laws of the State of Colorado shall govern the validity, performance and enforcement of this Agreement. Should either Party institute legal suit or action for enforcement of any obligation contained herein, it is agreed that venue of such suit or action shall be proper and exclusive in the district court for Jefferson County, Colorado. 12. Notices. All notices required or permitted under this Agreement shall be in writing and shall be hand delivered or sent by certified mail , return receipt requested , postage prepaid , to be addressed to the Parties set forth below. All notices so given shall be considered effecti ve upon the earlier of the actual receipt or seventy-two (72) hours after deposit in the United States Mail with the proper address. Either Party by notice so given may change the address to which future notices shall be sent: Notice to the City: Copy to: City Manager City of Wheat Ridge 7500 W . 29th Avenue Wheat Ridge, CO 80033 City Attorney City of Wheat Ridge 7500 W. 29th Avenue Wheat Ridge, CO 80033 4 Notice to the Owner: Taste of Home Cooking, LLC and Wine Not , LLC 3280 Yarrow Court Wheat Ridge , CO 80033 13. Entire Agreement-Amendments. This Agreement embodies the whole agreement of the Parties. There are no promises, terms , conditions , or obligations other than those contained herein and this Agreement shall supersede all previous communications , representations or agreements , either verbal or written , between the Parties hereto. This Agreement may be amended only by written agreement between the Owner and the City acting pursuant to City Council authorization. 14. Effective Date. This Agreement shall be effective and binding upon the Parties upon the date first set forth above. Notwithstanding any provision of this Agreement which may be interpreted to the contrary, in the event that Owner does not acquire title to the Property and construct and make improvements to the Property on or before October 1, 2013 , then upon notice by the Owner to the City, this Agreement shall tenninate and both Parties shall be relieved of all liability hereunder. IN WITNESS WHEREOF , Owner and City have each caused this Agreement to be executed by the authorized Parties. State of Colorado County of ____ _ ) ) ss. ) OWNER A Taste of Home Cooking Owner The foregoing Agreement was acknowledged before me this _ day of ______ , 20 _, by as [title] of -----------------'Inc. WITNESS MY HAND AND OFFICAL SEAL. My Commission expires: _______ _ Notary Public CITY OF WHEAT RIDGE By: __________________ __ Name: Jerry DiTullio Title: Mayor 5 AITEST: Name: Janelle Shaver Title: City Clerk State of Colorado ) ) ss. County of Jefferson ) The foregoing Agreement was acknowledged before me this day of ----- 20 _, by Jerry DiTullio as Mayor and Janelle Shaver as City Clerk , respectively , of the City of Wheat Ridge , Colorado. WITNESS MY HAND AND OFFICAL SEAL. My Commission expires: -------- Notary Public 6 EXHIBIT A Ordinance 2001-08 The Enhanced Sales Tax Incentive Program (The "ESTIP Program") Sec. 22-73. -Program established. There is hereby established within the city an enhanced sales tax incentive program . (Ord. No. 1988-758 .. <' 1(24-1). 5-23-88; Ord. No. 1272. ·'' 1, 12-9-02) Sec. 22-7 4. -Purpose. The purpose of the enhanced sales tax incentive program created by this division is to encourage the establishment and/or substantial expansion of retail sales tax generating businesses within the city, thereby stimulating the economy of and within the city, thereby providing employment for residents of the city and others , thereby further expanding the goods available for purchase and consumption by residents of the city, and further increasing the sales taxes collected by the city, which increased sales tax collections will enable the city to provide expanded and improved municipal services to and for the benefit of the residents of the city, while at the same time providing public or public-related improvements at no cost, or at deferred cost, to the city and its taxpayers and residents . (Ord. No. 1988-758 .. {' 1(24-2), 5-23-88; Ord. No. 1272, §I . 12-9-02) Sec. 22-75. -Definitions. The following words, terms and phrases , when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Enhanced sales tax shall mean the amount of sales tax collected by the city over and above a base amount negotiated by, and agreed upon by, the applicant and the city, and which amount is approved by the city council , which base amount shall never be lower than the amount of sales taxes collected by the city at the property in question in the previous twelve (12) months plus a reasonable and agreed upon percentage of anticipated increase in sales taxes , or, in the case of a newly established business, an amount which represents the good faith determination by the applicant and the city as to the amount of sales taxes which could be generated from the new business without the participation by applicant in the ESTIP created under this division . ESTIP means the enhanced sales tax incentive program created under this division. 7 Owne r or proprie tor shall mean the record owner or operator of an individual business , or, in the case of a shopping center, the owner of the real property upon which more than one (1) business is operated, provided that the owner (whether an individual , corporation , partnership or other entity) is the owner or less or of the individual businesses operated thereon. (0rd. No 1988-758 .. ~· 1(24-3). 5-23-X8: Ord. ,ll,'o. 1272. _,,. 1. 11-9-02) Sec. 22 -76. -Participation. Participation in ESTIP shall be based upon approval by the city council exercising its legislative discretion in good faith. Any owner or proprietor of a newly established or proposed retail sales tax generating business or location, or the owner or proprietor of an existing retail sales tax generating business or location which wishes to expand substantially, may apply to the city for inclusion within the ESTIP provided that the new or expanded business is reasonably likely to generate enhanced sales taxes of at least fi ve thousand dollars ($5 ,000.00) in the first year of operation . rOn/. No. 1988-758. _,,· 1 (24-4). 5-23-8b: On/. No . 1990-854. ,,,· 1. 11-26-90: On/. No 1272. ·''' 1, 12-9-02) Sec. 22 -77.-Approval of agreement; use offunds generally. Approval by the city council of an agreement implementing this E STIP shall entitle the successful applicant to share in enhanced sales taxes derived from applicant's property or business in an amount which shall not in any event exceed the enhanced sales taxes; provided , however, that applicant may use such amounts only for public and/or public-related purposes such as those specified herein and which are expressly approved by the city council at the time of consideration of the application. The time period in which the enhanced sales taxes may be shared shall not commence until all public or public-related improvements are completed, and shall be limited by the city council , in its discretion, to a specified time, or until a specified amount is reached . (Onl.l\'o. /988-758, .~· /(24-5). 5-23-811: Ord ,1\,'o. 2002-1240. § 1. I-2H-02: Onl.l\'o 12 72. ,,,. I. 12-9-02) Sec. 22-78. -Uses enumerated. The uses to which the shared enhanced sales taxes may be put by an applicant shall be strictly linuted to those which are public or public-related in nature. For the purposes of this division, public or public-related purposes shall mean public improvements , including but not limited to streets , sidewalks, curbs , gutters , pedestrian malls, street lights , drainage facilities , landscaping, decorative structures , statuaries , fountains , identification signs , traffic safety devices , bicycle paths , off-street parking facilities , benches , restrooms , information booths , public meeting facilities , and all necessary, incidental , and appurtenant structures and improvements , together with the 8 relocation and improvement of existing utility lines , and any other improvements of a similar nature which are specifically approved by the city council upon the city council's finding that said improvement are public or public-related improvements, and that such improvements shall enhance the competitive position of the applicant within the Denver metropolitan area marketplace. (Ord. No . 1988-758. § 1(24-6). 5-23-88; Ord. No. 1272, _,,. 1. 12-9-02) Sec. 22-79. -Increments, sharing of funds. The base figure for sales taxes shall be divided into twelve (12) monthly increments , which increments are subject to agreement between the parties, and approval by the city council , and which increments shall be reasonably related to the average monthly performance of the business or property in question, or similar businesses in the area (i .e . adjust for seasonal variations). If in any month the agreed upon figure is not met by applicant so as to create enhanced sales tax for that month, no funds shall be shared with applicant for that month , and no increment shall be shared until that deficit , and any other cumulative deficit, has been met , so that at the end of any twelve-month cycle, funds in excess of those enhanced sales taxes agreed to be shared shall not have been shared with any applicant. (Ord . No. 1988-758, § 1(24-7), 5-23-88; On/. No. 1272, .'' 1, 12-9-02) Sec. 22-80. -Revenues restricted. It is an overriding consideration and determination of the city council that existing sources of city sales tax revenues shall not be used, impaired , or otherwise affected by this enhanced sales tax incentive program. Therefore, it is hereby conclusively determined that only enhanced sales taxes generated by the properties described in an application shall be subject to division under this ESTIP . It shall be the affim1ative duty of the treasurer to collect and hold all such enhanced sales taxes in a separate account apart from the sales taxes generated by and collected from the other sales tax generating uses and businesses within the city and to provide an accounting system which accomplishes the overriding purpose of this section . It is conclusively stated by the city council that this division would not be adopted or implemented but for the provisions of this section . (Ord. No. 1988-758, § 1(24-8), 5-23-88; Ord. No. 1272, § 1, 12-9-02) Sec. 22-81.-Capital improvement fund. The one (I) percent of sales and use taxes earmarked for the capital improvement fund may be utilized in this ESTIP for public improvements so long as the same are within the meaning of the phrase capital improvements as defined in the voter appro ved sales tax referendum previously held within the city, and provided that the same are found and determined by the city council to be capital improvements which could be 9 provided by the city from the capital improvement fund but for the provision of such improvements by the applicant; provided , however, that such use of capital improvement funds as part of this ESTIP shall be limited to the amount agreed pursuant to section 22- 83 hereof; provided further, however, that nothing contained herein shall limit the city council in the detennination to appropriate additional capital improvement funds for capital improvements affecting the property in question as a part of the city's regular appropriation and budget process. (On!. No 1988-758. ·'' /(24-9), 5-23-88: Ord. No 1272. ,,,· 1. /2-9-02) Sec. 22-82. -Criteria for approval of application. Approval of an application for inclusion in this ESTIP shall be given by the city council , at a public hearing held as a portion of a regularly scheduled city council meeting, based upon the following criteria : (I) (2) (3) (4) (5) (6) The amount of enhanced sales taxes which are reasonably to be anticipated to be derived by the city through the expanded or new retail sales tax generating business ; The public benefits which are provided by the applicant through public works, public improvements , additional employment for city residents , etc; The amount of expenditures which may be deferred by the city based upon public improvements to be completed by the applicant; The confonnance of the applicant's property or project with the comprehensive plan and zoning ordinances of the city ; The agreement required by section 22-83 having been reached , which agreement shall contain and conform to all requirements of section 22-83 Approval shall be by motion adopted by a majority of the entire city council. (Ore/. No. 1988-751-l. 5 /(24-10). 5-23-88: Ord. No. 1272. ,$I. 12-9-02) Sec. 22 -83. -Agreement required. Each application for approval submitted to the city council shall be subject to approval by the council solely on its own merits. Approval of an application shall require 10 that an agreement be executed by the owner and the city, which agreement shall , at a minimum, contain: (1) (2) (3) (4) (5) (6) (7) (8) A list of those public or public-related improvements which justify applicant's approval , and the amount which shall be spent on such improvements; The maximum amount of enhanced sales taxes to be shared, and the maximum time during which the agreement shall continue, it being expressly understood that any such agreement shall expire and be of no further force and effect upon the occurrence of the earlier to be reached of the maximum time of the agreement (whether or not the maximum amount to be shared has been reached) or the maximum amount to be shared (whether or not the maximum time set forth has expired); A statement that this is a personal agreement which is not transferable and which does not run with the land; That this agreement shall never constitute a debt or obligation of the city within any constitutional or statutory provision ; The base amount which is agreed upon by month, and the fact that if, in any month as specified , sales taxes received from the property do not at least equal such amount , that there shall be no sharing of funds for such month; The base amount shall be agreed upon which shall consider the historic level of sales at the property in question, or a similar property within the area in the event of a new business, and a reasonable allowance for increased sales due to the improvements and upgrades completed as a result of inclusion within this program; A provision that any enhanced sales taxes subject to sharing shall be escrowed in the event there is a legal challenge to this enhanced sales tax incentive program or the approval of any application therefor; An affirmative statement that the obligations , benefits , and/or provisions of this agreement may not be assigned in whole or in any part without the II (9) expressed authorization of the city council , and further that no third party shall be entitled to rely upon or enforce any provision hereof; Any other provisions agreed upon by the parties and approved by the city council. (On/. No. 1988-758, 5 104-11). 5-23-88; On/. No. 1272. ·''I. 12-9-02) Sec. 22-84. -Joint venture; liability. The city council has enacted this ESTIP as a joint benefit to the public at large and to private owners for the purposes of providing the city with increased sales tax revenues generated upon and by properties improved as a result of this program; public improvements being completed by private owners through no debt obligation being incurred on the part of the city, and allowing applicants an opportunity to improve properties which generate sales activities , which improvements make those properties more competitive in the marketplace and further provide to the applicant additional contingent sources of revenues for upgrading such properties. The city council specifically finds and detennines that creation of this ESTIP is consistent with the city's powers as a home rule municipal corporation, and that exercise of such powers in the manner set forth herein is in furtherance of the public health, safety and welfare . Notwithstanding any provision hereof, the city shall never be a joint venture in any private entity or activity which participates in this ESTIP , and the city shall never be liable or responsible for any debt or obligation of any participant in ESTIP. (Ord. No. 1988-758. § 1(24-12). 5-23-88: On/. !1/o. 1272, _,,·I, 12-9-02) 12 EXHIBITB Legal Description of the Property 5 . Tllf' Land rrfrrnd to io this Commitment is described as follows : LOT I. GREEN VAllEY SUBDIVISION , EXCEPT DIAT PARCEL CONVEYED TO THE DEPARtMENT OF IDGIDVAYS IN DEEP RECORDED NOVEMBER 10. 1969 IN BOOK 2144 AT PAGE 166. COUNTY OF ,JEFFERSON, STATE OF COLORADO . 13 EXHIBIT C Qualifying Public Improvement Costs Public improvements totally $73,694 include: • Interior remodel for safety improvements in the facility to include: o Fire suppression improvements-$9 ,148 o Ingress and egress modifications-$4 ,654 o Fire coded doors-$1 ,400 o Electrical Modifications per Code -$2 ,142 o Accessible restroom facilities /Plumbing-$25 ,339 o Accessibility ramps-$1 ,700 • Exterior Improvements for improved public access include: o Roof repairs-$5 ,974 o New Paint and wall repajrs-$8 ,337 o Parking lot improvements to increase public parking opportunities - $15 ,000 14 ~ ~ . ~ .. , r City of • JP'WheatR.i___dge ITEM NO:~ DATE: September 9 , 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 35-2013-A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH MUSEL MASSTER (THE GREEN HERB) FOR PARTICIPATION IN THE ENHANCED SALES TAX INCENTIVE PROGRAM (ESTIP) REBATING 50°/o OF THE ENHANCED SALES TAX FOR A PERIOD OF THREE YEARS FOR CONSTRUCTION OF A NEW BUILDING AT 4565 KIPLING STREET ~ PUBLIC HEARING D BIDS/MOTIONS ~ RESOLUTIONS D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2N° READING QUASI-JUDICJJn#_IAL: D YES _Qfku__:_______ ~ NO City Manager ISSUE: Musel Masster (The Green Herb) has made an application and request to participate in the City 's Enhanced Sales Tax Incentive Program (ESTIP), related to the construction of a new building to house the corporate headquarters for The Green Herb at 4565 Kipling Street. The request is for the rebate of 50% of the future sales tax increment for a period of three years for an estimated amount of $7 ,500. PRIOR ACTION: At the August 26 , 2013 , Study Session , City Council reviewed a request from The Green Herb for an ESTIP agreement wherein all or a portion of the sales tax increment would be rebated back to The Green Herb. City Council discussed the request and directed staff to draft an ESTIP agreement to rebate 50% of future sales tax increment for a period of three years. FINANCIAL IMPACT: This agreement will decrease future sales taxes from The Green Herb project by 50 % of the total City sales taxes generated for a period of three years for an estimated total of$7,500 . Council Action Form September 9 , 2013 Page2 BACKGROUND: Chapter 22 of the Wheat Ridge Code of Laws established the ESTIP program. The primary purpose of the ESTIP is to encourage the establishment and/or substantial expansion of retail sales tax generating businesses within the City. The ESTIP provides incentives through the rebate of future sales tax increment. In the past the Council has approved several ESTIP agreements with existing Wheat Ridge businesses , non-profits , and businesses looking for an incentive to relocate to Wheat Ridge. Every project was unique but each was evaluated for incentives against a set of criteria outlined in the Code of Laws. The criteria for approval of an ESTIP agreement are as follows: 1. The amount of enhanced sales tax which can reasonably be anticipated to be derived by the city through the expanded or new tax generating business ; 2. The public benefits which are provided by the applicant through public works, public improvements , additional employment for city residents; 3. The amount of city expenditures which may be deferred by the city based upon public improvements to be completed by the applicant; 4 . The conformance of the applicant's property or project with the comprehensive plan and zoning ordinances of the city. The Green Herb's owners have been looking to purchase property in Wheat Ridge to construct a permanent site for their business , a retailer and wholesaler of nutritional supplements . They currently lease space on the I-70 Frontage Road North. In 2011, they located a potential parcel along the south side of I-70 frontage in which to construct a new facility , but due to some site constraints they abandoned those plans and began looking for another alternative. In 2012 they located another lot at 4565 Kipling Street for their new office, retail and production facility. The Green Herb worked with staffofCommunity Development and Public Works on site improvements for this odd shaped lot which has a 1 00-foot wide frontage on Kipling Street and parcel depth of approximately 450-feet. This site configuration has previously made it difficult to develop . At the same time , The Green Herb emailed staff requesting inclusion into the ESTIP and BDZ programs. The parcel had previously been considered for mini-storage which came under heavy protest from the adjoining residential neighbors and was denied by Planning Commission. Since that time, the site has garnered no interest from other developers due to the minimum frontage on Kipling. In late 2012 the site was purchased by The Green Herb and in February 2013 a building permit was issued for construction of a new building. Staffworked with The Green Herb's architect team for a building that met the requirements of all city codes . The Green Herb is in construction of an 8 ,242 square foot building on the site that meets the requirements of the City's Council Action Fonn September 9 , 2013 Page 3 architectural and streetscape design manuals. Upon completion , The Green Herb will transfer their entire existing facility to the new site and anticipates hiring an additional 4-6 new employees , bringing their total to approximately 20. The new construction has a valuation of$750,000 which will increase the property tax valuation and revenue to the city through additional property taxes. Total building use tax and pennit fees paid on the Project were $27,171 through a building permit issued on February 22 ,2013 . Incremental sales tax is estimated at $5 ,000 in year one of operation and increasing yearly. RECOMMENDATIONS: Staff recommends a 50 % ESTIP for a period of 3-years with no cap on the amount of incremental sales tax that can be rebated back to The Green Herb. The estimated incremental sales tax rebate over the 3-year period is $7 ,500. Staff recommends funding this Project for the following reasons: 1. The Project meets the objectives of the City's economic development goals by providing new development and jobs in the City of Wheat Ridge ; and 2. The Project could be a catalyst for the redevelopment of adjacent properties along the Kipling corridor; and 3 . The Project site has been difficult to develop due to the odd site layout and configuration ; and 4 . The Project will generate enhanced sales and use tax revenues and increased employment. RECOMMENDED MOTION: "I move to approve Resolution No. 35-2013 , a resolution authorizing the execution of an agreement with Muse] Masster for participation in the Enhanced Sales Tax Incentive Program rebating 50 % of the enhanced sales tax for a period of three years for the construction of a new building at 4565 Kipling Street in an amount estimated at $7 ,500." Or, "I move to postpone indefinitely the adoption of Resolution No 35-2013 a resolution authorizing the execution of an agreement with Muse] Masster for participation in the Enhanced Sales Tax Incentive Program for the following reason(s) " REPORT PREPARED/REVIEWED BY: Steve Art, Economic Development/ Urban Renewal Manager Patrick Goff, City Manager ATTACHMENTS: 1. Resolution No. 35-2013 2 . ESTIP Agreement CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 35 Series of 2013 TITLE: A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH MUSEL MASSTER (THE GREEN HERB) FOR PARTICIPATION IN THE ENHANCED SALES TAX INCENTIVE PROGRAM (ESTIP) REBATING 50% OF THE ENHANCED SALES TAX FOR A PERIOD OF THREE YEARS FOR THE CONSTRUCTION OF A NEW BUILDING AT 4565 KIPLING STREET WHEREAS, the City has adopted as a portion of the Wheat Ridge Code of Laws ("Code") Chapter 22, Division 4, "Enhanced Sales Tax Incentive Program" (the Program) to encourage, in part, continued development and expansion of opportunities for employment in the private sector in the City; and WHEREAS, Musel Masster (The Green Herb) has applied to participate in the Program and a public hearing was posted and conducted; and WHEREAS, The Green Herb is the owner and operator of a development site that will serve residents of Wheat Ridge and surrounding communities; WHEREAS, Owner plans to construct public improvements of approximately $158,567 and a total project budget of approximately $750,000; and WHEREAS, the project enhances services to the neighborhood and neighboring communities and brings revenue to the City from surrounding communities-a true definition of economic development; and WHEREAS; the project creates up to 6 new jobs and a total employee base over 20,and WHEREAS; the project spurs reinvestment through remodeling and new construction of a blighted structure, thus enhancing and preserving its economic viability in the City; and WHEREAS, cost-sharing at the rate prescribed herein will serve to aid the Owner in that it will alleviate a portion of the public improvement costs associated with the expansion. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, as follows: An Agreement to participate in the City of Wheat Ridge Enhanced Sales Tax Incentive Program with Musel Masster is hereby approved wherein an amount of Attachment 1 50% of enhanced sales tax generated for a period of three years, i n an amount estimated at $7 ,500 , will be rebated to Musel Masster. DONE AND RESOLVED th is g th day of September, 2013 . Jerry DiTullio , Mayor ATTEST : Janelle Shaver, City Clerk AGREEMENT PURSUANT TO ENHANCED SALES TAX INCENTIVE PROGRAM This Agreement Pursuant To Enhanced Sales Tax Incentive Program (this "Agreement") is made and entered into as of the gth day of September, 2013 , by and between MUSEL MASSTER, LLC located at 4565 Kipling Street, Wheat Ridge, CO 80033 , hereinafter referred to as the "Owner" and the CITY OF WHEAT RIDGE , COLORADO , hereinafter referred to as the "City," collectively the "Parties ," and each individually, as a "Party." RECITALS: Whereas , the City has adopted Chapter 22 , Article 69 -84 of the Wheat Ridge Code of Laws , entitled the Enhanced Sales Tax Incentive Program (the "ESTIP Program "), a copy of which is attached hereto as Exhibit A, to encourage, in part, the establishment of retail sales tax generating businesses within the City; and Whereas , the Owner desires to participate in the ESTIP Program and to share in the enhanced sales tax deri ved from the property, generally located at 4565 Kipling Street in Wheat Ridge , Colorado and more particularly described in Exhibit B , attached hereto and incorporated by this reference (the "Property"), for the installation of Public Improvements described in Exhibit C , attached hereto and incorporated by this reference (the "Public Improvements ") to the extent allowed by this Agreement and the ESTIP Program. NOW , THEREFORE , in consideration of the foregoing premises and the covenants , promises , and agreements of each of the Parties hereto , to be kept and preformed by each of them , the Parties agree as follows: 1. Recitals. The Recitals set forth above are incorporated in this Agreement by reference . 2. Term. The term of this Agreement shall commence on the first day of the calendar month following the month in which the Owner receives their Certificate of Occupancy on the Property and shall terminate in three (3) years , unless otherwise provided in this Agreement (the "Term"). The Term of this Agreement shall automatically renew for each additional one year period to the extent required by Section 4( d) hereof. 3. Application of City Code. This Agreement is subject to the limitations of the ESTIP Program , as found in the City of Wheat Ridge Code of Laws . In the event of conflicts between tllis Agreement and the ESTIP Program , the ESTIP Program shall control. 4. Qualification of Property for the ESTIP Program. The City agrees that the Property qualifies for the ESTIP Program and the Public Improvements are improvements for public and/or public related purposes that will stimulate the economy of and within the City, provide employment opportunities for residents of this City and Attachment 2 others, expand the goods available for purchase and consumption by residents of the City, and increase sales taxes collected by the City. The City finds the business is reasonably likely to generate enhanced sales taxes of at least Fifteen Thousand Dollars ($15,000) over the full term of this Agreement. The following provisions shall apply for each year in which the ESTIP Program is in effect for the Property: a. FIFTY percent (50%) of the "Enhanced Sales Taxes" collected by the City and derived from the Property shall be segregated by the City to be utilized for the ESTIP Program herein established and approved (the "Allocated Revenues"). For purposes of this Agreement "Enhanced Sales Taxes" shall have the meaning set forth in the ESTIP Program at Section 22-75 ofthe Wheat Ridge Code ofLaws. b. The amount of Enhanced Sales Taxes shall be calculated as follows: the actual amount of sales taxes collected on the Property during the period for 12-months proceeding the issuance of a certificate of occupancy by the City of Wheat Ridge (the "base amount"). The excess of collections in each such year above the base amount shall be the Enhanced Sales Taxes for that year. c. The Owner shall share in the Enhanced Sales Taxes derived from the Property and the business located thereon as provided herein. d. Enhanced Sales Taxes from the Property shall be shared and the Allocated Revenues shall be disbursed to the Owner on an annual basis with sales taxes collected on and after the Commencement Date. The maximum period of time that this Agreement shall be in effect shall be THREE (3) years, commencing on the Commencement Date. The Term will be automatically extended for one year for up to TWO (2) additional one (1) year periods. e. This Agreement is a personal agreement between the City and the Owner and does not run with the Owner's property interest in the land. The obligations, benefits and/or the provisions of this Agreement may not be assigned in whole or in part without the express authorization of the City Council, acting in its sole and exclusive discretion and no third party shall be entitled to rely upon or enforce any provisions hereon. Notwithstanding the foregoing, Owner may assign its interests in this Agreement to an affiliate or to a successor by consolidation. For the purposes of this Paragraph, an affiliate means an entity which controls, is controlled by, or is under common control with the Owner. This Agreement shall never constitute a debt or obligation of the City within any constitutional or statutory provision. f. Any Enhanced Sales Taxes subject to the Agreement shall be escrowed in the event there is a legal challenge to the ESTIP Program or to the approval of this Agreement. g. At the end of the Term of this Agreement as provided for herein, any monies segregated by the City which have not been expended as hereunder provided may be transferred to another account of the City or used in a matmer determined by 2 the City in its sole discretion , excluding any amounts escrowed under Paragraph 4.fabove . h. The Owner shall be deemed the "owner or proprietor" of the Property for the purposes of this Agreement and the ESTIP Program , whether or not the Owner owns all or any portion of the Property at any relevant time, since the Owner is coordinating the installation of the Public Improvements. 5. City's Budget Process. Each year, the City Manager shall include in a budget presented to the City Council pursuant to Chapter X , Sec. 10.2 of the Wheat Ridge Home Rule City Charter, the appropriation of the Allocated Revenues for payment to the Owner as provided in this Agreement. Nothing in this Agreement shall be construed as obligating the City Council to appropriate the Allocated Revenues in any fiscal year. 6. No Debt or Pecuniary Liabilitv. Notwithstanding anything in the Agreement to the contrary, the Agreement is specifically subject to annual appropriation of sufficient funds to pay the Allocated Revenue as provided in the ESTIP Program . No multiple year fiscal obligation is created hereby. The decision of the City Council not to appropriate funds in any given year shall not affect , impair or invalidate any of the remaining provisions of this Agreement. None of the obligations of the City hereunder shall be payable from any source other than Enhanced Sales Taxes. 7. Subordination. Notwithstanding anything in this Agreement to the contrary, the Owner shall have no right, claim, lien , or priority, in or to the City 's sales tax revenue that would be superior to or on parity with the rights , claims , or liens of the holders of any sales tax revenue that would be bonds, notes , certificates , or debentures payable from or secured by any sales taxes , outstanding as of the Effective Date of this Agreement. All rights of the Owner are, and at all time shall be, subordinate and inferior to the rights , claims and liens of the holders of any and all such sales tax revenue bonds , notes , certificates , or debentures , issued by the City and payable from or secured by any sales taxes. 8. No Covenant to Construct or to Open. The intent of this Agreement is to provide for Owner 's participation in the ESTIP Program , in the ev ent that Owner constructs the Public Improvements . Notwithstanding any provision in this Agreement to the contrary, Owner shall have no obligation under this Agreement to construct the Public Improvements, and in that event, the City shall have no obligation to share any of the Enhanced Sales taxes with Owner. 9. Remedies. The Owner waives any constitutional claims against the City arising out of a breach of this Agreement. The Owner 's remedies against the City under this Agreement are limited to breach of contract claims. In no event shall the Owner be entitled to a claim, nor shall the City be liable for , any special , exemplary, punitive or consequential damages of any kind , including economic damages or lost profits. 3 10. Severability. It is understood and agreed by the Parties that if any part, term or provision of this Agreement is held by the courts to be illegal or in conflict with any law of the State of Colorado , the validity of the remaining portions or provisions shall not be affected , the rights and obligations of the Parties shall be construed and enforced as if the Agreement did not contain the particular part , term or provision held to be invalid , and the Parties shall cooperate to cure any legal defects in the Agreement or the ESTIP. Should the allocation of the Enhanced Sales Tax , or the payment of the Allocated Revenues be judicially adjudged illegal , invalid or unenforceable under the present or future laws effective during the Term of this Agreement by a court of competent jurisdiction in a final , non-appealable judgment, the Parties shall utilize their best, good faith efforts to restructure this Agreement or enter into a new agreement consistent with the purposes of this Agreement. Should the Parties be unsuccessful in their efforts , the Agreement shall terminate without penalty or recourse to the City. 11. Governing Law. The laws of the State of Colorado shall govern the validity, performance and enforcement of this Agreement. Should either Party institute legal suit or action for enforcement of any obligation contained herein , it is agreed that venue of such suit or action shall be proper and exclusive in the district court for Jefferson County, Colorado. 12. Notices. All notices required or permitted under this Agreement shall be in writing and shall be hand delivered or sent by certified mail , return receipt requested , postage prepaid , to be addressed to the Parties set forth below. All notices so given shall be considered effective upon the earlier of the actual receipt or seventy-two (72) hours after deposit in the United States Mail with the proper address. Either Party by notice so given may change the address to which future notices shall be sent: Notice to the City: Copy to: Notice to the Owner: City Manager City of Wheat Ridge 7500 W. 29th Avenue Wheat Ridge , CO 80033 City Attorney City of Wheat Ridge 7500 W. 29th Avenue Wheat Ridge , CO 80033 Muse] Masster, LLC 3280 Yarrow Court Wheat Ridge , CO 80033 13. Entire Agreement-Amendments. This Agreement embodies the whole agreement of the Parties. There are no promises , terms , conditions , or obligations other than those contained herein and this Agreement shall supersede all previous communications, representations or agreements , either verbal or written , between the 4 Parties hereto. This Agreement may be amended only by written agreement between the Owner and the City acting pursuant to City Council authorization . 14. Effective Date. This Agreement shall be effective and binding upon the Parties upon the date first set forth above. Notwithstanding any provision of this Agreement which may be interpreted to the contrary, in the event that Owner does not acquire title to the Property and construct and make improvements to the Property on or before March 31 , 2014 , then upon notice by the Owner to the City, this Agreement shall terminate and both Parties shall be relieved of all liability hereunder. IN WITNESS WHEREOF , Owner and City have each caused this Agreement to be executed by the authorized Parties. State of Colorado County of ____ _ ) ) ss . ) OWNER Musel Masster, LLC Owner The foregoing Agreement was acknowledged before me this _ day of _____ , 20_, by as [title] of -----------------'Inc. WITNESS MY HAND AND OFFICAL SEAL. My Commission expires: _______ _ Notary Public 5 AITEST: Name: Janelle Shaver Title : City Clerk State of Colorado ) ) ss. County of Jefferson ) CITY OF WHEAT RIDGE By: --------------------Name: Jerry DiTullio Title: Mayor The foregoing Agreement was acknowledged before me this ___ day of ________ _ 20 _, by Jerry DiTullio as Mayor and Janelle Shaver as City Clerk , respectively, of the City of Wheat Ridge , Colorado. WITNESS MY HAND AND OFFICAL SEAL. My Commission expires: --------------- Notary Public 6 EXHIBIT A Ordinance 2001-08 The Enhanced Sales Tax Incentive Program (The "ESTIP Program") Sec. 22-73. -Program established. There is hereby established within the city an enhanced sales tax incentive program. (Ord. No. 1988-758 .. <' 1(24-1}, 5-23-88: Ord. No. 1272. §I. 12-9-02) Sec. 22-74. -Purpose. The purpose of the enhanced sales tax incentive program created by this division is to encourage the establishment and/or substantial expansion of retail sales tax generating businesses within the city, thereby stimulating the economy of and within the city, thereby providing employment for residents of the city and others , thereby further expanding the goods available for purchase and consumption by residents of the city, and further increasing the sales taxes collected by the city, which increased sales tax collections will enable the city to provide expanded and improved municipal services to and for the benefit of the residents of the city, while at the same time providing public or public-related improvements at no cost, or at deferred cost , to the city and its taxpayers and residents. (Ord. No. 1988-758. § 1(24-2). 5-23-88: Ord. No. 1272. § 1, 12-9-02) Sec. 22-75. -Definitions. The following words , terms and phrases , when used in this division, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning: Enhanced sales tax shall mean the amount of sales tax collected by the city over and above a base amount negotiated by, and agreed upon by, the applicant and the city, and which amount is approved by the city council , which base amount shall never be lower than the amount of sales taxes collected by the city at the property in question in the previous twelve (12) months plus a reasonable and agreed upon percentage of anticipated increase in sales taxes, or, in the case of a newly established business, an amount which represents the good faith determination by the applicant and the city as to the amount of sales taxes which could be generated from the new business without the participation by applicant in the ESTIP created under this division. ESTIP means the enhanced sales tax incentive program created under this division. 7 Own e r or proprie tor shall mean the record owner or operator of an individual business , or, in the case of a shopping center, the owner of the real property upon which more than one (1) business is operated, provided that the owner (whether an individual , corporation, partnership or other entity) is the owner or less or of the individual businesses operated thereon. (Ord. No I988-758. _,,.I (24-3). 5-23-88: On/. ;\'o. /] 72. _,,. I. I2-9-02) Sec. 22 -76. -Participation. Participation in ESTIP shall be based upon approval by the city council exercising its legislative discretion in good faith . Any owner or proprietor of a newly established or proposed retail sales tax generating business or location , or the owner or proprietor of an existing retail sales tax generating business or location which wishes to expand substantially, may apply to the city for inclusion within the ESTIP provided that the new or expanded business is reasonably likely to generate enhanced sales taxes of at least five thousand dollars ($5 ,000 .00) in the first year of operation . (Ord. No. I988-758. _,,. I (24-4). 5-23-88: On/. No. I990-854, _,,· I. 1/-26-90: On/. No. 1]72 .. ~·I. /2-9-02) Sec. 22-77.-Approval of agreement; use of funds generally. Approval by the city council of an agreement implementing this ESTIP shall entitle the successful applicant to share in enhanced sales taxes derived from applicant's property or business in an amount which shall not in any event exceed the enhanced sales taxes ; provided , however, that applicant may use such amounts only for public and/or public-related purposes such as those specified herein and which are expressly approved by the city council at the time of consideration of the application . The time period in which the enhanced sales taxes may be shared shall not commence until all public or public-related improvements are completed , and shall be limited by the city council , in its discretion, to a specified time, or until a specified amount is reached. (On/ J\'o. I98R-758, .~ I(24-5). 5-23-88: On/. ]\'o. 2002-I240, ,,,·I. l-2?l-02: On/. Ao. 12 72 .. ~· I. I2-9-02) Sec. 22-78. -Uses enumerated. The uses to which the shared enhanced sales taxes may be put by an applicant shall be strictly limited to those which are public or public-related in nature. For the purposes of this division, public or public-related purposes shall mean public improvements , including but not limited to streets , sidewalks , curbs , gutters , pedestrian malls , street lights, drainage facilities , landscaping, decorative structures , statuaries , fountains , identification signs , traffic safety devices , bicycle paths , off-street parking facilities , benches , restrooms , information booths , public meeting facilities, and all necessary, incidental , and appurtenant structures and improvements , together with the 8 relocation and improvement of existing utility lines, and any other improvements of a similar nature which are specifically approved by the city council upon the city council's finding that said improvement are public or public-related improvements , and that such improvements shall enhance the competitive position of the applicant within the Denver metropolitan area marketplace. (Ord. No. 1988-758, ,,,. 1(24-6}, 5-23-88; Ord. No. 1272, § 1. 12-9-02) Sec. 22-79. -Increments, sharing of funds. The base figure for sales taxes shall be divided into twelve (12) monthly increments , which increments are subject to agreement between the parties, and approval by the city council , and which increments shall be reasonably related to the average monthly perfonnance of the business or property in question, or similar businesses in the area (i.e. adjust for seasonal variations). If in any month the agreed upon figure is not met by applicant so as to create enhanced sales tax for that month, no funds shall be shared with applicant for that month, and no increment shall be shared until that deficit , and any other cumulative deficit , has been met, so that at the end of any twelve-month cycle, funds in excess of those enhanced sales taxes agreed to be shared shall not have been shared with any applicant. (Ord. No. 1988-758, ,,..,. 1(24-7}, 5-23-88; Ord. No. 1272. j~· 1. 12-9-02) Sec. 22 -80. -Revenues restricted. It is an overriding consideration and detennination of the city council that existing sources of city sales tax revenues shall not be used , impaired , or otherwise affected by this enhanced sales tax incentive program. Therefore, it is hereby conclusively detennined that only enhanced sales taxes generated by the properties described in an application shall be subject to division under this E STIP . It shall be the affirmative duty of the treasurer to collect and hold all such enhanced sales taxes in a separate account apart from the sales taxes generated by and collected from the other sales tax generating uses and businesses within the city and to provide an accounting system which accomplishes the overriding purpose of this section . It is conclusively stated by the city council that this division would not be adopted or implemented but for the provisions of this section . (Ord. No. 1988-758, § 1(24-8), 5-23-88; Ord. No. 1272, § 1, 12-9-02) Sec. 22-81.-Capital improvement fund. The one (1) percent of sales and use taxes eannarked for the capital improvement fund may be utilized in this ESTIP for public improvements so long as the same are within the meaning of the phrase capital improvements as defined in the voter approved sales tax referendum previously held within the city, and provided that the same are found and detennined by the city council to be capital in1provements which could be 9 provided by the city from the capital improvement fund but for the provision of such improvements by the applicant ; provided , however, that such use of capital improvement funds as part of this ESTIP shall be limited to the amount agreed pursuant to section 22- 83 hereof; provided further , however, that nothing contained herein shall limit the city council in the determination to appropriate additional capital improvement funds for capital improvements affecting the property in question as a part of the city's regular appropriation and budget process . (On/. No. 1988-7 58. ,,,· I (24-9). 5-2 3-88: On!. ,1\.'o 12 72. .~· I, 12-9-02) Sec. 22-82. -Criteria for approval of application. Approval of an application for inclusion in this ESTIP shall be gi ven by the c ity council , at a public hearing held as a portion of a regularly scheduled city council meeting, based upon the following criteria : (1) (2) (3) (4) (5) (6) The amount of enhanced sales taxes which are reasonably to be anticipated to be derived by the city through the expanded or new retail sales tax generating business ; The public benefits which are provided by the applicant through public works , public improvements , additional employment for city residents , etc; The amount of expenditures which may be deferred by the city based upon public improvements to be completed by the applicant ; The conformance of the applicant's property or project with the comprehensive plan and zoning ordinances of the city ; The agreement required by section 22-83 having been reached , which agreement shall contain and confom1 to all requirements of section 22-83 Approval shall be by motion adopted by a majority of the entire city council. (Ord. No. 198b-758 .. ~ 1(24-10). 5-23-88: Ord. No. 1272, § 1, 12-9-02) Sec. 22 -83. -Agreement required. Each application for approval submitted to the city council shall be subject to approval by the council solely on its own merits. Approval of an application shall require 10 that an agreement be executed by the owner and the city, which agreement shall , at a minimum, contain: (1) (2) (3) (4) (5) (6) (7) (8) A list of those public or public-related improvements which justify applicant's approval , and the amount which shall be spent on such improvements ; The maximum amount of enhanced sales taxes to be shared, and the maximum time during which the agreement shall continue, it being expressly understood that any such agreement shall expire and be of no further force and effect upon the occurrence of the earlier to be reached of the maximum time of the agreement (whether or not the maximum amount to be shared has been reached) or the maximum amount to be shared (whether or not the maximum time set forth has expired); A statement that this is a personal agreement which is not transferable and which does not run with the land ; That this agreement shall never constitute a debt or obligation of the city within any constitutional or statutory provision; The base amount which is agreed upon by month, and the fact that if, in any month as specified , sales taxes received from the property do not at least equal such amount, that there shall be no sharing of funds for such month; The base amount shall be agreed upon which shall consider the historic level of sales at the property in question, or a similar property within the area in the event of a new business , and a reasonable allowance for increased sales due to the improvements and upgrades completed as a result of inclusion within this program; A provision that any enhanced sales taxes subject to sharing shall be escrowed in the event there is a legal challenge to this enhanced sales tax incentive program or the approval of any application therefor; An affinnative statement that the obligations, benefits , and/or provisions of this agreement may not be assigned in whole or in any part without the 11 (9) expressed authorization of the city council , and further that no third party shall be entitled to rely upon or enforce any provision hereof; Any other provisions agreed upon by the parties and approved by the city council. (Ord No. 198/o,-758 .'; }(24-1 1). 5-23-88; Oul. No. 1272. ,,,· 1. 12-9-02) Sec. 22 -84.-Joint venture; liability. The city council has enacted this ESTIP as a joint benefit to the public at large and to private owners for the purposes of providing the city with increased sales tax revenues generated upon and by properties improved as a result of this program; public improvements being completed by private owners through no debt obligation being incurred on the part of the city, and allowing applicants an opportwlity to improve properties which generate sales activities , wllich improvements make those properties more competitive in the marketplace and further provide to the applicant additional contingent sources of revenues for upgrading such properties . The city council specifically finds and determines that creation of this ESTIP is consistent with the city's powers as a home rule municipal corporation , and that exercise of such powers in the manner set forth herein is in furtherance of the public health , safety and welfare . Notwithstanding any provision hereof, the city shall never be a joint venture in any private entity or activity which participates in tllis ESTIP , and the city shall never be liable or responsible for any debt or obligation of any participant in ESTIP . (Ore/. No. 1988-758 .. ~· /(24-12). 5-23-88: Oul. No. 1272. ,,,,I, 12-9-02) 12 EXHIBITB Legal Description of the Property 4565 Kipling St. E 1/2, El /2, NE 1/4 , Sec 21 , T3S , R69W , of the 6th P.M., City of Wheat Ridge , County ofJefferson, State of Colorado. 13 EXHIBIT C Qualifying Public Improvement Costs New construction on a blighted lot on Kipling Street. Public Improvements include: • New public parking lot with striping and drainage for water quality and area drainage assistance . Includes asphalt, excavation for drainage, impervious pavers -$110,877 • Public curb gutter and sidewalk with drainage aiding adjoining businesses - $24 ,310 • Landscaping aiding in carbon dioxide exchange and creating a greener environment-$23 ,380 14 .. ~ ' .( ... ~ .,. City of • JP'WheatRi_dge ITEM NO :~ DATE: September 9 , 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 34-2013 A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH MUSEL MASSTER (THE GREEN HERB) TO PARTICIPATE IN THE WHEAT RIDGE BUSINESS DEVELOPMENT ZONE PROGRAM FOR A REBATE OF 100°/o OF THE ELIGIBLE USE TAX IN ASSOCIATION WITH THE CONSTRUCTION OF A NEW BUILDING AT 4565 KIPLING STREET IN WHEAT RIDGE 1:8) PUBLIC HEARING D BIDS/MOTIONS 1:8) RESOLUTIONS D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2ND READING D YES 1:8) NO ISSUE: Musel Masster (The Green Herb) has made application and request to participate in the City's Business Development Zone (BDZ) program , related to the construction of a new building for its corporate headquarters at 4565 Kipling Street. The request is for the rebate of 100 % of the eligible use tax for an estimated total of$13 ,500. PRIOR ACTION: At the August 26 , 2013 study session , City Council reviewed a request from The Green Herb for a BDZ agreement to rebate 100% of use tax. City Council discussed the request and directed staff to draft a BDZ agreement to rebate 100% ofuse tax. FINANCIAL IMPACT: The BDZ agreement would rebate 100% of the eligible use tax for a total financial impact to the City of approximately $13 ,500. Council Action Form-The Green Herb BDZ September 9, 2013 Page2 BACKGROUND: Wheat Ridge Code of Laws Chapter 22 , Article I, Division 5, establishes the BDZ program , an economic development tool. The goal of the BDZ program is to encourage the development of private sector jobs, revitalize deteriorating areas of the City and encourage the development, redevelopment and expansion of businesses within the City. This tool allows the City Council to waive certain building permit fees and building use taxes in association with construction projects that occur in established Business Development Zones. The tool is intended to be used to refund fees and taxes for projects that have the potential to generate future sales and use tax or provide substantial public benefit to the City. The criteria for approval of a BDZ agreement are as follows: 1. The amount of enhanced sales tax which can reasonably be anticipated to be derived by the city through the expanded or new tax generating business; 2. The public benefits which are provided by the applicant through public works, public improvements , additional employment for city residents ; 3. The amount of city expenditures which may be deferred by the city based upon public improvements to be completed by the applicant ; and 4 . The conformance of the applicant's property or project with the comprehensive plan and zoning ordinances of the city. The Green Herb's owners have been looking to purchase property in Wheat Ridge to construct a permanent site for their business , a retailer and wholesaler of nutritional supplements . They currently lease space on the I-70 Frontage Road North. In 2011 , they located a potential parcel along the south side of 1-70 frontage in which to construct a new facility , but due to some site constraints they abandoned those plans and began looking for another alternative. In 2012 they located another lot at 4565 Kipling Street for their new office, retail and production facility. The Green Herb worked with staff of Community Development and Public Works on site improvements for this odd shaped lot which has a 1 00-foot wide frontage on Kipling Street and parcel depth of approximately 450-feet. This site configuration has previously made it difficult to develop. At the same time, The Green Herb emailed staff requesting inclusion into the ESTIP and BDZ programs. The parcel had previously been considered for mini-storage which came under heavy protest from the adjoining residential neighbors and was denied by Planning Commission. Since that time, the site has garnered no interest from other developers due to the minimum frontage on Kipling. In late 2012 the site was purchased by The Green Herb and in February 2013 a building permit was issued for construction of a new building. Staff worked with The Green Herb's architect team for a building that met the requirements of all city codes. The Green Herb is in construction of an 8,242 square foot building on the site that meets the requirements of the City 's Council Action Fonn-The Green Herb BDZ September 9 , 2013 Page 3 architectural and streetscape design manuals . Upon completion, The Green Herb will transfer their entire existing facility to the new site and anticipates hiring an additional 4-6 new employees, bringing their total to approximately 20. The new construction has a valuation of$750,000 which will increase the property tax valuation and revenue to the city through additional property taxes. Total building use tax and permit fees paid on the Project were $27 ,171 through a building permit issued on February 22 ,2013. Incremental sales tax is estimated at $5 ,000 in year one of operation and increasing yearly. RECOMMENDATIONS: Staff recommends a 100% rebate of the building use tax to the Green Herb in the amount of $13 ,500 upon completion of the Project and audit by City staff for the following reasons: 1. The Project meets the objectives of the City 's economic development goals by providing new development and jobs in the City of Wheat Ridge; and 2. The Project could be a catalyst for the redevelopment of adjacent properties along the Kipling corridor; and 3. The Project site has been difficult to develop due to the odd site layout and configuration; and 4. The Project will generate enhanced sales and use tax revenues and increased employment. RECOMMENDED MOTION: "I move to approve Resolution No. 34-2013 , a resolution authoring the execution of an agreement for Musel Masster to participate in the Wheat Ridge Business Development Zone Program for a rebate of 1 00% of the eligible use tax in association with the construction of a new building at 4565 Kipling Street in Wheat Ridge." Or, "I move to postpone indefinitely Resolution No. 34-2013, a resolution authorizing the execution of an agreement with Musel Masster to participate in the Wheat Ridge Business Development Zone Program for the following reason(s) " REPORT PREPARED/REVIEWED BY: Steve Art , Economic Development/Urban Renewal Manager Patrick Goff, City Manager ATTACHMENTS: 1. Resolution No. 34-2013 2 . Agreement to Participate CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 34 Series of 2013 TITLE: A RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH MUSEL MASSTER (THE GREEN HERB) TO PARTICIPATE IN THE WHEAT RIDGE BUSINESS DEVELOPMENT ZONE PROGRAM FOR A REBATE OF 100% OF THE ELIGIBLE USE TAX IN ASSOCIATION WITH THE CONSTRUCTION OF A NEW BUILDING AT 4565 KIPLING STREET IN WHEAT RIDGE WHEREAS, the City has adopted as a portion of the Wheat Ridge Code of Laws ("Code") Chapter 22, Article I, Division 5, "Business Development Zone" to encourage, in part, continued development and expansion of opportunities for employment in the private sector in the City; and WHEREAS, Musel Masster (The Green Herb) has applied to participate in the Program and a public hearing was posted and conducted ; and WHEREAS, The Green Herb is the owner and operator of parcel and improvements thereon within the City and known as the "Owner," and is the operator of a development site that will serve residents of Wheat Ridge and surrounding communities ; WHEREAS, Owner plans to construct public improvements of approximately $158 ,567 and a total project budget of approximately $750,000; and WHEREAS , the project enhances services to the neighborhood and neighboring communities and brings revenue to the City from surrounding communities-a true definition of economic development; and WHEREAS ; the project creates up to 6 new jobs and a total employee base over 20,and WHEREAS; the project spurs reinvestment through remodeling and new construction of a blighted structure, thus enhancing and preserving its economic viability in the City; and WHEREAS , cost-sharing at the rate prescribed herein will serve to aid the Owner in that it will alleviate a portion of the public improvement costs associated with the expansion . NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, as follows: Attachment 1 An Agreement to participate in the City of Wheat Ridge Business Development Zone Program with Musel Masster is hereby approved wherein an amount of 100% of building use-tax generated estimated at $13 ,500 will be rebated to Musel Masster. DONE AND RESOLVED this gth day of September, 2013. Jerry DiTullio , Mayor ATTEST : Janelle Shaver, City Clerk AGREEMENT TO PARTICIPATE IN THE CITY OF WHEAT RIDGE BUSINESS DEVELOPMENT ZONE PROGRAM This Agreement to Participate in the City of Wheat Ridge Business Development Zone Program (this "Agreement") is made and entered into as of the 9 th day of September, 2013 , by and between MUSEL MASSTER, LLC, located at 4565 Kipling Street, hereinafter referred to as the "Owner" and the CITY OF WHEAT RIDGE , COLORADO, 7500 W. 291h Avenue, Wheat Ridge, Colorado 80033 hereinafter referred to as the "City," collectively the "Parties," and each individually, as a "Party." WHEREAS , the City has adopted as a portion of the Wheat Ridge Code of Laws ("Code") Chapter 22 , Article I, Division 5, "Business Development Zone" (the "Program"), to encourage, in part, continued development and expansion of opportunities for employment in the pri vate sector in the City; and WHEREAS , Owner has applied to participate in the Program ; and WHEREAS , Owner is the owner and operator of leased space and improvements thereon within the City and known as the "Muse! Masster, LLC, dba The Green Herb ," which is a retail outlet center offering herbal supplements and chiropractic services; and WHEREAS , pursuant to Code Sec. 22-86 (b), the City Council has designated the real property leased by Muse] Masster, LLC as a "Wheat Ridge Business Development Zone"; and WHEREAS , Owner plans to construct a new building with an estimated project valuation of $750,000; and WHEREAS , Owner 's plans and tenant improvements will lead to increased employment from their current 16-employees to approximately 20-22 employees ; and WHERAS , increased employment will lead to other indirect spending and sales tax generation by those employees in other local establishments ; and WHEREAS , the Program allows the City to provide for the sharing of certain categories of fees , taxes and other business development-related charges for new development within the business development district ("Eligible City Fees, Charges and Taxes" as defined in Code Sec. 22-87 (1 )) to the extent allowed by an agreement with a business owner; and WHEREAS , cost-sharing at the rate prescribed herein will serve to aid the expansion of Muse! Masster, LLC in that it will alleviate a portion of the costs associated with the expansion. NOW, THEREFORE, in consideration of the foregoing , and the covenants , promises , and agreements of each of the Parties hereto , to be kept and preformed by each of them , the Parties agree as follows: Attachment 2 1. Recitals. The Recitals set forth above are incorporated in this Agreement by reference 2. Term. The term of this Agreement shall commence on September 9 , 2013 and shall terminate upon full refund by the City to Owner of eligible City fees , charges and taxes as set forth in Paragraph 7 (the "Term"). Notwithstanding the foregoing , it is an expressed provision of this Agreement that this Agreement shall expire and be of no further force and effect upon the occurrence of the earlier to occur of: (1) expiration of the Term or (2) payment of the maximum amount to be shared as set forth in Paragraph 7 (whether or not the Term has expired), or (3) determination by the City of Owner's default, as provided in Paragraphs 13 or 15 . 3. The Project. The project proposed by the Owner through which it desires to participate in the Program consists of the following , generally: The Green Herb is an existing Wheat Ridge retail , service and manufacturing company since 1994. The Green Herb specializes in providing vitamins, healthy alternatives to traditional medicine that include chiropractic and massage services . The Green Herb currently leases space at 11465 1-70 Frontage and has been in operation in Wheat Ridge since 1994. The project consists of construction a new retail , warehousing, and office building measuring approximately 8,242 square feet which will contain a retail component , office space for the chiropractic and massage services , manufacturing, shipping and office space. The project will include public improvements including new curb , gutter, sidewalk , drainage improvements for the site and surrounding areas , and landscaping to improve the visual aspect of the corridor. The project has a valuation of $750 ,000. The foregoing shall be collectively referred to herein as the "Project," and is more fully described below in Paragraphs 4 and 8. 4. Representations of Owner. Pursuant to Code Sec. 22-94 , Owner hereby represents to the City the following : a. Improvements justifying Project approval. An estimated $750 ,000 of new construction and improvements will be invested into the property. Of this amount , $158 ,576 are considered public or public-related improvements as detailed in Exhibit A. b . Expected incremental future tax revenue. Estimated Incremental future sales and use tax revenue will include the following: 1. Incremental Sales Tax of $5 ,000 per year is anticipated to be generated in year 1 of operation and increase year-to-year. 11. Use Tax of$13 ,500 has been paid to the City of Wheat Ridge for a license issued on February 2 , 2013. 2 111. Short-term positive impact during construction: Prior to the completion of the Project, the construction and tenant improvement phases will employ additional personnel. IV . Long-term positive impact by addition of staff: With new facilities and an ability to increase services , Owner will employ more permanent staff. Specifically, it is estimated that permanent staff will be added to Owner's headquarters. It is anticipated that at the completion of the Project, an additional 4-6 full-time employees will be hired. . v. An indirect benefit will be an increase in the number of visitors to the City as customers of this new business who may shop at other City businesses as well as opportunities for Wheat Ridge businesses to provide industrial and office products to the Owner, likely contributing to the City's tax base. 5. Personal agreement; non-transferable; no third party beneficiaries The cost-sharing of Eligible City Fees , Charges and Taxes as approved herein shall constitute a personal agreement between the City and Owner. The terms of this Agreement do not run with the land. The obligations, benefits and /or provisions of this Agreement may not be assigned in whole or in any part without the express authorization of the City Council. No third party shall be entitled to rely upon or enforce any provision hereof. 6. Agreement not to constitute debt or obligation of the City Nothing herein shall be construed to constitute a debt or obligation of the City. Notwithstanding any other provision of this Agreement to the contrary, the Parties understand and acknowledge that the City is subject to Article X , § 20 of the Colorado Constitution ("TABOR"). This Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and , therefore , notwithstanding anything in this Agreement to the contrary, all payment obligations of the City are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the City 's current fiscal period. Financial obligations of the City payable after the current fiscal year are contingent upon funds for that purpose being appropriated , budgeted , and otherwise made available in accordance with ordinances and resolutions of the City and other applicable law. 7. Cost-sharing Pursuant to Code Sec. 22-88 , cost-sharing of the Eligible City Fees , Charges and Taxes may be granted up to the expected incremental future sales and use tax revenue. It is anticipated that the use tax revenue received from the Project will be $13 ,500 and year 1 sales tax increment will be $5,000. a. Estimated Eligible City Fees, Charges and Taxes. The following are estimates of the Eligible City Fees, Charges and Taxes for this Project: 1. Building Use Tax: $13 ,500 paid on February 22 , 2013 ; 3 b. Cost-sharing. , No twithstanding th e foregoing, and in reliance upon the representation of Owner of the benefits to the City of the Project, the City and Owner agree to the cost- sharing for the Eligible City Fees , Charges and Taxes as follows: 100% of the Eligible City Use Taxes shall be due and paid to the City by Owner based upon review and approval by the City of properly documented requests for the same. Upon receipt thereof, the City shall refund 100% of such Eligible City Taxes back to the Owner in 1 equal payment to their overall Tax charge described in Paragraph 2 herein. In no event shall the City be obligated to refund more than 100% of eligible City Fees, Charges and Taxes received by it. 8. Legal challenge In the event of legal challenge to the Program as applied to Owner, any costs scheduled to be shared-back to Owner shall be escrowed until resolution of the dispute. 9. Waiver of Code requirements To the extent any requirements of Code Sees. 22-85 through 22-96 have been waived , such waiver has occurred pursuant to Code Sec. 22-93 (c) whereby the City Council has found by a :X majority vote that such waiver is in the public 's interest and will provide a substantial benefit to the City. 10. No joint venture Pursuant to Code Sec . 22-95 , nothing herein shall be construed to create a joint venture between the City and Owner. Notwithstanding any provision hereof, the City shall never be a joint venture in any private entity or activity which participates in the Program , and the City shall never be liable or responsible for any debt or obligation of any participant, including the Owner, in the Program. 11. Use of funds Pursuant to Code Sec . 22-89 , Owner expressly acknowledges and agrees that any Eligible City Fees , Charges and Taxes refunded to the Owner under this Agreement, up to the amount agreed upon by the City Council pursuant to this Agreement may only be used for the purpose of the Project, as described in Paragraph 12 , on Owner's Property within the underlying Business Development Zone. 12. Uses enumerated Pursuant to Code Sec. 22-90, the uses to which the Eligible City Fees , Charges and Taxes may be put by the Owner shall be strictly limited to those which are approved by the City Council and which relate directly to the Project within the City, which Project is anticipated to indirectly generate more municipal sales and use tax revenues for the City in the future. Uses hereby expressly approved by City Council are as follows: c. Improvements as detailed in Exhibit A 4 1. New public parking lot with striping; and n. Drainage improvements on the site; and m. New public curb gutter and sidewalk with drainage aiding adjoining businesses; and IV. New landscaping aiding in carbon dioxide exchange and creating a greener environment ; and v. New public structure providing a healthy alternative retail establishment. 13. No Covenant to construct or to operate The intent of this Agreement is to provide for Owner's participation in the Program , in the event that Owner completes the Project. Notwithstanding any provision in this Agreement to the contrary, Owner shall have no obligation under this Agreement to complete the Project. In the event Owner fails to complete the Project, this Agreement may be tenninated at the option of the City. 14. Remedies The Owner waives any constitutional claims against the City arising out of a breach of this Agreement. The Owner's remedies against the City under this Agreement are limited to breach of contract claims . In no event shall the City be liable for any form of damages , including without limitation: exemplary, punitive or consequential damages, including economic damages and lost profits. 15. Termination In the event Owner fails to comply with one or more of the terms of this Agreement, City may, in its sole discretion , terminate this Agreement. 16. Indemnification To the fullest extent permitted by law, Owner agrees to indemnify and hold the City hannless from any damage, liability or ~ost (including reasonable attorneys' fees and cost of defense) to the extent caused by the Owner's negligent acts , errors or omissions in the performance this Agreement and those of its sub-contractors, sub-consultants or anyone for whom the Owner is legally liable. To the extent permitted by the Colorado Constitution and statutes , the City agrees to indemnify and hold the Owner harmless from any damage, liability or cost (including reasonable attorneys' fees and costs of defense) to the extent caused by the City's negligent acts , errors or omissions arising from this Agreement. These defense and indemnification obligations shall survive the expiration or termination of this Agreement. The Parties acknowledge that the provisions of this Paragraph are not intended to waive or alter any of the rights and defenses afforded to the City under the common law , the Colorado Go v ernmental Immunity Act, C.R.S. §§ 24-10-101 , et. seq. or any other law . 17. Severability If any part , term or provision of this Agreement or the Program is held by a court of competent jurisdiction to be illegal or in conflict with an y law of the State of Colorado , the validity of the remaining portions or provisions shall not be affected , the rights and obligations of 5 the Parties shall be construed and enforced as if the Agreement did not contain the particular part, term or provision held to be invalid, and the Parties shall cooperate to cure any legal defects in the Agreement or the Program . Should the sharing of Eligible City Fees , Charges and Taxes pursuant to this Agreement be judicially adjudged illegal , invalid or unenforceable under the present or future laws effective during the Term of this Agreement by a court of competent jurisdiction in a final , non-appealable judgment, the Parties shall utilize their best, good faith efforts to restructure this Agreement or enter into a new agreement consistent with the purposes of this Agreement. Should the Parties be unsuccessful in their efforts , the Agreement shall tenninate without penalty or recourse to either Party. 18. Governing law; venue The laws of the State of Colorado shall govern the validity, perforn1ance and enforcement of this Agreement. Should either Party institute legal suit or action for enforcement of any obligation contained herein , it is agreed that venue of such suit or action shall be proper and exclusive in the district court for Jefferson County, Colorado. 19. Notices All notices required or pennitted under this Agreement shall be in writing and shall be hand delivered or sent by certified mail , return receipt requested , postage prepaid , to be addressed to the Parties set forth below. All notices so given shall be considered effective upon the earlier of the actual receipt or seventy-two (72) hours after deposit in the United States Mail with the proper address. Either Party by notice so given may change the address to which future notices shall be sent: Notice to the City: Copy to: Notice to the Owner: Copy to : City Manager City of Wheat Ridge 7500 W . 29th Ave. Wheat Ridge, CO 80033 City Attorney City of Wheat Ridge 7500 W. 29th Ave. Wheat Ridge, CO 80033 Wheat Ridge, CO 80033 [INSERT CONTACT] Address 6 20. Entire agreement-amendments This Agreement embodies the whole agreement of the Parties. There are no promises , tenns , conditions , or obligations other than those contained herein , and this Agreement shall supersede all previous communications , representations or agreements, either verbal or written , between the Parties hereto. This Agreement may be amended only by written agreement between the Owner and the City acting pursuant to City Council authorization. 21. Effective date This Agreement shall be effective and binding upon the Parties upon the date first set forth above. IN WITNESS WHEREOF , Owner and City have each caused this Agreement to be executed by their authorized representatives. State of Colorado County of Jefferson ) ) ) OWNER By: -----------------Name: -------------- Title: ---------------- ss. The foregoing Agreement was acknowledged before me this _ day of ___________ ,, 2011 , by Tom Phillips , as President of Musel Masster, LLC . WITNESS MY HAND AND OFFICIAL SEAL. My Commission expires: ______________ _ NOTARY PUBLIC 7 ATTEST: Name: Janelle Shaver Title: City Clerk CITY OF WHEAT RIDGE By: __________________ __ Name: Jerry DiTullio Title: Mayor Approved as to Form Gerald E. Dahl , City Attorney 8 EXHIBIT A Qualifying Public Improvement Costs Public Improvements include: • New public parking lot with striping and drainage for water quality and area drainage assistance. Includes asphalt, excavation for drainage, impervious pavers -$110 ,877 • Public curb gutter and sidewalk with drainage aiding adjoining businesses -$24 ,31 0 • Landscaping aiding in carbon dioxide exchange and creating a greener environment - $23 ,380 9 ... ~~~ .. ~ ., Ci ty of • r wheatRi_dge ...... ITEMNO: ~ · DATE: September 9 , 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: COUNCIL BILL NO. 13-2013 AN ORDINANCE AMENDING CHAPTER 11 OF THE WHEAT RIDGE CODE OF LAWS BY ADDING A NEW ARTICLE XIII CONCERNING RETAIL MARIJUANA AND MAKING CERTAIN AMENDMENTS TO CHAPTER 26 (ZONING AND DEVELOPMENT) IN ASSOCIATION THEREWITH 0 PUBLIC HEARING D BIDS/MOTIONS 0 RESOLUTIONS QUASI-JUDICIAL: City Attorney ISSUE: (;8J ORDINANCES FOR 1ST READING (09/09/2013) 0 ORDINANCES FOR 2 ND READING (09/23 /2013) D YES r8J NO On November 6 , 2012 , the people of the State of Colorado adopted Amendment 64 which amended the Colorado Constitution by adding Article XVIII Section 16 thereto concerning the legalization of the recreational use of marijuana. Amendment 64 also authorized the licensing by state and local authorities ofbusinesses that cultivate, manufacture and test marijuana and marijuana products for retail sale. The amendment fixed certain dates by which the state had to act to implement the licensing of retail marijuana establishments. The state has met those dates thus far. On March 11 ,2013 , Council adopted Ordinance 1533 , Series 2013 , which enacted a moratorium on the issuance or consideration of any City license or permit concerning retail marijuana establishments and marijuana clubs (locations permitting on-site consumption or use of marijuana). In May ofthis year, the General Assembly, through House Bill 13-1317 , enacted the Colorado Retail Marijuana Code (C.R.S. §§ 12-43.4-101 et s eq .) which authorized the state to license and regulate the sale, distribution, cultivation , growth , manufacture and testing of retail V :\Fonns\CAFtemplate Council Action Form September 9 , 2013 Page 2 marijuana and retail marijuana products throughout the state. The Code named the Colorado Department of Revenue ("DOR") as the state's licensing authority and further authorized the DOR to adopt rules that would further implement provisions of the Code. The DOR has adopted emergency rules that should be finalized in October of this year. The attached Ordinance regulates and licenses retail marijuana businesses seeking to operate in the City, and establishes the appropriate zoning for those businesses. The provisions in this Ordinance are consistent with state law. PRIOR ACTION: Council adopted Ordinance 1533, Series 2013 , on March 11 , 2013 enacting a temporary moratorium on the issuance or consideration of any City license or penn it concerning retail marijuana establislunents and marijuana clubs. Council reviewed and discussed ordinance options with staff at the August 5 , 2013 study session. FINANCIAL IMPACT: The financial impact for the City is unknown. The City will begin receiving permit, license and/or operating fees for applications concerning retail marijuana establishments. As well , the City will receive sales tax for retail sales of marijuana and marijuana products within the City. BACKGROUND: Amendment 64 was proclaimed by the Governor as effective on December 6 , 2012. Pursuant to the time frames outlined in Amendment 64, the state must begin accepting applications for retail marijuana establishments on October 1st. As provided in the Colorado Retail Marijuana Code, only medical marijuana businesses that were in operation or had an application to operate such a business pending with the state on December 10 , 2012 may apply for retail licensing at that time. Retail sale of marijuana will be permitted starting January 1, 2014. Under the Retail Marijuana Code, those existing medical marijuana businesses that desire to operate a retail outlet may seek to convert to a retail marijuana establishment in whole or in part. If the medical marijuana business converts in whole, all of the inventory of the medical marijuana business will become inventory of the retail establishment on January 1, 2014. If permitted by the local government, the medical marijuana business may convert in part and operate as a collocated business alongside the retail marijuana establishment. At a study session on August 5, 2013 , Council provided direction to staff concerning the extent to which the City should regulate retail marijuana establishments. At that study session , Council directed staff that it desired to regulate retail matijuana establishments in a matmer that is similar to how the City regulates medical marijuana businesses. This Ordinance has been drafted in accordance with those recommendations and state law. I. The Ordinance authorizes the City's tax and licensing division to act as the City's local licensing authority. The tax and licensing division will be authorized to issue four types of retail marijuana establishment licenses for: 1) retail marijuana stores (i.e. retail Council Action Form September 9 , 2013 Page 3 outlets), 2) retail marijuana cultivation facilities; 3) retail marijuana products manufacturers ; and 4) retail marijuana testing facilities. 2 . All retail marijuana establishments will be authorized to operate in the Light Commercial (C-1) and Industrial (I) zone districts. Retail marijuana establishments may be collocated with a medical marijuana business within those zones. 3. Retail marijuana stores will be prohibited from operating within 1000 feet of any school , alcohol or drug treatment facility , college or residential child care facility . These stores are also prohibited from being located within three quarters of a mile of any other licensed retail marijuana store or a medical marijuana center (retail outlet) unless collocated with a medical marijuana center. 4. Retail marijuana stores will be limited to operating between the hours of 8:00a.m. and 7:00p.m. in accordance with the state limitation on the hours of operation of medical marijuana centers. 5. The Ordinance also adopts a vertical integration model for cultivation operations. This means that those operations are only authorized in the City to the extent that the applicant for such license also operates a licensed retail marijuana store or retail products manufacturer location within the City. The licensed location for a cultivation operation must be contiguous to the location at which the applicant operates its retail marijuana store or retail marijuana products manufacturing facility. RECOMMENDATIONS: Planning Commission will consider this Ordinance on September 19 , 2013. City staff recommends adoption of this Ordinance. RECOMMENDED MOTION: "I move to approve Council Bill No. 13-2013 , an ordinance amending Chapter 11 of the Wheat Ridge Code of Laws by adding a new Article XIII concerning retail marijuana and making certain amendments to Chapter 26 (Zoning and Development) in association therewith , on first reading, order it published , public hearing set for Monday, September 23 , 2013 at 7:00 p.m. in City Council Chambers , and that it take effect fifteen days after final publication , as provided by Section 5.11 ofthe Charter." Or, "I move to table indefinitely Council Bill No . 13-2013 concerning licensing of retail marijuana establishments for the following reason(s) " Council Action Form September 9, 2013 Page4 REPORT PREPARED AND REVIEWED BY: Gerald E. Dahl , City Attorney Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill No. 13-2013 2. Map depicting % mile separation between medical marijuana centers and C-1 and 1-E zoning districts. CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER-------- Council Bill No. 13 Ordinance No. ----Series 2013 TITLE: AN ORDINANCE AMENDING CHAPTER 11 OF THE WHEAT RIDGE CODE OF LAWS BY ADDING A NEW ARTICLE XIII CONCERNING RETAIL MARIJUANA AND MAKING CERTAIN AMENDMENTS TO CHAPTER 26 (ZONING AND DEVELOPMENT) IN ASSOCIATION THEREWITH WHEREAS, in the November 2012 general election, the voters of the State of Colorado adopted Amendment 64 to the Colorado Constitution ("Amendment 64"), codified at Article XVIII Section 16, which authorizes the sale of marijuana at retail; and WHEREAS, in May, 2013 the Colorado General Assembly adopted the Colorado Retail Marijuana Code, §§ 12-43.4-101 et seq., C.R.S., implementing a procedure for licensing the cultivation, manufacture and sale of marijuana and marijuana-products at retail; and WHEREAS, the City has no current land use or business regulation governing the operation of businesses that cultivate, manufacture, distribute or sell retail marijuana and/or retail marijuana products ("Retail Marijuana Establishments"); and WHEREAS, on March 11, 2013, the. City imposed a moratorium on the submission, acceptance, processing, and approval of all applications for City licenses relating to the operation of Retail Marijuana Establishments to allow the City staff and the City Council to investigate the City's ability to regulate such establishments, and to develop and implement any appropriate regulations consistent with state law; and WHEREAS, because marijuana is a controlled substance under Colorado and federal law, the cultivation, manufacture, distribution and sale as contemplated by the Colorado Retail Marijuana Code has the potential for abuse and should be closely monitored and regulated by local authorities to the extent possible; and WHEREAS, if not closely monitored and regulated, the presence of marijuana, even for the purposes legally permitted by Amendment 64 and the Colorado Retail Marijuana Code, can potentially cause an increase in illegal activities within the City affecting the health, safety, order, comfort, convenience and general welfare of the residents of the City; and WHEREAS, if Retail Marijuana Establishments operating pursuant to the Colorado Retail Marijuana Code were allowed to be established and to operate without appropriate local regulation of their location, such establishments might be established in areas that would conflict with the City's comprehensive land use plan; be inconsistent with surrounding uses; or otherwise be detrimental to the public health, safety and welfare. Attachment 1 NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. Moratorium Concluded. The moratorium imposed by Ordinance 1533 shall conclude upon the effective date of this ordinance. Section 2. Chapter 11 of the Wheat Ridge Code of Laws is hereby amended by the adoption of a new Article XIII to read in its entirety as follows: Article XIII. Retail Marijuana Establishments Sec. 11-400. Authority Sec. 11-401. Definitions Sec. 11-402. Local licensing authority established Sec . 11-403. Types of retail marijuana establishment licenses Sec . 11-404. Retail marijuana establishment license required Sec . 11-405. Application of Colorado Retail Marijuana Code Sec . 11-406. Application for license Sec . 11-407. Operating fee Sec . 11-408. Standards for approval of license, no hearing required Sec. 11-409. Authority to recommend and impose conditions on license. Sec. 11-410. Denial of license. Sec. 11-411 . Appeal of denial or conditional approval of license Sec. 11-412. Duration of license, renewal Sec. 11-413. Duties of licensee Sec. 11-414. Hearing , suspension , revocation of license Sec . 11-415. Collocation of operations Sec . 11-416. Prohibited locations Sec. 11-417. Signage Sec. 11-418. Taxes Sec. 11-419 Hours of operation Sec.11-420 Penalties, injunctive relief Sees. 11-421-11-422 . Reserved Sec. 11-400. Authority. The City Council hereby finds, determines , and declares that it has the power to adopt this article pursuant to: (a) The Local Government Land Use Control Enabling Act, article 20 of title 40, C.R.S.; (b) Part 3 of article 23 of title 31, C.R.S. (concerning municipal zoning powers); (c) Section 31-15-103, C.R.S. (concerning municipal police powers); (d) Section 31-15-401, C.R.S. (concerning municipal police powers); (e) Section 31-15-501, C.R.S. (concerning municipal authority to regulate businesses); 2 (f) Section 12-43.4-101 et seq., C.R.S. (concerning municipal authority to license and regulate retail marijuana establishments); (g) The authority granted to home rule municipalities by article XX of the Colorado Constitution; (h) Article XVIII Section 16 of the Colorado Constitution; and (i) The powers contained in the Wheat Ridge Home Rule Charter. Sec. 11-401. Definitions. (a) As used in this article the following words shall have the following meanings, unless the context clearly requires otherwise: Administrative hearing officer has the meaning provided in section 2-87 of this code. Applicant means any person making an application for a license under this article. Application means an application for license submitted pursuant to this article. City Manager shall have the meaning provided in section 2-26 of this code. Colorado Medical Marijuana Code shall mean Article 43.3 of Title 12 of the Colorado Revised Statutes and any implementing administrative regulations. Colorado Retail Marijuana Code shall mean Article 43.4 of Title 12 of the Colorado Revised Statutes and any implementing administrative regulations. Good cause means and includes (1) When a licensee violates, does not meet, or fails to comply with any of the terms, conditions, or provisions of this article and any rule and regulation promulgated pursuant to this article or the Colorado Retail Marijuana Code; (2) When the licensee or applicant has failed to comply with any special terms or conditions that were placed on its license at the time the license was issued, or that were placed on its license pursuant to an order of the local licensing authority or the Colorado Department of Revenue; or (3) When the licensed premises have been operated in a manner that adversely affects the public health, welfare, or safety of the immediate neighborhood in which the retail marijuana establishment is located. Evidence to support such a finding can include: (i) a pattern of disorderly conduct as defined in section 11-54(a)(1) of this code within or immediately adjacent to the premises of the licensee; (ii) a pattern of drug-related criminal conduct within the licensed premises, or in the immediate area surrounding the licensed premises; (iii) criminal conduct directly related to or arising from the operation of the retail marijuana establishment. 3 License means a license to operate a retail marijuana establishment issued pursuant to this article. Licensed premises means the location in the City from which the Licensee will operate . Licensee means the person to whom a license has been issued pursuant to this article and the Colorado Retail Marijuana Code to operate a business as described in section 12-43.4-401, C .R.S . Marijuana means all parts of the plant of the genus cannabis, whether growing or not ; the seeds thereof; the resin extracted from any part of such plant ; and every compound , manufacture, salt , derivative , mixture , or preparation of the plant , its seeds or its resin , including marijuana concentrate but shall not include industrial hemp , the fiber produced from the stalks , oil or cake made from the seeds of the plant , sterilized seed of the plant which is incapable of germination , or the weight of any other i ngredient combined with marijuana to prepare top ical or oral adm inistrations , food , drink , or other product. Marijuana clubs means establishments other than private residences, medical marijuana establ ishments or retail marijuana establishments that allow the public , members or guests to consume marijuana , medical marijuana-infused products or retail marijuana products on-site. Medical marijuana means marijuana that is grown and sold pursuant to the provisions of the Colorado Medical Marijuana Code for a purpose authorized by section 14 of the Article XVIII of the Colorado Constitution . Medical marijuana center means a premises licensed pursuant to the Colorado Medical Marijuana Code to operate a business as described in section 12-43.3-402 , C.R.S . Medical marijuana establishment shall mean a medical marijuana center , a medical marijuana-infused product manufacturer or an optional premises cultivation operation . Medical marijuana-infused product shall mean a product infused with medical marijuana that is intended for use or consumption other than by smoking , including , but not limited to , edible products , ointments , and tinctures. Medical marijuana-infused product manufacturer shall mean a person licensed pursuant to the Colorado Medical Marijuana Code to operate a business as described in section 12-43.3-404, C.R.S . Optional premises cultivation operation shall mean a premises licensed pursuant to this ordinance and the Colorado Medical Marijuana Code where a business described in section 12-43.3-403 , C.R.S will operate. Person means a natural person , partnership , association , company , corporation , limited liability company , organization , or a manager, agent , owner, director, servant , officer, or employee thereof. 4 Retail marijuana means marijuana that is cultivated, manufactured, distributed or sold at retail in accordance with the provisions in Section 16 of Article XVIII of the Colorado Constitution and the Colorado Retail Marijuana Code Retail marijuana cultivation facility shall mean a person licensed pursuant to this ordinance and the Colorado Retail Marijuana Code to operate a business described in section 12-43.4-403, C.R.S. Retail marijuana establishment shall mean a retail marijuana store , a retail marijuana products manufacturer, a retail marijuana cultivation facility, or a retail marijuana testing facility. Retail marijuana products shall mean marijuana products as defined in section 16(2)(k) of Article XVIII of the Colorado Constitution that are produced at a retail marijuana products manufacturer. Retail marijuana products manufacturer shall mean a person licensed pursuant to the Colorado Retail Marijuana Code to operate a business as described in section 12-43.4- 404, C.R.S. Retail marijuana store means a person licensed pursuant to the Colorado Retail Marijuana Code to operate a business as described in section 12-43.4-402, C.R.S . Retail marijuana testing facility means a person licensed pursuant to the Colorado Retail Marijuana Code to operate a business as described in section 12-43.4-405 , C.R.S . Primary care-giver has the meaning provided in section 14( 1 )(f) of Article XVIII of the Colorado Constitution as further defined and regulated in section 25-1.5-106, C.R.S. and 5 C.C .R. 1006-2. School shall mean a public or private preschool or a public or private elementary, middle, junior high or high school. State licensing authority shall mean the authority created for the purpose of regulating and controlling the licensing of the cultivation, manufacture, distribution , sale, and testing of retail marijuana in this state , pursuant to section 12-43.4-201, C .R.S . (b) In addition to the definitions provided in subsection (a) of this section, the other defined terms in section 16 of Article XVIII of the Colorado Constitution are incorporated into this article by reference . Sec. 11-402. Local licensing authority established. (a) There is hereby established a local licensing authority, which shall have and is vested with the authority to: 5 1 . Grant and refuse licenses and approve and deny applicat ions for renewal and transfer of licenses for the sale , cultivation and manufacture of retail marijuana and retail marijuana products; 2. Promulgate reasonable rules and regulations concerning licenses issued under this article ; 3 . Suspend and revoke licenses issued under this article in the matter provided by law ; and 4 . Have all of the powers of the local licensing authority as provided in the Colorado Retail Marijuana Code . (b) The Tax and Licens ing Division of the City shall serve as the local licensing authority for any administrative purposes described in subsections (a)(1 ), (a)(2) and (a)(4) of this section. An administrative hearing officer shall serve as the local licensing authority for purposes of hearing any requests for suspension or revocation described in subsection (a)(3). Sec. 11-403. Types of retail marijuana establishment licenses. (a) The local l icensing authority may issue the following types of retail marijuana establishment licenses: 1. Retail marijuana store license ; 2. Retail marijuana products manufacturing license ; 3. Retail marijuana cultivation facility license ; and 4 . Retail marijuana testing facility license . (b) Each type of retail marijuana establishment license issued under this article is separate and distinct. Sec. 11-404. Licenses required. (a) No person shall operate a retail marijuana establishment within the City without a valid and appropriate retail marijuana establishment license issued in accordance with this article. (b) This requirement to obtain the appropriate retail marijuana establishment license is in addition to the requirement to obtain a business license pursuant to article II of this chapter and any other license or permit required by the City. (c) No person shall operate a retail marijuana establishment within the City without a valid and appropriate license to operate such establishment issued by the state licensing authority in accordance with the provisions of the Colorado Retail Marijuana Code. 6 (d) No person may operate a business within the city concerning the sale, use, consumption, manufacture of marijuana unless specifically authorized pursuant to the provisions of this article. (e) No marijuana clubs may operation or obtain a business license to operate within the city. Sec. 11-405. Application of Colorado Retail Marijuana Code. Except as otherwise provided herein, the local licensing authority shall be governed by the Colorado Retail Marijuana Code now in effect or subsequently amended. In the event of a conflict between the provisions in this article and those in the Colorado Retail Marijuana Code, the more stringent provision shall apply . Sec. 11-406. Application for license. (a) A person seeking to obtain a license pursuant to this article shall file an application with the local licensing authority on a form provided by the state, and shall include all additional information required by the Colorado Retail Marijuana Code. (b) The local licensing authority is hereby authorized to request any applicant to provide information that is in addition to the requirements of the Colorado Retail Marijuana Code if it determines that such information is reasonably necessary to complete the investigation and review of the application. Sec. 11-407. Operating fee. (a) An applicant shall pay to the City a non-refundable operating fee when the application for a license under this article is filed. (b) The licensee shall pay the non-refundable operating fee to the City annually along with any application for renewal of a license. (c) The purpose of the operating fee is to cover the costs of inspection, administration and enforcement of retail marijuana establishments. The amount of the operating fee shall be fixed by the City Council by motion. Sec. 11-408. Standards for approval of license, no hearing required. (a) The local licensing authority is authorized to administratively approve any license under this article so long as the following conditions are met: 1. The application (including any required attachments and submissions) is complete and signed by the applicant; 2. The applicant has paid the operating fee and any other fees required by this code ; 7 3. The application does not contain a material falsehood or m isre presentation; 4. The application complies with all of the requirements of this article and the Colorado Retail Marijuana Code ; and 5. The licensing authority has received written approval from the City of Wheat Ridge Police Department as to the applicant's criminal background . 6 . The licensing authority has received written approval from the Community Development Department that the location and zoning requirements imposed by this article and Section 26-204 of the Code have been met. (b) The local licensing authority may, but is not required to hold a hearing as permitted by section 12-43.4-412, C.R.S . prior to granting a retail marijuana establishment license . (c) The local licensing authority shall inform the state licensing authority of approval of an application for a license. Sec. 11-409. Authority to recommend and impose conditions on license. (a) Any City department shall have the authority to recommend reasonable terms and conditions on a license as may be necessary to protect the public health, safety, and welfare , and to obtain compliance with the requirements of this article and applicable law. (b) The local licensing authority is authorized to approve any license issued under this article subject to such reasonable conditions as required by the City. (c) In the event an application is conditionally approved , the local licensing authority shall clearly set forth in writing the condit ions of approval. Sec. 11-410. Denial of license. The local licensing authority shall deny an application for a license under this article when the applicant fails to meet all of the standards set forth in section 11-408 of this article. Sec. 11-411. Appeal of denial or conditional approval of license. (a) An applicant has the right to appeal the denial of an application or condition imposed thereon to an administrative hearing officer. (b) The applicant must file a written notice of appeal with the local licensing authority within fifteen (15) business days after the date of mailing of the denial or conditional approval of the application . (c) Upon notice from the local licensing authority that the applicant has satisfied the requirement in subsection (b), the City Manager shall appoint an administrative hearing officer. 8 (d) The applicant shall be provided with not less than ten (10) business days prior written notice of the appeal hearing to be held by the administrative hearing officer. (e) applicant. The burden of proof in an appeal filed under this section shall be on the (f) If the administrative hearing officer finds by a preponderance of the evidence that the decision of the local licensing authority was correct, the administrative hearing officer shall uphold that decision. If the administrative hearing officer finds by a preponderance of the evidence that the decision of the local licensing authority was incorrect, the administrative hearing officer shall set aside the denial and issue the license. The administrative hearing officer may impose additional conditions on the license issued (if it was previously denied) or require that the conditions of approval be stricken or modified. (g) Any decision made by the administrative hearing officer pursuant to this section shall be a final decision and may be appealed to the district court pursuant to Rule 106(a)(4) of the Colorado Rules of Civil Procedure. The applicant's failure to timely appeal the decision is a waiver of the applicant's right to contest the denial or conditional approval of the application. Sec. 11-412. Duration of license, renewal. (a) Each license issued pursuant to this article shall expire on the first day of the month one year from the month of issuance, and may be renewed as provided in this section. (b) An application for the renewal of an existing license shall be made to the local licensing authority as required by the Colorado Retail Marijuana Code. Sec. 11-413. Duties of licensee. Each licensee shall: (a) Post the license issued under this article in a conspicuous location on the licensed premises; (b) Comply with all of the terms and conditions of the license; (c) Comply with all of the requirements of this article; (d) Comply with all other applicable City ordinances; (e) Comply with the Colorado Retail Marijuana Code; (f) Comply with all applicable federal laws, rules, or regulations, other than a federal law, rule or regulation concerning the possession, sale or distribution of retail marijuana; (g) Permit inspection of its records and operation by the local licensing authority for the purpose of determining the licensee's compliance with the terms and conditions of the license and the City's tax laws; and 9 (h) Permit inspection of the premises by authorized City officials during permitted business hours for the purpose of determining compliance with this article. Sec. 11-414. Hearing, suspension, revocation of license. (a) A license issued pursuant to this article may be suspended or revoked by the local licensing authority after a hearing for the following reasons: 1. Fraud, misrepresentation, or a false statement of material fact contained in the license application; 2. A violation of any City ordinance, state, or federal law or regulation, other than a federal law or regulation concerning the possession, sale or distribution of marijuana that conflicts with Article XVIII Section 16 of the Colorado Constitution; 3. A violation of any of the terms and conditions of the license; 4. A violation of any of the provisions of this article; or 5. Good cause. (b) Request for suspension or revocation, notice of hearing, burden. 1. Any authorized City official may request in writing that a license issued under this article be suspended or revoked. 2. The City Manager shall appoint an administrative hearing officer to preside over the hearing on the suspension or revocation of a license. 3. The administrative hearing officer shall a . Set a date and time on which to determine whether to revoke or suspend such license; b. Notify the licensee in writing of the date and time of the hearing at least ten (10) business days prior to conducting such hearing. Such notice shall be sent by regular mail postage prepaid. Notice is deemed to have been given upon mailing; c. Conduct a hearing based on the allegations provided in the written request. This shall be an informal hearing where no rules of evidence shall apply. The burden shall be on the City to prove by a preponderance of the evidence that the licensee has violated the provisions in subsection 11-404 (a); and 10 d. Provide a written decision to the licensee within a reasonable time after the conclusion of the hearing. (c) In deciding whether a license should be suspended or revoked, and in deciding what conditions to impose in the event of a suspension, if any, the administrative hearing officer shall consider: 1. The nature and seriousness of the violation; 2. Corrective action, if any, taken by the licensee; 3. Prior violation(s), if any, by the licensee; 4. The likelihood of recurrence; 5. All circumstances surrounding the violation; 6. Whether the violation was willful; 7. The number of previous violations by the licensee; and 8. Previous sanctions, if any, imposed against the licensee. (d) In connection with the suspension of a license, the administrative hearing officer may impose reasonable conditions thereon . (e) Any decision made by the administrative hearing officer pursuant to this section shall be a final decision and may be appealed to the district court pursuant to Rule 106(a)(4) of the Colorado Rules of Civil Procedure. The applicant's failure to timely appeal the decision is a waiver of the applicant's right to contest the decision. (f) No fee previously paid by a licensee in connection with the application shall be refunded if such license is suspended or revoked. Sec. 11-415. Collocation of operations. A medical marijuana establishment may share its existing licensed premises with a retail marijuana establishment as follows: (a) An optional premises cultivation operation and a retail marijuana cultivation facility may share their licensed premises in order to operate a dual cultivation business operation. (b) A medical marijuana-infused product manufacturer may apply to hold a retail marijuana product manufacturing facility license and operate a dual manufacturing business at a shared licensed premises. (c) A medical marijuana center may hold a retail marijuana store license and operate a dual retail business at a shared licensed premises. 11 Sec. 11-416. Prohibited locations. (a) Except as provided in subsection (g) of this section, no retail marijuana establishment shall be located at a location that does not conform to the requirements of this section. (b) No retail marijuana store shall be located within one thousand (1 ,000) feet of a school, an alcohol or drug treatment facility, or the principal campus of a college, university, or seminary, or a residential child care facility. This limitation will be computed by direct measurement from the nearest property line of the land used for a school, alcohol or drug treatment facility, or the principal campus of a college, university, or seminary, or a residential child care facility to the nearest portion of the building in which retail marijuana is to be sold, using a route of direct pedestrian access. (c) No retail marijuana store shall be located within three quarters (%) of a mile of another retail marijuana store . This limitation will be measured using a straight line from the perimeter of the parcel where a proposed retail marijuana store will be located. This limitation shall apply to retail marijuana stores whether they located within or outside of the city limits. (d) No retail marijuana store shall be located within three quarters (%) of a mile of a medical marijuana center unless the retail marijuana store and the medical marijuana center are operating a dual retail business as described in section 11-415. This limitation will be measured using a straight line from the perimeter of the parcel where a proposed retail marijuana store will be located. This limitation shall apply to retail marijuana stores and medical marijuana centers whether they are located within or outside of the city limits. (e) No person shall operate a retail marijuana cultivation facility within the City unless the licensed premises of the person's retail marijuana cultivation facility are contiguous with the licensed premises of the person's retail marijuana store license and/or the person's retail marijuana products manufacturing license. (f) Each retail marijuana establishment shall be operated from a permanent location. No retail marijuana establishment shall be licensed to operate from a moveable, mobile, or transitory location. (g) The suitability of a location for a retail marijuana establishment shall be determined at the time of the issuance of the first license for such establishment. The fact that changes in the neighborhood that occur after the issuance of the first license might render the site unsuitable for a retail marijuana establishment under this section shall not be grounds to suspend, revoke or refuse to renew the license for such establishment so long as the license for the establishment remains in effect. Sec. 11-417. Signage. All signage for a retail marijuana establishment shall comply with the requirements of chapter 26 of this code and the Colorado Retail Marijuana Code. 12 Sec. 11-418. Taxes. Each licensee shall collect and remit sales tax on all retail marijuana, paraphernalia, and other tangible personal property sold by the licensee at the retail marijuana establishment according to the provisions of chapter 22 of this code and any regulations issued pursuant thereto. Sec. 11-419. Hours of operation. (a) A retail marijuana store may open no earlier than 8:00a.m. and shall close no later than 7:00 p.m. the same day. (b) A retail marijuana establishment may be open seven (7) days a week. Sec. 11-420. Penalties, injunctive relief. (a) It is a misdemeanor offense for any person to violate any provision of this article. Any person convicted of having violated any provision of this article shall be punished as set forth in section 1-5 of this code. (b) In addition to all other remedies available to the city under this code and by law, the operation of a retail marijuana establishment without a valid license issued pursuant to this article may be enjoined by the City in an action brought in a court of competent jurisdiction. Section 3. Section 26-123 of the Code, entitled Definitions, is hereby amended by the addition of the following terms: Retail marijuana store means the premises at which a person operates a business as described in Article XIII of Chapter 11 of this code and section 12-43.4-402, C.R.S. Retail marijuana cultivation facility means the premises at which a person operates a business as described in Article XIII of Chapter 11 of this code and section 12-43.4-403, C.R.S. Retail marijuana products manufacturer means the premises at which a person operates a business as described in Article XIII of Chapter 11 of this code and section 12-43.4-404, C.R.S. Retail marijuana testing facility means the premises at which a person operates a business as described in Article XIII of Chapter 11 of this code and section 12-43.4-405, C.R.S. 13 Section 4. The Table of Uses for Commercial and Industrial Districts provided for in Section 26-204 of the Code is hereby amended as follows: Uses Notes NC RC C-1 C-2 1-E Residential uses in See§ 26-626 p p p p p commercial zones RETAIL MARIJUANA p p CULTIVATION FACILITY RETAIL MARIJUANA p p PRODUCTS MANUFACTURERS RETAIL MARIJUANA p p STORES RETAIL MARIJUANA .... p p TESTING FACILITY Rooming and p p boarding houses ' ' Section 5. Police Power Finding. The City Council hereby finds , determines , and declares that this Ordinance is necessary and proper to provide for the safety, preserve the health , promote the prosperity, and improve the order, comfort and convenience of the City of Wheat Ridge and the inhabitants thereof. Section 6. Authority. The City Council hereby finds , determines and declares that it has the power to adopt this Ordinance pursuant to: (i) the Local Government Land Use Control Enabling Act , Article 20 of Title 40, C.R.S.; (ii) Part 3 of Article 23 of Title 31 , C .R.S. (concerning municipal zoning powers); (iii) Section 31-15-103 , C.R.S . (concerning municipal police powers); (iv) Section 31-15-401, C.R.S. (concerning municipal police powers); (v) Section 31-15-501 , C.R.S. (concerning municipal power to regulate businesses); (vi) the authority granted to home rule municipalities by Article XX of the Colorado Constitution ; (vii) the powers contained in the City of Wheat Ridge , Colorado Home Rule Charter (the "Charter"); and (viii) Part 3 of Article 43.4 of Title 12 , C.R.S. (concerning licensing of retail marijuana establishments). Section 7. 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 8. Effective Date. This Ordinance shall take effect fifteen (15 days after final publication , as provided by Section 5.11 of the Charter. 14 INTRODUCED, READ, AND ADOPTED on first reading by a vote of_ to _ on this day of September, 2013, ordered published in full in a newspaper of general circulation in the City of Wheat Ridge , and Public Hearing and consideration on final passage set for September_, 2013 at 7:00 p.m., in the Council Chambers, 7500 West 40 1h Avenue, Wheat Ridge, Colorado. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of to _, this day of , 2013 . SIGNED by the Mayor on this __ day of-------=--' 2013. ATTEST: Janelle Shaver, City Clerk First Publication : Second Publication: Wheat Ridge Transcript Effective Date: Jerry DiTullio, Mayor Approved as to Form Gerald E. Dahl, City Attorney 15 ~ Whe atRl._dge City of Wheat Ridge , Co lorado 7 500 West 29th Avenue Wheat Ridge, CO 80033-800 1 303.234 .5900 ~Ia Sou(ees : City ol Wheat Ridge , Jeftc:o Pubic: Sc:hooft ttachment 2 38TH AVE 38TH AVE ~ I w ffi a: 32NDAVE I ~E EDGEWATER Medical Marijuana Establishments This map shows the five (5) locations of Medical Marijuana Retail Centers with active or pend ing business licenses as of July 23 , 2013 . Section 11-305 of the Municipal Code requires a 3/4-mile separation between retail centers ; these are indicated by the gray c ircles. Section 11-305 of the code also requires a 1 000 -foot separation from schools, daycares , and drug treatment centers. School locations are shown on this map in orange . Although there is currently no separation requirement from public parks , these locations are shown in green for reference . Medical Marijuana Infused Product Manufacturers (MMIP) are a distinct category of marijuana establishments that are permitted with no separation requirements . Currently, there are three (3) licensed MMIP locations all of which are collocated with existing retail centers . Only two zone districts are shown on this map . These include the Commercial-One (C -1) and Industrial-Employment (I-E) zone d istricts in wh ich medical marijuana establishments are perm itted uses . D MMJ retail centers • 3/4-mile buffer • C-1 zone district • 1-E zone district 1:1 Retail center L.:...J w ith MMIP Schools Parks -···· i ! City limits --··- N State Plane Cooroinate Projection A Colorado Certral Zone Datum : NAD83 PISCLAIMER NOTICE: This is a pictorial represertation of geographic and demographic information . Reliance upon the accuracy, reliabil~y and authority of this information is solely requestor's responsibil~. The City of Wheat Ridge, in Jefferson COISity, Colorado - a pol~ical subdivision of lhe State of Colorado, has compiled for ~s use certain computerized information. This information is available to assist in identifying general areas of concern only. The computerized irtormation provided should only be relied upon with corroboration of the methods , assumptions , and results by a qualified independent sou-ce. The user of this information sha~ indemnify and hold free the C ~ of Wheat Ridge from any and all ~abitities, damages, lawsu~s . and causes of action that result as a consequence of his reliance on information provided herein. "'~4, , 4 ., City of • ~WheatRL_clge ITEM NO:~ DATE: September 9, 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 32-2013 A RESOLUTION APPROVING THE CITY OF WHEAT RIDGE COYOTE MANAGEMENT PLAN D PUBLIC HEARING D BIDS/MOTIONS [8::1 RESOLUTIONS D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2ND READING QUASI-JUDICIAL: D YES ~~5£ ISSUE: The City of Wheat Ridge has developed a Coyote Management Plan to provide information on how to safely co-exist with coyotes, by utilizing educational programs and providing guidelines and standards in the response to and reporting of human-coyote conflicts. The plan requires active participation from the community in utilizing proven methods to modify the behaviors of coyotes. The plan further provides for responses to different types of interactions and/or conflicts with coyotes; and resolution and reduction of human-coyote conflicts within the City in a consistent and expedient manner. Public safety is the main concern of the City of Wheat Ridge , and coyotes will be managed with human safety as the priority. The City utilizes educational outreach as the primary tool in managing human-coyote conflicts, but recognizes that there are situations where immediate lethal control may be necessary. Throughout the Denver Metro Area , reports of coyote sightings and encounters with the community have increased. For several years, neighboring cities and counties have experienced an increase in the encroachment of the coyote, and the issues that can occur when humans and wildlife co-exist. Many Metro agencies have developed a coyote management plan to address conflicts with coyotes. In response to the increase in potential human-coyote conflicts, the Community Service Officers (CSOs) and Parks and Recreation staff, along with the Animal Welfare and Control Commission, have partnered with Colorado Parks and Wildlife to develop a Coyote Management Plan for the City of Wheat Ridge. The teams listed have contributed to the efforts in providing a plan with specific guidelines for responding to human-coyote conflicts. Council Action Form -Coyote Management Plan September 9, 2013 Page2 PRIOR ACTION: Staff completed a draft version of the Coyote Management Plan and presented it for review and recommendation to the Animal Welfare and Control Commission (A WCC) on March 20 , 2012. The Plan was discussed with the AWCC on July 17 , 2012. An updated draft of the Plan was mailed to AWCC members on September 18 ,2012. On November 9 , 2012 , an incident occurred in the City involving a coyote acting aggressively toward a resident. The coyote was successfully trapped , following the guidelines of the Coyote Management Plan , although the Plan had not yet been presented to Council. On November 20 , 2012, the A WCC voted to approve the Coyote Management Plan 5-0 with 1 abstention. The Plan was presented to City Council at a Study Session on May 6 , 2013 with A WCC members in attendance. After review and discussion , City Council requested that the Coyote Management Plan go back to the A WCC for further review , discussion , and another vote on whether to recommend the Plan to City Council. The A WCC reviewed the Plan again on July 16 , 2013 and requested stronger language in the Plan in reference to the humane treatment of animals. On July 22 , 2013 , via e-mail vote, the A WCC voted to approve the amended Coyote Management Plan by a vote of 6-1. The Plan has been updated, and is now ready for presentation to Council. FINANCIAL IMPACT: Besides the time spent by the CSOs in contacting partnering agencies and reporting coyote conflicts , there is no additional cost to the City for implementing the Coyote Management Plan. The City has partnered with Colorado Parks and Wildlife and the Jefferson County Health Department, and most services from these agencies are provided at little or no cost to the City. Colorado Parks and Wildlife provides brochures , mailings , signage and on-site educational programs , at no cost to agencies . Jefferson County Health Department provides no-cost or low- cost testing of domestic and wildlife animals. Jefferson County Health also provides periodic updates on the many zoonotic diseases that may affect the human population , as well as domestic and livestock animals , and these are provided at no cost to the agency or to the public. BACKGROUND: By 2002 , there was significant growth and development ofland along the Front Range. With this growth , many wildlife animals were displaced and forced to find new habitats . Wildlife animals moved into the open space areas , as well as neighborhoods and business parks throughout the Front Range. The movement and displacement of the animals created the opportunity for increased human-wildlife conflicts. 1n 2002 , the City of Wheat Ridge Open Space Management Plan was developed by Parks and Recreation staff, community members , and City Council. The vision of the Open space plan was to bring awareness to the preservation of the natural and scenic resources within the open space areas . The plan also identifies the many wildlife animals and their habitats that can be observed and enjoyed by the public. In late 2011 and throughout 2012 , the City has observed an increase in the coyote population and the encroachment of these wildlife animals into our neighborhoods and open spaces. The coyote is an extremely adaptable animal , and can live their entire life cycle within a one square-mile area. They remain in cities and urban areas due to the abundance of food , water, and sheltering resources . Coyotes are able to reproduce and rear their young successfully within cities and urban areas. Since many coyote sightings and encounters are in close proximity to neighborhood dwellings and open spaces , the need to develop a plan that provides guidelines for staff and the public in addressing human-coyote conflicts has increased. Council Action Form -Coyote Management Plan September 9 , 2013 Page 3 The Coyote Management Plan models other established and successful plans that are currently being utilized by agencies in addressing human-coyote conflicts. The plan includes guidelines on responding to human-coyote conflicts and pet and livestock attacks . The plan also includes Colorado State Statues and City ordinances that pertain to the protection of wildlife. The Coyote Management Plan has been approved by the Animal Welfare and Control Commission and endorsed by Colorado Parks and Wildlife, to be used as a model plan for other jurisdictions. RECOMMENDATIONS: Staff and the Animal Welfare and Control Commission recommend that City Council approve the City of Wheat Ridge Coyote Management Plan. RECOMMENDED MOTION: "I move to approve Resolution No. 32-2013 , a resolution approving the City of Wheat Ridge Coyote Management Plan." Or, "I move to postpone indefinitely Resolution No . 32-2013, a resolution approving the City of Wheat Ridge Coyote Management Plan for the following reason(s) " REPORT PREPARED/REVIEWED BY: Jim Lorentz, Division Chief Daniel Brennan , Chief of Police ATTACHMENTS: I. Resolution No.32-20 13 2 . City of Wheat Ridge Coyote Management Plan 3. Coyote Management Plan Flow Chart 4. Wheat Ridge Police Department Policy Directive Manual 13.05 Police Officer Response I Notifications Regarding Dangerous Wildlife 5. Coyote Conflict Brochure 6. Coyote Postcard Notification TITLE: CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 32 Series of 2013 A RESOLUTION APPROVING THE CITY OF WHEAT RIDGE COYOTE MANAGEMENT PLAN WHEREAS, it is the policy of the City of Wheat Ridge to provide for the protection of the public health, safety, and welfare with respect to any reported sightings of dangerous wildlife; and WHEREAS, human safety is the main priority of the City of Wheat Ridge when there are interactions between coyotes and the community; and WHEREAS, the Wheat Ridge Police Department has developed a Coyote Management Plan to care for wildlife with respect, educate the community regarding living and interacting with wildlife, and provide for the humane treatment toward all animals; and WHEREAS, the purpose of the Coyote Management Plan is to provide guidelines for responses to different types of interactions and/or conflicts with coyotes; and to resolve and reduce human-coyote conflicts within the City in a consistent and expedient manner. NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council, that: The City of Wheat Ridge Coyote Management Plan attached hereto and incorporated herein by reference, is hereby approved. The Mayor and City Clerk are authorized to execute the same. This resolution shall be effective immediately. DONE AND RESOLVED this 9th day of September, 2013. Jerry DiTullio, Mayor ATTEST: Janelle Shaver, City Clerk Attachment 1 ~~j.~ -.. r City of ~Wheat.F-t...dge ~OL lCE DEPARTMENT Coyote Management Plan Wheat Ridge, Colorado Revised and Updated August 28, 2013 Community Services Team Wheat Ridge Police Department 7500 W. 29th Avenue Wheat Ridge, Colorado 80033 Office Phone: (303) 235-2926 www.ci.wheatridge.co .us Attachment 2 Coyote Management Plan Wheat Ridge, Colorado August28,2013 Page 2 I. PURPOSE The purpose of this document is to provide guidelines for responses to different types of interactions and/or conflicts with coyotes; and to resolve and reduce human-coyote conflicts within the City in a consistent and expedient manner. Public safety is the main concern of the City of Wheat Ridge, and coyotes will be managed with human safety as the priority. The City utilizes educational outreach as the primary tool in managing human-coyote conflicts , but recognizes that there are situations where immediate lethal control may be necessary. The coyote is an extremely adaptable animal , and has thrived in urban settings for many years , with the abundance of food , water and space being plentiful within the parks and open spaces . As the coyote has adapted to the urban environment , their fear of humans has diminished . It is important for our community to work together to re-instill a natural fear of humans back into the coyote population with undesirable attention. The City of Wheat Ridge, in cooperation with Colorado Parks and Wildlife, developed this Coyote Management Plan. The Plan includes a variety of educational pieces and techniques and that have been proven to be successful in the management of human-coyote conflicts . II. RESPONSIBILITY The Wheat Ridge Police Department's Community Service Officers (CSOs) and Parks Department will be responsible for the following: 1. CSO 's will respond and document all reported activities and conflicts with coyotes within the City of Wheat Ridge in a Police report and act as the repository for those reports. When appropriate, and according to the Guidelines for Response, CSOs will distribute these reports to the Chief of Police, the Parks Department, Jefferson County Public Health (JCPH), Colorado Parks and Wildlife (CPW), and to other pertinent agencies for public safety and record keeping purposes. 2. The Police Department will provide press release notifications to the public regarding coyotes that may pose a threat to the safety of the public. 3. The Police Department and the Parks Department will be responsible to provide educational information on coyote conflicts via the City website, Channel 8, CPW brochures, Park kiosks , temporary signage, neighborhood mailings , and public meetings. 4. The Parks Department staff will monitor coyote activities in the parks and open spaces and report human-coyote encounters, conflicts, and pet attacks to the CSO's via the Police Department's Communications Center. Human-coyote incidents or attacks that occur on City Parks Department property will require immediate notification to the Police Department's Communications Center, CSO 's and CPW. 5. CSOs and the Animal Control and Welfare Commission will consult with JCPH on all issues relating to coyote bites to humans and pet exposures which require the quarantine of animals. Coyote Management Plan Wheat Ridge, Colorado August28 ,2013 Page 3 6 . 7 . CPW will provide guidance and education to landowners and local jurisdictions in managing nuisance coyotes. Subsequent to CSOs response and determination that a coyote has exhibited behavior creating an unsafe situation for the human, CPW personnel will respond and make a lethal control decision based on the interest of public safety. Ill. DEFINITIONS OF COYOTE INTERACTIONS Terms and definitions are not subject to editing or change . These terms have been provided by Colorado Parks and Wildlife, and are currently being used to describe coyote behaviors and incidents throughout the State of Colorado . 1 . Observation -The act of noticing or taking note of tracks , scat or vocalizations. 2. Sighting-A visual observation of a coyote(s). 3. Encounter-An unexpected direct meeting between a human and a coyote without incident. 4. Incident - A conflict between a human and a coyote where a coyote exhibited behavior creating an unsafe situation for the human. 5. Pet Attack-When a pet or livestock animal is attacked, injured or killed by a coyote . Pet animals are considered to be a domesticated or tame animal, such as a dog or cat. Livestock animals are considered to be animals that are generally regarded as farm or ranch animals, such as horses, cows, pigs, poultry and many other various types of farm related animals. 6. Attack -An attack is when a human is bodily injured or killed by a coyote. IV . GUIDELINES FOR RESPONSE TO INTERACTIONS 1. CSOs will respond to all types of coyote interactions, and document the interaction in a Police report. In the event of an Attack, a Police Officer will also respond. 2 . When responding to an Observation, Sighting, and Encounter, CSO's will provide the reporting party with educational information on coyotes and refer them to the City website for further information on coyote behaviors and deterrents. In the event of an Incident, CPW will provide instruction on low intensity hazing of coyotes. 3. In all types of interactions, CSOs will assess the situation, and if appropriate , mail educational postcards on "Coyote Conflicts" to the neighborhood or area where the interaction occurred . 4. When responding to an Incident, Pet Attack , or Attack , CSOs will immediately notify CPW and request response to the area to determine if immediate lethal control measures are appropriate . Coyote Management Plan Wheat Ridge, Colorado Aug ust 28 , 2013 Page 4 5 . When documenting an Incident , Pet Attack or Attack , CSO 's will distribute the report to the Chief of Police and CPW. CSOs will also distribute this report to the Parks Department if the event occurred in the Parks or Open Space. If the interaction occurred in or adjacent to City Parks or Open Space, the Parks Department will post temporary educational signage in the area. 6 . The Police Department will provide press release notifications to the public regarding an Incident, Pet Attack, or Attack, as the coyote may pose a further threat to the safety of the public , pets or livestock. 7. In the event of an Incident or Pet Attack , a low intensity hazing program will be initiated . Police staff will be notified of the location, times and dates the hazing will occur. CPW will provide on-site public education programs in the area on hazing and the habits and behaviors of the coyote . In the case of an Attack , a high intensity hazing will be initiated. CSOs will continue to monitor the area , provide directed patrols , and update any previous press release notifications to the pub l ic . 8 . In the event of a Pet Attack or Attack, Jefferson County Public Health and the Animal Control and Welfare Commission will be notified and consulted on the quarantine or exposure of pets or livestock animals. V. DEFINITIONS OF COYOTE BEHAVIOR 1. Nuisance Coyote A coyote may be defined as a nu isance using the following guidelines : A. Habituated - A coyote that appears to frequently associate with humans or human related food sources, and exhibits little wariness of the presence of people. B. Depredating-A coyote that is preying on pets or livestock. C. Menacing - A coyote that exh ibits aggravated territorial or predatory behavior towards people , but that does not qualify it as a Dangerous coyote . This may include coyote incidents and/or encounters that were serious in nature or a coyote or group of coyotes that could potentially endanger human safety. 2. Dangerous Coyote A coyote may be defined as dangerous using the following guidelines: A. A coyote that has attacked or is attacking a person . B. A coyote that exhibits aggressive behavior towards a human(s) and/or poses a significant threat to human safety. C. CSOs will consult with CPW if they believe that a coyote may be dangerous based on a totality of behaviors and/or locations . Coyote Management Plan Wheat Ridge, Colorado August 28, 2013 Page 5 VI. DEFINITIONS OF RESPONSES 1. Hazing -An activity, or series of activities used in an attempt to change coyote behaviors or deter habituated coyotes, or to establish or maintain a healthy awareness on humans in local coyote populations. 2. Low Intensity Hazing-Low intensity hazing can be performed by everyone at the community level by: A Yelling and clapping B. Banging pots and pans together C. Throwing rocks or sticks D. Spraying with garden hoses, water guns and sprinklers E. Utilizing noise making devices, (air horns, whistles, cans filled with beans or pennies, etc.) Contact the Parks Department for information on available hazing supplies. F. Motion sensor sprinkler systems G. Utilizing deterrent sprays 3. High Intensity Hazing -High intensity hazing should only be performed by trained individuals. High intensity hazing can be conducted in areas with reported human encounters or incidents, where coyotes are approaching residents, where there are routine pet attacks, or based on the totality of circumstances and may include immediate lethal control. VII. GUIDELINES FOR RESPONSE TO NUISANCE AND DANGEROUS COYOTES 1. CSOs will respond to the encounter location and document the encounter in a Police report. In the event of a Dangerous encounter, a Police Officer will also respond, and CPW notified to respond, and the Police report will be distributed to the Chief of Police, CPW, and the Parks Department (if the incident is located in Park or Open Space area). If the encounter occurred in or adjacent to City Parks or Open Space, the Parks Department will post temporary educational signage in the area 2. The Police Department will provide press release notifications to the public regarding the encounter. 3. CSOs will provide educational materials to the reporting party and refer the party to the city website/animal controi/CPW link for further information on conflicts with wildlife. 4. In the event of a nuisance coyote, CSOs will consult with CPW on initiating a hazing program and providing on-site public education . In the event of a Dangerous coyote encounter, a High Intensity Hazing program will be initiated. Police staff will be notified of the location, times and dates the hazing will occur. CPW will provide on-site public education programs in the area on hazing and the habits and behaviors of the coyote. 5. CSOs will continue to monitor the area, provide directed patrols, and update any previous press release notifications to the public . Coyote Management Plan Wheat Ridge, Colorado August28,2013 Page 6 6 . 7. CSOs will follow up by mailing educational postcards on "Coyote Conflicts " to the neighborhood or area where the encounter occurred. If the encounter is with a Dangerous coyote , CSOs will consult with CPW to determine if lethal control is appropriate. VIII. AUTHORITY 1. Colorado Revised Statutes. Title 33, Wildlife and Parks and Outdoor Recreation 33-1-106 gives the Wildlife Commission the authority to regulate the circumstances under which wildlife may be taken, and to determine the disposition of usable portions of wildlife. A. 33 -1-1 05( 1 )(h) gives the Wildlife Commission the authority to provide for destruction of any wildlife that poses a threat to public health , safety, or welfare. B. 33-6-1 07(9) permits any person , any member of such person 's family , or any employee of the person to hunt , trap , or take coyotes on land owned or leased by the person without securing licenses to do so , but only when such wildlife is causing damage to crops , real or personal property, or livestock. C. Wildlife Commission Regulation 303 (A) prohibits the relocation of coyotes without a permit. Studies have shown that relocation is not an effective solution to coyote conflicts. Colorado Parks and Wildlife (CPW) generally will not authorize the relocation of coyotes. D. 33-6-205 gives federal , state, county or municipal departments of health the ability to grant an exemption to Amendment 14 to take (by use of leg hold traps, snares, instant kill body-gripping design traps or poisons) wildlife for the purpose of protecting human health and safety . E . 33-6-207 gives CPW and the Department of Agriculture the authority to adopt and enforce reasonable rules governing trapping , snaring and poisoning for landowners ' protection of crops and livestock. (This is an exemption under Amendment 14). 2 . City of Wheat Ridge Municipal Code Sec. 16-64. -Protection of Wildlife . (a) Shooting, capturing, etc., prohibited. Except as otherwise provided in this section, it is unlawful to willfully shoot , capture, harass, injure or destroy any wild bird or animal or to attempt to shoot , capture, harass, injure or destroy any such wild bird or animal anywhere within this city . (b) Disturbing, etc., nests, burrows, etc., prohibited. No person shall willfully destroy , rob or disturb the nest, nesting place, burrow, eggs or young of any wild bird or animal anywhere within this city. (c) Terms defined. In this section: Coyote Management Plan Wheat Ridge, Colorado August 28, 2013 Page 7 (1) Wild bird includes all undomesticated birds native to North America and undomesticated game birds implanted in North America by governmental agencies and any domestic duck or goose released by any private person or recreational authority upon any recreational area within this city. (2) Wild animal includes any animal native to the state, but does not include rattlesnakes, fish, Norway rats or common house mice . (3) Humane trap includes any trap which does not cause physical injury, pain or suffering of a trapped animal. Steel- jaw leg hold traps and snares are specifically excluded from this definition, but the city shall not be precluded from determining that any other type of trap is also excluded from this definition. (4) Causing damage on land, as provided herein, shall mean physical injury to buildings or improvements or destruction or injury of domestic animals or pets lawfully kept thereon. (d) Application to city and state employees. The provisions of this section shall apply to the personnel of any police, fire or animal control agency or to the state division of wildlife or department of health or other state or federal agency, and all City of Wheat Ridge employees when such persons are acting within the scope of their official duties as employees of such agencies. (e) State-protected birds and animals. The provisions of this section are not intended to allow the destruction of any bird or animal protected by state or federal law. (f) When trapping permitted. If any wild bird or animal is causing damage on lands within the city owned or leased by any person, such person or any member of his family, or his agent, may trap such wild bird or animal, subject to the provisions of this section. (g) Provisions for trapping . Trapping of animals shall follow the provisions set out below: (1) When deemed necessary by police officers or the community service officer for the health, safety and welfare of the residents of the city, such officers and/or their agents may place a humane trap on city property or other property within the city when the property owner requests such humane trap for the purpose of capturing any wild or pet animal creating a nuisance in the city. Provided, however, that no trap of any kind shall be set upon any property without notification to and/or permission from the owner of such property . (2) Any person who traps an animal pursuant to the provisions of this section shall immediately notify police department of such trapping . The police department shall have the Coyote Management Plan Wheat Ridge, Colorado August 28, 2013 Page 8 exclusive right and authority to determine the disposition of any such trapped animal. (3) Community service officers are authorized to use any tranquilizer guns, firearms, humane traps or other suitable devices to subdue or destroy any animal that is deemed by the community service officer, in his discretion, to be a danger to itself or to the public health and safety. (4) It shall be unlawful for any person to set or cause to be set within the city any steel-jaw leg-hold trap, snare or any trap other than a humane trap, for the purpose of capturing any animal, whether wild or domestic. (h) It is unlawful to feed fox and coyote . (Code 1977, § 14-41; Ord. No. 1993-923, §§ 1, 2, 4-12-93, Ord. No. 1994-961, §§ 1-4, 4-25-94; Ord. No. 1329, § 2, 7-26-04; Ord. No. 1373, § 1, 10-10-06) State law reference-Wildlife, parks and outdoor recreation, C.R.S . § 33-1-101 et seq; cruelty to animals, C.R.S. § 18-9-202. 3. Wheat Ridge Police Department Policy Directive Manual 13.05.06 THREAT MAINTENANCE A. The removal or euthanization of an animal will occur after consultation with the Patrol Watch Commander, Community Services Team Supervisor and Colorado Parks and Wildlife officials. B. Whenever possible, animals will be removed per Colorado Parks and Wildlife policy, alive from populated areas if safe and reasonable to do so. C . When euthanization is to occur on scene, the most appropriate and humane means will be deployed . The Patrol Watch Commander, Community Services Supervisor and Colorado Parks and Wildlife, will decide whether it is appropriate to wait for Colorado Parks and Wildlife officials to respond , or whether circumstances require immediate action. D. When humane traps are used, it is the intent of the department for officers to monitor them at frequent intervals, barring any other law enforcement emergency calls for service or critical staffing issues, to ensure that trapped animals are not subjected to extended periods of time in a confined state. E. If practical and available, electronic means of monitoring humane traps can be used. Coyote Management Plan Wheat Ridge, Colorado August 28, 2013 Page 9 IX. Summary The wildlife management section addressed within the Open Space Management Plan of 2002's intent was to be broad and inclusive. This Coyote Management Plan addresses the specifics of managing one species, the coyote. There are many other species of wildlife that make Wheat Ridge their home and not just in the confines of our preserved Open Space areas. It is recognized that wildlife issues can be complex and challenging; and living conflict-free with all species would be our ultimate goal. The human inhabitants and visitors to our community and our city's activities can help or exacerbate wildlife encounters and problems. Human inhabitants of the City need to take some responsibility to curb our behavior that can lead to conflicts, such as unconscious and conscious feeding, careless rubbish disposal and responsible pet guardianship. Appendixes: 1. 2. 3. Educational Outreach Tools a. Examples: brochures, mailings, newsletters, PSAs, signs, websites, education in schools, etc. (CPW can provide many of these tools for distribution.) Hazing Methods a. Tools for Residents on their Property i. Examples: rocks and sticks, noisemakers, garden hoses, water guns, deterrent sprays, motion sprinklers, etc. b. City Hazing Programs i. Examples: paintball, Department approved pepper spray/low and high intensity hazing Lethal Methods a. Options for Residents on their Property b. City and/or Cooperating County Lethal Control Program(s) #1 Call for Service Color Legend Decis ional #2 Initial Response CSO Responds, Investigates, takes a Police Report, determines Type of Incident CJ Res ponse I Co nsult ation Action Last updated 8/28/20: 3 #3 T y pe of Incident Determined ·.. j ;;. . I ... ~44 .. ..-City of ""r7"'7"Wheat&_dge ~OLI CE DEPARTMENT Coyote Management Plan #4 Additional Responses Required Consult with CPW on initiating Low- Intensity Hazing and providing instruction Police Officer and CPW Responds Consult with CPW on Lethal Control CPW Responds CPW Responds Consult with CPW on Lethal Control Police Officer and CPW Responds Consult with CPW on Lethal Control #5 Action s Taken CSO provides RP with educational material & refers to website CSO Provides RP with educational material & refers to website CPW provides instruction and initiates High- Intensity Hazing Police notified of areal dates/times CSO forwards Police report to Chief& CPW CSOs mail "Coyote Conflicts" postcards to area CSOs monitor area, provide directed patrols Police issue Press Release Press Release updated as needed Police report to Parks Parks post educational signs Attachment 3 NUMBER: SUBJECT: 13 .05 .01 13.05.02 13.05.03 13 .05 .04 13.05 EFFECTIVE DATE: REVISION DATES: NOVEMBER 1999 JANUARY 2009 JUNE 2011 AUGUST 2013 POLICE OFFICER RESPONSE I NOTIFICATIONS REGARDING DANGEROUS WILDLIFE APPROVED:~~-----------------_______ __ Chiefs initials Date POLICY It is the policy of the Wheat Ridge Police Department to provide for an effective, efficient investigation and response by Patrol officers to any reported sighting of dangerous wildlife when Community Services Officers (CSOs) are not on-duty. While responding to calls for service involving wildlife, the department's priorities include protecting the public from harm (life, safety, and health), caring for wildlife with respect , educating the community regarding living and interacting with wildlife , and providing for the humane treatment toward all animals . DEFINITION A DANGEROUS WILDLIFE -any large predatory animal (e.g ., mountain lions , bears , coyotes) that may attack domestic animals or humans. B . HUMANE TRAP -is any trap which does not cause physical injury, pain, or suffering of a trapped animal. Steel-jaw leg hold trap~ and snares are specifically excluded from this definition, but the city shall not be precluded from determining that any other type of trap is also excluded from this definition . INVESTIGATION A When responding to a report of any dangerous wildlife, Patrol officers should : 1. Attempt to contact the reporting party, obtaining their name , address and phone number . 2 . Attempt to locate the animal's tracks in the area of the sighting . NOTIFICATIONS A. To insure public safety, should there be a report of any dangerous wildlife coming into the City , the Community Services Team Supervisor or their designee shall be contacted as soon as possible. B . If a Patrol officer determines that a confirmed sighting has occurred : 1. The Chief of Police will be notified . At his discretion , he will notify the City Manager, Mayor and/or City Council. 2 . After 1700 hours, the Patrol officer will contact Colorado State Patrol Dispatch and request that the On-Call District Wildlife Manager respond . 2 . Between 0800 -1700 hours , if a CSO is not available to respond , the Patrol officer will contact tRe Colorado Parks and Wildlife at 303-291-7227. Page 1 of2 13 .05 POLICE OFFICER RESPONSE I NOTI !CATIONS REGARDING WILDLIFE-August 2013 Attachment 4 13.05.05 13.05 .06 C . The Patrol officer will secure the scene to insure the safety of the public , especially in any park or greenbelt area . PUBLIC NOTIFICATION A. Public notification will be determined by the circumstances and urgency required . 1. Notification may be general and accomplished through the Public Information Officer (PIO) through the news media when there is no immediate threat. 2 . Immediate notification , due to an immediate threat level , requires the Communications Center initiate the Citizen Notification System (CNS). THREAT MAINTENANCE A. The removal or euthanization of an animal will occur after consultation with the Patrol Watch Commander , Community Services Team Supervisor and Colorado Parks and Wildlife officials . B. Whenever possible, animals will be removed per Colorado Parks and Wildlife policy , alive from populated areas if safe and reasonable to do so . C . When euthanization is to occur on scene , the most appropriate and humane means will be deployed . The Patrol Watch Commander , Community Services Supervisor and Colorado Parks and Wildlife , will decide whether it is appropriate to wait for Colorado Parks and Wildlife officials to respond, or whether circumstances require immediate action . D . When humane traps are used , it is the intent of the department for officers to monitor them at frequent intervals , barring any other law enforcement emergency calls for service or critical staffing issues, to ensure that trapped animals are not subjected to extended periods of time in a confined state . E. If practical and available, electronic means of monitoring humane traps can be used . Page 2 of2 13.05 POLICE OFFICER RESPONSE I NOTIFICATIONS REGARDING WILDLIFE-August 2013 What do coyotes look like? Ed&L. fJii~~ • Brownish -gray with a light gray to reddish, cream -colored belly • Slender muzzle • Bushytail • Typically weigh between 20 to 50 pounds • They often appear heavier due to a thick, double coat offur What do coyotes eat? Coyotes are opportunistic mammals. Up to 70 percent of a coyotes diet consists of small mammals (mice, rabbits, rats , squirrels, voles, etc.). The remaining 30 percent is a combination of fruits, vegetables, insects, fish, birds, eggs and other available items. ln urban ar- eas, coyotes also prey on rats, squirrels, garbage, fallen fruit/berries from trees and small pets. When are coyotes most active? Coyotes can be active any time, day or night, but are especially active at dawn and dusk. Conflicts with pets occur year -round and are more likely to occur during the breeding season (February and March). Because young are born in the spring, food requirements of the nursing females and growing young remain high until late summer. As people and their pets spend more time outdoors during this time, the possibility of a coyote encounter increases. Can we make them leave? Coyotes have adapted to neighborhoods because our environment supports them. Populations may fluctu - ate , but coyotes probably won't leave. Eradication programs in North American cities have proven to be expensive failures . These animals have adapted to our presence and have lost their natural fear of us. That doesn't mean that you can't do anything -you can. It is imperative that communities work together to in - still the healthy and natural fear of humans back into the coyotes -for their health and safety and ours. Coyotes are quick learners , and consistent negative experiences can teach them to avoid people. What you can do You have options when it comes to dealing with coyotes in your neighborhood : • Do nothing. If you have no concerns about coyotes , you can go about your business. However, we recommend you understand the possible risks to your pets and yourself. • Take steps to prevent conflict. Follow the advice in this brochure to eliminate attractants around your property and safeguard your pet when walking in open spaces or areas where coyotes may be present. • Haze coyotes when you see them. Every citizen can help both people and coyotes by taking action to re -instill them with a healthy and natural fear of people. Clap your hands, yell , honk an airhorn or throw small rocks or sticks when you see coyotes so they can re -learn to avoid humans. • Evaluate lethal control for coyotes. State law (Colorado Revised Statue 33 -6 -107(9) allows you to manage coyotes that are causing dam- age to your property. This management may only be performed on your property. Be aware that cities and counties may have more restrictive ordinances and laws . Contact your city and county officials to find out what options are permitted. For more wildlife information or to report the feeding of coyotes, or their aggressive behavior towards humans, please contact the Colorado Division of Wild- life, Monday through Friday, from 8 a.m. to 5 p.m ., by calling (303) 291 -7227 . After hours, call Colorado State Patrol at (303) 239-4501. Information is also available on our Web site at www.wild.life.state.co.us The Colorado Division of Wildlife is the state agency responsible for managing wildlife and its habitat. as well as providing wildlife-related recreation . The Division is funded through hunting and fishing license fees, federal grants and Colorado Lottery proceeds through Great Outdoors Colorado. 1/2009 -10.000 II) ., c a. E .c u ca ., ., c Coyotes in the Front Range? While coyotes are found throughout the West, they are extremely adaptable and can thrive in urban areas. From downtown Denver to the smallest suburb, coy- otes are not new to residential communities. They can and will be found in any neighborhood that provides their basic needs -food, water, shelter and space. Why are they here? Residential areas provide habitat for coyotes. Plentiful food sources exist, such as mice, rabbits and voles. These small animals feed on birdseed, berries and garbage, which are commonly found and easily accessible. Shelter and water can be found in landscaped parks and yards. Space is plentiful throughout parks, trails, and natural areas. As coyotes adapted to the presence of humans, they have lost their natural fear of us. What attracts coyotes to your neighborhood? Coyotes are attracted to neighborhoods due to the availability of garbage, pet food and even pets, which coyotes see as prey. The following list illustrates some of the attractants that draw coyotes close to people. Remove these attractants to discourage coyotes from visiting your property: • Outdoor pet food or water • Birdseed or food sources that attract small mammals • Accessible garbage or compost • Fallen fruit or berries from trees or shrubs • Shrubs, woodpiles, decks or any other structure that can provide cover or be used as a den How can you protect your pet? It can be difficult to accept, but pets can be seen as a food source to coyotes and large dogs can be seen as a threat or possible mate. Coyotes have taken pets from backyards, open spaces and even right off the leash. Keep your pet current on vaccinations. Reduce the risk to your pet by following these guidelines: Cat Owners: The only way to guarantee your eat's safety is to keep it indoors. Outdoor cats also face potential death from cars, diseases, foxes, parasites, raccoons, dogs and birds of prey such as owls. Dog Owners: • Always supervise your pet outside, especially at dawn and dusk • Keep your dog on a short leash while recreating- avoid retractable leashes • Do not allow your dog to play or interact with a coyote • If possible, pick up your dog when coyotes are visible • Avoid known or potential den sites and thick vegetation • Like domestic dogs, coyotes will defend their territory and their young •If you must leave your dog outside, secure it in a fully enclosed kennel When are coyotes a risk to you? Although naturally curious, coyotes are usually timid animals and normally run away if confronted. Coyote attacks on humans are rare. In many cases these attacks occur as a result of people feeding coyotes. Coyotes have adequate food supplies and are capable of surviving in the city without our help. A coyote that associates humans with food may become demanding and aggressive. A coyote that bites a person must be destroyed. By feeding coyotes you put yourself, the neighborhood and coyotes at risk. It is unlawful to feed or intentionally attract coyotes in most urban areas. Be Prepared lf you have concerns about encountering a coyote, you may want to keep a deterrent handy. Deterrents can include rocks, pots and pans, vinegar in a water gun, paint balls, air horns or a repellent spray. Contact local authorities to ensure that you are using a legal method. Do what you can to discourage a coyote's approach • Be as big and loud as possible • Wave your arms, clap and throw objects at the coyote • Shout in a loud and authoritative voice • Do not run or turn your back on the coyote • Face the coyote and back away slowly Teach your children • Never approach wild animals or dogs you don't know! • lf a coyote approaches you, wave your arms, stomp your feet and tell it loudly to Go away! • Call for help • If the animal doesn't leave, walk out of the area, keeping the animal in your sight Coyote Conflicts In YOUR Neighborhood! •::: All Front Range communities are home to coyotes. These clever can ids have readily adapted to our food and habitat-rich environments. The Colorado Division of Wildlife (DOW) wants to help you avoid conflicts with coyotes in your neighborhood. Coyotes range in size from 20 to SO lbs. They may travel alone or in groups. Coyotes typically eat rodents, rabbits and fruit , but they will eat small pets if the opportunity exists. They have their pups in dens -a hidden cavity that can be under rocks, stumps, ground or even porches. Coyote attacks on humans are very rare and can often be attributed to people feeding them. Adults should teach children to never approach any wildlife. Your Home & Coyotes • Never feed coyotes! • Remove attractants from your yard , including pet food, water sources, bird feeders and fallen fruit. • Secure trash in a container with a locking lid or put trash out on the morning of pick up. • Fully enclose gardens and compost piles . • Trim up vegetation to reduce hiding places. • Deter coyotes from entering your yard with a 6-foot privacy fence. • Work with your neighbors to discourage coyotes in your entire community. • If you meet a coyote, make it feel unwelcome by yelling, throwing rocks and sticks at it , spraying it with a hose or a vinegar-filled water gun, or banging pots and pans. Your Pet & Coyotes • Keep pets on a 6-foot leash when walking. • Never allow your pets to "play" with a coyote. • Pick up small pets if confronted by a coyote . • Do what you can to discourage a coyote's approach -yell , stomp your feet , throw small rocks or sticks at it. • Always supervise your pet when outside, especially at dawn and dusk. • Never leave cats or dogs outside after dark. • If you must leave your pet outside, secure it in a fully enclosed kennel. Questions or concerns regarding wildlife in your area? Call the DOW at 303-291-7227. Coyote Conflicts In YOUR Neighborhood! •::: All Front Range communities are home to coyotes. These clever can ids have readily adapted to our food and habitat-rich environments. The Colorado Division of Wildlife (DOW) wants to help you avoid conflicts with coyotes in your neighborhood. Coyotes range in size from 20 to SO lbs. They may travel alone or in groups. Coyotes typically eat rodents, rabbits and fruit, but they will eat small pets if the opportunity exists. They have their pups in dens -a hidden cavity that can be under rocks, stumps, ground or even porches. Coyote attacks on humans are very rare and can often be attributed to people feeding them. Adults should teach children to never approach any wildlife . Your Home & Coyotes Your Pet & Coyotes • ever feed coyotes! • Remove attractants from your yard , including pet food, water sources, bird feeders and fallen fruit. • Secure trash in a container with a locking lid or put trash out on the morning of pick up. • Fully enclose gardens and compost piles. • Trim up vegetation to reduce hiding places. • Deter coyotes from entering your yard with a 6-foot privacy fence. • Work with your neighbors to discourage coyotes in your entire community. • If you meet a coyote, make it feel unwelcome by yelling , throwing rocks and sticks at it , spraying it with a hose or a vinegar-filled water gun , or banging pots and pans. Attachment 6 • Keep pets on a 6-foot leash when walking. • Never allow your pets to "play" with a coyote . • Pick up small pets if confronted by a coyote. • Do what you can to discourage a coyote's approach -yell, stomp your feet , throw small rocks or sticks at it. • Always supervise your pet when outside, especially at dawn and dusk. • Never leave cats or dogs outside after dark. • If you must leave your pet outside, secure it in a fully enclosed kennel. Questions or concerns regarding wildlife in your area? Call the DOW at 303-291-7227. Colorado Division of Wildlife Denver Service Center 6060 Broadway Denver, CO 80216 (303} 291-7227 http://www. wildlife.state .co. us The Colorado Division of WildLife wants to help you avoid conflicts with coyotes in your neighborho od. Pleas e read and use the tips on this postcard or learn more on the web at www.w ildlife.st ate.co.u s Did you know? • Coyotes are ac tive year-round and become more visible during their b reeding season, which occurs from February through March. • Coyotes can be seen throughout the day, but are especially active at dawn and dusk. • Coyotes are highly adaptable and can live and den in parks and y ards. • Coyotes may perceive other animals, including pets, as a threat, competi tion, or food. • Coyotes keep watch near their dens to keep threats away from their young. • Coyotes are curious and are known to stare at hwnans. They sometimes foll ow humans out of natural curiosity or to keep them away from their pups. Colorado Division of Wildlife Denver Service Center 6060 Broadway Denver, CO 80216 (303) 291-7227 http://www. wildli fe.state.co.us The Colorado Division of Wildlife wants to help you avoid conflicts with coyotes in your neighborho od. Pleas e read and use the tips on this postcard or learn more on the web at www.wil dl ife .state.co.us Did you know? • Coyotes are active year-round and become more visible during their breeding season, which occurs from February through March. • Coyotes can be seen throughout the day, but are especially active at dawn and dusk. • Coyotes are highly adaptable and can liv e and den in parks and y ards. • Coyotes may perceive other animals, including pets, as a threat, competition, or food. • Coyotes keep watch nea r their dens to keep threats away from their young. • Coyotes are curi ous and are known to stare at h umans. They sometim es foll ow humans out of natural curiosity or to keep them away from their pups. ... ~A_, .., ~ r City of • JP'WheatR!9ge ITEMNO:l DATE: September 9 , 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: MOTION TO APPROVE PAYMENT TO INSIGHT PUBLIC SECTOR, INC. IN THE AMOUNT OF $51,618.51 FOR THE ANNUAL RENEWAL OF THE MICROSOFT ENTERPRISE AGREEMENT D PUBLIC HEARING r.:8J BIDS/MOTIONS D RESOLUTIONS QUASI-JUDICIAL: ISSUE: D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2N° READING D YES r.:8J NO This is a scheduled and budgeted replacement of obsolete Microsoft software licenses at all municipal facilities and the support and maintenance that is inherent with upgrades or new software. The annual renewal oflicensing and support will cost $51 ,618.51 which was appro ved in the 2013 Information Technology (IT) budget. PRIOR ACTION: This will be the eight renewal of the Microsoft Enterprise Agreement. FINANCIAL IMPACT: The 2013 IT Division budget includes $55 ,000 for the annual renewal of the Microsoft Enterprise Agreement. The total renewal amount is $51 ,618.51. BACKGROUND: This is the City's eighth year participating in the Microsoft Enterprise Agreement (EA) program and Staff recommends the renewal of the agreement for another year . Prior to 2005 , software licensing control and purchases were decentralized , non-standardized , and recordkeeping was sporadic and incomplete. In 2005 , based on an IT evaluation of the status of the City's software needs and requirements , Staff decided to leverage the City's purchasing Council Action Form September 9 , 2 013 Page 2 power by engaging Microsoft in a five-year agreement to get the City properly licensed . Staff also decided at that time to manage all the software within the IT Division. As a result , the City has been compliant with Microsoft's licensing rules and regulations since 2005 . ln addition, this program allows for discounts on software licenses , professional services and planning and training vouchers from Microsoft. RECOMMENDATIONS: Staff recommends approval of the annual renewal for the Microsoft Enterprise Agreement because the program has been successful for the City of Wheat Ridge. RECOMMENDED MOTION: "I move to approve payment to Insight Public Sector Inc., in the amount of $51 ,618.51 for the annual renewal of the Microsoft Enterprise Agreement." Or, "1 move to deny payment to Insight Public Sector Inc. in the amount of $51 ,618 .51 for the ammal renewal of the Microsoft Enterprise Agreement for the following reason(s) " REPORT PREPARED/REVIEWED BY: Michael Steinke, lT Manager Heather Geyer, Administrative Services Director ATTACHMENTS: 1. Insight Microsoft Quote lnsigh!ic SECTOR SOLD-TO PARTY City of Wheat Ridge 7500 W 29th Ave 1st floo r Wheat Ridge CO 80033 USA SHIP-TO ADDRESS City of Wheat Ridge 7500 W 29th Ave 1st f loor Wheat Ridge CO 8003 3 USA We deliver according to the following terms: Payment Terms Credit Card Insight Public Sector SL ED 6820 S HARL AVE TEMPE AZ. 85283-43 18 Tel : 800-467-4448 Quotation Quotation Number Creation Date 19-AUG-20 13 214894395 PO Number PO Release Customer No. Sales Rep Email Telephone Sales Rep 2 Email Telephone 10390055 Gini Brescia gbrescia@insight .com 800-467-4448 X 5083 Tone Tuskan ttuskan@insight.com 800-269-2523 X 2283 Ship Via Electronic Delivery I Electron ic Delivery Terms of Delivery FOB ORIGIN Currency USD Material Description Quantity Unit Price Extended Price 228 -03148-ESA2 Microsoft SQL Server Standard Edition -Software assurance - 1 processor -Enterprise, Select, Select Plus -Win -All Languages STATE OF COLORADO WSCA SOFTWARE VAR CONTRACT# ADSP01 1-00000358-2 / 20556YYY 1 1 MIWSCA) AUTHORIZATION NUMBER: ANNUAL BILLING DUE 10/1113 LICENSE : 4732607 Attachment 1 2 1,163.79 2,327 .58 Page 1 of 4 lnsigfl1ic SECTOR Material Description 228-04433-ESA2 Microsoft SQL Server Standard Ed ition -Software assurance - 1 server -additional product -Enterprise, Select, Select Plus -Win-All Languages STATE OF COLORADO WSCA SOFTWARE VAR CONTRACT(# ADSP011 -00000358-2/ 20556YYY11 M/WSCA) 312-02257-ESA2 AUTHORIZATION NUMBER : ANNUAL BILLING DUE 10/1/13 LICENSE : 4732607 Mi crosoft Exchange Server -Software assurance - 1 server-Enterprise, Select, Select Plus -All Languages STATE OF COLORADO WSCA SOFTWARc'ilAR CONTRACT(# ADSP011 -00000358-2 / 20556YYY 11 M/WSCA) 359-00792-ESA2 AUTHORIZATION NUMBER : ANNUAL BILLING DUE 10/1 /13 LICENSE : 4732607 Microsoft SQL Server -Software assurance - 1 CAL - Enterprise, Select, Select Plus -All Languages STATE OF COLORADO WSCA SOFTWARE :V_AH CONTRACT(# ADSP011-00000358-2 / 20556YYY11 M/WSCA) AUTHORIZATION NUMBER : ANNUAL BILLING DUE 10/1113 LICENSE : 4732607 A07-00042-ESA2 Microsoft Enterprise Desktop Professional Platform - Software assurance - 1 user-Enterprise -Win -All L anguages STATE-OF COLORADO WSCA SOFTWARE VAR CONTRACT # ADSP011 -00000358 -2/ 20556YYY11 M/WSCA) AUTHORIZATION NUMBER : ANNUAL BILLING DUE 10/1113 LICENSE : 4732607 D87 -01159-ESA2 Mi c rosoft Vis i o Professional -Software assurance -1 user -EDU -Enterprise, Select, Select Plus -Win -All Languages STATE OF COLORADO WSCA SOFTWARE VAR-""C ONTRAC (# ADSP011 -00000358-2/ 20556YYY11 M/WSCA) AUTHORIZATION NUMBER : ANNUAL BILLING DUE 10/1113 LICENSE : 4732607 H30-00238-ESA2 Microsoft Project Professional -Software assurance - 1 user -Enterprise, Select, Select Plus -Win -All Languages SJA7 OF COLORADO WSCA SOFTWARE YAR-CONTRACT(# ADSP011 -00000358-2/ 20556YYY11 M/WSCA) AUTHORIZATION NUMBER : ANNUAL BILLING DUE 10/1113 LICENSE : 4732607 J3A-00162-ESA2 Microsoft System Center Configuration Manager- Software assurance - 1 server -Enterprise, Select, Select Plus -Win -AIILanguages STAlE OF COLORADO WSCA SOFTWARE VAR CONTRACT (# ADS P011 -00000358-2 / 20 556 YYY11 M/WSCA) AUTHORIZATION NUMBER : ANNUAL BILLING DUE 10/1/13 LICENSE : 4732607 Quotation Number/ Creation Date 214894395 I 19-AUG-2013 Quantity Unit Price Extended Price 2 145.56 291 .12 114.81 114.81 50 26.53 1,326 .50 275 147.25 40 ,493 .75 5 86 .35 431 .75 10 168.36 1,683 .60 93.95 93 .95 Page2 of 4 lnsigh!ic SECTOR Material Description P72-00188-ESA2 Microsoft Windows Server Enterprise Edition- Software assurance -1 user -Enterprise, Select, Select Plus -All Languages STATE OF COLORADO WSCA SOFTWARE VAR CONTRACT(# ADSP011 -00000358-2/ 20556YYY11 M/WSCA) AUTHORIZATION NUMBER: ANNUAL BILLING DUE 10/1/13 LICENSE: 4732607 P73-00226-ESA2 Microsoft Windows Server Standard Edition -Software assurance-1 user-EDU -Enterprise, Select, Select Plus -All Languages STATE OF COLORADO WSCA SOFTWAREV'AR CONTRACT# ADSP011 -00000358 -2/ 20556YYY11 M/WSCA) AUTHORIZATION NUMBER: ANNUAL BILLING DUE 10/1/13 LICENSE : 4732607 Quotation Number/ Creation Date 214894395 I 19-AUG-2013 Quantity Unit Price Extended Price 5 382.54 1,912.70 25 117.71 2,942.75 Product Subtotal 51,618.51 Tax 0.00 ----------------------- Total 51,618.51 Lease & Financing options available from Insight Global Finance for your equipment & software acquisitions . Contact your Insight account executive for a quote. Thank you for considering Insight. Please contact us with any questions or for additional information about Insight's complete IT solution offering. Sincerely, Gini Brescia 800-467-4448 Ex 5083 gbrescia@insight.com Fax: 480-760-9410 Tone Tuskan 800-269-2523 Ex 2283 ttuskan@insight.com Fax: 480.760.6128 Insight Global Finance has a wide variety of flexible financing options and technology refresh solutions. Contact your Insight representative for an innovative approach to maximizing your technology and developing a strategy to manage your financial options. Page 3 of 4 214894395 /19-A UG-2 013 lnsigb!ic SECTOR Quotation Number/ Creat ion Date Subject to IPS Terms & Conditions online unless purchase is being made pursuant to a separate written agreement in which case the terms and conditions of the separate written agreement shall govern . https ://www.ips .insight .com/us/en/terms-conditions/terms-of-sale-products .html • Page4 of 4 ... ~A~ ... _ ., City of • JP'"WheatRi_dge ITEM NO: ff. DATE: September 9, 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 36-2013 A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF WHEAT RIDGE AND RENEWAL WHEAT RIDGE TO PROVIDE FUNDING FOR THE PURCHASE OF CERTAIN PROPERTY D PUBLIC HEARING D BIDS/MOTIONS cgJ RESOLUTIONS D ORDINANCES FOR I ST READING 0 ORDINANCES FOR 2ND READING QUASI-JUDICIAL: D YES cgJ NO Cie~oU ISSUE: Renewal Wheat Ridge is in the process of entering into a purchase agreement with The Bank of Denver (Louise, LLC), to acquire property located at 7690 W. 38th Avenue and 3790 Yukon Court. The acquisition of this property is critical to the success of the redevelopment of this vital commercial center in Wheat Ridge. This intergovernmental agreement (IGA) provides the funding for the acquisition of the property. Acquisition by Renewal Wheat Ridge is necessary because the property contains environmental contamination, for which remediation is required. The Bank of Denver has been willing to work with the City and Renewal Wheat Ridge, understanding that the property requires remediation, and is intended ultimately to be conveyed by Renewal Wheat Ridge to a third party, the developer of the redevelopment project. Thus, the transaction contemplates Renewal Wheat Ridge acquiring the property, obtaining a ''No Further Action Determination" or ''NAD" letter from the Colorado Department of Public Health and Environment (the "CDPHE"), and then conveying the property to the redeveloper. The purchase price is $390,000, the cost of which is being contributed by the City in accordance with the terms of the IGA . However, the seller has agreed to contribute up to the amount of $50 ,000 for environmental remediation as a set-off from (or credit to) the purchase price. The staff of the City and Renewal Wheat Ridge are working with the City's environmental consultant and the CDPHE to determine the cost of a remediation plan that is acceptable to the CDPHE, and Council Action Form -IGA with URA September 9 , 2013 Page2 will result in the issuance of a NAD. If the cost of remediation is $50 ,000 or less , staff would recommend proceeding forward with the transaction. If the cost is in excess of $50,000, staff will have to evaluate how best to proceed, and seek City Council direction as well, since the City is ultimately the funding source of the acquisition and would have to fund any additional remediation cost. Approving this IGA does not commit the City to funding this property acquisition. The critical date for purposes of determining the nature and extent of the environmental remediation is September 18 , 2013. By this date, Renewal Wheat Ridge will be required to give notice to the seller regarding the required environmental remediation, the estimated cost and if the acquisition of the property will proceed. PRIOR ACTION: None FINANCIAL IMPACT: The estimated purchase price of the property is $390,000 , discounted to no more than $340,000 to account for environmental remediation expenses. The intent of Renewal Wheat Ridge is to sell the property to a developer and to reimburse the City from those proceeds. Environmental remediation costs are still being evaluated by the City's environmental consultant. Once a remediation plan is developed and total costs are estimated , staff will present those to Council for further direction . BACKGROUND: The Redevelopment Project, "Wheat Ridge Comers," includes the construction of two single story in-line retail buildings totaling 15,600 square feet and two outparcels totaling 7 ,300 square feet on approximately 3 acres ofland. A copy of the conceptual site plan for the redevelopment project is attached. Building architecture and materials for the retail buildings will consist of glass store fronts with mixed use of masonry materials such as stucco , stone, block and/or brick. A project identity element will be integrated into the northeast comer of the site to enhance the visual charisma and attractiveness of the key comer view. Potential tenants include quick-service restaurants , sit-down restaurants , bars and taverns, financial institutions and other convenience retail. The purchase of the property will add an additional 0.5 acres of developable land to the site and the potential for additional retail square footage. In addition , an access easement through the property being acquired to Yukon Court is critical for this project's success. Access to Yukon Court will provide the needed traffic circulation to future lighted intersections at 38th and Yukon Court and 35 1h and Wadsworth. The vacant site directly to the south of the redevelopment project is currently under contract with another developer. The site is approximately ten acres and initial conceptual site plans include approximately 90 ,000 square feet of additional retail. The two projects would develop separately but will be required to include access points between the projects for an unencumbered traffic circulation between the projects. Council Action Form -IGA with URA September 9, 2013 Page 3 RECOMMENDATIONS: Staff recommends approval of the resolution in order to facilitate the successful completion of this redevelopment project at this vital commercial center in Wheat Ridge. RECOMMENDED MOTION: "I move to approve Resolution No. 36-2013, a resolution approving an intergovernmental agreement between the City of Wheat Ridge and the Renewal Wheat Ridge to provide funding for the purchase of certain property." Or, "I move to postpone indefinitely Resolution No . 36-2013, a resolution approving an intergovernmental agreement between the City of Wheat Ridge and Renewal Wheat Ridge to provide funding for the purchase of certain property for the following reason(s) " REPORT PREPARED/REVIEWED BY: Patrick Goff, City Manager ATTACHMENTS: 1. Resolution No. 36-2013 2 . Conceptual Site Plan CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 36 Series of 2013 TITLE: A RESOLUTION APPROVING AN INTERGOVERNMENTAL AGREEMENT BETWEEN THE CITY OF WHEAT RIDGE AND RENEWAL WHEAT RIDGE TO PROVIDE FUNDING FOR THE PURCHASE OF CERTAIN PROPERTY WHEREAS, pursuant to C.R.S. § 29-1-203 , the City of Wheat Ridge and Renewal Wheat Ridge (the "Parties") are authorized to cooperate and contract with one another for the performance of functions , service or facility to the extent authorized to; and WHEREAS, each Party is authorized by statute to acquire and dispose of real property; and WHEREAS, Renewal Wheat Ridge (RWR) is in the process of entering into a purchase agreement with The Bank of Denver (Louise, LLC) to acquire certain real property located within the City of Wheat Ridge at 7690 W . 38th Avenue and 3790 Yukon Court ; and WHEREAS , RWR 's purchase of the property is within the statutory power as an urban renewal authority and is being made for the purpose of blight removal within the City of Wheat Ridge; and WHEREAS , the City wishes to assist RWR in its purchase of the property by making available to RWR funds in the amount of the purchase price upon certain conditions as more fully described in in Exhibit A; and NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council, that: The Intergovernmental Agreement attached hereto and incorporated herein by reference, is hereby approved. The Mayor and City Clerk are authorized to execute the same. This resolution shall be effective immediately. DONE AND RESOLVED this 9th day of September, 2013. Jerry DiTullio , Mayor ATTEST: Janelle Shaver, City Clerk Attachment 1 Exhibit A INTERGOVERNMENTAL AGREEMENT FUNDS FOR PURCHASE OF REAL PROPERTY This Intergovernmental Agreement (the .. Agreement") is entered into as of the __ day of , 2013, by and between the City of Wheat Ridge, a Colorado home rule municipality ("the City") and the Wheat Ridge Urban Renewal Authority, d/b/a Renewal Wheat Ridge (a Colorado borne rule municipality and body corporate politic (the "URA'') colJectively referred to herein as (the "Parties"). RECITALS A. Pursuant to C.R.S. § 29-1-203, the Parties are authorized to cooperate and contract with one another for the perfonnance of functions, service, or facility to the extent authorized to each. B. Each Party is authorized by statute to acquire and dispose of real property. C. The URA is in the process of entering into that certain Purchase Agreement with Louise, LLC, a Colorado limited liability company, to acquire certain real property located within the City of Wheat Ridge more particu]arly described in Exhibit A attached hereto and incorporated here to by this reference, constituting approximately 26,040 square feet of land, together with all improvements, easements, water rights, mineral rights and other rights appurtenant thereto and also known by street and number as 7690 W. 381h Avenue and 3790 Yukon Court, Wheat Ridge, Colorado (the .. Property''); D. The URA's purchase of the Property is within its statutory power as an urban renewal authority and is being made for the purpose of blight removal within the City of Wheat Ridge. E. The City wishes to assist the URA in its purchase ofthe Property by making available to the URA funds in the amount of the purchase price upon certain conditions as more fully described in this Agreement. NOW, THEREFORE, the Parties agree as follows: 1. Obligations of the City. A. Funding of Property Acquisition. The City shall provide to the URA the funds to acquire the Property estimated to be no more than $340,000 plus any costs associated with the closing of the transaction (the "Funding") to be used by the URA solely and exclusively for purchase of the Property pursuant to the Purchase Agreement. The Funding shall be made available on or before September 30, 2013. AH or a portion ofthe Funding, as mutually agreed upon by the City and the URA, shall be repaid to the City upon the transfer by the URA of the Property to a subsequent developer, as purchaser. The City consents to the URA 's conveyance of the Property to a third party in accordance with C.R.S. Section 3 J -25-1 06(2). B. Funding for Environmental Remediation. The City further agrees assist the URA by directly or indirectly contributing funds , obtaining grants or otherwise expending money in -I- Exhibit A amounts necessary to remediate the Property as part of the Colorado Department of Public Health and Environment's Voluntary Clean Up Program ('•VCUP"), in a total amount to be estimated on or before the purchase of the Property by the URA. 2. Obliaations of the URA. The URA shall: A. Close upon the Property as set forth in the Purchase Agreement; B. Cause any environmental contamination of the Property to be remediated such as to result in a "no further action determination" by the Colorado Department of Public Health and Environment; C. Use the funding provided for environmental remediation of the Property for its stated purpose; D. Convey or sell the Property to a developer, as purchaser upon the developer, as a bona fide prospective purchaser, being able to obtain a "no further action determination" by the Colorado Department of Public Health and Environment; and E. Repay to the City any funds received from the City or otherwise which are in excess of amounts necessary for purchase of the Property, or for environmental remediation as described at Paragraph 2.B. 3. Notice. Any notice required or permitted by this Agreement shall be deemed validly given at the time the notice is delivered in person, or deposited in first class or registered mail, or transmitted by facsimile (with confirmation of receipt) to the following addresses: Steve Art Wheat Ridge Urban Renewal Authority 7500 W. 29th Avenue Wheat Ridge, CO 80033 Patrick Goff City of Wheat Ridge 7500 W. 29'h Avenue Wheat Ridge, CO 80033 4. Paral!raob Captions. The captions of the paragraphs are set forth only for the convenience and reference of the Parties and are not intended in any way to defme, limit or describe the scope or intent of this Agreement. 5. Integration and Amendment. This Agreement represents the entire understanding between the Parties with regards to the subject matter of this Agreement and there are no oral or collateral agreements or understandings. This Agreement may be amended only by an instrument in writing signed by t.he Parties. If any provision of this Agreement is held invalid or unenforceable, no other provision shall be affected by such holding, and all of the remaining provisions of this Agreement shal1 continue in full force and effect. 6. Governing La.w. This Agreement shall be governed by the Jaws of the State of Colorado. Jurisdiction and venue shall be proper and exclusive in the district court for Jefferson County, Colorado. 2 Exhibit A 7. Responsibility. Each Party shall remain responsible for the acts and omissions of its own officials, employees and agents and shall not be responsible for the acts or omissions of the officials, employees or agents of the other Party. Neither Party waives the rights, limitations, and defenses available to it under the Colorado Governmental bnmunity Act, C.R.S. § 24-10- l 01, er seq ., as may be amended from time to time, or any other rights or protections otherwise provided by law. 8. Non-Appropriation/(fABOR. The Parties understand and acknowledge that the City of Wheat Ridge is subject to Article X § 20 of the Colorado Constitution ("TABOR''). The Parties do not intend to violate the terms and requirements of TABOR by the execution of this Agreement. It is understood and agreed that this Agreement does not create a multi-fiscal year direct or indirect debt or obligation within the meaning of TABOR and, therefore, notwithstanding anything in this Agreement to the contrary, all payment obljgations of Wheat Ridge are expressly dependent and conditioned upon the continuing availability of funds beyond the tenn of the City of Wheat Ridge's current fiscal period ending upon the next succeeding December 3 I. Financial obligations of Wheat Ridge payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted, and otheJWise made available in accordance with the rules, regulations, and resolutions of Wheat Ridge and other applicable law. Notwithstanding any other provision of this Agreement concemmg termination, upon Wheat Ridge's failure to appropriate such funds, this Agreement shall automatically terminate. 9. No Third Party Beneficiari.es. Enforcement of the tenns and conditions of this Agreement and all rights of action relating to such enforcement shall be strictly reserved to the Parties, and nothing contained in this Agreement shaH 1:,,-jve or allow any such claim or right of action by any other person or entity not a party to this Agreement. l 0. Execution in Counterparts; Further Assurances. This Agreement may be executed by the Parties with separate signature pages, each of which shall constitute an original and together which shall constitute one and the same agreement. The Parties shall execute any other documents and to take any other action necessary to carry out the intent of this Agreement. IN WITNESS WHEREOF, the Parties have caused the Agreement to be duly executed as of the date first written above. 3 AITEST: irector ATTEST: Janelle Shaver. City Clerk Exhibit A WHEAT RIDGE URBAN RENWAL AUTHORITY d/b/a RENEWAL WHEAT RIDGE By:~ _ ,Chair . tiD . CITY OF\VHEAT RIDGE Jerry DiTullio, Mayor 4 Exhibit A EXHIBIT A Legal Description of the Property PARCEL A: THE NORTH 198 FEET OF TRACT 1, ADKINS SUBDIVISION, EXCEPT THAT PORTION CONVEYED TO THE CITY OF WHEAT RIDGE BY INSTRUMENT RECORDED OCTOBER 26, 1992 AT RECEPTION NO. 92136103, COUNTY OF JEFFERSON, STATE OF COLORADO. PARCELB: THE SOUTH 30 FEET OF THE NORTH 228 FEET OF TRACT 1, ADKINS SUBDIVJSION, COUNTY OF JEFFERSON, STATE OF COLORDO. 5 ,. ... ... "' n :::r 3 CD :I ... N ~~ Point C e nsulting, LLC 71" a."K of nea~tc Ptop~~~ www pnl-lc.com Pt.t.t<Nit~'-_ E~j ·•t..t:EPING LAt40SCAPf APCHilECIU"f lAN0 SUP\IE'I'N( tc!IIE11T RI!J~E eOR!IERt WHEAT PII)G£ COlOPAOO 2b w D'v Cree.-Circle. Sv1te cOO llllleton. CO 00120 ':Q._"-QQb-4382 www mode,..eiClomentportners.com