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HomeMy WebLinkAboutCity Council Agenda Packet 09/23/20136:45-Pre-Meeting CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING September 23, 2013 7:00p.m. Individuals with disabilities are encouraged to participate in all public meetings sponsored by the City of Wheat Ridge. Call Heather Geyer, Administrative Services Director, at 303-235-2826 at least one week in advance of a meeting if you are interested in participating and need inclusion assistance. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLLCALL OF MEMBERS APPROVAL OF MINUTES OF September 9, 2013 PROCLAMATIONS AND CEREMONIES First Responder Appreciation Day 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 .L 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 CITY COUNCIL AGENDA: September 23 , 2013 Page -2- DECISIONS, RESOLUTIONS AND MOTIONS £. Resolution 37-2013 -approving Rules and Regulations for the purpose of managing certain Real Property for Recreational Gold Panning 3. Resolution 38-2013-approving a contract with the Colorado Department of Transportation for maintenance of Traffic Signals 4. Resolution 39-2013-amending the Fiscal Year 2013 Capital Investment Program Budget to reflect the approval of a Supplemental Budget Appropriation in the amount of $325,000 for the purpose of providing the funding to Renewal Wheat Ridge for the purchase of property at 7690 W . 381h Ave. and 3790 Yukon Court ~ Motion to appoint Brandy Bauer to the Liquor Authority representing District IV CITY MANAGER'S MATTERS CITY ATTORNEY'S MATTERS ELECTED OFFICIALS' MATTERS ADJOURN TO SPECIAL STUDY SESSION CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING September 9, 2013 Mayor DiTullio called the Regular City Council Meeting to order at 7:00p.m. ROLLCALL OF MEMBERS Joyce Jay Joseph DeMott Davis Reinhart Bud Starker Tracy Langworthy Mike Stites Absent: George Pond Kristi Davis Also present: City Clerk, Janelle Shaver; City Treasurer, Larry Schulz; City Attorney, Gerald Dahl; City Manager Patrick Goff; Police Chief Dan Brennan; Senior Planner, Meredith Reckert; other staff, guests and interested citizens. APPROVAL OF MINUTES OF August 26, 2013 Motion by Councilmember Stites for approval of the Minutes of August 26, 2013; seconded by Councilmember Reinhart; carried 7-0. PROCLAMATIONS AND CEREMONIES World Alzheimer's Disease Month A proclamation designating September 2013 as World Alzheimer's Disease Awareness Month was read by City Clerk Shaver. Daphne Rice-Allen, Helpline Coordinator for the Colorado Chapter of the Alzheimer's association, received the proclamation and thanked the City for its support. The proclamation asks citizens to join the Walk to End Alzheimer's in Denver City Park on Saturday, September 21. CITIZENS' RIGHT TO SPEAK Michael Snow, president of Wheat Ridge United Neighborhoods, was present to announce the candidate forum they will be holding again this year on October 2, 7:00pm in Council Chamber. He thanked the City for again supporting this forum, which they've held for over 20 years. The City provides the videography service and not only will the forum be broadcast live on Channel 8, it will be replayed several time before the election. Candidates for City offices, school board candidates and speakers for and City Council Minutes September 9, 2013 Page 2 against all ballot issues will be speaking. Wheat Ridge municipal candidates will be given questions to answer. He invited the public to submit questions and United Neighborhoods will select the 10 best questions to be asked the candidates . Question ideas can be emailed to wrun@googlegroups.com . Please include your name and which office (group of candidates) the question is for . APPROVALOFAGENDA Motion by Councilmember Starker to add as Agenda Item 9 the discussion of the confidential investigation report to Mr. Dahl, done by Samuel Light, dated September 6, 2013; seconded by Councilmember Jay; carried 7-0. Mayor DiTulluio announced that the public hearings for Items 3 and 4 would be held as one public hearing, not two. PUBLIC HEARINGS AND ORDINANCES ON SECOND READING ..L 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) Mayor DiTullio opened the public hearing. Councilmember Stites introduced Resolution 31-2013. Staff presentation: Lauren Mikulak entered the case file, the subdivision regulations and the digital presentation into the record. The proposed subdivision would create a second lot to the rear of 3785 Independence that would accommodate a single family home. The property is zoned R-1. Zoning will not be affected by the subdivision. Citizen comments: Rodney Pinkney lives adjacent to (on the south side of) the subject property and had a handout for the Council. He moved from high density to this property 51 years ago. This is a low density neighborhood and he wants Council to know how this will potentially decrease the value of properties in the neighborhood. Drainage is also a major concern due to the channel that runs in the lower part of the neighborhood. A cattail swamp is there. Years ago Jefferson County recommended cutting a drainage channel through there from Independence to Johnson, but due to the need for new easements from multiple property owners all along that channel the neighbors opted not City Council Minutes September 9, 2013 Page 3 to do that. The County engineer warned that anyone making changes to that drainage channel without legal authorization would probably be in violation of Colorado water law. Mr. Pinkney and two adjacent neighbors eventually created a tile channel and connected it to a nearby collection box on Independence. He said that today's rain storm reinforced the problem that continues to this day. He recommended denial of the subdivision because it will change the character of the neighborhood and impact drainage . He added that if it is approved he asked that impacted property owners be allowed to review and have input into any future site planning process . lhor fig Ius, a neighbor in the area, recommended denial of the subdivision because it will create a high density property at the entrance of their neighborhood and allow for a two-story house where currently only single story houses exist. -He took issue with staffs statement that the back lot would contain a 12,500 sq feet lot. Technically it would, but the actual buildable area is only about 9,800 sq feet because the rest is driveway. This would allow squeezing in a house onto a lot that is much smaller than surrounding properties. -He also presented two 8 % x 1 0 color photos of the hearing notice that was posted by the City . Code requires that notices be posted at least 30 inches off the ground . The photos clearly show the bottom of the posted sign is barely 7 inches off the ground and the top of the notice is well below the 30 inch mark. Most of the neighbors he's talked to had no idea this was going on. The sign is not very visible and he believes it is improperly posted. He suggested this also brings up the issue if the Planning Commission hearing was properly conducted because of improper posting. Steve Shafer, a neighbor, spoke in opposition to the subdivision . He believes it will change the character of the neighborhood , as this area is special for its larger lots and neighbors are there because of the large lots. -Also, his longtime interest in houses and architecture has also led him to observe that a flagpole lot behind a house has not ever made a positive contribution to a neighborhood . -He didn't learn of this matter until this afternoon. He uses Independence regularly and he didn't see the sign. Ronald Thomas resides directly south of the subject property. His main concern is the proposed driveway which will be directly adjacent to him -not far from his garage. This rain today caused flooding into his garage-even with the adjacent dirt which has some absorption value. A cement driveway would only make the situation worse . Odarka Figlus said she drives on Independence often to visit her mother and had no idea about the Planning Commission hearing or this hearing until someone brought it to her attention . She found the sign and said it is low and tilted and does not stand out like it should . She feels more neighbors would be here if they knew. -She said the staffs picture of the property doesn't adequately show how a house built on that back lot would impact adjacent properties. She also believes the lot where a house would be built is effectively substandard in size for the area because so much of it is just the flagpole driveway. It is her understanding that it isn't going to be usable without a substantial variance which the owner is going to be asking for. -She understands the applicant wants to extract value from his property , but she noted that recently there has been substantial investment in the neighborhood with expansions and upgrades which City Council Minutes September 9, 2013 Page 4 not only increase the value of the property, but respect and maintain the character and integrity of the neighborhood without negatively impacting the neighbors. She encouraged the Trouts to increase the value of their property by doing the same thing and not subdividing. -She closed saying that it has been nice not having so much discord in the city lately, but since the Westhaven Subdivision has covenants --if this is approved there will no doubt be lawsuits and discord. She urged denial and thanked the Council for listening to the neighbors. Maria Figlus, who lives in the neighborhood, stated she is against the subdivision . She walks in the neighborhood every day and never saw any sign. Janice Gilmer stated she was not aware of the meeting this evening until notified this afternoon. She did not see the sign although she drives down Independence every day. She agree with the comments of the previous speakers. Council discussion : Mr. Dahl explained the various forms of required notice-letter, newspaper and sign, and believes all of these were accomplished in this case. He stated that minor deficiencies in notification have historically been waived by courts and are not fatal to Council's hearing of this case . Councilmember Davis asked about drainage. Lauren Mikulak explained that a drainage report would not be required for this. If a future plat is approved the site plan would go straight to building permit; there is no public review for standard building permits. At that point it would be routed to the development engineer who would review it to make sure new impervious surfaces don 't alter historic flows or affect neighboring properties. But there is no requirement for a drainage report. Councilmember Starker asked about the topography and flow of the site. Lauren Mikulak confirmed Mr. Pinkney's and other neighbors' testimony that there is an east/west drainage flow in that area from Independence all the way to Discovery Park. -He also asked if the flow at the back fence goes towards you or away from you . Ms. Mikulak didn't have that information. Councilmember Reinhart asked why lot frontage does not apply to this proposed back lot. Ms. Mikulak explained that calculations are based on the frontage line that is parallel to the street but not necessarily adjacent to the street. Concerning the allowance of flag lots in residential zones, Meredith Reckert confirmed that flag lots are permitted in all residential zone districts. Mayor DiTullio closed the public hearing. City Council Minutes September 9, 2013 Page 5 Councilmember Stites stated that they take an oath to uphold the laws and if someone meets the criteria they have to uphold that. There is also the issue of property rights . Motion by Councilmember Stites 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 Independence 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. 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. Motion seconded by Councilmember Reinhart ; Councilmember Jay said Council must vote on the subdivision without benefit of a site plan, but she believes the neighbors will have some recourse when the site plan comes forward -possibly through the Board of Adjustments. She will vote for this because it meets the requirements, but she thinks it is a very small lot and won 't be particularly attractive . Councilmember Reinhart is uncomfortable with the posting because he thinks notice is critical, but he thinks a delay to allow for reposting and a new hearing will not change the ultimate outcome because the subdivision complies with the law. Motion carried 5-2 , with Councilmembers Starker and Langworthy voting no . A short break was taken. 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 K ipling St. i n an amount not to exceed $73,694 City Council Minutes September 9, 2013 Page 6 Mayor DiTullio opened the public hearing. Councilmember DeMott introduced Resolution 33-2013. There was no staff presentation. There were no citizen comments. There was no Council discussion or questions. Mayor DiTullio closed the public hearing. Motion by Councilmember DeMott 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; seconded by Councilmember Davis; carried 7-0. Mayor DiTullio announced that the public hearing for agenda Items 3 & 4 would be held together as one hearing. ~ 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 Mayor DiTullio opened the public hearing . Councilmember Langworthy introduced Resolution 35-2013 and Resolution 34-2013. There was no staff presentation. The applicant, Tom Phillips, came forward to correct the misspelling of the name of his company. It is Muscle, not Musel. Mayor DiTullio closed the public hearing . City Council Minutes September 9, 2013 Page 7 Motion by Councilmember Langworthy to approve Resolution No. 35-2013, a resolution authorizing the execution of an agreement with Musel 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; and further 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; seconded by Councilmember DeMott; Mr. Dahl asked Mrs. Langworthy to provide a separate motion for each resolution. Mrs. Langworthy asked that her previous motion only include the first resolution. The motion carried 7-0. Motion by Councilmember Langworthy 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 100% of the eligible use tax in association with the construction of a new building at 4565 Kipling Street in Wheat Ridge; seconded by Councilmember DeMott; carried 7-0. 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 Councilmember Starker introduced Council Bill 13-2013 . This ordinance regulates and licenses retail marijuana businesses seeking to operate in the City of Wheat Ridge and establishes the appropriate zoning. Mr. Dahl noted that the motion, as printed, provides for the ordinance to take effect 15 days after publication . To make sure we are in compliance with the state's requirement that these regulations be in place by October 1, 2013, he recommended having the ordinance go into effect upon final adoption. Motion by Councilmember Starker 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, City Council Minutes September 9, 2013 Page 8 and that it take effect upon final adoption; seconded by Councilmember Reinhart; carried 5-2, with Councilmembers Langworthy and Jay voting no. DECISIONS, RESOLUTIONS AND MOTIONS 6 . Resolution 32-2013-Approving the City of Wheat Ridge Coyote Management Plan Councilmember Jay introduced Resolution 32-2013. The City has created this Coyote Management Plan to provide information on how to safely co-exist with coyotes . It requires active participation from the community. It employs educational programs and provides guidelines and standards for the response to and reporting of human-coyote conflicts . The City uses educational outreach as the primary tool , but recognizes some situations may require immediate letha l control. Motion by Councilmember Jay to approve Resolution No. 32-2013, a resolution approving the City of Wheat Ridge Coyote Management Plan ; seconded by Councilmember Langworthy . Rhonda Champion, an animal welfare commissioner and longtime resident, addressed some issues in the plan. She acknowledged the great detail of the first five pages and noted several places in the Plan that say leg hold traps are not to be used . She also noted that last year a leg hold trap was used in the City on 38 1h Avenue . She held up a steel leg hold trap and discussed its capabilities. What if a loose pet was an accidental victim of this type of trap? How would it be handled? She referenced today's rain storm , the kind of storm that produces runaway pets. Although the CMP states in several places that leg hold traps will not be used, there is allowance for them in certain cases. She suggested that the CMP does not address when they are to be used and that specific, measurable procedures are not in place . She explained a number of alternative traps that are more humane . She appreciates the plight of the CSO's (Community Service Officers) who handle these matters, but suggests that measurable, specific guidelines are followed routinely in other aspects of their job. She asked that the decision to approve the Coyote Management Plan be postponed until those issues can be addressed . Discussion followed. Councilmember Stites asked how often leg hold traps are used. Chief Brennan said a leg hold trap was used last year by the Division of Wildlife, but our ordinance is quite clear about what kinds of traps can and can't be used . The Animal Welfare Commission has requested changes and the department has made those changes . City rules and procedures are clear about the use of humane traps . Commander Lorentz said we use traps with rubber jaws that are listed as humane traps in our code. City Council Minutes September 9, 2013 Page 9 • Councilmember Jay had concerns about the certainty of what traps are excluded from the code definition of a humane trap. Commander Lorentz says we cannot use steel leg hold traps, but Colorado Div. of Wildlife can. • Councilmembers Starker and DeMott were confident that it says that steel traps cannot be used in the City . • Commander Lorentz replied to Mr. DeMott that monitored traps and traps with signal devices are cost prohibitive. Since this has only happened once in eight years, he said if it were to become a frequent event they would come to Council for a budgetary request or they would try to borrow something from another agency. Motion carried 7-0. 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 Councilmember Starker introduced Agenda Item #7 This is a scheduled and budgeted replacement of obsolete Microsoft software licenses at all City facilities and includes the support and maintenance that are necessary for the upgrades and new software. It also provides discounts on software licenses, professional services and planning and training vouchers from Microsoft. Motion by Councilmember Starker to approve payment to Insight Public Sector Inc., in the amount of $51,618.51 for the annual renewal of the Microsoft Enterprise Agreement; Seconded by Councilmember DeMott; carried 7-0 ~ 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 Councilmember Stites introduced Resolution 36-2013 This aweement provides the funding for Urban Renewal to purchase property at 7690 W . 38t Avenue and 3790 Yukon as part of the redevelopment of that area-to be called Wheat Ridge Corners. The purchase price is $390,000 and the seller has agreed to contribute up to $50,000 for environmental remediation as credit towards the purchase price. City staff and Urban Renewal are working with an environmental consultant and the State to determine the cost of remediation that is acceptable to the State. If the cost of remediation is $50,000 or less staff will recommend going ahead with the purchase. If it is more than $50,000 staff will return to Council for direction. City Council Minutes September 9, 2013 Page 10 Motion by Councilmember Stites 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; seconded by Councilmember Reinhart; Mr. Starker asked if there was a committed buyer. Mr. Goff said the potential developer is in the audience and available for questions. The purchase in question is essential to the redevelopment of the corner as it provides access to the site from Yukon Court. The developer has stated several times that if that access isn't available they won't develop the property. -Mr. Starker also asked if we can get a sales agreement for this if we were to purchase it. Mr. Goff said they are working on that as well as the cost for remediation. Mrs. Jay asked if the testing was being covered by the EPA brownfields grant the City received. Mr. Goff said it was, a $400,000 federal grant for Phase I and II and preparation of the Plan for remediation that the State requires. The grant does not cover any actual remediation work-only the plan . The motion carried 7-0. 9. Report on Investigation of Disclosure of Individual Sales Tax Records Mr. Starker stated the Council had received a confidential report from Mr. Dahl on the investigation they had directed him to do subsequent to a complaint by Councilmember DeMott. Motion by Mr. Starker to make the report available to the public; seconded by Councilmembers Davis and Jay. Mr. Dahl advised that Councilmember Reinhart should abstain on a vote to release the report because the report, in part, addresses his actions. Mr. Reinhart disagreed . Motion carried 6-0 , with Mr. Reinhart abstaining. Mr. Starker thanked Mr. Dahl for the thorough investigation by his agent, Mr. Light. He feels good questions were asked and that the answers were truthful and credible . He noted that there was no finding that Mr. Reinhart or Mr. Goff did anything wrong. Mr. Dahl noted his recommendation for some changes to improve Code Section 22-50: • Refining to whom tax information can be distributed and for exactly what purposes, and • Providing for the disclosure to law enforcement if there is a violation . Motion by Counci lmember Langworthy to have the recommended code changes brought back for 1st reading; seconded by Councilmember Davis; carried 7-0. City Council Minutes September 9, 2013 Page 11 CITY MANAGER'S MATTERS Patrick Goff reported to Council that the 2014 Budget would be coming to them tomorrow, for discussion next Monday evening . It will then be on the City's website for public view and a copy will also be available here at City Hall. CITY ATTORNEY'S MATTERS CITY CLERK'S MATTERS ELECTED OFFICIALS' MATTERS Kristi Davis expressed her disappointment about the recent mayoral veto on the sales tax ballot issue --the veto itself and the manner in which it was done. She wishes the Mayor had voiced his concerns earlier so they could have compromised with something everyone could be united on . -On the Mayor's reasons for the veto she stated : • The Mayor's survey on 38th Avenue is statistically insignificant. • Of the $615,000 he says was spent on the road diet for 38th Avenue, only about 50% of that was for the physical narrowing of the street; the rest was spent on pop-up cafes, marketing, activities, etc. He should be honest about the numbers. • The Mayor claims this Counci l has lost the trust of the citizens, but the current Council is just implementing the road diet. The road diet was approved at the last meeting of the previous outgoing Council. • The Mayor is always asking for listening and compromise, but he failed to do the same. He should have let the voters do the veto. Bud Starker read a statement from Councilmember Pond , who was absent. It stated: • The Mayor's veto is wrong as it allows one voice to pre-empt the voice of 30 ,000, and it's a dangerous outline of politics and policy this city can 't allow. • The ballot measure addresses high quality infrastructure which encourages high quality residential and providing high quality services. • It's inappropriate to use a statistically deficient survey to claim the efforts on 38th Ave. have been a waste. To do so is ignorant of purpose and scope. 38th Ave. is no longer in a state of decay, and to suggest there hasn't been listening, compromise and forethought is grossly out of touch with reality. • It's irresponsible to suggest there are abundant resources available. • It's an insult to suggest Council has not lived up to its fiduciary responsibility. • It's incorrect to suggest the current reserve creates an artificial shortfall, and spending down to 17% would only help short term. • The veto is ill-conceived in its basis, inefficient in its proposed execution, ignorant of context, irresponsible, inaccurate and imprudent. Mr. Starker also stated that he personally had hoped the Council could have brought ideas to the citizens and have a dialog about the fiscal and financial health of the City. That is a noble goal and he's disappointed that discussion won't happen . City Council Minutes September 9, 2013 Page 12 Mike Stites announced that the new restaurant Wine Not (the old Mercedes on 41st & Kipling) will be on Diners, Drive-ins and Dives (Channel 47) on either Sept 13 or Sept 16. -Also, Davie's Chuckwagon is having its grand opening party this Saturday at their new location at 10151 W . 261h Ave . They are open from 6am until11pm, but there will be music and drawings from 1 Oam -8pm. There are also prizes for every adult with the purchase of a meal and free candy for the kids . Tracy Langworthy announced the Live Local event this Thursday at the Twisted Smoothie on 5640 W . 291hAvenue . -She said she ran for office to make a difference, and she feels the veto has taken away her right to talk with people about all the things the City could do if taxes were raised.-Regarding the investigation about Mr. Reinhart, she is bothered that it was done publicly. Mr. Reinhart did something that the report says wasn't wrong . It wasn 't right ; it's just something we need to adjust our rules about to be more concise . He wasn't out to harm anyone ; he just wanted information to help him make a better decision . She believes this should have been handled behind the scenes and she wants Councilmembers to be more respectful of each other. Joyce Jay is delighted the report revealed that Mr. Reinhart's and Mr. Goff's actions were not purposely or intentionally out of line. She 's delighted they've been fully and totally cleared . Davis Reinhart announced that Joyce, Kristi, Bud and he have sponsored the Live Local team in the Farmers 5000 . He encouraged folks to come run or walk and support the Farmers . -He noted bids will soon be due for the Chase Street drainage project so that will be happening soon. -He thanked the investigator for a quick and thorough job of clearing him of any wrong do ing. He explained that his motive in asking for tax information was to better understand the impact that Council 's decisions were having on businesses . He also thanked those councilmembers who supported him and gave him the benefit of the doubt in the face of falsehoods, hearsay and attacks on his personality. Mayor DiTullio said that based on conversations he's had with residents the past year and a half he stands by his veto of the sales and use tax ballot question . From his veto he read into the record : "My reasons for vetoing this ordinance are as follows: 1. Both mayoral candidates voted "NO" on the ordinance on 2nd Reading which indicates that Council is not united on this issue. This is a recipe for failure. 2 . The proposed sales tax ballot question results in the C ity of Wheat Ridge having one of the highest sales tax rates in the Denver metro area at 8.5% (currently 7.5%). [He stated that is factual.] 3. The proposed sales tax ballot question results in a 33% increase in the cost to retail consumers . Currently , the median income for a family of four (4) in Wheat Ridge is $44 ,000. [He added that the median salary for City employees is $55,000, based on HR information.] City Council Minutes September 9, 2013 Page 13 4. The proposed sales tax ballot question results in a 33% increase in the cost of development and/or redevelopment in the form of increased use tax. This creates more roadblocks and expenses for redevelopment in Wheat Ridge. 5. The proposed sales tax ballot question does not have a sunset provision . 6 . Studies have shown that quality retail follows residential. [He said that is not a theory. It is fact and has been discussed with the City Manager.] Housing in Wheat Ridge is made up of 47% rental properties, many of which are occupied by families with low disposable income (see #2 above). The proposed sales tax ballot question does not address future funding for improving the housing stock and promoting home ownership in Wheat Ridge as described in the Neighborhood Revitalization Strategy (NRS) via public/private partnerships. [The Mayor said that was not some pie-in-the-sky decision he asked for; it's from the $400,000 study.] 7 . City of Wheat Ridge Council and staff have not completed the Priority Based Budgeting process. [No criticism of staff here.] City Council has not proposed any budget cuts using the "less of a priority programs and projects" from the Quartile 4 and Quartile 3 budget levels. For example, in 2012 the following Quartiles were proposed by staff: Quartile 1: $15,370,417 or 51% of General Fund spending Quartile 2 : $ 5,645,502 or 19% Quartile 3: $ 6,175,077 or 20% Quartile 4: $ 3,069,081 or 10% Conceivably, the Council could data mine and find $3 million in savings per year if the quartiles were properly reviewed and city budgets were trimmed accordingly. The budget cuts would lessen the amount of new taxes needed in the proposed sales tax increase. Council has not performed the needed due diligence on the City budget to demonstrate fiscal responsibility to the voters. 8. Based on my 38th Avenue survey and comments from constituents across the City, I believe City Council had lost trust of the public by spending over $615,000 on a two-lane "pilot" project for 38th Avenue which has divided residents and business owners. Council has created a win-lose situation [especially in Districts 1 and 2, where you now have traffic leaving 38th and driving onto residential streets, resulting in Council wanting to start traffic calming programs in the residential areas where there is now too much traffic]. This situation could have been avoided with a little listening, compromise and forethought by City Council. [He referenced Councilmembers Stites and DeMott asking for no back-in parking, but that never made it through the process of this Council or the previous Council.] 9 . Maintaining a 17%-25% reserve creates an artificial shortfall of funds. The reserve funds should be used on public works and redevelopment projects. Other cities (as well as previous City Councils) maintain an 8%-15% reserve. It's time to spend taxpayer money on the taxpayers and not hoard tax dollars for some future disaster. This reserve policy is not fiscally conservative; it is too extreme and not sound public policy" [in his opinion]. City Council Minutes September 9, 2013 Page 14 Meeting adjourned at 9:00pm . APPROVED BY CITY COUNCIL ON September 23, 2013 BY A VOTE OF to -- -- Davis Reinhart, Mayor pro tern The preceding Minutes were prepared according to §47 of Robert 's Rules of Order, i.e. they contain a record of what was done at the meeting , not what was said by the members . Recordings and DVD 's of the meetings are available for listening or viewing in the City Clerk's Office , as well as copies of Ordinances and Resolutions . ITEM N 0: _!...fL_ DATE: September 23 ,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 D PUBLIC HEARING D BIDS/MOTIONS D RESOLUTIONS QUASI-JUDICIAL: City Attorney ISSUE: D ORDINANCES FOR 1ST READING (09 /09/2013) I:8J ORDINANCES FOR 2 ND READING (09/2 3/2013) D YES I:8J 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 of this year, the General Assembly, through House Bill 13-1317, enacted the Colorado Retail Marijuana Code (C.R.S . §§ 12-43.4-101 et seq.) which authorized the state to license and regulate the sale, distribution , culti v ation , growth, manufacture and testing of retail V:\Fom1s\CAFtemplate Council Action Form September 23, 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 pennit concerning retail marijuana establishments and marijuana clubs. Council reviewed and discussed ordinance options with staff at the August 5, 2013 study session. Council adopted Council Bill 13-2013 on first reading on September 9, 2013. Staff noted a spelling eiTor in subsection 11-404(e) on page 7 which read "No marijuana clubs may operation or obtain a business license to operate withjn the city." That provision has been amended in the attached version of Council Bill 13-2013 to read "No marijuana clubs may operate or obtain business license to operate within the city." 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 marijuana establishments in a ma1mer that is similar Council Action F orm September 23 , 2013 Page 3 to how the City regulates medical marijuana businesses. This Ordinance has been drafted in accordance with those recommendations and state law. 1. 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 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 8:00 a.m. and 7:00 p .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 as amended , on second reading and that it take effect upon final adoption as provided by Section 5.11 ofthe Charter." Or, Council Action Form September 23, 2013 Page4 "I move to table indefinitely Council Bill No. 13-2013 concerning licensing of retail marijuana establishments for the following reason(s) " 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 STARKER 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 ord inance . 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 I 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 ingredient combined with marijuana to prepare topical or oral administrations , food, drink, or other product. Marijuana clubs means establishments other than private residences , medical marijuana establishments 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 applications 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 Licensing 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 licensing 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 operate 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 misrepresentation; 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 licens i ng 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 conditions 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 cond itional 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) The burden of proof in an appeal filed under this section shall be on the applicant. (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 (1 0) 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 upon final adoption as provided by Section 5.11 of the Charter. 14 INTRODUCED, READ, AND ADOPTED on first reading by a vote of 5 to 2 on this 9th 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 23, 2013 at 7:00 p.m., in the Council Chambers, 7500 West 29th 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. ATIEST: Janelle Shaver, City Clerk First Publication: September 12, 2013 Second Publication: Wheat Ridge Transcript Effective Date: Jerry DiTullio, Mayor Approved as to Form Gerald E. Dahl, City Attorney 15 () 0 c: <: -; -< • 1 ~ m :d z 0 ~ m SIMMS ST PIERCE ST - HARLAN ST ~~A4' ... ~ "" City of • ?WheatRi_dge ITEM NO:~ DATE : September 23 , 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 37-2013 -A RESOLUTION APPROVING RULES AND REGULATIONS FOR THE PURPOSE OF MANAGING CERTAIN REAL PROPERTY FOR RECREATIONAL GOLD PANNING 0 PUBLIC HEARING D BIDS/MOTIONS [gj RESOLUTIONS QUASI-JUDICIAL: ISSUE: 0 ORDINANCES FOR 1sT READING 0 ORDINANCES FOR 2ND READING D YES There is an area ofland west of 1-70 and Youngfield at 41 st A venue adjacent to Clear Creek that is within the City of Wheat Ridge boundaries. This land is owned by Jefferson County. This area is undeveloped and appears to be a continuation of open space, but is vacant land located in the master plan area for the Clear Creek development project. Because the land is neither County nor City of Wheat Ridge open space, the gold panning activity that occurs in the creek is not managed. Due to the lack of management of this area, the activity is impacting trail use and the integrity of the creek bed and banks. For many years recreational users of the site have been requesting that rules be created and enforced in the area that allows recreational gold panning only. PRIOR ACTION: City Council accepted a trail corridor easement from the County through this area on March 14 , 2011. Council Action Form September 23 , 2013 Page2 City Council approved a lease agreement with Jefferson County for managing certain real property for recreational gold panning on July 22, 2013. Jefferson County Commissioners approved the lease on June 25, 2013. FINANCIAL IMPACT: The financial impact for tllis program will be approximately $2 ,000 for rules signage and fonnalizing social trails from Clear Creek trail to the creek. BACKGROUND: Gold panning is an activity that has been occurring in this area of Clear Creek for over 100 years . The area is historically referred to as the Arapahoe Bar. To access this area of the creek , users carry or trailer their equipment and walk in on the Clear Creek trail. Jefferson County Open Space does allow gold panning in open space areas , specifically Clear Creek, located in the Clear Creek canyon west of Golden. The City of Wheat Ridge does not allow gold panning in Clear Creek within the Wheat Ridge Greenbelt. Rules have been developed with user groups, county open space staff and City ofWheat Ridge staff. The area will be open to the public, sunup to sundown , which is consistent with the Wheat Ridge Greenbelt hours. The area will be maintained by City of Wheat Ridge Open Space staff. It is the intent of the County that this property remains in the master plan for the Clear Creek Crossing development and all options for use of the property remain available. RECOMMENDATIONS: Staffrecommends approval ofResolution No. 37-2013 RECOMMENDED MOTION: "I move to approve Resolution No. 37-2013, a resolution approving Rules and Regulations for the purpose of managing certain real property for recreational gold panning." Or, "I move to postpone indefinitely Resolution No. 37 -2013 , a resolution approving rules and regulations for the purpose of managing certain real property for recreational gold panning." REPORT PREPARED/REVIEWED BY: Joyce Manwaring, Director Parks and Recreation Patrick Goff, City Manager ATTACHMENTS: 1. Resolution No. 3 7-2013 CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 37 Series of 2013 TITLE: A RESOLUTION APPROVING RULES AND REGULATIONS FOR THE PURPOSE OF MANAGING CERTAIN REAL PROPERTY FOR RECREATIONAL GOLD PANNING WHEREAS, the City of Wheat Ridge is the lessee of certain real property owned by Jefferson County and leased to the City by Resolution 25-2013; and WHEREAS, such property is described in Exhibit A attached hereto ("Lease Property''); and WHEREAS, the City, acting through its City Council, has determined it to be in the interest of its residents to enter into the lease with Jefferson County to develop, operate, and maintain the Lease Property for public recreational gold panning; and WHEREAS, the lease permits the City to adopt necessary rules and regulations; and WHEREAS, the City Council finds that certain rules and regulations are required to manage recreational gold panning on the Lease Property. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, as follows: THE RULES AND REGULATIONS FOR THE PURPOSE OF MANAGING CERTAIN REAL PROPERTY FOR RECREATIONAL GOLD PANNING, ATTACHED HERETO AS EXHIBIT B, ARE HEREBY APPROVED. DONE AND RESOLVED this 23rd day of September 2013. Jerry DiTullio, Mayor ATTEST: Janelle Shaver, City Clerk Attachment 1 CLEAR CREEK GOLD PANNING LEGAL DESCRIPTION EXHIBIT A LEASE PROPERTY [description/map] A PARCEL OF lAND LOCATED IN TRACT C OF CLEAR CREEK CROSSING SUBDIVISION FILING NO 1, AS RECORDED IN RECEPTION NUMBER 2011072532 OF THE JEFFERSON COUNTY RECORDS AND ALSO LOCATED IN THE NORTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 20, TOWNSHIP 3 SOUTH , RANGE 69 WEST OF THE SIXTH PRINCIPAL MERIDIAN , CITY OF WHEAT RIDGE, COUNTY OF JEFFERSON, STATE OF COLORADO AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS· ALL THAT PART OF SAID TRACT C LYING NORTHERLY OF THE TRAIL EASEMENT DESCRIBED IN RECEPTION 2011032502 OF THE JEFFERSON COUNTY RECORDS . lAWRENCE l. PFIFER, PLS 27612 PREPARED FOR AND ON BEHALF OF JEFFERSON COUNTY JEFFERSON COUNTY OPEN SPACE 700 JEFFERSON COUNTY PARKI/VAY , SUITE 100 GOLDEN, CO 80401 (303) 271-5925 EXHIBIT B Rules and Regulations for Gold Panning RECREATIONAL GOLD PANNING GUIDELINES • Be courteous to other park visitors • Please stay on designated paths • Follow trail etiquette on the Clear Creek Trail • Respect the natural resources RULES AND REGULATIONS • Prospecting activities , including panning and sluicing are permitted within the creek bed only • No digging on the south side of the creek • Prospecting is allowed on the north side of the creek on tailings piles and non- vegetative areas providing all holes are filled . No digging around trees or under vegetation • Vertical digging only • No gas powered equipment is allowed • Battery equipment is allowed, battery must be contained in a battery box ALL OTHER CITY OF WHEAT RIDGE PARK RULES AND REGULATIONS APPLY ~~A., , ~ ~ City of • ?WlieatRi_dge ITEM NO:~ DATE: September 23 , 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 38-2013 - A RESOLUTION APPROVING A CONTRACT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION FOR MAINTENANCE OF TRAFFIC SIGNALS 0 PUBLIC HEARING D BIDS /MOTIONS r8J RESOLUTIONS QUASI-JUDICIAL: ISSUE: D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2 ° READING D YES The current agreement to maintain CDOT traffic signals at 1-70 and 32"d A venue is expiring and the City wishes to continue the maintenance. Procuring a new agreement is necessary to accomplish this task. Three traffic signals at the l-70/32"d Avenue Interchange owned by the Colorado Department of Transportation (CDOT) are currently being operated and maintained by the City. The City is eligible to receive compensation for maintaining these CDOT-owned facilities. The attached Intergovernmental Agreement (IGA) provides for payment of$280 per month per traffic signal for a term of five years. The total yearly compensation will be $10,080. PRIOR ACTION: The City Council approved an IGA with CDOT authorizing the previous agreement on August 11 , 2008 , to maintain the traffic signals. FINANCIAL IMPACT: The City will receive $10 ,080 per year to maintain three traffic signals at the I-70/32"d A venue Interchange. Council Action Form September 23 , 2013 Page2 BACKGROUND: In 2011 , City and COOT staffs discussed maintenance obligations concerning new highway and street facilities that would be constructed to accommodate the proposed Cabela's shopping center. COOT currently requires ownership of traffic signals that control vehicles entering and leaving state freeways, including 1-70 and SH58. Because the traffic signals (both existing and proposed) should be coordinated with City-owned traffic signals , CDOT has agreed to City operation and maintenance of the COOT signals. With the delay in a large redevelopment project in this area , staff pursued a maintenance contract with COOT for the existing traffic signals at the I-70 /32nd A venue Interchange. These signals are located at the west-bound on/off ramp intersection with 32nd A venue, at the east-bound off ramp intersection with Youngfield Street and at the eastbound on ramp intersection with Youngfield Street. Once new highway improvements , including new traffic signals are in place, the maintenance agreement will be amended. Until such time when new highway and streets referenced above are built, the City and CDOT wish to continue maintaining the current agreement. Execution of a new agreement is now required as the current one IS expmng. The City Attorney has reviewed and approved the proposed contract with CDOT. RECOMMENDATIONS: Staff recommends continuing to maintain these existing traffic signals utilizing City staff. This will ensure that these signals will operate in a coordinated manner with the City's adjacent signals. RECOMMENDED MOTION: "I move to approve Resolution No. 38-2013 , a resolution approving a contract with the Colorado Department of Transportation for maintenance of traffic signals." Or, "I move to postpone indefinitely Resolution No. 38-2013 , a resolution approving a contract with the Colorado Department ofTransportation for maintenance of traffic signals , for the following reason(s) " REPORT PREPARED/REVIEWED BY: Steve Nguyen, Engineering Manager Scott Brink , Director of Public Works Patrick Goff, City Manager ATTACHMENTS: I. Resolution No . 39-2013 2. COOT Contract 3. Traffic Signal Map CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 38 Series of 2013 TITLE: A RESOLUTION APPROVING A CONTRACT WITH THE COLORADO DEPARTMENT OF TRANSPORTATION FOR MAINTENANCE OF TRAFFIC SIGNALS WHEREAS, the City Council wishes to cooperate with the Colorado Department of Transportation concerning maintenance of traffic signals in the City; and WHEREAS, the City has negotiated a contract with the Colorado Department of Transportation for the City to maintain three traffic signals at the l-70/32nd Avenue Interchange; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado, that: Section 1. Contract Approved. The contract between the City and the Colorado Department of Transportation for maintenance of three traffic signals at the l-70/32nd Avenue Interchange is hereby approved and the Mayor and City Clerk are authorized and directed to execute the same. Section 2. Effective Date ------- This Resolution shall be effective immediately upon adoption . . DONE AND RESOLVED this __ day of _____ , 2013. Jerry DiTullio, Mayor ATIEST: Janelle Shaver, City Clerk Attachment 1 (State $SB8) Traffic Control Device Mtce Wheat Ridger/Region 6/(LDB) CONTRACT Rev 3/13 014 HA6 00095 CMS ID 04-1 07 THIS CONTRACT made this _ day of _______ 20_, by and between the State of Colorado for the use and benefit of the Colorado Department of Transportation hereinafter referred to as the State and CITY OF WHEAT RIDGE, 7500 West 29th Avenue, Wheat Ridge , Colorado , 80033 , CDOT Vendor# 2000099 , hereinafter referred to as the "Contractor" or the "Local Agency." RECITALS 1. Authority exists in the law and funds have been budgeted, appropriated and otherwise made available and a sufficient uncommitted balance thereof remains available for payment of project and Local Agency costs in Fund Number 400 , Appropriation Code 010, Organization Number 6580, Program 3000, Function 2903 , Object 1920 1N , Reporting Category 6580. 2. Required approval , clearance and coordination has been accomplished from and with appropriate agencies. 3. Section 43-2-135(l)(i) C.R.S., as amended , requires the State to install, operate, maintain and control , at State expense, all traffic control devices on the state highway system within cities and incorporated towns ; and; 4. The parties desire to enter this Contract for the Contractor to provide some or all of the certain maintenance services on state highways that are the responsibility of the State under applicable law , and for the State to pay the Contractor a reasonable negotiated fixed rate for such services; 5. The parties also intend that the Contractor shall remain responsible to perfonn any services and duties on state highways that are the responsibility of the Contractor under applicable law, at its own cost; 6. The State and the Contractor have the authority, as provided in Sections 29-1-203 , 43-1-106 , 43-2-103 , 43-2-104, and 43-2-144 C.R.S., as amended , and in applicable ordinance or resolution duly passed and adopted by the Contractor, to enter into contract with the Contractor for the purpose of maintenance of traffic control devices on the state highway system as hereinafter set forth; and 7. The Contractor has adequate facilities to perform the desired maintenance services on State highways within its jurisdiction. THE PARTIES NOW AGREE THAT: Section 1. Scope of Work All of the specific location(s) and type(s)oftraffic control device(s)to be operated and maintained by the Contractor pursuant to this contract are described in Exhibit A , attached hereto Attachment 2 Pa ge-1 -of 10 and incorporated herein. Such services and highways are further detailed in Section 5. Section 2. Order of Precedence In the event of conflicts or inconsistencies between this contract and its exhibits , such conflicts or inconsistencies shall be resolved by reference to the documents in the following order of priority: I. Special Provisions contained in section 22 of this contract 2. This contract 3. Exhibit A (Scope ofWork) 4. Exhibits D and E (Contract Modification Tools) 5. Other Exhibits in descending order of their attachment. Section 3. Term Thi s contract shall be effecti ve upon appro val of the State Controller or designee , or on the date made , whichever is later. The term of this contract shall be for a term of FIVE (5) years. Provided , however, that the State's financial obligation for each subsequent, consecutive fiscal year of that tenn after the first fiscal year shall be subject to and contingent upon funds for each subsequent year being appropriated , budgeted , and otherwise made available therefore . Section 4. Project Funding and Payment Provisions A. The Local Agency has estimated the total cost of the work and is prepared to accept the state funding for the work , as evidenced by an appropriate ordinance or resolution duly passed and adopted by the authori zed representatives of the Local Agency, which expressly authori zes the Local Agency to enter into this contract and to complete the work under the project. A copy of this ordinance or resolution is attached hereto and incorporated herein as Exhibit B. B. Subject to the terms of this Contract, for the satisfactory performance of the maintenance services on the Highways , as described in Section 5, the State shall pay the Contractor on a lump sum basis , payable in monthly installments , upon receipt of the Contractor's statements , as provided herein . 1. The State shall pay the Contractor for the satisfactory operation and maintenance of traffic control devices under this contract at the rates described in Exhibit C , which is attached hereto and made a part hereof. Provided , however, that the total charges to be paid by the State during each fiscal year begitming July 1 and ending June 30 ofthe following year shall not exceed a maximum amount of $10 ,080.00 without the benefit of a supplemental agreement executed prior to any such excess charges being incurred. Contractor billings and State payments for each of the traffic control devices listed in Exhibit A shall be on a "lump sum" basis , in accordance with the rates described in Exhibit C , subject to the maximum amount described above. The Contractor will bill the State monthly and the State will pay such bills within 60 days . 2. The statements submitted by the Contractor for which payment is requested shall contain an adequate description of the type(s) and the quantity(ies) of the maintenance services perfonned, the date(s) of that performance, and on which specific sections of the Highways such services were perfonned , in accord with standard Contractor billing standards . Page-2 -of 1 0 3. If the Contractor fails to satisfactorily perform the maintenance for a segment of the Highways (or portion thereof), or if the statement submitted by the Contractor does not adequately document the payment requested , after notice thereof from the State, the State may deduct and retain a proportionate amount from the monthly payment, based on the abo ve rate , for that segment or portion. Section 5. State and Local Agency Commitments A . The Contractor shall perform the "highway maintenance services" for the certain State Highway System segments described herein. Such services and highways are detailed in Section 1 (or Exhibit A}. B. The Contractor shall operate and maintain the specific traffic control devices , and at the particular locations , all as listed on Exhibit A ("the Work"), in a manner that is consistent with current public safety standards on state highways within its jurisdictional limits , and in conformance with applicable portions of the "Manual on Uniform Traffic Control Devices" and the "Colorado Supplement" thereto , which are referred to collectively as the "Manual" and which are incorporated herein by reference as terms and conditions of this Contract. The Contractor shall provide a11 personnel , equipment, and other services necessary to satisfactorily perform such operation and maintenance. C. The State shall have the option to add or delete, at any time during the term ofthis Contract, one or more specific traffic control devices from those listed in Exhibit A , and therefore amend the Work to be performed by the Contractor under this Contract. The State may amend Exhibit A by written notice to the Contractor using a change order letter substantially equivalent to Exhibit D. D . The Contractor may propose, in writing, other potential specific traffic control devices to be operated and maintained by the Contractor during the term of this contract, based on the same rates that had been initially agreed to by the Contractor in Exhibit C. If the State determines in writing that operation and maintenance of those other devices by the Contractor is appropriate, and is desirable to the State, and if the State agrees to add such devices to this contract, then the State shaH , by written Change Order issued to the Contractor in a fonn substantially equivalent to Exhibit D , add such devices to this contract. E . The Contractor shall perform all maintenance services on an annual basis. The Contractor's performance of such services shall comply with the same standards that are currently used by the State for the State's performance of such services , for similar type highways with similar use, in that year, as determined by the State. The State's Regional Transportation Director, or his representative , shall determine the then current applicable maintenance standards for the maintenance services. Any standards/directions provided by the State's representative to the Contractor concerning the maintenance services shall be in writing. The Contractor shall contact the State Region office and obtain those standards before the Contractor perfonns such services. F. The Contractor shall perform the maintenance services in a satisfactory manner and in accordance with the terms of this Contract. The State reserves the right to detennine the proper quantity and quality of the maintenance services performed by the Contractor, as well as the adequacy of such services, under this Contract. The State may withhold payment, if necessary, until Contractor performs the maintenance services to the State's satisfaction. The State will notify the Contractor in writing of any deficiency in the maintenance services. The Contractor shall commence corrective action within 24 hours of receiving actual or constructive notice of such deficiency: a) from the State ; b) from its own observation ; or c) by any other P age-3 - of I 0 means. In the event the Contractor, for any reason, does not or cannot correct the deficiency within 24 hours, the State reserves the right to correct the deficiency and to deduct the actual cost of such work from the subsequent payments to the Contractor, or to bill the Contractor for such work. G. Performance Measures shall be accounted for within the duration of this contract. Perfonnance Measures will be associated with signal/electrical maintenance, pavement marking maintenance and sign maintenance. Perfonnance Measures shall be addressed twice a year for all years of this contract. Contractor shall develop an inspection schedule that insures all items listed in Exhibit A are inspected once every 6 months. The inspection schedule shall be approved by CDOT project manager prior to initiating inspections. The Contractor shall submit performance documentation to CDOT Project manager no later than the April 1 0111 and October 1Oth of each calendar year covered by this contract. Perfonnance records shall be kept by the Contractor for a minimum of three years and a copy sent to the CDOT Project Manager listed in this contract. Section 6. Record Keeping The Local Agency shall maintain a complete file of all records , documents , communications, and other written materials , which pertain to the costs incurred under this contract. The Local Agency shall maintain such records for a period of six (6) years after the date of tennination of this contract or final payment hereunder, whichever is later, or for such further period as may be necessary to resolve any matters which may be pending. The Local Agency shall make such materials available for inspection at all reasonable times and shall permit duly authorized agents and employees of the State and FHWA to inspect the project and to inspect, review and audit the project records. Section 7. Termination Provisions This contract may be tenninated as follows: This Contract may be terminated by either party, but only at the end of the State fiscal year (June 30), and only upon written notice thereof sent by registered, prepaid mail and received by the non- terminating party not later than 30 calendar days before the end of that fiscal year. In that event, the State shall be responsible to pay the Contractor only for that portion of the traffic control device maintenance services actually and satisfactorily performed up to the effective date of that termination , and the Contractor shall be responsible to provide such services up to that date, and the parties shall have no other obligations or liabilities resulting from that termination. Section 8. Legal Authority The Local Agency warrants that it possesses the legal authority to enter into this contract and that it has taken all actions required by its procedures, by-laws, and/or applicable law to exercise that authority, and to lawfully authorize its undersigned signatory to execute this contract and to bind the Local Agency to its terms. The person(s) executing this contract on behalf of the Local Agency warrants that such person(s) has full authorization to execute this contract. Section 9. Representatives and Notice The State will provide liaison with the Local Agency through the State's Region Director, Region 6, 2000 S. Holly Street , Denver, Colorado 80222 , (303) 757-9511. Said Region Director will also be responsible for Page-4-of 10 coordinating the State's activities under this contract and will also issue a "Notice to Proceed" to the Local Agency for commencement of the Work. All communications relating to the day-to-day activities for the work shall be exchanged between representatives of the State's Transportation Region 6 and the Local Agency. All communication, notices , and correspondence shall be addressed to the individuals identified below . Either party may from time to time designate in writing new or substitute representatives. Ifto State: Alazar Tesfaye, P .E . CDOT Region 6 Traffic Operations Engineer 2000 S. Holly St. Denver, CO 80222 (303) 757-9511 Section 10. Successors If to the Local Agency: Scott Brink City of Wheat Ridge Director of Public Works 7500 W. 29th Avenue Wheat Ridge, CO 80033 (303) 235-2860 Except as herein otherwise provided , this contract shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. Section 11. Third Party Beneficiaries It is expressly understood and agreed that the enforcement of the terms and conditions of this contract and all rights of action relating to such enforcement, shall be strictly reserved to the State and the Local Agency. Nothing contained in this contract shall give or allow any claim or right of action whatsoever by any other third person. It is the express intention of the State and the Local Agency that any such person or entity, other than the State or the Local Agency receiving services or benefits under this contract shall be deemed an incidental beneficiary only. Section 12. Governmental Immunity Notwithstanding any other provision of this contract to the contrary, no term or condition of this contract shall be construed or interpreted as a waiver, express or implied , of any of the immunities , rights , benefits , protection, or other provisions of the Colorado Governmental Immunity Act,§ 24-10-101 , et seq., C.R.S., as now or hereafter amended. The parties understand and agree that liability for claims for injuries to persons or property arising out of negligence of the State of Colorado , its departments , institutions , agencies , boards, officials and employees is controlled and limited by the provisions of§ 24-10-101 , et seq., C.R.S., as now or hereafter amended and the risk management statutes, §§ 24-30-1501 , et seq., C.R.S., as now or hereafter amended . Section 13. Severability To the extent that this contract may be executed and performance of the obligations of the parties may be accomplished within the intent of the contract, the terms of this contract are severable, and should any term or provision hereof be declared invalid or become inoperative for any reason , such invalidity or failure shall not affect the validity of any other term or provisiOn hereof. Page - 5 - of 1 0 Section 14. Waiver The waiver of any breach of a term , provision, or requirement of this contract shall not be construed or deemed as a waiver of any subsequent breach of such term , provision , or requirement, or of any other term , provision or requirement. Section 15. Entire Understanding This contract is intended as the complete integration of all understandings between the parties . No prior or contemporaneous addition , deletion , or other amendment hereto shall have any force or effect whatsoever, unless embodied herein by writing. No subsequent novation , renewal , addition, deletion, or other amendment hereto shall have any force or effect unless embodied in a writing executed and approved pursuant to the State Fiscal Rules. Section 16. Survival of Contract Terms Notwithstanding anything herein to the contrary, the parties understand and agree that all terms and conditions of this contract and the exhibits and attachments hereto which may require continued performance, compliance or effect beyond the termination date of the contract shall survive such termination date and shall be enforceable by the State as provided herein in the event of such failure to perform or comply by the Local Agency. Section 17. Modification and Amendment A. This contract is subject to such modifications as may be required by changes in federal or State law , or their implementing regulations. Any such required modification shall automatically be incorporated into and be part of this contract on the effective date of such change as if fully set forth herein. Except as provided above, no modification of this contract shall be effective unless agreed to in writing by both parties in an amendment to this contract that is properly executed and approved in accordance with applicable law . B. Either party may suggest renegotiation of the terms of this Contract, provided that the Contract shall not be subject to renegotiation more often than annually, and that neither party shall be required to renegotiate. If the parties agree to change the provisions of this Contract , the renegotiated tenns shall not be effective until this Contract is amended/modified accordingly in writing. Provided , however, that the rates will be modified only if the party requesting the rate change documents , in accord with then applicable cost accounting principles and standards (including sections 24-107-101, et seq., C.R.S. and implementing regulations), that the requested increase/decrease is based on and results from (and is proportionate to) an increase/decrease in the "allowable costs" ofperfonning the Work. Section 18. Change Orders and Option Letters A. Bilateral changes within the general scope of the Contract , as defined in Section 1 above, may be executed using the change order letter process described in this paragraph and a form substantially equivalent to the sample change order letter attached as Exhibit D , for any of the following reasons. I. Where the agreed changes to the specifications result in an adjustment to the price, delivery schedule, or time of perfonnance. Page-6-of 10 2. Where the agreed changes result in no adjustment to the price, delivery schedule, or time of performance . The change order shall contain a mutual release of claims for adjustment of price, schedules, or time of performance. 3. Where the changes to the contract are priced based on the unit prices to be paid for the goods and/or services established in the contract. 4. Where the changes to the contract are priced based on established catalog generally extended to the public. Other bilateral modifications not within the terms of this paragraph must be executed by formal amendment to the contract, approved in accordance with state law. B . The State may increase the quantity of goods/services described in Exhibit A at the unit prices established in the contract. The State may exercise the option by written notice to the contractor within 30 days before the option begins in a form substantially equivalent to Exhibit E. Delivery/performance of the goods/service shall continue at the same rate and under the same tenns as established in the contract C. The State may also unilaterally increase/decrease the maximum amount payable under this contract based upon the unit prices established in the contract and the schedule of services required , as set by the state. The State may exercise the option by providing a fully executed option to the contractor, in a form substantially equivalent to Exhibit E, immediately upon signature of the State Controller or his delegate. Performance of the service shall continue at the same rate and under the same terms as established in the contract. Section 19. Disputes Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed ofby agreement will be decided by the ChiefEngineer of the Department of Transportation. The decision of the Chief Engineer will be final and conclusive unless , within 30 calendar days after the date of receipt of a copy of such written decision , the Local Agency mails or otherwise furnishes to the State a written appeal addressed to the Executive Director of the Department of Transportation. In connection with any appeal proceeding under this clause, the Local Agency shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Local Agency shall proceed diligently with the perfonnance of the contract in accordance with the Chief Engineer 's decision. The decision of the Executive Director or his duly authorized representative for the determination of such appeals will be final and conclusive and serve as final agency action. This dispute clause does not preclude consideration of questions oflaw in connection with decisions provided for herein. Nothing in this contract, however, shall be construed as making final the decision of any administrative official , representative , or board on a question of law. Section 20. Does not supercede other agreements This Contract is not intended to supercede or affect in any way any other agreement (if any) that is currently in effect between the State and the Contractor for other "maintenance services" on State Highway rights-of-way within the jurisdiction of the Contractor. Also , the Contractor shall also continue to perfonn , at its own expense, all such activities/duties (if any) on such State Highway rights-of-ways that the Contractor is required by applicable law to perform. Page -7 - of 10 Section 21. Subcontractors The Contractor may subcontract for any part of the performance required under this Contract, subject to the Contractor first obtaining approval from the State for any particular subcontractor. The State understands that the Contractor may intend to perfonn some or all of the services required under this Contract through a subcontractor. The Contractor agrees not to assign rights or delegate duties under this contract [or subcontract any part of the performance required under the contract) without the express , written consent of the State [which shall not be unreasonably withheld). Except as herein otherwise provided , this agreement shaH inure to the benefit of and be binding only upon the parties hereto and their respective successors and assigns. Pa ge -8 -of 10 Section 22. SPECIAL PROVISIONS (For Use Only with Inter-Governmental Contracts) 1. CONTROLLER'S APPROVAL. CRS 24-30-202 (1) This contract shall not be deemed valid until it has been approved by the Controller of the State of Colorado or such assistant as he may designate . 2 . FUND AVAILABILITY. CRS 24-30-202 (5 .5) Financial obligations of the State of Colorado payable after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted , and otherwise made available. 3. INDEMNIFICATION To the extent authorized by law, the contractor shall indemnify, save, and hold harmless the State against any and all claims , damages , liability and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the Contractor, or its employees, agents, subcontractors, or assignees pursuant to the terms of this contract. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied , of any of the immunities , rights, benefits , protection , or other provisions for the parties , of the Colorado Governmental Immunity Act, CRS 24-10-101 et seq . or the Federal Tort Claims Act, 28 U .S.C . 2671 et seq . as applicable, as now or hereafter amended . 4 . INDEPENDENT CONTRACTOR. 4 CCR 801-2 THE CONTRACTOR SHALL PERFORM ITS DUTIES HEREUNDER AS AN INDEPENDENT CONTRACTOR AND NOT AS AN EMPLOYEE . NEITHER THE CONTRACTOR NOR ANY AGENT OR EMPLOYEE OF THE CONTRACTOR SHALL BE OR SHALL BE DEEMED TO BE AN AGENT OR EMPLOYEE OF THE STATE. CONTRACTOR SHALL PAY WHEN DUE ALL REQUIRED EMPLOYMENT TAXES AND INCOME TAX AND LOCAL HEAD TAX ON ANY MONIES PAID BY THE STATE PURSUANT TO THIS CONTRACT. CONTRACTOR ACKNOWLEDGES THAT THE CONTRACTOR AND ITS EMPLOYEES ARE NOT ENTITLED TO UNEMPLOYMENT INSURANCE BENEFITS UNLESS THE CONTRACTOR OR THIRD PARTY PROVIDES SUCH COVERAGE AND THAT THE STATE DOES NOT PAY FOR OR OTHERWISE PROVIDE SUCH COVERAGE . CONTRACTOR SHALL HAVE NO AUTHORIZATION , EXPRESS OR IMPLIED, TO BIND THE STATE TO ANY AGREEMENTS , LIABILITY, OR UNDERSTANDING EXCEPT AS EXPRESSLY SET FORTH HEREIN . CONTRACTOR SHALL PROVIDE AND KEEP IN FORCE WORKERS' COMPENSATION (AND PROVIDE PROOF OF SUCH INSURANCE WHEN REQUESTED BY THE STATE) AND UNEMPLOYMENT COMPENSATION INSURANCE IN THE AMOUNTS REQUIRED BY LAW, AND SHALL BE SOLELY RESPONSIBLE FOR THE ACTS OF THE CONTRACTOR , ITS EMPLOYEES AND AGENTS . 5 . NON-DISCRIMINATION . The contractor agrees to comply with the letter and the spirit of all applicable state and federal laws respecting discrimination and unfair employment practices . 6 . CHOICE OF LAW . The laws of the State of Colorado and rules and regulations issued pursuant thereto shall be applied in the interpretation , execution , and enforcement of this contract. Any provision of this contract , whether or not incorporated herein by reference, which provides for arbitration by any extra-judicial body or person or which is otherwise in conflict with said laws, rules, and regulations shall be considered null and void. Nothing contained in any provision incorporated herein by reference which purports to negate this or any other special provision in whole or in part shall be valid or enforceable or available in any action at law whether by way of complaint, defense, or otherwise. Any provision rendered null and void by the operation of this provision will not invalidate the remainder of this contract to the extent that the contract is capable of execution. At all times during the performance of this contract, the Contractor shall strictly adhere to all applicable federal and state laws, rules , and regulations that have been or may hereafter be established . 7. SOFTWARE PIRACY PROHIBITION Governor's Executive Order D 002 00 No State or other public funds payable under this Contract shall be used for the acquisition , operation, or maintenance of computer software in violation of United States copyright laws or applicable licensing restrictions. The Contractor hereby certifies that, for the term of this Contract and any extensions, the Contractor has in place appropriate systems and controls to prevent such improper use of public funds. If the State determines that the Contractor is in violation of this paragraph , the State may exercise any remedy available at law or equity or under this Contract, including, without limitation, immediate termination of the Contract and any remedy consistent with United States copyright laws or applicable licensing restrictions . 8 . EMPLOYEE FINANCIAL INTEREST. CRS 24-18-201 & CRS 24-50-507 The signatories aver that to their knowledge , no employee of the State of Colorado has any personal or beneficial interest whatsoever in the service or property described herein. Effective Date: August 1 , 2005 Page-9-of 10 SIGNATURE PAGE THE PARTIES HERETO HAVE EXECUTED THIS CONTRACT CONTRACTOR: STATE OF COLORADO : John Hickenlooper, GOVERNOR CITY OF WHEAT RIDGE. COLORADO Legal Name of Contracting Entity Social Security Number or FEIN 2000099 Signature of Authorized Officer By_ Executive Director Department of Transportation LEGAL REVIEW : JOHN W . SUTHERS A TIORNEY GENERAL By ________________________________ __ Print Name & Title of Authorized Officer APPROVED AS TO FORM: __________________________ _ • City Attorney CORPORATIONS : (A corporate attestation is required .) Attest (Seal) By ----....,.--------:,---...,.-----:::---,.,.---.,.:-----::-:-...,...,- (Corporate Secretary or Equ ivalent , or Town /City/County Clerk ) (Place corporate seal here , if ava ilable) ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS 24 -30-202 requires that the State Controller approve all state contracts . This contract is not valid until the State Controller, or such assistant as he may delegate , has signed it. The contractor is not authorized to begin performance until the contract is signed and dated below. If performance begins prior to the date below, the State of Colorado may not be obligated to pay for the goods and/or services provided. STATE CONTROLLER: LESLIE M. SHENEFEL T By ________________________________ _ Date ______________________________ _ Effective Date : August 1, 2005 Pa ge-1 0 -of 1 0 Exhibit A Scope of Work State Highway Traffic Signal Listing • The City shall maintain the traffic signals and associated stop bars and crosswalks at the locations listed below. • Any reconstruction , modification, or improvement initiated by the City or performed as a result of a City project shall be included in the maintenance provided by the City. • Any reconstruction , modification , or improvement initiated by the State or performed as a result of a State project shall be paid for separately by the State. • The City shall perform inspections of each location, in all directions , and submit documentation to CDOT by April 1Oth and October 1Oth for each year of this contract. Inspection shall include, but not limited to: o Each signal lens is operating and visible o Signal timing is operating as programmed o Controller and cabinet are clean and in good repair o Communication to signal is connected and operating o Vehicle detection is operating properly o All luminaries attached to the signal are operating • Any defects , in the items listed above, found at these intersections shall be remedied immediately. Defects and remediation shall be documented and kept on file at the City and made available to CDOT upon request. Any defects not remedied shall incur a price reduction to the next month 's compensation of$280.00 per signal. • The City shall perform an annual inspection which shall include: the visual inspection of signal caissons, bolts , bolt tightening, steel , welds, attachment hardware; backup power testing; and signal conflict monitor testing. Documentation on this inspection shall be submitted to CDOT by October I Oth of each year of this contract. Any deficiencies found in bolt tightening and attachment hardware shall be corrected by the City immediately. Structural defects discovered by the City or CDOT shall be repaired using methods that are acceptable to the City and CDOT. If CDOT is requiring pole or mast ann replacement, that work shall be the responsibility of CDOT. Any deficiencies of this nature shall be documented and brought to the attention of the City and CDOT project manager for correction by the appropriate agency. All other minor structural defects shall be the responsibility of the City. Exhibit A Page-1 -of 2 TRAFFIC SIGNALS MAINTAINED BY THE CITY OF WHEAT RIDGE LOCATIONS Maintenance of traffic signals includes painting of crosswalks and stop bars. Interstate 70 (1-70) at: • WB off/on ramps at 32"d A venue • EB off ramp at Y oungfield Street • EB on ramp at Youngfield Street Number of Signals-3 Signals Exhibit A Page-2 -of 2 Exhibit B LOCAL AGENCY ORDINANCE or RESOLUTION Exhibit B EXHIBIT C Traffic Control Device Rate Schedule 3 Signals at $280.00.00/signal/month $ 840.00 per month Total Maximum Annual Cost $ 10 ,080.00 per year Exhibit C -Page 1 of 1 Exhibit D SAMPLE BILATERAL CHANGE ORDER LETTER Date: State Fiscal Year: Bilateral Change Order Letter No. In accordance with Paragraph of contract routing number , [ your agency code here ] , between the State of Colorado Department of or Higher Ed Institution [ your agency name here --] division) and ( Contractor's Name Here ) covering the period of [ July 1, 20 through June 30, 20......--___ ] the undersigned agree that the supplies/services affected by this change letter are modified as follows: Services/Supplies Exhibit __ , Schedule of Equipment for Maintenance or Schedule of Delivery, is amended by adding , serial numbers and __________ _ Price/Cost The maximum amount payable by the State for [service] [supply] m Paragraph __ is (increased/decreased) by($ amount of change) to a new total of($ based on the unit pricing schedule in Exhibit __ . The first sentence in Paragraph __ is hereby modified accordingly; The total contract value to include all previous amendments, change orders, etc. is [ $ ]. OR The parties agree that the changes made herein are "no cost" changes and shall not be the basis for claims for adjustment to [price] [cost ceiling], delivery schedule, or other terms or conditions of the contract. The parties waive and release each other from any claims or demands for adjustment to the contract, including but not limited to price, cost, and schedule, whether based on costs of changed work or direct or indirect impacts on unchanged work. Controller approval of this "no cost" change is not required. contractor initials. ___ Agency initials. [ Include this sentence: This change to the contract is intended to be effective as of ______ , or on approval by the State Controller, whichever is later. ] Please sign, date, and retum all copies of this letter on or before ______ 20 APPROVALS: Contractor Name: State of Colorado: Bill Ritter, Governor By: _________ _ By: Date: Name For the Executive Director/College President Title ----------Colorado Department of or Higher Ed Institution ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS 24-30-202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not authorized to begin perfonnance until the contract is signed and dated below . If performance begins prior to tl1e date below, the State of Colorado may not be obligated to pay for goods and/or services provided. State Controller, Leslie M. Shenefelt By: _____________ __ Date: ______________ _ Exhibit D -Page 1 of 1 Exhibit E SAMPLE OPTION LETTER Date: ------------------------State Fiscal Year: -----Option Letter No. __________ _ SUBJECT: [Amount of goods/Level of service change] In accordance with Paragraph( s) of contract routing number , [your Agency code here ], between the State of Colorado Department of or Higher Ed Institution [ your agency name here ], [ division], and IAdd Contractor's name here] covering the period of[ July I , 20 __ through June 30, 20 __ ,] the state herby exercises the option for [an additional one year 's performance period at the (cost) (price) specified in Paragraph __ .] and/or [increase/decrease the amount of goods/services at the same rate(s) as specified in Paragraph/Schedule/Exhibit .] The amount of funds available and encumbered in this contract is [ increased/decreased ] by [$amount of change] to a new total funds available of [ $ ] to satisfy services/goods ordered under the contract for the current fiscal year [ FY 0 __ ]. The first sentence in Paragraph is hereb y modified accordin gly. The total contract value to include all prev iou s amendments, option letters, etc . is [ $ ]. APPROVALS: State of Colorado: Bill Owens , Governor By: Date: ________ _ [ Executive Director/College President ] Colorado Department of or Higher Ed Institution ____________________ _ ALL CONTRACTS MUST BE APPROVED BY THE STATE CONTROLLER CRS 24-30-202 requires that the State Controller approve all state contracts. This contract is not valid until the State Controller, or such assistant as he may delegate, has signed it. The contractor is not authorized to begin performance until the contract is signed and dated below. If performance begins prior to the date below , the State of Colorado may not be obligated to pay for goods and/or services provided . State Controller Leslie M. Shenefelt By: ------------------------------- Date: -------------------------------- Exhibit E-Page 1 of 1 I I ! 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CDTO SIGNALS WHEAT RIDGE -I ,__.....,.._, f':oacl c .... teflin<t 1 =-~_,. ........ ~,-~- _...,.,_..,_1·~ -·~"»1 ... ~-__ ,..,._.....___ ._..q,._,~-· c:=:! . .-~ N W.E s __ ___ 0 500 Fee Honzontlll Cocwdin.ce System NA0831D2 St.te Pt~ne, Cok:w* Central Zone 0502 Veftiall 0Mum NAVD88 DISCLAIMER NOTICE: This II! e pM:toNI rep'eMI'DbOn of geogra.pNc lind demographic infcwy,.flon Relllince upon 1'1<1 accu"~CW'. ~blityerde~ofNir'lfrclnNI:Ionll!aot.fyh ~to(er~ TheCcyofW.etRdge.in Je"-'-on Cowtty. Co6cndo •• polikal ~of h Sta• ofCoJor.do, h .. ~ b ia UN oert.in CIOn1Mtnz_. .-.torm.e.on Tt. W'lfotmebon" ·~ to ..... , In ldencfying QeM1'8Ierna of concem only The ~nad lntom.tJOn prCMdtd t.er.in lhcdd of'ly t. ~ \4)0" W'll:tl eonobcntton of the mel'loda, ~.endrHU111bye~dlndt~nl IOUfCe The UMt of thts in~tion lhtl ndermdy and tdd he 1M Crty of W\ut Ridge from In)' Wid el bbliMs .~ a.w&uda endeeuMSofK~Nt rntll He~ of r. r.-nc. on lntormnon ptOwledh«etn wfi~~ LIC WOR.K1 7500 \/\lest 29th Avenue Wleat Ridge. co 800 33-8001 303 23" 5900 DATE 07/1112013 CW) .. c It E ~ u ca .. .. c ,.~·~ -J ..-City of • JP""WheatR!:_dge ITEM NO: DATE: September 23 ,2013 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 39-2013 -A RESOLUTION AMENDING THE FISCAL YEAR 2013 CAPITAL INVESTMENT PROGRAM BUDGET TO REFLECT THE APPROVAL OF A SUPPLEMENTAL BUDGET APPROPRIATION IN THE AMOUNT OF $325,000 FOR THE PURPOSE OF PROVIDING FUNDING TO RENEWAL WHEAT RIDGE FOR THE PURCHASE OF PROPERTY AT 7690 W. 38TH AVENUE AND 3790 YUKON COURT D PUBLIC HEARING D BIDS/MOTIONS rgj RESOLUTIONS D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2ND READING QUASI-JUDICIAL: D YES rgj NO ~~ ISSUE: Renewal Wheat Ridge (RWR) has entered 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 resolution provides funding to Renewal Wheat Ridge for the acquisition of the property. The purchase price is $390,000, the cost of which is being contributed by the City in accordance with the terms of the Intergovernmental Agreement (IGA) with RWR. 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 . In addition, an earnest money deposit in the amount of $20,000 was made on September 11 , 2013. Therefore, the budget supplemental request is for $320 ,000 plus $5 ,000 for closing costs for a total of $325,000. PRIOR ACTION: City Council approved an IGA with Renewal Wheat Ridge on September 9 , 2013 to set the tenns for providing funding for the purchase of the subject property. Budget Supplemental -Property Acquisition September 23, 2013 Page2 FINANCIAL IMPACT: The 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. A proposed remediation plan with estimated costs is currently being developed and will be presented to City Council during the council meeting on September 23rd. Staff is researching multiple funding sources for remediation of the property. Grants are available through the Environmental Protection Agency (EPA), loans are available from the Colorado Housing Finance Authority (CHF A) and the City could consider a Tax Increment Financing (TIF) agreement with a future developer of the site. 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 35th and Wadsworth. The vacant site directly to the south of the redevelopment project is currently w1der 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. Acquisition ofthe subject property by RWR 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 RWR, understanding that the property requires remediation, and is intended ultimately to be conveyed by RWR to a third party, the developer of the redevelopment project. Thus, the transaction contemplates R WR acquiring the property, obtaining a "No Further Action Detennination" or "NAD" letter from the Colorado Department of Public Health and Environment (the "CDPHE"), and then conveying the property to the redeveloper. The staffofthe City and RWR is working with the City's environmental consultant and the CDPHE to detem1ine the cost of a remediation plan that is acceptable to the CDPHE, and will Budget Suppleme nt a l -Property Acquisition September 2 3, 2013 Page 3 result in the issuance of a NAD. The cost of remediation is anticipated to be more than the $50,000 credit from the Bank of Denver. A proposed remediation plan with estimated costs will be presented to City Council at the meeting on September 23rd. Approving this resolution does not commit the City or RWR to purchase this property. The critical date for purposes of detennining the nature and extent of the environmental remediation is September 27 , 2013. By this date , Renewal Wheat Ridge will be required to give notice to the seller regarding the required environmental remediation, the estimated cost. R WR has until October 1, 2013 to terminate the purchase agreement. 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. 39-2013 , a resolution amending the fiscal year 2013 Capital Investment Program Budget to reflect the approval of a supplemental budget appropriation in the amount of $325 ,000 for the purpose of providing funding to Renewal Wheat Ridge for the purchase of property at 7690 W. 38th Ave and 3790 Yukon Court." Or, "I move to postpone indefinitely Resolution No. 39-2013, a resolution amending the fiscal year 2013 Capital Investment Program Budget to reflect the approval of a supplemental budget appropriation in the amount of$325 ,000 for the purpose of providing funding to Renewal Wheat Ridge for the purchase of property at 7690 W. 38th Ave and 3790 Yukon Court for the following reason(s) " REPORT PREPARED/REVIEWED BY: Patrick Goff, City Manager ATTACHMENTS: 1. Resolution No. 39-2013 2 . IGA between City and RWR 3. Purchase Agreement 4. Conceptual Site Plan CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 39 Series of 2013 TITLE: A RESOLUTION AMENDING THE FISCAL YEAR 2013 CAPITAL INVESTMENT PROGRAM BUDGET TO REFLECT THE APPROVAL OF A SUPPLEMENTAL BUDGET APPROPRIATION IN THE AMOUNT OF $325,000 FOR THE PURPOSE OF PROVIDING FUNDING TO RENEWAL WHEAT RIDGE FOR THE PURCHASE OF PROPERTY AT 7690 W. 38TH AVENUE AND 3790 YUKON COURT WHEREAS, on September 9, 2013, the City of Wheat Ridge and Renewal Wheat Ridge (the "Parties") entered into an Intergovernmental Agreement (IGA) for the purpose of providing funding to Renewal Wheat Ridge for property acquisition; and WHEREAS, each Party is authorized by statute to acquire and dispose of real property; and WHEREAS, Renewal Wheat Ridge (RWR) entered 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 the IGA; and WHEREAS , the Wheat Ridge Charter requires that amendments to the budget be effected by the City Council adopting a Resolution . NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council, that: The City Council authorizes the transfer of $325,000 from the General Fund undesignated reserves to account number 30-610-800-801 and amend the 2013 Fiscal Year revenues accordingly. DONE AND RESOLVED this 23rd day of September, 2013 . Jerry DiTullio , Mayor ATIEST: Janelle Shaver, City Clerk 2 JNTERGOVERNMENT AL AGREEMENT FUNDS FOR PURCHASE OF REAL PROPERTY Tlus Intergovernmental Agreement (the "Agreement'') is entered into as of the q r1-day of 5rq?~W("' , 2013, by and between the City of Wheat Ridge, a Colorado home rule municipality ("the City") and the Wheat Ridge Urban Renewal Authority, dlb/a Renewal Wheat Ridge (a Colorado home rule municipality and body corporate politic (the .. URA'') collectively referred to herein as (the "Parties"). RECITALS A. Pursuant to C.R.S. § 29-1-203, the Parries arc 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 particularly 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, miner-al rights and other rights appurtenant thereto and also known by street and number as 7690 W. 38 1h 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 of the 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 folJows: l. 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. All or a portion of the 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 31-25-106(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 -1- 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 U1e purchase of the Property by the U RA. 2. Obligations 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 detennination" 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 detemunation" by the Colorado Department of Public Health and Envirorunent; 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 environrnentaJ remediation as described at Paragraph 2.8. 3. Notice. Any notice required or permitted by this Agreement shall be deemed validly given at U1e time the notice is delivered in person, or deposited in first class or registered mail or transmHted by facsimile (with confirmation of receipt) to the following addresses: Steve Art Wheat Ridge Urban Renewal Authority 7500 W. 291h Avenue Wheat Ridge, CO 80033 Patrick Goff City of Wheat Rldge 7 500 W. 291h A venue Wheat Ridge, CO 80033 4. Paragraph Captions. TI1e captions of the paragraphs are set forth only for the convenience and reference of the Parties and are not intended in any way to define, limit or describe the scope or intent of this Agreement. S. 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 the Parties. If any provision of this Agreement is held invalid or unenforceable, no other provision shaJl be affected by such ho1ding, and aU of the remaining provisions of this Agreement shall continue in full force and effect. 6. Governing Law. This Agreement shall be governed by the Jaws of the State of Colorado. Jurisdiction and venue shall be proper and exclusive in U1e district court for Jefferson County, Colorado. 2 7. Responsibility. Each Party sha)] remain responsible for the acts and omissions of its own offi.cials, 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 lJnmunity Act, C.R.S . § 24-10- 101, er seq., as may be amended from time to time, or any other rights or protections otherwise provided by Jaw. 8. Non-AoDrooriationlfl' ABOR. 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 tenns 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 obligations of Wheat Ridge are expressly dependent and conditioned upon the continuing availability of funds beyond the term of the City of Wheat Ridge's current fiscal period ending upon the next succeeding December 31. Financial obligations of Wheat Ridge payable after the current fiscal year are contingent upon funds for that purpose being appropriated. budgeted, and otherwise made available in accordance with the rules, regulations, and resolutions of Wheat Ridge and other applicable law. Notwithstanding any other provision of this Agreement concerning tennination. upon Wheat Ridge 's failure to appropriate such funds, this Agreement shall automatica1ly tenninate. 9. No Third Party Beneficiaries. Enforcement of the terms 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 shall give or aiJow any such claim or right of action by any other person or entity not a party to this Agreement. 10. 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 AITEST: WHEAT RIDGE URBAN RENW AL AUTHORITY d/b/a RENEWAL WHEAT RIDGE By:~_ ,Chair 4 EXHIBIT A Legal Description of the Property PARCEL A: THE NORTH 198 FEET OF TRACT I, 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. PARCELS: THE SOUTH 30 FEET OF THE NORTH 228 FEET OF TRACT 1, ADKINS SUBDIVISION, COUNTY OF JEFFERSON, STATE OF COLORDO. 5 SECO~O A:'\IE:\01\IEl'iT TO Pl:R<.:HASF. AGREE\IE~T I HI~ SLCO\'D :\\IE:-\0\IE!\T TO Pl'RCH:\SE AGREE:'\'IE:"\T (tim "Scc1111d Amcndmcnt"l•"m;~J~·dh:~·ti,c<~s<'ritJ!Imbt~ 17 . 201~. by ;md bd\\ccn LOl:lsF.. LLC. a ('pJ,,radl' limited liahilit~ cnmpan;; ("Seller"). and WHEAT RIDGE l 'RBA~ Rf.:\EWAL. .. \l :TI-IORITY dha RE:\1-:W:\L WIIEAT RIDGE. a Coh1rJdo urban renewal autlwrity ;md hod~ nH')JOrah.: and P•'lit•~ ("Bu,·cr"). RECITALS :\ Sdkr illld Hu~~.·r ~o·ntcrcd tllh' that certain Purd1asc Agrct·mcnt with an Eflccti\c Dati.' t'f September 10. 211 l.i llhc ·• Orig1nal Agn.:cmcnt'' 1. whcrc111. suhJ~o·~·t II• the tt·nn' thcrt•or. s .. :lkr agrl..'ctlh• -.t'lll\1 8U)~·r. ami Bu~cr agrct•d "' purdM~C fmm Sdkr. the Pn,pcrt~ (a<, d<:tined in the Al.!r~.·cmcntJ . 'I ht· Onl.!inal :\l.!.r~.·~.·ment lws ht•en amended lw th;tl~o:ct111in First Amt·ndm~·nt 111 Purd~as1: Agre~·nll.:nl. da~h:d a~ -t,f Scptemht•r 1J.... 201.~ (lilt' "First Amendment"). The Original :\grc~:mcnt. "' amelllkd h~ tht· First Amt·ndment 1s ht'rctn rclcn·eJ to a~ the "A l.!recment ''. B ~clkr and Buy~r 1k:-1rl· 1t1 :unend ~:t'rt\1111 pw' isi,,ns 1'1' the Agreement. as nwrl· fully ~l'l liH1h below. .·IGREE.tfE\'T \;()\\. 'I IILREH)RE . 111 t·t•n~ld~Tati,,n ,1fth~: fclregPtng r<.•c..·llal:-. the c«'wnant!) st.'! li1rth her1:in . :md tither g_11\ld and 'aluabk l.'llll :mlcrati•lll the n:t.:cipt and aJClJU <II.:~ of" hidl art· hcrchy at·~lwwlc:tlgcd. and \\ llh the 11111:111 "' hc ll'~ully bnunJ. Sdlcr and Buyer agrl..'e a~ liJIIow~;: I . F.ll\ 1runmcntal \1attcrs . Thl· Jate set fi,rth in the fifth scnh.·ncc of Sccti<'ll I ~(h) of thl· :\gr~·emcnt (a' sudt Sect ton was aml.!nded anJ rcstilll.'d hy the hN :\m~ndmcnl) is IH:rch) chan~cd frt'lll "5 :00 P.\1. (:'\lountain Tunc) un September 15. 21113" w "5:00 P.M. (M,Iunwin rime) t'll Scplcmh~·r 2~. :?Ul _;" . .., :--Jt, :\~!>ignmcnt. [adl td. Sdh:r .md Bu~ cr rcprc-.cnt:-Jnd \\ an·ant~ to tht: tllht·r that. a' 1,f the datt· hen·of. 11 ha-: lltll a~:-igncd. t:<'ll' c~·~.·d. h-rranh:d a sc~.·urit~ interest in l'f •JthCI"\\ ist• transfcrn.:J ;my 11f it-; rights or intl·rcst~ in the Agreement tu any third party . 3. Rcaftlnnati{IJl or A!!rccmcnl. Ea~h ol Seller and Bu~er ll!(fl'L' tiHtl the ll'nllS. Cl'\'l'nanb and conditilln!-t'f the Agrl..'~ment shall remain :md continue in full f(lrcc and cfkct as aml•ndcJ herein . II' lhl·rc 1~ any .;pnflict hd\I'C\!n lht• tenm and pro,·ision:; t'f this St.-cond Amendment and the tenns an<l prm isi1)11~ ,,f thc Agreement. the tcnns and prn,·isinn~ nf thi!' Sc\.'Pild Amendment shall !:!"'em. ~-Gm~Tning L:l\\. nw. ~l'l"lllld :\m~ndml.."nt and ;til pnni-;ton..; h~.·r~umkr shall hl· t!P'~ml'tl h~ .md ~.·,1n-.tntc:d 111 accMdann: "ith thL· hm:-; 11fthc State of ( ·fllornd11 . wtthout regard h) th~.· ~.·Pnlli~:~ ,,r law.' pnn~o:•pk'. 5 . { ·ompktc Agr~·enh.'llt. l hi, S~c,1nd :\m~:mlmcnt tn!!~thcr '' ith thl.' Agn:1.'11ll.'llt ~.:nnwin :-~11 agn.:em~.·nt". un.k-r,tanJtng.~ and ;trr;mgc:m~.·nt-; h.;-tw~~n thl' Sclkr and Bu~'l'f with r~gard "' th1.· matter' dl.'~~.Tibc:d lli.Tl'lll. :\s mndi lkJ h~ thts S1.'1:1111d .·\mc:ndment. thl.· t\gr1.'\.'l111.'1lt n:main' in Iilli h•n.:L: anJ dti.:'-·t. 6. Cnuntcn,an-.. Tht' Sl'Collll ·\mcndmcnl ma~ l"lc l'\ccutl.'tl in t\\ u 121 11r mor~.· ~.:nuntcrparts. c:;H:h ,,f \\ hid1 'hall he d~.·~.·nll'd an 11riginal. hut ;tllt•f '' hH:h :.h.tlll:Pnstitutc nne and thl:' ,;unl.' agr~.·cml.'nt. Bindinc l:.fti.:~.·t. Tlw-\e~.·,•nd .:\nll.:ndm~.·nt hc .. ·omc~ cfll:ctiH~ ,,nly up,m th~.· 1.'\l'~.·utH'll h~ h••th Sdll:'r .mJ Ruy~.·r 11 I kadin~. rh~.· para!!raph and -;Cl"lletl\ hc:adlllg_-. l'(11ltaitll.'d her~lll .lfl' indudl·d -.old~ ti1r the C••ll\ cntl.'lll'l:' ol thl' partie' hl'fl'lll ami .;hall 11111 h~,· l'l'll'-Hkfl'll 111 tht.• intc:rpn.•tahun .tt thi-. Scnllld .-\m~.·nclm~.·nt llllf :-.h.tll th~.· .-.;nne bl.' lkl'IIH:J In ;.tltl'r (lf mnutf~ lhc tt.:nns \)r thi.; Sl'l"•'lld ·\m~ndtlll'llt [~IG'\All RI:S 1-0I.l .OW 0!\ "\l::\1 PA(ii·.J I~ \\'11 \iFS~ \\lll:RI:OI-'. S(.·ller and Buyt'r h:l\ t: ~.:-..~~.·utcd thi:-Sl.!~o:flnd Amendment <t:- ••ftl~~: dah: lir~t al)\•\ ~.: "nttcJL ·' FIRST AMENDMENT TO PURCHASE AGREEMENT THIS FIRST AMENDMENT TO PURCHASE AGREEMENT (this "First Amendment") is made effective as of , 2013, by and between LOUISE, LLC, a Colorado limited liability company ("Seller"), and WHEAT RIDGE URBAN RENEWAL AUTHORITY dba RENEWAL WHEAT RIDGE, a Colorado urban renewal authority and body corporate and politic ("Buyer"). RECITALS A. Seller and Buyer entered into that certain Purchase Agreement with an Effective Date of September I 0, 2013 (the "Agreement"), wherein, subject to the terms thereof, Seller agreed to sell to Buyer, and Buyer agreed to purchase from Seller, the Property (as defined in the Agreement). B. Seller and Buyer desire to amend certain provisions of the Agreement, as more fully set forth below. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals, the covenants set forth herein, and other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, and with the intent to be legally bound, Seller and Buyer agree as follows: 1. Confirmation of Property Square Footage. Seller and Buyer hereby agree that the square footage of the Property set forth in Section 1 of the Agreement (approximately 26,040 square feet) is amended and restated to be approximately 31,541 square feet (with the portion of the Property commonly known as 7690 West 38th Avenue containing approximately 27,341 square feet and the portion of the Property commonly known as 3790 Yukon Court containing approximately 4,200 square feet). 2. Purchase Price; Source of Funds. Seller and Buyer hereby agree that the Purchase Price (as defined in Section 2 of the Agreement) is hereby reduced from $390,000.00 to $340,000.00. Additionally, as a result of the amendment and restatement of Section 13(b) of the Agreement (as set forth below in Section 5 of this First Amendment), the phrase "and subject to any deductions from the Purchase Price as more particularly described in Section 13 of this Agreement" is hereby deleted from Section 2(b) of the Agreement. Finally, on or before September 16, 2013, Buyer shall provide a written statement to Seller setting forth the source of the funds that Buyer will use to pay the remaining balance of the Purchase Price on the Closing Date. 3. Title Approval. Buyer hereby confirms that Buyer approves of the status of title as reflected in the Commitment (as defined in the Agreement), the Title Exception Documents (as defined in the Agreement), and the Survey (as defined in the Agreement), and Buyer hereby RW0/09240 .007100435479 .2 wai ves any right to object to title matters or to terminate the Agreement pursuant to Section 3 of the Agreement. 4. Inspection Deadline. The Inspection Deadline (as defined in Section 10 of the Agreement) is hereby extended from 5:00P.M. (Mountain Time) on September 18 , 2013 to 5:00 P .M. (Mountain Time) on October 1, 2013 . 5. Environmental Matters. Seller and Buyer agree that in light of the reduction in the Purchase Price set forth in Section 2 above, that the Seller shall have no obligation to contribute any amounts toward any required environmental remediation of the Property, as originally contemplated in Section 13(b) of the Agreement. As such , Section 13(b) of the Agreement is hereby amended and restated in its entirety as follows: (b) Buyer Environmental Investigation. Seller has provided copies of any and all environmental site assessments and other similar reports relating to the environmental condition of the Property which are in Seller's po ss es sion prior to the E ffecti ve Date (the "Existing E nvironmental Reports"), and Buyer hereby acknowledges receipt of the same. The parties acknowledge that the Existing Environmental Reports disclose the presence of certain contaminants and hazardous materials on or under the Property. Prior to the Effective Date, and with Seller's pennission, Buyer has commenced an investigation , at Buyer's cost, to determine the extent of the contamination and the necessary remediation actions to be taken on the Property to cause the Property to comply with all federal , state and local environmental laws, rules and regulations (the "Environmental Investigation"). The Environmental Investigation shall be subject to the terms of Section 10 above. Buyer shall complete its Environmental Investigation and deliver the results thereof (including the recommended remediation actions and the estimated costs thereof) to Seller on or before 5:00P.M (Mountain Time) on September 16, 2013 . The Environmental Investigation shall be deemed a part of the Inspections that Buyer may conduct pursuant to Section I 0 above, and therefore , Buyer shall have the right to elect to terminate this Agreement if the results of the Environmental Investigation are not acceptable to Buyer pursuant to Section 10 above. If Buyer does not elect to terminate this Agreement pursuant to this Section , then from and after the Closing Date, as between Seller and Buyer, Buyer shall be solely responsible for the completion of any remediation actions on or about the Property. 6. Closing. The parties agree to move the Closing Date from October 1, 2013 to October 3, 2013. As such, Section 16 of the Agreement is hereby amended and restated in its entirety as follows : Closing shall occur at the office of the Title Company located at 55 Madison Street, 4 1h Floor, Denver 80206 , at a time mutually agreed upon by the parties, on October 3, 2013 (the "Closing Date"). Seller shall 2 deliver to Buyer and Title Company all information and documents required of it for Closing on or before October 2, 2013. If Seller fails to do so, Buyer may, at its option, delay Closing until three (3) business days after all information and documents are delivered. Each party authorizes the Title Company to prepare the settlement statements for the Closing on HUD forms, showing both the Buyer and Seller columns on a single settlement statement and disclose to the other party both the Buyer's and the Seller's half of any settlement statement, pre-audit or similar closing statement. Seller shall deliver possession of the Property to Buyer at Closing. 7. No Assignment. Each of Seller and Buyer represents and warrants to the other that, as of the date hereof, it has not assigned, conveyed, granted a security interest in or otherwise transferred any of its rights or interests in the Agreement to any third party. 8. Reaffirmation of Agreement. Each of Seller and Buyer agree that the terms, covenants and conditions of the Agreement shall remain and continue in full force and effect as amended herein. If there is any conflict between the terms and provisions of this First Amendment and the terms and provisions of the Agreement, the terms and provisions of this First Amendment shall govern. 9. Governing Law. This First Amendment and all provisions hereunder shall be governed by and construed in accordance with the laws of the State of Colorado, without regard to the conflict of laws principles. 10. Complete Agreement. This First Amendment together with the Agreement contain all agreements, understandings and arrangements between the Seller and Buyer with regard to the matters described herein. As modified by this First Amendment, the Agreement remains in full force and effect. 11. Counterparts. This First Amendment may be executed in two (2) or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same agreement. 12. Binding Effect. This First Amendment becomes effective only upon the execution by both Seller and Buyer. 13. Definitions. All capitalized terms used herein, but not defined herein, shall have the same meanings given to such terms in the Contract unless otherwise indicated. 14. Headings. The paragraph and section headings contained herein are included solely for the convenience of the parties hereto and shall not be considered in the interpretation of this First Amendment nor shall the same be deemed to alter or modify the terms of this First Amendment. [SIGNATURES FOLLOW ON NEXT PAGE] 3 • IN WJTNESS Wf £EREOF , Seller and Buyer have executed this First Amendment as of the date first above written. LOUISE, LLC, a Colorado limited liability company By;L.,· ~~ Name \-:.,.; ~ ~ck:. \. & Title _Y'Y\__;__;_:;:a. __ , -'--'~---'-~e:;../"-'-------­ Date __ 5"'----.:....;' ;;)"'-------' ''--= ~------- 4 PURCHASE AGREEMENT THIS PURCHASE AGREEMENT (this "Agreement") is made and entered into by and between LOUISE, LLC, a Colorado limited liability company ("Seller"), and WHEAT RIDGE URBAN RENEWAL AUTHORITY dba RENEWAL WHEAT RIDGE, a Colorado urban renewal authority and body corporate and politic ("Buyer"). The "Effective Date" of this Agreement is the date on which this Agreement is fully executed by all parties hereto, as indicated by the latest date on the signature pages of this Agreement. 1. Sale and Purchase. Pursuant to this Agreement, Seller shall sell and Buyer shall purchase the property more particularly described in Exhibit A, attached hereto and incorporated herein by this reference, consisting of approximately 26,040 square feet of land, together with all improvements thereon, easements, water rights, mineral rights and other rights appurtenant thereto, if any, and all of Seller's right, title, and interest in any public rights-of-way adjoining the property, together with any and all development fees, impact fees, water, sewer or other utility tap, connection, meter or service fees or amounts which have been paid to any governmental authority in connection with any previous development of the property or any utility service provided to any improvement located on said land, if any (collectively, the "Property"). 2. Purchase Price. The purchase price for the Property is Three Hundred Ninety Thousand Dollars ($390,000.00) (the "Purchase Price"). The Purchase Price is payable in cash or immediately available funds as follows: (a) An earnest money deposit in the amount of Twenty Thousand Dollars ($20,000.00) paid in the form of certified funds deliverable within one (1) business day of full execution of this Agreement (the "Earnest Money"); and (b) The balance of the Purchase Price shall be paid by an electronic wire transfer of good funds at Closing, subject to customary Closing adjustments, and subject to any deductions from the Purchase Price as more particularly described in Section 13 of this Agreement. (c) Title Company. The Title Company shall be Stewart Title Company ("Title Company" or "Escrow Agent.") 3. Title Review. Prior to the Effective Date, Seller has (a) caused the Title Company, at Seller's expense, to deliver to Buyer a commitment for an ALTA owner's title policy on the Property with a File Number of960594 and an effective date of August 14,2013 (the "Commitment"), and copies of all instruments shown by the Commitment as exceptions (the "Title Exception Documents"); and (b) delivered to Buyer a survey of the Property prepared by Don Tjepkes Surveying dated February 4, 2012 (the "Survey"). Buyer hereby acknowledges receipt of the Commitment, the Title Exception Documents, and the Survey prior to the Effective Date of this Agreement. At Closing, Seller shall pay and release all amounts secured by mortgages, deeds of trust or other monetary liens on the Property which are not caused by Buyer ("Monetary Liens") and terminate all existing tenancies or rights to possession of the Property not caused by Buyer {"Tenancy Rights"). Buyer shall have until 5:00P.M. (Mountain Time) on September 13, 2013 (the "Title Review Deadline") to review the Commitment, Title Exception Documents and Survey. If Buyer objects to any matters in the Commitment, the Title Exception Documents, or the Survey, Buyer shall deliver to Seller a written objection notice (an "Objection Notice") on or before the Title Review Deadline. Upon receipt of an Objection Notice, Seller may, in Seller's sole discretion, elect to either: (i) cure or, if applicable, insure over the matters set forth in the Objection Notice at any time prior to the Closing Date, or (ii) take no action with regard thereto. Seller shall give Buyer written notice of Seller's election (an "Objection Response Notice") on or before 5:00 P.M. (Mountain Time) on September 18, 2013 (the "Objection Response Deadline"). If Buyer timely delivers an Objection Notice and Seller thereafter fails to deliver an Objection Response Notice on or before the Objection Response Deadline, then Seller shall be deemed to have elected to take no action with regard to the matters set forth in the Buyer's Objection Notice. If Seller elects, or is deemed to have elected, not to cure or remove all of the matters set forth in the Buyer's Objection Notice, then Buyer may elect to either: (i) accept title to the Property subject to the uncured objectionable matters, or (ii) terminate this Agreement, in which event the Earnest Money shall be returned to Buyer and all rights and obligations of the parties hereunder shall terminate, except for those obligations which expressly survive the termination of this Agreement. If Seller notifies Buyer that Seller elects to cure any objectionable matter included in the Buyer's Objection Notice, and thereafter, Seller fails to complete such cure prior to the Closing Date, then Buyer shall have the right to either: (i) accept title to the Property subject to the uncured objections and consummate the purchase and sale of the Property as contemplated herein, or (ii) terminate this Agreement, in which event the Earnest Money shall be returned to Buyer and all rights and obligations of the parties hereunder shall terminate, except for those obligations which expressly survive the termination of this Agreement. All matters disclosed in the Commitment, the Title Exception Documents, and the Survey which are approved or waived by Buyer (except for any Monetary Liens or Tenancy Rights, which shall be removed by Seller as described above), matters which are caused by the Buyer, the real estate taxes for the year in which the Closing Date occurs and any matter which would be reflected on an accurate survey of the Property, shall be hereinafter referred to as the "Permitted Exceptions". The Permitted Exceptions shall not be deemed to include any of the standard exceptions to coverage found in the Commitment or the Policy (as hereinafter defined). If the Commitment is amended or supplemented after Buyer has submitted its objections to Seller, and such amendment or supplement reflects new exceptions to title to the Property, then the same time periods, procedures and notices for objections and clearance of title shall apply to the new matters disclosed thereby. 4. Title Insurance and Deed. At Closing, Seller shall convey all of Seller's right, title and interest in the Property to Buyer by a bargain and sale deed in the form attached hereto as Exhibit B (the "Deed"). Buyer shall obtain at Closing, at Seller's expense, a standard form ALTA Owner's Title Insurance Policy (the "Policy") issued by Title Company in the amount of the Purchase Price, insuring marketable fee simple title to Buyer in the full amount of the Purchase Price and containing no exceptions or conditions other than the 2 Permitted Exceptions. Buyer has the right to elect to obtain an ALTA extended coverage title insurance policy and such endorsements to the Policy as Buyer may require. Buyer will be responsible for the increase in premium between a standard form policy and an extended form policy and the costs of any endorsements other than endorsements obtained by Seller to cure Buyer's title objections as set forth in Section 3. 5. Risk of Loss and Condemnation. Until Closing, Seller has the risk of loss or damage to the Property. Notwithstanding the foregoing, the parties acknowledge that Buyer intends to demolish the improvements existing on the Property after closing, and therefore if and casualty damage occurs to any of the improvements on the Property prior to the Closing Date, the same shall not materially impair Buyer's intended use and development of the Property after the closing. In light of the foregoing, if any loss or damage occurs to any improvements on the Property prior to Closing, then Seller shall have no duty or obligation to repair such damage prior to the Closing Date, Buyer shall accept the Property in the condition which exists on the Closing Date without a reduction or adjustment to the Purchase Price, and, so long as such damage was not caused by Buyer or Buyer's agents, employees or contractors, Seller shall assign to Buyer any casualty insurance claims or proceeds which Seller would be entitled to pursue or receive as a result of such casualty damage. Provided however, if any loss or damage occurs to the any portion of the Property, other than the improvements located on the Property, prior to Closing, which is not caused by Buyer or Buyer's agents, employees or contractors, Buyer may, at its option, either (i) cancel this Agreement and receive a refund of the Deposit, or (ii) accept the Property without a reduction or adjustment to the Purchase Price and Seller shall assign to Buyer any casualty insurance claims or proceeds which Seller would be entitled to pursue or receive as a result of such casualty damage. If all or any part of the Property is condemned or any condemnation action or proceeding is commenced prior to Closing by any governmental entity or agency other than Buyer, the City of Wheat Ridge, or any other governmental agency affiliated with Buyer or the City of Wheat Ridge, then Buyer may, at its option, either (a) cancel this Agreement and receive a refund of the Earnest Money, or (b) proceed with this Agreement without an adjustment or reduction of the Purchase Price, with all condemnation proceeds and claims being assigned to Buyer. 6. Taxes and Assessments. Any real property taxes, water rates, sewer charges and rents shall be prorated and adjusted on the basis of the actual days in the calendar year, Seller to have the last day, to the date of Closing. Taxes for all prior years and any taxes which become due or which are levied as of the date of Closing shall be paid by Seller. Assessments, either general or special, for improvements completed prior to Closing, whether matured or unmatured, shall be paid in full by Seller (including all principal and interest). All other assessments shall be paid by Buyer. The Seller will provide to Buyer such real property tax information for the Property as Buyer reasonably requests. Any Federal, state and local documentary or revenue stamps, transfer, sales and other taxes relating to the sale of the Property shall be paid by Seller at Closing and both parties agree to execute any customary tax forms reasonably required. 3 7. Notice of Default. In the event either party is in default of any provision hereof, the non- defaulting party, as a condition precedent to its remedies, must give the defaulting party written notice of the default in strict accordance with the notice requirements of Section 15. The defaulting party shall have ten business days from receipt of such notice to cure the default. If the defaulting party timely cures the default, the default shall be deemed waived, and this Agreement shall continue in full force and effect. If the defaulting party does not timely cure such default, the non-defaulting party shall be entitled to pursue its remedies as set forth in Sections 8 or 9, as applicable. The foregoing notice and cure provisions of this Section 7 shall not, in any event serve to extend the Closing Date, and shall not apply to the parties' respective obligations under Sections 2 (with respect to the timely payment of the Earnest Money and the balance of the Purchase Price at Closing), 16 (relating to the delivery of the Seller's closing documents to the Title Company), or 17 (relating to delivery of certain documents, funds or other items on the Closing Date). 8. Remedies of Seller. If Buyer defaults under this Agreement, Seller's sole and exclusive remedy shall be to retain the Earnest Money as liquidated damages, and cancel this Agreement with Buyer responsible for the payment of any escrow cancellation fees and Seller hereby waives any action, whether legal or equitable, as a result of such default by Buyer. The parties acknowledge that: (i) it would be impracticable to fix the actual damages suffered by Seller as a result of such default; and (ii) the amount of the liquidated damages represents a fair and reasonable compensation to Seller for such default. 9. Remedies of Buyer. If Seller defaults under this Agreement, Buyer's sole and exclusive remedy shall be to cancel this Agreement in which case the Title Company is irrevocably instructed to return the Earnest Money to Buyer, Seller shall be responsible for any escrow cancellation fees and Buyer may recover from the Seller all reasonable expenses paid or incurred by Buyer in connection with this Agreement up to an amount not to exceed $10,000.00. 10. Right of Entry and Inspection. At any time prior to Closing or the earlier termination or cancellation of this Agreement and upon not less than twenty-four (24) hours' prior email notice sent to Loti Radcliffe at lradcliffe@tbod.com and Edie Shell at edies@tbod.com , at Buyer's sole expense, Buyer or its authorized agents may enter upon the Property for the purpose of making Inspections (as defined below). Buyer may select qualified professionals to make "Inspections" (including tests, borings, surveys, studies, inspections, investigations and interviews of persons familiar with the Property) concerning the Property, including but not limited to tests of structures, wells, septic tanks, underground storage tanks, soils, geologic hazards, utility lines and systems and environmental hazards. After making any Inspections, Buyer agrees to promptly restore the Property to its condition prior to such Inspections (which obligation shall survive any termination of this Agreement). Seller may have a representative present at any Inspections. Prior to any third parties engaged by Buyer to perform any Inspections on the Property entry onto the Property, Buyer shall cause each of its third party consultants and contractors conducting on site Inspections to obtain and maintain general liability insurance, from a reputable insurer licensed in the State of Colorado, in the amount of at 4 least Five Hundred Thousand and Noll 00 Dollars ($500,000.00) combined single limit for personal injury and property damage per occurrence, which insurance shall provide coverage against any claim for personal liability or property damage caused by such third party or its agents, employees, consultants or contractors in connection with such Inspections. Buyer acknowledges that nothing in this Agreement shall authorize Buyer, or any person dealing with, through or under Buyer, to subject Seller's interest in the Property to any mechanic's or materialmans' liens prior to Closing. To the extent permitted by law, and without waiving any rights afforded to it by Colorado Constitutional or statutory provisions, Buyer agrees to indemnify, hold harmless and defend Seller and the Property from any liability or damages and Seller from any claim, liability, loss, damage, cost or expense, including attorneys' fees, which Seller may incur, or which may be asserted by reason of any entry on the Property by, through or under Buyer prior to Closing. To the extent such obligation exists under Colorado law, Buyer's obligation to indemnify Seller shall survive Closing or any termination of this Agreement. Buyer agrees not to permit or suffer and, to the extent so permitted or suffered, to cause to be removed and released, any mechanic's, materialmans' or other lien on account of supplies, machinery, tools, equipment, labor or materials furnished or used in connection with the inspection, construction, alteration, repair or surveying of the Property, by, through or under Buyer prior to Closing. Buyer shall provide copies of any Inspection reports or summaries, or any other written materials obtained by Buyer in connection with Buyer's Inspection of the Property within five (5) days after Buyer's receipt of such materials . If any Inspections disclose matters unsatisfactory to Buyer, in Buyer's sole and absolute discretion, then Buyer may cancel this Agreement by delivery of written notice to Seller on or before 5:00P.M. (Mountain Time) on September 18, 2013 (the "Inspection Deadline"). If Buyer elects to cancel this Agreement pursuant to this Section 10 on or before the Inspection Deadline, then upon delivery of the written notice to Seller, this Agreement shall terminate, the Title Company shall refund the Earnest Money to Buyer, and thereafter all rights and obligations of the parties hereunder shall terminate, except for those obligations which expressly survive the termination of this Agreement. In the event Buyer fails to deliver to Seller a written notice of its election to tenninate this Agreement before the expiration of the Inspection Deadline, then Buyer shall be deemed to have accepted the Property and shall have no further right to terminate this Agreement pursuant to this Section 10. In the event that, during the course of the Inspections, Buyer or its agents shall enter upon tEe Property and place any equipment or install any borings (including monitoring wells) upon the Property, and in the further event that this Agreement is terminated prior to the removal of such equipment or capping of the borings, Buyer, through its agents, shall have, and Seller hereby grants to Buyer, a temporary license to enter upon the Property to remove such equipment or properly cap the borings. This provision shall survive the termination of this Agreement. 11. Brokerage Fees. Seller shall be responsible for the payment of the brokerage fee or commission, payable only upon Closing, to the broker engaged by Seller in connection with the transaction contemplated in this Agreement (the "Seller's Broker"). Except for the Seller's Broker, each party represent to the other party that no other brokers were 5 involved in connection this Agreement or the transaction contemplated in this Agreement. 12. Seller's Warranties. Seller makes the following representations and warranties which are true and accurate as of the Effective Date and as of Closing: (a) Seller has not received any written notice of any violations of city, county, state, federal, building, land use, fire, health, safety, environmental, hazardous materials or other governmental or public agency codes, ordinances, regulations, or orders with respect to the Property, or any lands adjacent to the Property, except as set forth in Section 13. (b) To Seller's actual knowledge, no litigation is pending, threatened or likely with respect to the Property, Seller's interest therein, or which would inhibit Seller's ability to consummate the transaction contemplated in this Agreement. (c) Except as set forth in the Existing Environmental Reports (as defined in Section 13(b) below) provided by Seller to Buyer prior to the Effective Date of this Agreement, Seller has not received any written notice that the Property is contarrlinated beyond the levels set forth in the environmental reports furnished by Seller to Buyer. (d) Except as disclosed to Buyer in writing, to the actual knowledge of Seller there are no wrrecorded leases, arrangements, agreements, understandings, options, contracts, or rights of first refusal affecting or relating to the Property in any way. (e) The individual signing this Agreement on behalf of Seller has the authority to bind the Seller to the agreements set forth herein. (f) At Closing, all utility services including water, gas, electrical, telephone and sanitary sewer to the Property will be available at no expense to Buyer except customary tap in fees. (g) To Seller's actual knowledge, the Property does not contain sinkholes, caverns, faults, conduits, voids, mines, or other geological anomalies which could affect the development of the Property. As used in this Section 12, the phrase "Seller's actual knowledge," or any such other similar term imparting knowledge to the Seller, shall mean the current, actual, personal (and not constructive or imputed) knowledge, without independent investigation or inquiry, of Lori Radcliffe. The representations and warranties contained in this Section 12 shall survive the Closing, provided, however, that any action, suit or proceeding with respect to the truth, accuracy or completeness of such representations and warranties shall be commenced, if at all, on or before the date which is one (1) year after the Closing Date and, if not commenced on or before such date, thereafter shall be void and of no force or effect. Notwithstanding anything in this Agreement to the contrary, Seller shall have no liability with respect to 6 any of the foregoing representations and warranties if, prior to the Closing, Buyer has actual knowledge that any of the representations and warranties of Seller are untrue or incorrect, and Buyer nevertheless consummates the transaction contemplated by this Agreement. 13. Environmental Remediation; Contingency. (a) Indemnity. To the extent permitted by law, Seller hereby indemnifies and agrees to defend and hold Buyer harmless from all claims, costs, liabilities, judgments or expenses resulting from any representations and warranties in Section 12(c) being untrue. (b) Buyer Environmental Investigation; Seller Contribution to Remediation. Seller has provided copies of any and all environmental site assessments and other similar reports relating to the environmental condition of the Property which are in Seller's possession prior to the Effective Date (the "Existing Environmental Reports''), and Buyer hereby acknowledges receipt of the same. The parties acknowledge that the Existing Environmental Reports disclose the presence of certain contaminants and hazardous materials on or under the Property. Prior to the Effective Date, and with Seller's permission, Buyer has commenced an investigation, at Buyer's cost, to determine the extent of the contamination and the necessary remediation actions to be taken on the Property to cause the Property to comply with all federal, state and local environmental laws, rules and regulations (the "Environmental Investigation"). The Environmental Investigation shall be subject to the terms of Section 10 above. Buyer shall complete its Environmental Investigation and deliver the results thereof (including the recommended remediation actions and the estimated costs thereof) to Seller on or before 5:00 P.M (Mountain Time) on September 18, 2013. The Environmental Investigation shall be deemed a part of the Inspections that Buyer may conduct pursuant to Section 10 above, and therefore, Buyer shall have the right to elect to terminate this Agreement if the results of the Environmental Investigation are not acceptable to Buyer pursuant to Section 10 above. If Buyer does not elect to terminate this Agreement as result of the Environmental Investigation, and upon delivery of the results of the Environmental Investigation by Buyer to Seller, Seller and Buyer shall negotiate in good faith regarding the estimated costs of the recommended remediation actions and the portion of such costs which Seller will agree to contribute to Buyer in the form of a credit against the Purchase Price at the Closing. The parties agree that in no event shall the amount that Seller shall be obligated to contribute to the recommended remediation actions exceed Fifty Thousand Dollars ($50,000.00) (the "Seller Maximum Remediation Contribution Amount"). The amount to be contributed by Seller toward the recommended remediation actions shall be paid in the form of a credit against the Purchase Price. From and after the Closing Date, as between Seller and Buyer, Buyer shall be solely responsible for the completion of any remediation actions on or about the Property. 14. Information. Prior to the Effective Date, Seller has provided Buyer with copies of all surveys, site plans, studies, engineering reports, environmental studies, agreements pertaining to any water rights or supply, matters similar to the results of Inspections and other materials prepared for Seller, in Seller's possession or reasonably available to Seller relating to the Property, and Buyer hereby acknowledges receipt of all such documents 7 and materials. If this Agreement is canceled, the information provided will be returned to Seller; otherwise, Buyer may retain the information. Seller shall disclose any material changes with respect to any information contained in this Agreement which occur prior to Closing. 15. Notices. All notices and communications required or permitted to be given hereunder shall be in writing and hand delivered or mailed by certified or registered mail, postage prepaid, or by Federal Express, Airborne Express, or similar overnight delivery service, addressed as follows: If to SeHer: Louise, LLC c/o Bank ofDenver Lori Rock Radcliffe, President 810 East 1 ih Ave. Denver, CO 80218 With Copy To: Robinson Waters & O'Dorisio P.C. Attn: John W. O'Dorisio, Jr., Esq. 1099 -18th Street, Suite 2600 Denver, CO 80202 Ifto Buyer: Wheat Ridge Urban Renewal Authority 7500 W. 29th Avenue Wheat Ridge, CO 80033 Attention: Steven Art With Copy To: Corey Y. Hoffmann, Esq. 1530 16th Street, Suite 200 Denver, CO 80202 Notice shall be deemed to have been given upon receipt or refusal. 16. Closing. Closing shall occur at the office of the Title Company located at 55 Madison Street, 4111 Floor, Denver 80206, at a time mutually agreed upon by the parties, on October 1, 2013 (the "Closing Date"). Seller shall deliver to Buyer and Title Company all information and documents required of it for Closing on or before September 23, 2013. If Seller fails to do so, Buyer may, at its option, delay Closing until ten (1 0) days after all information and documents are delivered. Each party authorizes the Title Company to prepare the settlement statements for the Closing on HUD forms, showing both the Buyer and Seller columns on a single settlement statement and disclose to the other party both the Buyer's and the Seller's half of any settlement statement, pre-audit or similar closing statement. Seller shall deliver possession of the Property to Buyer at Closing. 17. Closing Costs, Documents and Services. The Buyer and Seller shall pay, in good funds, their respective closing costs and all other items required to be paid at Closing, except as otherwise provided herein. The Buyer and Seller shall sign and complete all customary or required documents at or before Closing including the following: (a) Seller documents. Seller shall deliver or cause to be delivered to the Title Company: 8 (i) The Deed, duly executed by Seller and acknowledged by a notary public; (ii) A transferor's certification stating that the Seller is not a "foreign person", "foreign partnership", "foreign trust" or "foreign estate" as those terms are defined in Section 1445 of the Internal Revenue Code, in the form attached hereto as Exhibit C; (iii) All normal and customary documents and instruments, each executed and acknowledged (where appropriate) by the Seller, which (a) the Buyer or the Title Company may reasonably determine are necessary to transfer the Property to the Buyer subject only to the Permitted Exceptions, (b) the Buyer or the Title Company may reasonably determine are necessary to evidence the authority of the Seller to enter into and perform this Agreement and the documents and instruments required to be executed and delivered by the Seller pursuant to this Agreement, (c) the Title Company may require as a condition to issuing the Title Policy, or (d) may be required of the Seller under applicable law; and (iv) Settlement statements consistent with this Agreement executed by the Seller. (b) Buyer documents. Buyer shall deliver or cause to be delivered to the Title Company: (i) The remainder of the Purchase Price due, subject to the pro-rations set forth herein, by wire transfer; (ii) Evidence satisfactory to the Title Company that the person, or persons, executing the closing documents on behalf of the Buyer has full right, power and authority to do so; (ii) A settlement statement consistent with this Agreement executed by the Buyer; and (iii) All normal and customary documents and instruments, each executed and acknowledged (where appropriate) by Buyer, which (a) the Seller or the Title Company may reasonably detennine are necessary to evidence the authority of the Buyer to enter into and perform this Agreement and the documents and instruments required to be executed and delivered by the Buyer pursuant to this Agreement, or (b) may be required Buyer under applicable law. (c) Additional Closing Costs and Adjustments. The following adjustments shall be made at Closing: (i) The Seller shall pay any docmnentary fee, stamp fee or other fee required in connection with the recording of the Deed and shall pay any transfer tax which may accrue in connection with this transaction. (ii) The Seller shall pay the cost of recording any documents necessary to place record title to the Property to the Buyer in the condition required pursuant to this 9 Agreement prior to conveyance of the Deed. The Buyer will pay the cost of recording all other documents, including the Deed. (iii) The Seller will pay the premium for the standard coverage Title Policy. Buyer will pay the cost of any endorsements requested by Buyer and the additional premium charged by the Title Company for the issuance of the extended coverage under the Title Policy. (iv) The Seller and the Buyer shall each pay one half (112) of any escrow fee or closing fee payable to the Title Company with respect to the transaction contemplated by this Agreement. 18. Required Notice Regarding Colorado Special Taxing Districts. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO GENERAL OBLIGATION INDEBTEDNESS THAT lS PAID BY REVENUES PRODUCED FROM ANNUAL TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE TAX BURDENS TO SUPPORT THE SERVJCING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYER SHOULD INVESTIGATE THE DEBT FINANCING REQUIREMENTS OF THE AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH DISTRICTS SERVICING SUCH INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES. 19. Opportunity to Investigate; "AS-IS" Sale. Buyer hereby represents and warrants: [A) prior to the Closing, Buyer will have had the opportunity to investigate all physical and economic aspects of the Property and to make all inspections and investigations of the Property which Buyer deems necessary or desirable to protect its interests in acquiring the Property, including, without limitation, building permits, certificates of occupancy, environmental audits and assessments, toxic reports, surveys, investigation of land use and development rights, development restrictions and conditions that are or may be imposed by governmental agencies, agreements with associations affecting or concerning the Property, tl1e condition of title, soils and geological reports, engineering and structural tests, insurance contracts, governmental agreements and approvals, architectural plans and site plans, and [B] except as otherwise expressly set forth in this Agreement, neither Seller, nor anyone acting for or on behalf of Seller, has made any representation, warranty, promise or statement, express or implied, to Buyer, or to anyone acting for or on behalf of Buyer, concerning the Property or the condition, use or development thereof. Buyer further represents and warrants that, in entering into this Agreement, Buyer has not relied on any representation, warranty, promise or statement, express or implied, of Seller, or anyone acting for or on behalf of Seller, other than as expressly set forth in this Agreement, and that all matters concerning the Property have been or shall be independently verified by Buyer prior to the Closing, and that Buyer shall purchase the Property on Buyer's own prior investigation and examination of the Property (or Buyer's 10 election not to do so); AND THAT, AS A MATERIAL INDUCEMENT TO THE EXECUTION AND DELIVERY OF THIS AGREEMENT BY SELLER, BUYER IS PURCHASING THE PROPERTY IN AN "AS IS" PHYSICAL CONDITION AND IN AN "AS IS" STATE OF REPAIR, WITH ALL FAULTS. Except as may be set forth in this Agreement, Buyer does hereby waive, and Seller does hereby disclaim, all warranties of any type or kind whatsoever with respect to the Property, whether express or implied, including, by way of description but not limitation, those of fitness for a particular purpose and use. Notwithstanding any provision contained in this Agreement to the contrary, Seller shall not be responsible or liable for the content of any materials prepared by third parties. Notwithstanding anything to the contrary herein, Buyer and Seller acknowledge that any written disclosu.res made by Seller prior to the Closing shall constitute notice to Buyer of the matter disclosed, and Seller shall have no further liability thereafter if Buyer thereafter consummates the transaction contemplated hereby. 20. Time of Essence. Time is of the essence of this Agreement. 21. Entire Agreement. This Agreement contains the entire agreement between Seller and Buyer, and there are no other terms , conditions, promises, undertakings, statements or representations, either written or oral or express or implied, concerning the sale contemplated by this Agreement. 22. Headings. The Section headings are for convenience of reference only and do not modify or restrict any provisions hereof and shall not be used to construe any provisions. 23. Modifications and Waiver. This Agreement may be amended only by an instrument in writing signed by both Seller and Buyer. This Agreement may be terminated only in accordance with the terms of this Agreement or by an instrument in writing signed by both Seller and Buyer. No waiver of any of the provisions of this Agreement shall constitute a waiver of any other provision, nor shall any waiver be a continuing waiver. Except as expressly provided in this Agreement, no waiver shall be binding unless executed in writing by the party making the waiver. 24. Successors. This Agreement shaH inure to the benefit of and bind the parties hereto and their respective executors, heirs, administrators, successors and assigns. Seller may not assign this Agreement without the prior written consent of Buyer. Buyer may not assign this Agreement without the prior written consent of Seller. 25. Internal Revenue Code. Seller agrees to comply with Section 1445 of the Internal Revenue Code and will complete and submit to Buyer the form attached as Exhibit C. 26. Attomey's Fees: Court Costs; Venue. In any action or proceeding arising out of this Agreement, each party shall bear its own attorney's fees, and the prevailing party shall be entitled to recover only court costs from the non-prevailing party incurred by such party in enforcing its rights hereunder. In the event of a legal dispute, the laws of the State of Colorado shall prevail, and venue shall be jn the District Court of Jefferson County, Colorado. J 1 27. Survival. To the extent pennitted by law, all warranties, indemnities, representations and covenants herein shall survive Closing. 28 . Dates of Performance. If any date for performance of any obligation or exercise of any right hereunder falls on a Saturday, Sunday or nationally established holiday, the time for performance of such obligation or exercise of such right shall be extended until the next business day following such date. 29. Enforceability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, such provision sha11 be fully severable. This Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof. 30. Counterparts. Thls Agreement may be executed in multiple counterparts, each of which shall be deemed to be an original, but all of which, together, shall constitute one and the same instrument. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. LOUISE, LLC, a Colorado limited liability company By L.. ik.d-AA NamrL=.,....; -;:;<~~c.J,-R'CO: Title y-...-... ;;a.....-.. ~e---V Date &; /2. /1 3 WHEAT RIDGE URBAN RENEWAL AUTHORITY By~~ Nam~sti a" Title Chair-Urban Renewal Authority Date September 3. 2013 12 ~ ~ ~ ... "" ~ .. City of '?WheatRi_dge _, ITEM NO:~ DATE: September 23 , 2013 REQUEST FOR CITY COUNCIL ACTION TITLE: MOTION TO APPOINT BRANDY BAUER TO THE LIQUOR AUTHORITY BOARD REPRESENTING DISTRICT IV D PUBLIC HEARING [g) BIDS/MOTIONS 0 RESOLUTIONS QUASI-JUDICIAL: ISSUE: D ORDINANCES FOR 1ST READING 0 ORDINANCES FOR 2 N D READING D YES There currently is a vacancy in District IV on the Liquor Authority Board. Council Members DeMott and Langworthy request that Brandy Bauer be appointed to the Liquor Authority Board , term ending March 2 , 2016. FINANCIAL IMPACT: None BACKGROUND: The District IV seat has remained v acant since March 2 , 2013 when Frank Sanzalone did not seek reappointment. The City Clerk's Office received an application from Brandy Bauer, 4755 Everett St , seeking to fill this position. RECOMMENDATIONS: Council Members DeMott and Langworthy recommend appointing Brandy Bauer to the Liquor Authority Board. RECOMMENDED MOTION: "I move to appoint Brandy Bauer to the Liquor Authority Board, term to expire March 2 , 2016." Or, Council Action Form September 23 , 2013 Page 2 "I move to deny the appointment of Brandy Bauer to the Liquor Authority Board for the following reason(s) " REPORT PREPARED BY: Bruce Roome, Deputy City Clerk ATTACHMENTS: 1. Brandy Bauer's Application E E I [. D Board & Commission Application 1013 SEP I 2 A q: 28 City of Wheat Ridge CIT Y OF \.1' PLEASE APPLY ONLY FOR ONE BOARD OR COMMISSION DATE : ls-r:;2d -\~ DISTRICT_J--~,-, __ _ HOW LONG HAVE YOU BEEN A RESIDENT OF WHEAT RIDGE:~~ ARE YOU A REGISTERED VOTER? \( €,S mE. YOU SEEKING THIS APPOINTMENTJ,.\ D ~ ~R:o X:\A.t._ C \>-~D~ a'-r· QNi u ~~c DO YOU HAVE EXPERIENCE IN THIS AREA?_\(U)..:.......:;-=---------- HAVE YOU EVER SERVED , OR ARE YOU CURRENTLY ON A ~ BOARD/COMMISSION/COMMITTEE AND IF SO , WHICH ONE? HOW LONG?D ARE THERE ANYCONFLICTS ~WOULD INTERFERE WITH REGULAR ATTENDANCE OR DUTIES?_~....L...:~~------------ PLEASE PRINT OR TYPE NAME :.~_..u...~:aL-L~::::rF::...~o::o-~_.L...)..~~:+----­ ADDRESS :._~-~~~~~~~~~~~~----------- HOME PHONE : 6/ ( Q lo ~ -0)')~ BUSIN ~SS PHONE : 8lJ:lCJ::r '60 \.() ~ E-MAIL ADDRESS : &-'.f Q\(\~\@ Ll \]e._. C'.fWY] APPLICATION WILL BE KEPT ON FILE FOR ONE YEAR Attachment 1