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HomeMy WebLinkAboutVirtual City Council Meeting Agenda 04-12-21AGENDA CITY COUNCIL MEETING CITY OF WHEAT RIDGE, COLORADO April 12, 2021 7:00 p.m. This meeting will be conducted as a VIRTUAL MEETING. No members of the Council or City staff will be physically present at the Municipal building for this meeting. The public may participate in these ways: 1. Provide comment in advance at www.wheatridgespeaks.org (comment by noon on April 12, 2021 ) 2. Virtually attend and participate in the meeting through a device or phone: • Click here to join and provide public comment • Or call +1-669-900-6833 with Access Code: 958 2734 6479 and Passcode: 303553 3. View the meeting live or later at www.wheatridgespeaks.org, Channel 8, or YouTube Live at https://www.ci.wheatridge.co.us/view 4. Individuals who, due to technology limitations, are unable to participate in the meeting virtually (via the Zoom platform) or by calling in on the telephone may contact Danitza Sosa, Assistant to the Mayor and City Council, at 303-235-2977 by noon on the day of the meeting. Arrangements will be made for those individuals to access City Hall during the meeting to view the meeting and provide public comment if desired. These comments will be heard and seen in real time by members of Council and City staff. Individuals accessing City Hall must practice social distancing, wear a mask or other facial covering and be free of COVID-19 symptoms. Individuals with disabilities are encouraged to participate in all public meetings sponsored by the City of Wheat Ridge. Contact the Public Information Officer at 303-235-2877 or wrpio@ci.wheatridge.co.us with as much notice as possible if you are interested in participating in a meeting and need inclusion assistance. CALL TO ORDER PLEDGE OF ALLEGIANCE ROLL CALL OF MEMBERS PROCLAMATIONS AND CEREMONIES Child Abuse Prevention Month Sexual Assault Awareness Month National Crime Victims’ Rights Week APPROVAL OF MINUTES Study Session Notes of March 15, 2021; City Council minutes of March 22, 2021 CITY COUNCIL AGENDA: April 12, 2021 Page -2- APPROVAL OF AGENDA CITIZENS’ RIGHT TO SPEAK a. Citizens may speak on any matter not on the Agenda for a maximum of 3 minutes under Citizens Right to Speak. Please speak up to be heard when directed by the Mayor. b. Citizens who wish to speak on a Public Hearing item or Decision, Resolution or Motion may speak when directed by the Mayor at the conclusion of the staff report for that specific agenda item. c. Citizens may comment on any agenda item in writing by noon on the day of the meeting at www.WheatRidgeSpeaks.org. Comments made on Wheat Ridge Speaks are considered part of the public record. CONSENT AGENDA PUBLIC HEARINGS AND ORDINANCES ON SECOND READING 1. Council Bill No. 04-2021 - an ordinance of the City Council of the City of Wheat Ridge, Colorado, amending Chapter 11, Licenses, Permits and Miscellaneous Business Regulations, with the addition of new Article XV regulating tobacco product retail licenses and conforming changes in connection therewith 2. Resolution No. 15-2021 - a resolution approving a first amendment to an Enhanced Sales Tax Incentive Program Agreement with Grammy’s Goodies extending the Commencement date from November 1, 2020 to November 1, 2021 ORDINANCES ON FIRST READING DECISIONS, RESOLUTIONS AND MOTIONS 3. Resolution No. 16-2021 - a resolution approving a permit for a noise source pursuant to section 16-103.c(3) of the Wheat Ridge Code of Laws for Rocky Mountain Bottle Company and making findings in connection therewith CITY MANAGER’S MATTERS CITY ATTORNEY’S MATTERS ELECTED OFFICIALS’ MATTERS ADJOURNMENT PROCLAMATION CHILD ABUSE PREVENTION MONTH April 2021 WHEREAS, every child deserves to grow up in a safe, nurturing environment, free from harm and fear. All children do not receive appropriate care; in fact, too many children become victims at the hands of abusive perpetrators, and it is up to us as a community to tirelessly work to end it through awareness and action. Every responsible person will agree that even one abused child is too many; and WHEREAS, the month of April has been designated nationally as Child Abuse Prevention Month. At this time, we encourage all Wheat Ridge community members to join in renewing our commitment to preventing child abuse and learning what we can do to promote the safety and well-being of children; and WHEREAS, Wheat Ridge has dedicated individuals and organizations who work daily to counter the problem of child abuse and to help parents obtain the assistance they need; and WHEREAS, our community is stronger when all community members become aware of child abuse prevention and become involved in supporting parents to raise their children in a safe and nurturing environment; and WHEREAS, effective child abuse prevention programs, such as Ralston House, succeed because of partnerships among families, social service agencies, schools, religious and civic organizations, law enforcement agencies and the business community; and WHEREAS all community members, community agencies, faith organizations and businesses will work to increase their efforts to support families; and NOW, THEREFORE, BE IT RESOLVED, I, Bud Starker, Mayor of the City of Wheat Ridge, do hereby proclaim the month of April 2021, to be: CHILD ABUSE PREVENTION MONTH IN WITNESS WHEREOF, on this 12th day of April 2021. ______________________________ Bud Starker, Mayor ______________________________ Steve Kirkpatrick, City Clerk PROCLAMATION SEXUAL ASSAULT AWARENESS MONTH - APRIL 2021 COLORADO DENIM DAY - APRIL 28, 2021 WHEREAS, every day, women, men, and children across Colorado suffer the pain and trauma of sexual assault; and WHEREAS, sexual violence affects individuals of all ages, backgrounds, and circumstances; and WHEREAS, this crime occurs far too frequently, goes unreported far too often, and leaves long lasting physical and emotional scars; and WHEREAS, during National Sexual Assault Awareness Month, we recommit ourselves not only to lifting the veil of secrecy and shame surrounding sexual violence, but also to raise awareness, expanding support for victims, and strengthening our response; and WHEREAS, as a nation, we share the responsibility for protecting each other from sexual assault, supporting victims when it does occur, and bringing perpetrators to justice; and WHEREAS, at the state level, we must work to provide necessary resources to victims of every circumstance, including medical attention, mental health services, relocation and housing assistance, and advocacy during the criminal justice process; and WHEREAS, Colorado communities can come together to increase awareness about sexual violence, decrease its frequency, hold offenders accountable, support victims, and heal lives. NOW THEREFORE, BE IT RESOLVED, I, Bud Starker, Mayor of the City of Wheat Ridge, do hereby declare the month of April 2021, as SEXUAL ASSAULT AWARENESS MONTH and further recognize April 28, 2021 as Colorado Denim Day, encouraging Wheat Ridge residents to wear denim to show their support for the victims of sexual assault and highlight this issue in our community. IN WITNESS WHEREOF, on this 12th day of April 2021. ___________________________ Bud Starker, Mayor ___________________________ Steve Kirkpatrick, City Clerk PROCLAMATION TO DESIGNATE THE WEEK OF APRIL 18-24, 2021 AS NATIONAL CRIME VICTIMS' RIGHTS WEEK WHEREAS, the victims' rights movement has resulted in the passage of laws at the local, state, and federal levels that established essential rights for victims; and WHEREAS, crime victims' rights acts passed here in Colorado and at the federal level have provided victims with ways to participate meaningfully throughout the criminal justice process; and WHEREAS, the rights of crime victims are best protected when all participants in the criminal justice process-not only victims-are appropriately educated about victims' rights; and WHEREAS, supporting victims of crime is crucial to the U.S. justice system because our support honors the experiences of victims and allows them to find autonomy and empowerment through achieving self-defined goals; and WHEREAS, we must help victims access the justice, assistance, and support their need to rebuild their lives; and WHEREAS, the accomplishments of the victims' rights movement-achieved through compassion and collaboration, and built on the courageous advocacy of individual victims and their families across the country- inspire in us hope for future progress and greater healing; and WHEREAS, we are determined to respond to crime and violence by helping victims find not only support, recovery, and justice, but also a sense of hope for their future; and WHEREAS, National Crime Victims' Rights Week provides an opportunity to recommit ensuring that accessible, appropriate, and trauma-informed services are offered to all victims of crime: and WHEREAS, The City of Wheat Ridge is hereby dedicated to strengthening victims and survivors in the aftermath of crime, building resilience in our communities and our victim service providers, and bringing hope and healing to all victims and survivors; and NOW, THEREFORE, I, Bud Starker, Mayor of the City of Wheat Ridge, in recognition of this event, do hereby proclaim the week of April 18-24, 2021, as CRIME VICTIM’S RIGHTS WEEK And reaffirm this City’s commitment to creating a victim service and criminal justice response that assists all victims of crime, and to express our sincere gratitude and appreciation for those community members, victim service providers, and criminal justice professionals who are committed to improving our response to all victims of crime so that they may find relevant assistance, support, justice and peace. IN WITNESS THEREOF, on this 12th day of April 2021. ____________________________ Bud Starker, Mayor ____________________________ Steve Kirkpatrick, City Clerk 1 STUDY SESSION NOTES CITY OF WHEAT RIDGE, COLORADO Virtual Meeting March 15, 2021 Mayor Bud Starker called the Study Session to order at 6:30 p.m. This meeting was conducted as a VIRTUAL MEETING. No members of the Council or City staff were physically present at the Municipal building for this meeting; the public did not attend in person. Mayor Starker welcomed the Council, other elected officials, staff and interested citizens. The Mayor also explained the virtual meeting format, how citizens will have the opportunity to be heard, and the procedures and policies to be followed. Council members present: Zach Urban, Amanda Weaver, Judy Hutchinson, Korey Stites, Rachel Hultin, Leah Dozeman, Valerie Nosler Beck, Janeece Hoppe. Also present: City Manager, Patrick Goff; City Attorney Jerry Dahl; City Clerk, Steve Kirkpatrick; City Treasurer, Chris Miller; Chief of Police, Chris Murtha; Division Chiefs, Darrel Guadnola and Jim Lorentz; Director of Administration, Allison Scheck;, Municipal Court Judge, Chris Randall; Assistant to the City Manager, Marianne Schilling; Representative Monica Duran; CML Legislative Advocacy Manager Meghan Dollar; Amy Case and Lori Rosendahl, Foothills Regional Housing Authority; other guests and interested citizens. Colorado State Senator Jessie Danielson was scheduled to appear and was not able to attend. Citizen’s Right to Speak No one came forward to speak on Zoom or via telephone. Note about Wheat Ridge Speaks: Citizens may visit the Wheat Ridge Speaks website and enter written comments of up to 1,000 words on any Council agenda item. The deadline for citizens to submit comments is 12:00 Noon Mountain Time on the day of a Council session so that Council members, other elected officials and City Staff have time to review the comments before the meeting on Monday evening. The City Clerk’s Office transcribes those Wheat Ridge Speaks comments into these minutes, placing each comment along with the record for that agenda item, including items that include a public hearing (verbatim, if the comments do not contain lascivious language or unlawful hate speech). No comments appeared in Wheat Ridge Speaks for this Council session. 2 1. 2021 Colorado Legislative Update Discussion began at 6:01 pm, approximately :01 minutes into the recording of the session. Issue The Legislative Update is an opportunity for the City’s elected officials and staff to discuss legislative priorities, current legislation and Wheat Ridge positions/priorities for the 2021 session. Senator Jessie Danielson and Representative Monica Duran will be in attendance, and Colorado Municipal League Legislative Advocacy Manager, Meghan Dollar will be available to review legislation and answer questions. Staff reports Ms. Schilling described the agenda and the discussion of Priority Legislative Issues, including the CML Box Score of Bills, Bill list and 2021 with Legislative priorities by Megan Dollar. Rep. Duran discussed: • Economic recovery from the pandemic, especially small businesses, childcare, rent and housing relief and mental health services • The 2021-22 State budget • Safe gun storage She also reported on further details of the proposed legislation, especially with respect to the first bullet above. Ms. Dollar listed and discussed a number of bills of interest to municipalities introduced in the first month of this legislative session. She discussed funding for transportation at length, and bills that have been introduced or will be introduced soon. She discussed a bill to alleviate jail overcrowding. There is a bill to sanction those to make threats against judges, which would make the sentences upon conviction more stringent as a consequence of such threats. Another bill addresses several issues related to plastic shopping bags, and cities’ powers to regulate or outlaw plastic bags. Councilmembers had questions and comments: Councilmembers asked detailed questions about several topics, including: • The Gap Fund resources • Transportation funding in this year’s budget • A bill to improve mental health service provision Chief Murtha addressed a proposed bill that would severely limit law enforcement’s options for arresting and incarcerating offenders, including in some cases alleged felonies. Along with chiefs of police across the state, Chief Murtha adamantly opposes this bill, based on the results of emptying our jails during the pandemic. The current protocols, in response to CoVid spreading in jails, has resulted in dramatic increases in crime, especially by those released under the current system. In his opinion, this bill protects criminals, not victims. Across the state there are boundless examples of individuals cited or arrested for serious crimes but released for lack of jail space only to 3 see the same individuals re-offend, sometimes repeatedly, and at times within hours of their previous criminal activity. Chief Guadnola provided further details and information to support law enforcement’s opposition to this bill. He explained why the Colorado Association of Chief’s of Police have stated a clear position in opposition. He gave several examples of individuals arrested for felonies, against whom warrants for their arrest for previous felonies were in force, but they were released because the jail refused to take the individual into custody. He listed a large number of offense categories that have dramatically increased during this pandemic period. Chief Lorentz explained the impact this frustrating situation is having on the morale and motivation of police officers on our streets protecting us from criminals and serving us to ensure our safety. Right now, too many officers believe that their efforts are pointless. He described several cases in which an individual has five, six or more warrants outstanding for the same or similar offenses but scoff at the law because there is no consequence for their criminal behavior. Councilmember Dozeman expressed her adamant opposition to this bill based on repeated complaints from residents about individuals arrested for serious, dangerous criminal behavior again and again without arrest and detention. Mr. Goff proposed a consensus that the City oppose this bill, including testifying at the state legislature. Consensus achieved. 2. Delegation of Private Activity Bond Cap to Foothills Regional Housing Discussion began at 7:43 pm, approximately 1:13 minutes into the session. Issue The City of Wheat Ridge has received an allocation of $1,733,069 for the purpose of issuing Private Activity Bonds (PABs) in 2021 under the state ceiling imposed by the Tax Reform Act of 1987. Staff recommends assigning approximately $450,000 of the City’s allocation to Jefferson County Housing Authority d/b/a Foothills Regional Housing (FRH) which has agreed to issue PABs for the Allison Village redevelopment project in Arvada. Allison Village will be an affordable 100-unit, transit-oriented, environmentally sustainable community for youth, veterans and other low-income residents. The remaining allocation will be reserved for future affordable projects in Wheat Ridge, Jefferson County or Colorado. Staff reports City Manager Patrick Goff gave an overview of prior actions as the City of Wheat Ridge has traditionally assigned the City’s PAB allocation to either the Colorado Housing and Finance Authority (CHFA) or the Metro Mayors Caucus for single family mortgage revenue bonds. The last allocation assignment was approved in 2011 to CHFA. Since 2011, neither CHFA nor the Metro Mayors Caucus were accepting applications for allocations because of the decline in the financial markets and the impact that has had on investor interest in PABs. 4 City Council assigned the City’s 2019 and 2020 PAB cap to FRH for the Caesar Square Apartments project and even though there is no direct financial impact to the City of Wheat Ridge, injecting PAB capital into the community has a direct impact on real estate, construction, and financial markets by stimulating economic activity and jobs. Ms. Rosendahl and Ms. Case discussed the background and current situations that underlie this request. Mr. Goff also explained that this local project in Arvada is another example of how this housing project benefits the entire region, like the two previous projects located in Wheat Ridge. Councilmembers had questions and comments: Councilmembers asked detailed questions about several topics, including: • The number of units in the Arvada project set aside for minors transitioning from foster care at age 18. (FHA representatives answered that there will be 30.) • The City is excited about this cooperative housing effort to benefit not only Wheat Ridge but also the remainder of the region. Councilmember Urban proposed a consensus to bring forward an action to Council to adopt the staff recommendations. Consensus attained. 3. Staff Report(s) This item began at approximately 7:54 p.m. Mr. Goff thanked the Public Works staff for their outstanding work during the recent blizzard. 4. Elected Officials’ Report Councilmember Nosler Beck announced a virtual, City-wide town hall, on April 13th at 6 pm with Dr. Comstock from Jefferson County Public Health and other government leaders, to discuss issues of interest to Wheat Ridge residents. There will be a detailed press release and notices on our City Calendar and the City Webpage. Councilmember Hultin also thanked the city staff for their work on clearing the snow. She also noticed that in some locations large mounds of snow from clearing parking lots are blocking sidewalks along our commercial corridors and she would appreciate some follow-up to make the sidewalks accessible and safe. Councilmember Hutchinson has received several favorable comments about the plowing in our neighborhoods, including some streets that are not always plowed. Mr. Goff explained the City policy on plowing side streets; when there is a snowfall of 12 inches or more, then more streets are plowed. The Mayor thanked the police chiefs and Rep. Duran for the discussion this evening. 5 ADJOURNMENT The Study Session adjourned at 8:02 p.m. APPROVED BY CITY COUNCIL ON April 12, 2021 Steve Kirkpatrick, City Clerk Janeece Hoppe, Mayor Pro Tem City Council Meeting Minutes CITY OF WHEAT RIDGE, COLORADO 7500 WEST 29TH AVENUE, MUNICIPAL BUILDING March 22, 2021 Note: This meeting was held virtually, using Zoom video-teleconferencing technology. As duly announced and publicly noticed, Council previously approved this format in order to continue with normal business and respond to the CoVid-19 Pandemic and the related public emergency orders promulgated by the President of the United States, the Governor of Colorado, and the Wheat Ridge City Council. Before calling the meeting to order, Mayor Starker stated the rules and procedures necessitated by this meeting format. Mayor Starker called the Regular City Council Meeting to order at 7:00 p.m. PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA ROLL CALL OF MEMBERS Janeece Hoppe Judy Hutchinson Zachary Urban Rachel Hultin Amanda Weaver Korey Stites Leah Dozeman Valerie Nosler Beck Also present: City Clerk, Steve Kirkpatrick; City Attorney, Gerald Dahl; City Manager, Patrick Goff; City Treasurer, Chris Miller; Administrative Services Director, Allison Scheck; Community Development Director Ken Johnstone; Police Chief Chris Murtha; Zachary Lovato of Public Works; Director of Public Works, Greg Knudsen; Amy Case and Lori Rosendahl of Foothills Regional Housing Authority (FRH); other staff, guests and interested citizens. PROCLAMATIONS AND CEREMONIES Councilmember Hultin read a proclamation thanking our Public Works and Parks and Recreation Departments for their outstanding performance during the severe weather we experienced recently. She read a report on the extent of their effort to remove more than 27 inches of snowfall, not only from our arterial and neighborhood street but also from parking lots. Councilmember Hultin said she echoed the repeated sentiments of our citizens who expressed their appreciation and amazement at the quick and thorough job done by City staff. Greg Knudson, Director of Public Works and Karen O’Donnell, Director of Parks and Recreation responded with appreciative comments on behalf of their two departments. APPROVAL OF MINUTES Without objection or correction, the City Council Minutes of March 8, 2021 and Special Study Session Notes of March 8, 2021 were approved as published. City Council Minutes March 22, 2021 page 2 APPROVAL OF AGENDA Without objection or correction, the agenda stood as announced. CITIZENS’ RIGHT TO SPEAK This item began at 7:07 PM. City Treasurer Chris Miller spoke about the mass shooting today in Boulder, and the resulting tragic sadness. Note about Wheat Ridge Speaks: Citizens may visit the Wheat Ridge Speaks website and enter written comments of up to 1,000 words on any Council agenda item. The deadline for citizens to submit comments is 12:00 Noon Mountain Time on the day of a Council session so that Council members, other elected officials and City Staff have time to review the comments before the meeting on Monday evening. The City Clerk’s Office transcribes those Wheat Ridge Speaks comments into these minutes, placing each comment along with the record for that agenda item, including items that include a public hearing (verbatim, if the comments do not contain lascivious language or unlawful hate speech). There were no comments entered in Wheat Ridge Speaks for this Council Meeting. 1. CONSENT AGENDA Discussion began at approximately 7:08 PM Councilmember Stites introduced the consent agenda. a. Motion approve the purchase and payment of single axle equipment upfit to auto truck group of Colorado Springs, Colorado at a total cost not to exceed $98,238. b. Motion to award the 2021 Concrete Rehabilitation and ADA Improvements Project Base Bid and Bid Alternates 1, 2 & 3 to Majestic Concrete Contractors, Inc. of Wheat Ridge, Colorado and approve subsequent payments in the amount of $271,010, with a contingency amount of $27,101 for a total not to exceed $298,111 Motion by Councilmember Stites to approve Consent Agenda Items a.), and b.), Seconded by Councilmember Urban; motion carried 8-0. PUBLIC HEARINGS AND ORDINANCES ON SECOND READING Discussion began at approximately 7:12 PM 2. Resolution No. 14-2021 – A Resolution approving the assignment to the Jefferson County Housing Authority d/b/a Foothills Regional Housing of $1,733,069 of the City of Wheat Ridge, Colorado’s 2021 private activity bond City Council Minutes March 22, 2021 page 3 volume cap allocation from the state ceiling for private activity bonds; and authorizing the execution and delivery of an assignment and other documents in connection therewith. Councilmember Hutchinson introduced Resolution No. 14-2021 Mayor Starker opened the public hearing at 7:13 p.m. Mr. Goff reprised the discussion in Study Session on this item, explaining that the Jefferson County Housing Authority d/b/a Foothills Regional Housing (FRH) is the housing authority serving Colorado’s 774 square mile Jefferson County. FRH provides housing opportunities including affordable apartments, rental assistance vouchers, emergency home repairs, housing navigation, new development and redevelopment in both incorporated and unincorporated areas of Jefferson County. He introduced Amy Case and Lori Rosendahl of FRH, who recounted the details of this allocation. Public Comment No one came forward to speak. Council Questions and comments Councilmembers asked about the portion of the project that will accommodate low income housing needs. Councilmembers expressed their support for the proposed resolution. They also asked about details of the financial transactions described in the staff memo for this item and got satisfactory responses. Mayor Starker closed the public hearing. Motion by Councilmember Hutchinson to approve Resolution No. 14-2021 – A Resolution approving the assignment to the Jefferson County Housing Authority d/b/a Foothills Regional Housing of $1,733,069 of the City of Wheat Ridge, Colorado’s 2021 private activity bond volume cap allocation from the state ceiling for private activity bonds; and authorizing the execution and delivery of an assignment and other documents in connection therewith; seconded by Councilmember Stites, motion carried 8-0. ORDINANCES ON FIRST READING 3. Council Bill No. 04-2021 - An Ordinance of the City Council of the City of Wheat Ridge, Colorado, amending Chapter 11, Licenses, Permits and Miscellaneous Business Regulations, with the addition of new Article XV regulating tobacco product retail licenses and conforming changes in connection therewith. City Council Minutes March 22, 2021 page 4 Councilmember Hultin introduced Council Bill 04-2021 The rates of tobacco use and youth vaping continue to rise in Wheat Ridge and Jefferson County. The City of Wheat Ridge does not currently regulate its tobacco retailers. The purpose of this ordinance is to create licensing regulations for tobacco retailers. Motion by Councilmember Hultin to approve Council Bill No. 04-2021 - an ordinance of the City Council of the City of Wheat Ridge, Colorado, amending Chapter 11, Licenses, Permits and Miscellaneous Business Regulations, with the addition of new Article XV regulating tobacco product retail licenses and conforming changes in connection therewith, on first reading, order it published, public hearing set for Monday, April 12, 2021 at 7:00 p.m. as a virtual meeting, and that it take effect on July 1, 2021, seconded by Councilmember Urban, motion carried 8-0. CITY MANAGER’S MATTERS No Council meeting on March 29, as it is the fifth Monday. Mr. Goff expressed his condolences and sadness over the tragic mass shooting today in Boulder. He took particular note of the loss of a police officer. He reported on a tour he took today at Clear Creek Crossing and reported that he was both excited and happy to see the progress. CITY ATTORNEY’S MATTERS Nothing tonight. ELECTED OFFICIALS’ MATTERS Councilmember Nosler Beck took the opportunity to express her grief and sadness about the shooting at the King Soopers in Boulder today. These frontline grocery workers have been essential in helping us to endure the pandemic. She also noted that once again our first responders have had to put their lives on the line today. Councilmember Dozeman also extended her condolences to those impacted by the mass shooting today. Councilmember Stites echoed the same sentiments, recalling the day of Columbine. He echoed his father, the late former Councilmember Mike Stites, who frequently expressed his sentiments that we all take care of one another. Councilmember Weaver echoed the preceding condolences. She wants to add to a future Study Session an item focusing on dead trees throughout the City including both public and private property. Several neighbors have expressed concerns about the danger of dead trees and our commitment as Tree City USA. The Mayor asked that the item be added to a future Study Session agenda. Several Councilmembers expressed their support for taking up this question in a Study Session. City Council Minutes March 22, 2021 page 5 Councilmember Hultin also expressed her sadness about today’s events. She also announced that Wheat Ridge is a finalist for the All-American City Award, a highly competitive process with many, many applicant cities across the country vying for the honor. We are one of 20 finalists for 10 awards nationwide. We have another round of application documents to submit and we will learn which are the winning cities sometime in June 2021. At 6:30 pm on Wednesday Councilmembers and key staff will hold a virtual meeting on the Wadsworth Project. Notice will be posted on the city website with details. Councilmember Urban repeated the sentiments expressed earlier about the massacre in Boulder this afternoon. Councilmember Hutchinson expressed appreciation for the Frank DeAngelis Center located in Wheat Ridge, where law enforcement from all over the region can come for training. She also lamented that these mass shootings and the fact that they continue to cost so many lives. Councilmember Hoppe also expressed her condolences and concerns for those impacted today in Boulder. Councilmembers Hoppe and Nosler Beck will host a town hall on Wednesday, April 13th at 6:00 PM, a session in which several county executives and several City department directors will participate. Chief Murtha expressed his condolences and heartfelt grief for the loss of both a sworn officer in Boulder tonight and the impact the incident has had and will have on the loved ones and friends of the people who were killed as well as those who were injured, their families and the Boulder community. Chief Murtha also acknowledged the importance of the Frank DeAngelis Center for training officers how to respond to such critical active shooter incidents. He also reminded us that following the Columbine incident in 1999 police officers across the nation committed to entering places where an active shooter incident is ongoing when they arrive on site, without waiting for back-up or SWAT. They risk life and limb to protect their fellow citizens and prove their courage and commitment to protecting us not only today but also every day. The Mayor acknowledged the service and protection our police provide for us. We are all Boulderites tonight, and mourn with our neighbors, relatives and friends who live there He reported on several efforts to work with persons experiencing homelessness and expressed his gratitude to all who are working so hard on this issue. City Council Minutes March 22, 2021 page 6 Take care on one another, be safe and safeguard our children. ADJOURNMENT The meeting adjourned at 7:42 pm. _____________________________ Steve Kirkpatrick, City Clerk APPROVED BY CITY COUNCIL ON April 12, 2021 ______________________________ Janeece Hoppe, Mayor Pro Tem The preceding Minutes were prepared according to §47 of Robert’s Rules of Order, i.e. they contain a record of what was done at the meeting, not what was said by the members. Recordings and DVD’s of the meetings are available for listening or viewing by contacting the City Clerk’s Office, as well as copies of Ordinances and Resolutions. ITEM NO: DATE: April 12, 2021 REQUEST FOR CITY COUNCIL ACTION TITLE: COUNCIL BILL NO. 04-2021 – AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO, AMENDING CHAPTER 11, LICENSES, PERMITS AND MISCELLANEOUS BUSINESS REGULATIONS, WITH THE ADDITION OF NEW ARTICLE XV REGULATING TOBACCO PRODUCT RETAIL LICENSES AND CONFORMING CHANGES IN CONNECTION THEREWITH PUBLIC HEARING ORDINANCES FOR 1ST READING (03/22/2021) BIDS/MOTIONS ORDINANCES FOR 2ND READING (04/12/2021) RESOLUTIONS QUASI-JUDICIAL: YES NO _______________________________ City Manager ISSUE: Tobacco and youth vaping continue to be on the rise in Wheat Ridge and Jefferson County. The City of Wheat Ridge does not currently regulate its tobacco retailers. The purpose of this ordinance is to create licensing regulations for tobacco retailers. PRIOR ACTION: At the August 19, 2019 study session, Jefferson County Public Health (JCPH) presented an overview of youth vaping and tobacco use in Wheat Ridge and the region. Staff returned on December 2, 2019 with policy options to include in a potential future ordinance and received direction from City Council at that time. Most recently on November 16, 2020, Council reached consensus to move an ordinance forward as presented in this Council Action Form and attachments. The ordinance provided is a result of City 1 Council Action Form – Tobacco Retail Licensing April 12, 2021 Page 2 Council’s consensus, a multi-department collaboration of City staff and the City Attorney, and research and coordination with JCPH. FINANCIAL IMPACT: The City is expected to receive revenue from the license application and annual renewal fees associated with tobacco retail licensing. These fees are expected to cover the administration and enforcement of the program. BACKGROUND: State Legislation House Bill 20-1001: Nicotine Product Regulation was passed by the state legislature in July 2020. In summary, the minimum age for the purchase of these products has been increased from 18 to 21 years of age. The increase in age became effective upon adoption in July 2020. Additionally, all retailers that sell cigarettes, tobacco products or nicotine products are required to obtain a state license. The original effective date for the state licensing program was set to be July 1, 2021. At this time, the effective date has been put on hold. Proposed Code During the November 2020 study session, staff proposed several regulations for City Council consideration and the proposed code amendment reflects City Council’s consensus. As the City does not currently regulate tobacco retailers, this ordinance would be a new addition to the Code. In consultation with the City Attorney’s office, JCPH and the staff working group, revisions to Chapter 11 (License, Permits, and Miscellaneous Business Regulations) have been prepared. Minor revisions to Chapters 9 (Health) and 16 (Offenses – Miscellaneous) are also included in the ordinance. Chapter 11 edits: A new Article XV, entitled “Tobacco Product Retail License” was added to Chapter 11, which contains the following: • Requirement to obtain a tobacco retailer license • Limits on license eligibility • School and youth-oriented facility distance standards for licensure include grandfathering in of all current tobacco retailers • Dormancy component related to grandfathering in which eligibility is lost in the event the affected Tobacco Product Retailer is not open for business for one (1) year or more • Distance requirements of 1000 feet for new retailers located near a school or youth-oriented facility to include parks, playgrounds and recreation facilities • Renewal, suspension, and revocation provisions • Violation and enforcement provisions Recommendation and Next Steps City Council has discussed the regulation and licensing of tobacco retail licensing at several study sessions and reached consensus to move an ordinance forward as presented in this staff report. The proposed ordinance will provide staff with the ability to license and regulate tobacco retailers. Council Action Form – Tobacco Retail Licensing April 12, 2021 Page 3 Council may want to discuss the ordinance effective date. The effective date of July 1, 2021 was chosen by Council in November 2020 to align with the State’s planned implementation date. However, at this time the State Department of Revenue has announced a pause in rulemaking and license fee collection due to the pandemic. Council may consider moving forward with the July 1, 2021 implementation date or waiting to learn more about the State’s plans to move forward. If approved, staff will refine the internal processes for review and approval of tobacco retail licenses. The proposed ordinance effective date of July 1, 2021 allows staff time to prepare for the initial notice and registration period to include a comprehensive outreach program to local Wheat Ridge businesses. RECOMMENDATIONS: Staff recommends approval of the ordinance. RECOMMENDED MOTION: “I move to approve Council Bill No. 04-2021, an ordinance of the City Council of the City of Wheat Ridge, Colorado, amending Chapter 11, Licenses, Permits and Miscellaneous Business Regulations, with the addition of new Article XV regulating tobacco product retail licenses and conforming changes in connection therewith, on second reading, and that it take effect on July 1, 2021.” Or, “I move to postpone indefinitely Council Bill No. 04-2021, an ordinance of the City Council of the City of Wheat Ridge, Colorado, amending Chapter 11, Licenses, Permits and Miscellaneous Business Regulations, with the addition of new Article XV regulating tobacco product retail licenses and conforming changes in connection therewith, for the following reason(s) _________________.” REPORT PREPARED/REVIEWED BY: Marianne Schilling, Assistant to the City Manager Gerald Dahl, City Attorney Allison Scheck, Director of Administrative Services Patrick Goff, City Manager ATTACHMENTS: 1. Council Bill No. 04-2021 2. Tobacco Retailer Map 1 CITY OF WHEAT RIDGE, COLORADO INTRODUCED BY COUNCIL MEMBER HULTIN COUNCIL BILL NO. 04 ORDINANCE NO. _______ Series 2021 TITLE: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO, AMENDING CHAPTER 11, LICENSES, PERMITS AND MISCELLANEOUS BUSINESS REGULATIONS, WITH THE ADDITION OF NEW ARTICLE XV REGULATING TOBACCO PRODUCT RETAIL LICENSES AND CONFORMING CHANGES IN CONNECTION THEREWITH WHEREAS, the City of Wheat Ridge, Colorado (the “City”), is a Colorado home rule municipality, duly organized and existing pursuant to Section 6 of Article XX of the Colorado Constitution; and WHEREAS, pursuant to its home rule authority and C.R.S. § 31-15-401 et seq, and §31-15-501 et seq, the City acting through its City Council (the “Council”), is authorized to adopt rules and regulations regulating certain conduct and defining general offenses that harm or pose a threat to the public health, safety or welfare; and WHEREAS, approximately 96 percent of smokers begin smoking before age 21, with most beginning before age 16, smokers frequently transition from experimentation to addiction between the ages of 18 and 21; and WHEREAS, youth use of e-cigarettes and similar products is associated with future cigarette use; and WHEREAS, the Centers for Disease Control and Prevention has reported a more than 800% increase in electronic cigarette use among middle school and high school students between 2011 and 2015; and WHEREAS, the requirement for a tobacco retail license will not unduly burden legal business activities of retailers who sell tobacco products to adults in the City; and WHEREAS, in order to address youth smoking, e-cigarette and tobacco use, the Council finds a retail tobacco license in Wheat Ridge is needed. NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF WHEAT RIDGE, COLORADO: Section 1. The foregoing recitals are affirmed and incorporated herein by this reference as findings of the City Council. Section 2. The Wheat Ridge, Colorado Municipal Code shall be amended with the addition of Article XV, Tobacco Product Retail License, to Chapter 11, Licenses, Permits, and Miscellaneous Business Regulations to read as follows: ATTACHMENT 1 2 ARTICLE XV – Tobacco Product Retail License Sec. 11-230. – Purpose and Intent. The purpose of this Article is to ensure compliance with the business standards and practices of the City, to encourage responsible tobacco product retailing, to discourage violations of tobacco product laws that prohibit or discourage the sale or distribution of tobacco products to young people, to reduce the likelihood that youth will become tobacco product users by prohibiting the sale of tobacco products to persons under the minimum legal sales age of twenty-one (21) years of age but not to expand or reduce the degree to which the acts regulated by federal or state law are criminally proscribed or to alter the penalties provided therein to protect the health, safety and welfare of the residents of Wheat Ridge, Colorado. Sec. 11-231. – Defined Terms. The following terms are defined for use within this Article: Arm’s Length Transaction means a sale in good faith and for valuable consideration that reflects the fair market value in the open market between two informed and willing parties, neither of which is under any compulsion to participate in the transaction. A sale between relatives, related companies or partners, or a sale for which a significant purpose is avoiding the effect of the violations of Sec. 11-242 is not an arm’s length transaction. Cigarette means any product that contains nicotine, is intended to be burned or heated under ordinary conditions of use, and consists of or contains: (a) any roll of tobacco wrapped in paper or in any substance not containing tobacco; (b) tobacco in any form that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging or labeling, is likely to be offered to, or purchased by, consumers as a cigarette; or (c) any roll of tobacco wrapped in any substance containing tobacco that, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette described in subparagraph (1) of this definition. (d) The term “cigarette” includes roll-your-own, i.e. any tobacco that, because of its appearance, type, packaging, or labeling, is suitable for use and likely to be offered to, or purchased by, consumers as tobacco for making cigarettes. Cigar means any roll of tobacco other than a Cigarette wrapped entirely or in part in tobacco or any other substance containing tobacco. For purposes herein, cigar includes, but is not limited to tobacco products known or labeled as a “cigar,” “cigarillo” or “little cigar.” Consumer means a person who purchases tobacco products not for sale to another. 3 Department means the Wheat Ridge Police Department or its designee. Electronic Smoking Device means: (a) Means any product, other than a product described in subsection (3) of this section, that contains or delivers nicotine or any other substance intended for human consumption and that can be used by a person to enable the inhalation of vapor or aerosol from the product; (b) Includes any similar product or device, whether manufactured, distributed, marketed, or sold as an e-cigarette, e-cigar, e-pipe, e-hookah, or vape pen or under any other product name or descriptor; and (c) Does not include: (1) A humidifier or similar device that emits only water vapor; or (2) An inhaler, nebulizer, or vaporizer that is approved by the federal food and drug administration for the delivery of medication Good Cause means for the purpose of refusing or denying a License under this Article: (a) The Licensee has violated, does not meet, or has failed to comply with: (1) any of the terms, conditions or provisions of this Article; or (2) any of the terms, conditions or provisions of this Article; or (3) a rule or regulation promulgated by the Licensing Authority pursuant to this Article, or (b) The Licensee has failed to comply with: (1) any terms and conditions of the License including, but not limited to, any special terms and conditions placed on the License at the time the License was issued or any terms and conditions to the License subsequently modified by the Licensing Authority pursuant to Sec. 11-235(d); or (2) any special condition placed on the License in a prior disciplinary proceeding or that arose in the context of a prior disciplinary hearing. License means a Tobacco Product Retail License. Licensing Authority means the person(s) within the City designated by this Article with responsibility for the tobacco retail licensing system hereby adopted. License Fee means the annual fee for a Tobacco Product Retail License calculated to include the City’s cost of administration of this Article, Licensee education, inspections of Licensed premises, regular compliance checks, documentation of violations (database management), and prosecutions of violations of Licenses. Little Cigar means any roll of Tobacco other than a Cigarette wrapped entirely or in part in Tobacco and weighing no more than three pounds per thousand. “Little Cigar” 4 includes, but is not limited to, any product known or labeled as “small cigar” “cigarillo” or “little cigar.” Minimum Legal Sales Age means twenty-one (21) years of age or older. Person means any natural person, partnership, cooperative association, corporation, limited liability company, personal representative, receiver, trustee, assignee or other legal entity. Retail Tobacco Specialty Business means a person engaged primarily in the sale at retail of any tobacco products, and in which the sale of other products is less than 25 percent of gross sales receipts. Sale or Sell means any transfer, exchange, barter, gift, offer for sale, or distribution for a commercial purpose, in any manner or by any means whatsoever. School means: a private or public kindergarten, elementary, middle, junior high, or high school. Self-Service Display means the open display or storage of tobacco products in a manner that is physically accessible in any way to the general public without the assistance of the Licensee or an employee of the Licensee and a direct person-to-person transfer between the Consumer and the Licensee or employee of the Licensee. A vending machine is a form of self-service display. Tobacco Paraphernalia means any item designed for the consumption, use, or preparation of a Tobacco Product. Tobacco Product means: (a) any product which contains, is made or derived from tobacco or used to deliver nicotine, synthetic nicotine or other substances intended for human consumption, whether heated, chewed, absorbed, dissolved, inhaled, snorted, sniffed or ingested by any other means, including, but not limited to Cigarettes, Cigars, Little Cigars, chewing tobacco, pipe tobacco, snuff, bidis, snus, nicotine product, mints, hand gels; and (b) an Electronic Smoking Device; (c) notwithstanding any provision of subsections (1) and (2) of this Section to the contrary, “Tobacco Product” includes any component, part, accessory or associated Tobacco Paraphernalia of a Tobacco Product whether or not sold separately. (d) The term “Tobacco Product” does not include: (1) any product that contains marijuana; and 5 (2) any product made from or derived from tobacco and approved by the Food and Drug Administration (FDA) for use in connection with cessation of smoking. Tobacco Product Retailer means any Person who sells, offers for sale, or exchanges or offers to exchange for any form of consideration a Tobacco Product(s). This definition is without regard to the quantity of Tobacco Products sold, offered for sale, exchanged, or offered for exchange. Tobacco Product Retailing means any Person who engages in the sale of Tobacco Products directly to the public from any store, stand, booth, concession, outlet, vehicle, cart, vending machine, structure or any grounds or any other enterprise that Sells, offers for Sale, or does or offers to exchange for any form of consideration Tobacco Products. Youth-Oriented Facilities means any park, playground, and city-owned recreation facility. Sec. 11-232. – Licensing Authority. The City designates the City Treasurer or his/her designee to act as the Tobacco Product Retail Licensing Authority, referred to in this Article as the “Licensing Authority.” Sec. 11-233. – Requirements and Prohibitions. (a) License Required. It shall be unlawful for any person to act as a Tobacco Product Retailer in the City without first obtaining and then maintaining a valid Tobacco Product Retail License pursuant to this Article for each retail location where the activity is to occur. (b) Other Municipal Licenses. A License issued pursuant to this Article does not eliminate the need for the Licensee to obtain other required City licenses related to the operation of the Licensee’s business, including, without limitation: (1) a City Business License. (c) Display of License. Each Tobacco Product Retail License shall be prominently displayed on the premises of the Licensee in a publicly visible location. (d) Lawful Business Operation. In the course of Tobacco Product Retailing or in the operation of the business or maintenance of the location for which a License issued, it shall be a violation of this Article for a Licensee, or any of the Licensee’s agents or employees, to violate any local, state, or federal law applicable to Tobacco Product Retailing. (e) Minimum Legal Sales Age. Tobacco Products shall not be sold to any person under twenty-one (21) years of age. (f) Minimum Legal Sales Age Signage Requirements. Signage is required on the Licensed premises indicating that Tobacco Products shall not be sold to any 6 person under the Minimum Legal Sales Age of twenty-one (21) years of age. The signage shall be prominently displayed at minimum at all entrances on the premises. (g) Minimum Legal Age to Sell Tobacco Products. No person who is younger than eighteen (18) shall sell, stock, retrieve or other otherwise handle Tobacco Products. (h) Self-Service Displays Prohibited. Tobacco Product Retailing by means of a Self-Service Display is prohibited except within Retail Tobacco Specialty Businesses. (i) Positive Identification Required. No Licensee shall sell or transfer a Tobacco Product(s) to an individual who appears to be under the age of fifty (50) years without first examining the government issued photographic identification of the recipient to confirm that the recipient is at least twenty-one years of age (the Minimum Legal Sales Age for Tobacco Products). Sec. 11-234. – Limits on License Eligibility. (a) Mobile Vending. No License shall be issued to authorize Tobacco Product Retailing at a location other than a fixed location. Tobacco products may not be sold or provided for delivery. (b) Under-Age Applicant. An applicant not of the Minimum Legal Sales Age for Tobacco Products is ineligible to obtain a Tobacco Product Retail License. (c) Schools and Youth-oriented facilities. Tobacco Product Retailing is prohibited near schools, public and private, and youth-oriented facilities, as follows: (1) Except as provided in subsection (d) of this Section no new License may be issued within one thousand (1000) feet of a public or private School as measured by a straight line from the nearest point of the property line of the parcel on which the School is located to the nearest point of the property line of the parcel on which the applicant’s business is located. (2) Except as provided in subsection (d) of this Section no new License may be issued within one thousand (1000) feet of a youth-oriented facility as measured by a straight line from the nearest point of the property line of the parcel on which facility is located to the nearest point of the property line of the parcel on which the applicant’s business is located. (d) A Tobacco Product Retailer Operating Lawfully on Effective Date. A Tobacco Product Retailer operating lawfully on the Effective Date of this Article, as adopted by Ordinance ____, Series 2021, which retailer is ineligible to receive or renew a Tobacco Product Retail License for a location pursuant to subsection (c) of this Section and any Licensee operating lawfully who becomes ineligible to receive or renew a License due to the creation of a new School, may apply for a License for the location pursuant to the standard 7 License application procedure described in Sec. 11-235. This exception to applicability of the 1000 ft restriction is lost in the event the affected Tobacco Product Retailer is not open for business for one (1) year or more. Sec. 11-235. – License Application. (a) Application Form. All Tobacco Product Retail License applications shall be submitted on a form supplied by the Licensing Authority and shall contain the following information: (1) The name, address, and telephone number of each applicant seeking a License; (2) The business name, address, and telephone number of the single fixed location where a License is sought. (3) A name and mailing address authorized by each applicant authorized to receive all communications and notices (the “authorized address”) required by, authorized by, or convenient to the enforcement of this Article. If an authorized address is not supplied, each applicant shall be understood to consent to the provision of notice at the business address specified in subparagraph (2) of this section. (b) Applicable Laws. It is the responsibility of each applicant to inform themselves regarding all laws applicable to Tobacco Product Retailing, including those laws affecting the issuance of a Tobacco Product Retail License. (c) Review of License Application. Upon receipt of a properly completed application, together with all information required in connection therewith and the payment of the License Fee as required by Sec. 11-238, the Licensing Authority shall transmit copies of the application to: (1) the Wheat Ridge Police Department, and (2) any other agency the Licensing Authority determines should properly investigate and comment upon the application. (d) Application Review. Other Departments or Agencies. Within twenty (20) days of receipt of a completed application the Wheat Ridge Police Department, and those referral agencies described in subsection (c)(2) of this Section shall provide the Licensing Authority with comments concerning the application. (e) Additional Information. If the Licensing Authority requests the applicant to provide additional information that the Licensing Authority reasonably determines to be necessary in connection with the investigation and review of the application, the applicant shall provide such information within five (5) business days of the Licensing Authority’s request, unless the Licensing Authority agrees to a longer period of time. 8 (f) Conditional Approval. The Licensing Authority shall conditionally approve or deny an application within thirty (30) days of the receipt of a completed application unless, by written notice to the applicant, the decision period is extended for an additional ten (10) days if necessary, for the Licensing Authority to complete the Licensing Authority’s review of the application. Sec. 11-236. – Issuance of License. (a) The Licensing Authority shall issue a license under this Article when, from consideration of the application, and such other relevant information as may otherwise be obtained, the Licensing Authority determines that: (1) The application (including any required attachments and submissions) is complete and signed by the applicant, and the applicant has provided any additional information concerning the application requested by the Licensing Authority pursuant to Sec. 11-235(d); (2) The applicant has paid the application fee required by Sec. 11-238; (3) The application does not contain a material falsehood or misrepresentation; and (4) The granting of the application will not endanger public health or safety. (b) No applicant may rely on the issuance of a License as a determination by the City that the applicant has complied with all laws applicable to Tobacco Product Retailing. (c) Nothing in this Article shall be construed to vest in any person obtaining and maintaining a Tobacco Product Retail License any status or right to act as a Tobacco Product Retailer in contravention of any provision of law. Sec. 11-237. – Denial of Application. (a) The Licensing Authority shall deny an application for a License under this Article if the Licensing Authority determines that: (1) Information contained in the application, or supplemental information provided by the applicant, is found to be false in any material respect; (2) The applicant has had a License issued under this Article revoked within the two (2) years immediately preceding the filing of the application, or the applicant owned a fifty percent or greater interest in any business entity that has had a License issued under this Article revoked within the two (2) years immediately preceding the filing of the application; (3) The applicant is currently indebted to the City for any lawfully assessed tax or fee; or (4) The granting of the application will endanger public health or safety. 9 (5) The proposed location and/or applicant is not eligible pursuant to Sec.11-234(d) (6) The denial is required for one or more of the reasons in Sec.11-31, as referenced by Section 11-28. (b) If the application is denied, the Licensing Authority shall clearly set forth in writing the grounds for denial. (c) Upon denial of an application the application fee shall not be refunded. (d) In addition to the standards terms and conditions set forth in Sec. 11-233 and Sec.11-234, the Licensing Authority shall have the authority to impose such additional 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 other applicable law. Sec. 11-238. – License Term, Renewal and Expiration. (a) The term of a License is one year and shall expire on December 31 of each calendar year. (b) Each Tobacco Product Retailer shall apply for the renewal of the License and submit the applicable License Fee no later than thirty (30) days prior to expiration of the term to the Licensing Authority. (c) A Licensee does not have a vested right or a property right in the renewal of a License issued pursuant to this Article. (d) The Licensing Authority may refuse to renew a License for good cause. (e) A License is invalid if the License Fee has not been timely paid in full or if the term of the License has expired. (f) A License that is not timely renewed shall expire at the end of its term. To renew a License not timely renewed pursuant to subsection (b) of this Section, the applicant must: (1) submit the License Fee and application renewal form; and (2) submit a signed affidavit affirming that the applicant has not sold and will not sell any Tobacco Product(s) after the License expiration date and before the License is renewed. Sec. 11-239. – License Non-Transferrable. (a) A Tobacco Product Retail License shall not be transferred from one Person to another or from one location to another. A new License is required whenever a Tobacco Product Retail location has a change in owner(s) in an Arm’s Length Transaction. 10 (b) When a license has been issued to a husband and wife, or to general or limited partners, the death of a spouse or partner shall not require the surviving spouse or partner to obtain a new license for the remainder of the term of that license. All rights and privileges granted under the original license shall continue in full force and effect as to such survivors for the balance of the term of the license. (c) Notwithstanding any other provision of this Article, prior violations at a Licensed location shall continue to be counted against the location and License ineligibility periods shall continue to apply to the location unless: (1) the location has been transferred to a new business owner in an Arm’s Length Transaction; and (2) the new business owner(s) provide the Licensing Authority with clear and convincing evidence that the new business owner(s) has acquired or is acquiring the location in an Arm’s Length Transaction. Sec. 11-240. – License Conveys a Limited, Conditional Privilege. (a) Nothing in this Article shall be construed to grant any person obtaining or maintaining a Tobacco Product Retail License any status or right other than the limited conditional privilege to act as a Tobacco Product Retailer at the location in the City identified on the face of the License. Nothing in this Article shall be construed to render inapplicable, supersede, or apply in lieu of, any other provision of applicable law, including but not limited to, any provision of this Article. (b) The City may adopt and promulgate rules and regulations, in addition to those contained herein. Such rules and regulations, when promulgated, shall have the same force and effect as if incorporated in this Article. Sec. 11-241. – Compliance Monitoring. (a) Compliance with this Article shall be monitored by the Wheat Ridge Police Department. The City may designate any number of authorized City officials to monitor compliance with this Article. (b) All Licensed premises must be open to inspection by law enforcement or other authorized City official(s) during regular business hours. (c) From time to time, but at least two (2) times per year, the City will conduct compliance checks of all Licensees by engaging with persons under the Minimum Legal Sales Age of twenty-one (21) years of age to enter a Licensed premise to attempt to purchase Tobacco Products. (d) Prior written consent is required for any minor who participates in a compliance check on behalf of the City. Individuals participating in compliance checks will be supervised by law enforcement or other designated personnel and will not be guilty of illegal possession or illegal procurement when those items are 11 obtained as part of the compliance check. The City shall not enforce any law establishing a minimum legal sales age for Tobacco Product purchases or for possession of tobacco products against an individual who otherwise would be in violation of such law because of the individual’s age (hereinafter “Underage Operative”) if the potential violation occurs when: (1) the Underage Operative is participating in an inspection supervised by a peace officer, code enforcement official, or the Department designated by the City to monitor compliance with this Article; (2) the Underage Operative is acting as an agent of an individual, Department or group Designated by the City to monitor compliance with this Article; or (3) the Underage Operative is participating in an inspection funded in part, either directly or indirectly through subcontracting, by the Jefferson County public health department, Colorado Department of Public Health and Environment or the Colorado Department of Revenue. (e) Nothing in this section shall create a right of action in any Licensee or other party against the City or its agents. Sec. 11-242. – Penalties, Suspension and Revocation of License. (a) The City has the authority to suspend, restrict or revoke a License upon any violation of these regulations or License requirements or any rule promulgated pursuant to these regulations. (b) Any violation of the License requirements may be subject to suspension or revocation of the License. Each day that a violation exists shall be considered a separate occurrence subject to penalties herein. (c) Any complaint of a violation of the License requirements shall be referred to the Licensing Authority. If upon investigation by the City that a violation is found, a hearing on the violation will be held by the Licensing Authority or designee. Upon a determination that a violation has occurred, the Licensing Authority may suspend, restrict or revoke a License. (d) Suspension and Revocation Following Violation. (1) Upon a finding by the Licensing Authority of a first violation of this Article within a three-year period at a Licensed location, a civil fine shall be imposed in the amount of $500; (2) Upon a finding by the Licensing Authority of a second violation of this Article within a three-year period at a Licensed location, the License shall be suspended for seven (7) days; (3) Upon a finding of a third violation of this Article within a three-year period 12 at a Licensed location, the License shall be suspended for thirty (30) days; (4) Upon a finding of a fourth violation within a three-year period of this Article at a Licensed location, the License shall be suspended for one (1) year; (5) Upon a finding of five violations within a three-year period of this Article at a Licensed location, the License shall be revoked, and the Licensee shall be deemed ineligible to apply for a License for two (2) years. (e) In addition to any other penalty authorized by law, a License shall be suspended or revoked if a court of competent jurisdiction determines, or the Licensing Authority based on a preponderance of the evidence, after the Licensee is afforded notice and an opportunity to be heard, that the Licensee, or any of the Licensee’s agents or employees, has violated any of the requirements, conditions, or prohibitions of this Article or has pleaded guilty, “no contest” or its equivalent, or admitted to a violation of any provision of this Article. (f) No fee previously paid by a Licensee in connection with the application shall be refunded if such License is suspended or revoked. (g) The removal of all Tobacco Products from public view is required during any period in which the License is suspended or revoked. (h) When a License has been revoked no new License shall be issued to the same Licensee for the period of two (2) years after revocation pursuant to Sec. 11-242(d)(5). (i) A Tobacco Retail License shall be revoked if the Department finds, after the Licensee is afforded notice and an opportunity to be heard, that one or more of the bases for denial of a License under Sec. 11-237 existed at the time application was made or at any time before the License was issued. Such a revocation shall be without prejudice to the filing of a new License application. (j) Any decision made by the Licensing Authority with respect to issuance, suspension, or revocation of a License pursuant to this Article shall be a final decision of the City and may be appealed to the district court pursuant to Rule 106(a)(4) of the Colorado Rules of Civil Procedure. The applicant’s or Licensee’s (as applicable) failure to timely appeal the decision is a waiver the applicant’s or Licensee’s right to contest the denial or conditional approval of the application. Sec. 11-243. – Violations and Enforcement. (a) A person required to have a valid License issued pursuant to this Article operating a business without a Tobacco Product Retail License shall be subject 13 to prosecution in the municipal court pursuant to Sections 1-5 and 1-6 of the Code. (b) For the purposes of enforcement of this Article: (1) Each day that a Tobacco Product(s) is offered for sale is a separate violation. (2) Each Tobacco Product(s) distributed, sold, or offered for sale in violation of this Article shall constitute a separate violation. (c) In addition to other remedies provided by this Article or by other law, any violation of this Article may be remedied by a civil action brought by the City, including administrative or judicial nuisance abatement proceedings, and suits for injunctive relief. (d) In any case in which the City prevails in a civil action initiated pursuant to this Section, the City may recover its reasonable attorney fees plus costs of the proceeding. (e) Whenever evidence of a violation of this Article is obtained in any part through the participation of an individual under the Minimum Legal Sales Age to purchase Tobacco Products (Underage Operative) such individual shall not be required to appear or give testimony in any civil or administrative process brought to enforce this Article and the alleged violation shall be adjudicated based upon the sufficiency and persuasiveness of the evidence presented. (f) Businesses in violation of this Article are hereby declared to be public nuisances, and may be abated pursuant to Code Sections 15-5 through 15-12 as “offensive businesses.” (g) All civil fines and license fees imposed under this Article, if not timely paid, may be collected by the City pursuant to any of the procedures in Code Section 2-6.The Licensing Authority is hereby authorized to adopt rules and regulations to implement the provisions of this Article. Section 3. Subparagraphs (a)(12) and (29)- (33), inclusive, of Section 9-23(a) of the of the Code of Laws are amended to read: (12) INDOOR AREAS OF food service establishments; (29) A cigar-tobacco bar: (a) Shall not expand its size or change its location from the size and location in which it existed as of December 31, 2005; and (b) Shall prohibit entry by any person under TWENTY-ONE years of age and shall display signage in at least one (1) conspicuous place and at least four (4) inches by six (6) inches in size stating: "Smoking allowed. PERSONS under TWENTY-ONE years of age may not enter." 14 (30) Hotel and motel rooms; (31) Assisted living facilities, including nursing facilities, as defined in section 9-22 AND ASSISTED LIVING RESIDENCES; (32) The entryways of all buildings and facilities listed in section 9-24. (33) A retail tobacco business: (a) Shall prohibit entry by any person under TWENTY-ONE years of age; and (b) Shall display signage in at least one (1) conspicuous place and at least four (4) inches by six (6) inches in size stating either: (1) "Smoking allowed. PERSONS under TWENTY-ONE years of age may not enter."; or (2) In the case of a retail tobacco business that desires to allow the use of ESDs but not other forms of smoking on the premises, "Vaping allowed. PERSONS under TWENTY-ONE years of age may not enter." Section 4. Section 9-24(a)(3) of the Code of Laws, previously permitting smoking in certain hotel and motel rooms, is repealed. Section 5. Section 9-24(a)(7) of the Code of Laws, previously permitting smoking in places of employment not open to the public, is repealed. Section 6. Section 9-25 of the Code of Laws is repealed and reenacted in its entirety to read: The owner or manager of any place otherwise exempted under Section 9-24 may post signs prohibiting smoking. Such posting shall have the effect of including such place in the places where smoking is prohibited or restricted pursuant to Section 9-23. Section 6. Section 16-176(a) of the Code of Laws is amended to read: Sec. 16-176. Furnishing cigarettes to minors. (a) Unlawful. It is unlawful for any person to sell, give or distribute cigarettes TOBACCO products to any person under the age of sixteen (16) TWENTY-ONE (21) years. 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 on July 1, 2021, as permitted by Section 5.11 of the Charter. 15 INTRODUCED, READ, AND ADOPTED on first reading by a vote of 8 to 0 on this 22nd day of March 2021, 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 April 12, 2021, as a virtual meeting. READ, ADOPTED AND ORDERED PUBLISHED on second and final reading by a vote of ___to __, this 12th day of April 2021. SIGNED by the Mayor on this 12th day of April 2021. ______________________ Bud Starker, Mayor ATTEST: ________________________ Steve Kirkpatrick, City Clerk Approved as to Form _______________________ Gerald E. Dahl, City Attorney First Publication: March 25, 2021 Second Publication: April 15, 2021 Jeffco Transcript Effective Date: July 1, 2021 Published: Jeffco Transcript and www.ci.wheatridge.co.us W 38TH AVE W 44TH AVE W 32ND AVE W 26TH AVE KIP L I N G S T WA D S W O R T H B L V D RIDGE RD WA R D R D TAB O R S T YO U N G F I E L D S T SHE R I D A N B L V D 58 76 70 70 70 City of Wheat Rid ge, Colorad o7500 West 29th AvenueWheat Rid ge, CO 80033-8001 303.234.5900 City Council District MapA Tob acco License Im p act Stud y Tob acco Retailer School P rop erty P arks 500' Buffer 1000' Buffer District I District II District III District IV CC District Bound ary Source: G:\GIS\P rojects\FY2020\Oct-Dec \FY0050_ADM_SchoolTob ac coBuffer\d ata\MX D\Tob accoRetailerMap .m xd ± 1:24,000 DISCLAIMER NOTICE:This is a p ictorial rep resentation of geograp hic and d em ograp hic inform ation. Reliance up on the accuracy, reliab ility and authority of this inform ationis solely requestor’s resp onsib ility. The City of Wheat Rid ge,in Jefferson County,Colorad o - a p olitical sub d ivision of the State of Colorad o, has com p iled for itsuse certain com p uterized inform ation. This inform ation is availab le to assist in id entifyinggeneral areas of concern only. The com p uterized inform ation p rovid ed should only b erelied up on with corrob oration of the m ethod s, assum p tions, and results b y a qualifiedind ep end ent source. The user of this inform ation shall ind em nify and hold free the City of Wheat Rid ge from any and all liab ilities, d am ages, lawsuits, and causes of action that result as a consequence of his reliance on inform ation p rovid ed herein. Created By: Annab el Montoya - GIS Analyst, P rinted Decem b er 7, 2018 ATTACHMENT 2 ITEM NO: DATE: April 12, 2021 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 15-2021 – A RESOLUTION APPROVING A FIRST AMENDMENT TO AN ENHANCED SALES TAX INCENTIVE PROGRAM AGREEMENT WITH GRAMMY’S GOODIES EXTENDING THE COMMENCEMENT DATE FROM NOVEMBER 1, 2020 TO NOVEMBER 1, 2021 PUBLIC HEARING ORDINANCES FOR 1ST READING BIDS/MOTIONS ORDINANCES FOR 2ND READING RESOLUTIONS QUASI-JUDICIAL: YES NO _________________________ City Manager ISSUE: The City of Wheat Ridge approved an Enhanced Sales Tax Incentive Program (ESTIP) Agreement with Grammy’s Goodies (Grammy’s) on May 11, 2020. Section 2 of that Agreement set the term to commence on November 1, 2020 or upon issuance of a certificate of occupancy for improvements to their restaurant, whichever should come first. Due to impacts of the COVID-19 pandemic, the patio door and HVAC system improvements have been delayed and Grammy’s has been unable to complete their improvements which were projected to increase sales and sales tax revenues. Grammy’s has requested an amendment to the Agreement to delay the commencement date to November 1, 2021 to allow them time to complete the improvements. PRIOR ACTION: On May 11, 2020, City Council adopted Resolution 27-2020 approving the ESTIP Agreement. 2 Council Action Form – Grammy’s Goodies ESTIP April 12, 2021 Page 2 FINANCIAL IMPACT: The original Agreement stipulated sharing 50% of enhanced sales tax with Grammy’s for a period of five years in a maximum amount not-to-exceed $70,000. This Amendment will delay the sharing of revenues by up to one-year. BACKGROUND: The goal of the ESTIP is to encourage the establishment and/or substantial expansion of retail sales tax generating businesses within the city, thereby stimulating the economy of and within the city, thereby providing employment for residents of the city and others, thereby further expanding the goods available for purchase and consumption by residents of the city, and further increasing the sales taxes collected by the city. The ESTIP and increased sales tax collections will enable the city to provide expanded and improved municipal services to and for the benefit of the residents of the city, while at the same time providing public or public-related improvements at no cost, or at deferred cost, to the city and its taxpayers and residents. This tool allows the City Council to rebate a portion of sales tax increment generated by Grammy’s. Enhanced sales tax is the amount of sales tax collected by the city over and above a base amount, which is the amount received over the previous 12-months prior to the application to enter into the ESTIP. Grammy’s has been operating for 17 years, the last 5 years in Wheat Ridge. Co-owner, Vicky Corder grew up in Wheat Ridge and graduated from Wheat Ridge High School. She and her husband Jeff raised two children in Wheat Ridge and want to be a part of the community for as long as they are able. Grammy’s was recently featured on the Food Network’s Diners, Drive-ins and Dives. This feature has increased Grammy’s business dramatically. Based on this new business, Grammy’s needs additional space in the restaurant to accommodate the new business. This additional space includes customer seating capacity and kitchen space. Grammy’s also needs an improved parking area and landscaping to accommodate the increase in business and improve the aesthetics of its grounds surrounding the facility. Grammy’s building currently measures 2000 sq. ft. and seats 24. Most of the square footage is devoted to kitchen and storage. Grammy’s plans to expand the seating area by 600 sq. ft. by enclosing the current patio area with two large glass garage-type doors and three large windows for a modern look. These plans and improvements will all be approved under the City’s Architectural and Site Design (ASDM). There will be a stone façade on the outside of the building along with new flower boxes. This will create a unique eating space as the doors can be rolled up, weather permitting, to create an open-air eating space that will seat approximately 40 people and an enclosed eating space. This addition will allow for more space in the main building to accommodate additional work area which will make it much more efficient to facilitate Grammy’s festival and catering business. The flower boxes around the sign will also be revamped from the current broken wood to a new brick retaining wall. Prior to the feature on Diners, Drive-ins and Dives, Grammy’s employed eight full-time staff. With the increased business from the show, Grammy’s has created four more full-time and three Council Action Form – Grammy’s Goodies ESTIP April 12, 2021 Page 3 more part-time jobs. With the expansion and more room for efficiency Grammy’s plans to create even more positions. The upgrades will also bring construction jobs to the city. The expansion and improvement costs are estimated to be approximately $150,000. The ESTIP funding will be utilized in the facilitation of the expansion. The remaining $80,000 of construction funding will be supplemented by private equity of the business owners, a family member loan, and a bank line of credit. Grammy’s has also been approved for a loan up to $20,000 from the Wheat Ridge Business District. No other City or Urban Renewal funds will be utilized for the expansion. During, and upon completion of the project, the end user will provide to the City of Wheat Ridge the following: • Future sales and use tax revenue; • The continuation of permanent good paying jobs; • Construction-related jobs and the economic activity they bring to the surrounding neighborhood; • Support of a Wheat Ridge based small business; and • Conformance with the City’s Comprehensive Plan. RECOMMENDATIONS: Staff recommends approval of the Amendment to the Grammy’s ESTIP RECOMMENDED MOTION: “I move to approve Resolution No. 15-2021, a resolution approving a first amendment to an Enhanced Sales Tax Incentive Program Agreement with Grammy’s Goodies extending the Commencement Date from November 1, 2020 to November 1, 2021.” Or, “I move to postpone indefinitely Resolution No. 15-2021, a resolution approving a first amendment to an Enhanced Sales Tax Incentive Program Agreement with Grammy’s Goodies extending the Commencement Date from November 1, 2020 to November 1, 2021, for the following reason(s) _______________________.” REPORT PREPARED/REVIEWED BY: Steve Art, Economic Development Manager Patrick Goff, City Manager Jerry Dahl, City Attorney ATTACHMENTS: 1. Resolution No. 15-2021 2. Exhibit 1 - First Amendment ATTACHMENT 1 CITY OF WHEAT RIDGE RESOLUTION NO. 15 Series of 2021 TITLE: A RESOLUTION APPROVING A FIRST AMENDMENT TO AN ENHANCED SALES TAX INCENTIVE PROGRAM AGREEMENT WITH GRAMMY’S GOODIES EXTENDING THE COMMENCEMENT DATE FROM NOVEMBER 1, 2020 TO NOVEMBER 1, 2021 WHEREAS, Division 4, Section 22-73 of the Wheat Ridge Code of Laws establishes an Enhanced Sales Tax Incentive Program; and WHEREAS, the purpose of the enhanced sales tax incentive program is to encourage the establishment and/or substantial expansion of retail sales tax generating businesses within the city; and WHEREAS, City Council adopted Resolution 27-2020 approving an Enhanced Sales Tax Incentive agreement with Grammy’s Goodies on May 11, 2020; and WHEREAS, improvements to Grammy’s Goodies will allow further expansion of the goods available for purchase and consumption by residents of the city; and WHEREAS, due to the impacts of the COVID-19 pandemic, causing delays in production and arrival of equipment to further the development the project was delayed approximately one-year; and WHEREAS, approval of an amendment extending certain dates in the agreement will provide public or public-related improvements at no cost, or at deferred cost, to the city and its taxpayers and residents; and WHEREAS, the requested Amendment will stimulate jobs and growth during and after the improvements and will lead to future sales and use tax revenue and continuation of permanent good paying jobs; and WHEREAS, approval of the proposed Amendment continues the support of a Wheat Ridge based small business; and is in conformance with the City’s Comprehensive Plan; and WHEREAS, City Council has conducted a proper public hearing on the proposed amendment, meeting all public notice requirements as required by Section 26-109 and 26-407 of the Code of Laws. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Wheat Ridge, Colorado: Section 1. First Amendment to ESTIP agreement approved The first amendment to Enhanced Sales Tax Improvement Program Agreement with Grammy’s Goodies is hereby approved in the form attached as EXHIBIT 1, and the Mayor and City clerk are hereby authorized and directed to execute the same. Section 2. Effective Date This Resolution shall be effective upon adoption. DONE AND RESOLVED this 12th day of April 2021. ______________________ Bud Starker, Mayor ATTEST: _________________________ Steve Kirkpatrick, City Clerk ATTACHMENT 2 EXHIBIT 1 FIRST AMENDMENT TO ENHANCED SALES TAX INCENTIVE PROGRAM THIS FIRST AMENDMENT TO AN ENHANCED SALES TAX INCENTIVE PROGRAM (this "First Amendment") is made effective as of April 12, 2021, by and between the CITY OF WHEAT RIDGE (“City”), and GRAMMY’S GOODIES (“Grammy’s”). RECITALS A. The City and Grammy’s entered into that certain Enhanced Sales Tax Incentive Program Agreement with an Effective Date of May 11, 2020 (the "Original Agreement"), wherein, subject to the terms thereof, both parties agreed to consent to all items pertained in the Original Agreement. B. Grammy’s Goodies desire to amend Sections 2 and 14 of the Original Agreement from November 1, 2020 to November 1, 2021, as more fully set forth below. C. The City Council has approved this amendment by Resolution No. 15, Series 2021, effective April 12, 2021. D. Sections 2 and 14 of the Original Agreement, as amended by this First Amendment, are replaced in their entirety to read as follows 2. Term. The term of this Agreement shall commence on the first day of the calendar month following the month in which the Owner receives their Certificate of Occupancy on the Property or November 1, 2021 whichever shall occur first (the “Commencement Date”) and shall terminate in five (5) years, unless otherwise provided in this Agreement (the “Term”). The Term of this Agreement shall automatically renew for each additional one year period to the extent required by Section 4(d) hereof. 14. Effective Date. This Agreement shall be effective and binding upon the Parties upon the date first set forth above. Notwithstanding any provision of this Agreement which may be interpreted to the contrary, in the event that Owner does not acquire title to the Property and construct and make improvements to the Property on or before November 1, 2021, then upon notice by the Owner to the City, this Agreement shall terminate and both Parties shall be relieved of all liability hereunder. IN WITNESS WHEREOF, Owner and City have each caused this First Amendment to be executed by the authorized Parties. OWNER GRAMMIES GOODIES ___________________________ Title State of Colorado ) ) ss. County of __________ ) The foregoing Agreement was acknowledged before me this ___ day of ____________, 20___, by _______________________________ as _____________________ [title] of _____________________________________, Inc. WITNESS MY HAND AND OFFICAL SEAL. My Commission expires: __________________ _________________________________ Notary Public CITY OF WHEAT RIDGE By: ________________________ Name: Bud Starker Title: Mayor ATTEST: _______________________ Name: Steve Kirkpatrick Title: City Clerk State of Colorado ) ) ss. County of Jefferson ) The foregoing Agreement was acknowledged before me this ____ day of ____________, 20___, by Bud Starker as Mayor and Stephen Kirkpatrick as City Clerk, respectively, of the City of Wheat Ridge, Colorado. WITNESS MY HAND AND OFFICAL SEAL. My Commission expires: __________________ ___________________________ Notary Public ITEM NO: DATE: April 12, 2021 REQUEST FOR CITY COUNCIL ACTION TITLE: RESOLUTION NO. 16-2021 – A RESOLUTION APPROVING A PERMIT FOR A NOISE SOURCE PURSUANT TO SECTION 16-103.C(3) OF THE WHEAT RIDGE CODE OF LAWS FOR ROCKY MOUNTAIN BOTTLE COMPANY AND MAKING FINDINGS IN CONNECTION THEREWITH PUBLIC HEARING ORDINANCES FOR 1ST READING BIDS/MOTIONS ORDINANCES FOR 2ND READING RESOLUTIONS QUASI-JUDICIAL: YES NO _________________________ City Manager ISSUE: City of Wheat Ridge Code of Laws permit a business in the industrial zone district which operates a noise source, to apply to the City Manager for a permit for a different decibel level than set forth in the Code. Rocky Mountain Bottle Company (RMBC) submitted an application to the City Manager requesting an adjusted allowable sound level associated with a new furnace oxygen plant portion of the RMBC facility. PRIOR ACTION: City Council approved Ordinance 1697 on August 24, 2020, an ordinance amending Section 16-103 of the Wheat Ridge Code of Laws concerning the regulation of noise. The Ordinance, among other things, established noise standards for industrial properties and a permit process for existing business owners to request a different decibel level than set forth in the Ordinance. On February 22, 2021 City Council approved an ordinance extending the effective date of Section 16-103.C of the Noise Ordinance, pertaining to industrial noise standards, until October 1, 2021. 3 Council Action Form – RMBC Noise Permit Application April 12, 2021 Page 2 FINANCIAL IMPACT: None BACKGROUND: In 2018, Rocky Mountain Bottle Company (RMBC) began an extensive upgrade to their glass plant to install a new, environmentally friendly furnace. Unfortunately, the new furnace increased the level of noise emanating from the plant into the adjacent neighborhoods. RMBC worked in partnership with the City and the surrounding neighborhoods and completed significant investments to address the increased noise coming from the plant. However, the City has continued to receive complaints from the surrounding neighborhoods concerning the noise. RMBC has continued to respond to the situation by designing and approving construction of a sound wall barrier, which is expected to be complete in June 2021. In response to these and other noise complaints around the City, City Council adopted Ordinance No. 1697 on August 24, 2020 amending Section 16-103 of the Wheat Ridge Code of Laws concerning the regulation of noise. Section 16-103(C) specifically addresses unlawful noise on or emitting from industrial properties and establishes noise standards as follows: TABLE A: ALLOWABLE NOISE LEVELS (IN DBA) WITH TIME OF DAY ALLOWANCE Receptor Premises 7 a.m. – 10 p.m. / 10 p.m. – 7 a.m. Source Premises Residential Commercial Industrial INDUSTRIAL 55/50 65/60 80/75 The Code permits an existing business owner in the industrial zone district, which operates a noise source, to apply to the City Manager for a permit for a different decibel level than set forth in Table A. RMBC submitted an application on January 13, 2021 requesting the following adjusted noise levels: TABLE 3: Adjusted RMBC Noise Limits Location 1 Receiving Property Location 2 Receiving Property Measured cumulative ambient 57 dBA 60 dBA Allowance based upon measured perception and logarithmic addition 5 dBA 5 dBA Adjusted allowable noise limits 62 dBA 65 dBA Complete details can be found in the attached Permit Application from RMBC. RECOMMENDATIONS: The City Manager recommends approval of the request from RMBC for a permit for a different decibel level than established in Wheat Ridge Code of Laws Section 16-103, with conditions, all as set forth in the “Decision” section of Resolution 16-2021. Council Action Form – RMBC Noise Permit Application April 12, 2021 Page 3 RECOMMENDED MOTION: “I move to approve Resolution No. 16-2021, a resolution approving a permit for a noise source pursuant to Section 16-103.C(3) of the Wheat Ridge Code of Laws for Rocky Mountain Bottle Company and making findings in connection therewith.” Or, “I move to postpone indefinitely Resolution No. 16-2021, for the following reason(s) _______________________.” REPORT PREPARED/REVIEWED BY: Patrick Goff, City Manager Jerry Dahl, City Attorney ATTACHMENTS: 1. Resolution No. 16-2021 2. RMBC Permit Application Executive Summary, dated March 29, 2021 3. RMBC Permit Application, dated January 13, 2021 ATTACHMENT 1 CITY OF WHEAT RIDGE, COLORADO RESOLUTION NO. 16 Series of 2021 TITLE: A RESOLUTION APPROVING A PERMIT FOR A NOISE SOURCE PURSUANT TO SECTION 16-103.C(3) OF THE WHEAT RIDGE CODE OF LAWS FOR ROCKY MOUNTAIN BOTTLE COMPANY AND MAKING FINDINGS IN CONNECTION THEREWITH WHEREAS, the City of Wheat Ridge is a home rule municipality operating under a charter approved by its electors and governed by its City Council; and WHEREAS, on August 24, 2020, the City Council adopted Ordinance No. 1697, Series 2020, which ordinance amended section 16–103 of the Wheat Ridge Code of Laws concerning unreasonable noise and disturbing the peace; and WHEREAS, revised section 16–103 provides standards for regulation of unlawful noise and subsection 16–103(C) establishes noise standards for industrial properties as follows: TABLE A: ALLOWABLE NOISE LEVELS (IN DBA) WITH TIME OF DAY ALLOWANCE Receptor Premises 7 a.m. – 10 p.m. / 10 p.m. – 7 a.m. Source Premises Residential Commercial Industrial INDUSTRIAL 55/50 65/60 80/75 WHEREAS, subsection 16–103(C)(3) permits a business owner in the industrial zone district which operates a noise source, to apply to the City Manager for a permit for a different decibel level than that set forth in Table A. The subsection goes on to require that the application for a different decibel level be made to the City Manager and be accompanied by a written request and noise study; and WHEREAS, subsection 16–103(C)(3) requires the City Manager to review the application materials, meet with the applicant and recommend to the City Council that the request be approved, approved with conditions or denied. The decision of the City Council is the final decision of the City; and WHEREAS, any issued permit may include as conditions permitted decibel levels, time and day of week limitations, term of permit, and whether renewal periods are permitted, in addition to neighborhood outreach and education, the contact for complaints, and authority for the City Manager to revoke a permit for failure to comply with limitations and conditions. NOW, THEREFORE, BE IT RESOLVED by the Wheat Ridge City Council: FINDINGS 1. On January 13, 2021, Applicant, the Rocky Mountain Bottle Company (RMBC), through their consultant, Behren's & Associates Environmental Noise Control, submitted an application to the City Manager pursuant to Code section 16–103(C)(3) requesting an adjusted allowable sound level associated with the New B Furnace Oxygen Plant (Oxygen Plant B) portion of the Rocky Mountain Bottle Company (RMBC) facility. 2. The Application was accompanied by measured ambient sound levels collected from an onsite sound level survey conducted between August 14, 2020 and August 21, 2020. The survey was conducted while Oxygen Plant B was not in operation to provide a baseline sound level for the study representative of the ambient levels in the area prior to the addition of Oxygen Plant B. The measurements were taken at two locations: the southern boundary of the nearest neighbor, 5300 Nelson Street, Wheat Ridge, Colorado (Location 1) and at the northern property boundary of the RMBC operation directly north of Oxygen Plan B (Location 2). The measured ambient sound levels, as a result of the study, were as follows: TABLE 2: Measured RMBC Ambient Sound Levels Location 1 Receiving Property Location 2 Receiving Property Cumulative daytime ambient (7a.m.–7p.m.) From 8.15.2020 to 8.19.2020 57 dBA 61 dBA Cumulative nighttime ambient (7p.m.–7 a.m.) From 8.15.2020 to 8.19.2020 56 dBA 60 dBA Total measured ambient Leq Measured from 8.15.2020 to 8.19.2020 57 dBA 60 dBA 3. The measured ambient sound levels were in excess of sound levels currently permitted by Table A of Code Section 16-103(C) and therefore present an enforcement and compliance challenge. The Applicant requests the allowable noise limit be increased by adding 5 dBs to the measured ambient sound level at each of the two locations. In support of its Application, Applicant relies upon the measured ambient noise level at the two locations and the Federal Highway Administration analysis of relative loudness of environmental noise, which concludes that a noise increase is not readily perceptible until the sound level change equals approximately 5 dB (A). 4. In addition, Applicant relies upon the use by the Colorado Oil & Gas Conservation Commission of its agency code adopted August 2020 to the effect that if the measured ambient sound levels exceed the allowable noise level limits of a given zone then ambient +5 dBA constitutes the amended allowable noise level. 5. Based upon the foregoing, the Applicant has requested that the allowable noise limits for the RMBC facility should be adjusted and permitted pursuant to Code Section 16–103(C)(3), to be as follows: TABLE 3: Adjusted RMBC Noise Limits Location 1 Receiving Property Location 2 Receiving Property Measured cumulative ambient 57 dBA 60 dBA Allowance based upon measured perception and logarithmic addition 5 dBA 5 dBA Adjusted allowable noise limits 62 dBA 65 dBA 6. Pursuant to the authority granted to him by the Code, the City Manager has met with the Applicant, reviewed the Applicant's noise study and noise measurements and recommends approval of the Applicant's request, with conditions, all as set forth in the “Decision" section below. DECISION A. Pursuant to section 16–103(C)(3) of the Code of Laws, the City Council hereby approves the request by Rocky Mountain Bottle Company, hereafter (“Permittee”) for a permit for a different decibel level than established by Code 16-103, for its new B Furnace Oxygen Plant at the Rocky Mountain Bottle Company facility, as follows: TABLE 3: Adjusted RMBC Noise Limits Location 1 Receiving Property Location 2 Receiving Property Measured cumulative ambient 57 dBA 60 dBA Allowance based upon measured perception and logarithmic addition 5 dBA 5 dBA Adjusted allowable noise limits 62 dBA 65 dBA B. This permit, and the adjusted RMBC noise limits permitted hereby, is subject to the following conditions: i. In order to assess compliance with the proposed adjusted allowable noise limits, measurements should be conducted at the property lines of Location 1 or other residential receiving property, for a minimum of 15 minutes. The measurement is to be taken with a meter capable of integrating over the 15-minute period and providing an average (Leq) noise level. The meter should be calibrated prior to measurement and should adhere to other ANSI standards per Code Section 16-103. ii. Measurements should be taken with calm winds, making sure no extraneous noise like train or lawnmowers are present. Measurements should also avoid periods of high traffic such as 6 a.m. to 9 a.m. and 3 p.m. to 6 p.m. The measured sound levels at the receiving property shall be compared against the receiving property dBA limits (62 dBA) listed in Table 3. If the measured levels are 62 dBA or less at the receiving property, then the measured sound levels are compliant per this permit. iii. If the measured sound levels at the receiving property exceed 62 dBA, then a follow up measurement at the source (RMBC) property is required. This measurement shall be taken at the source property line in the direction of the receiving property (Location 2). If the measurement is equal to or less than the allowable limit for the source property (65 dBA) listed in Table 3, then the measurements are in compliance with this permit and suggest that the offending source of noise is not the Oxygen Plant B. A noncompliance will be established only if both the receiving and source locations exceed the allowable adjusted noise limits listed in Table 3. iv. In the event the receiving locations exceed the allowable adjusted noise limits listed in the table, the City will notify the Permitee of such excess noise. Permittee will have ten (10) days to confirm the tests by performing testing. If the Permittee disagrees with the determination, the City and the Permittee will perform a third test to determine if the locations exceed the allowable adjusted noise limits listed in the table. If the receiving locations exceed the allowable adjusted noise limits listed in the table, then the Permittee will determine the source of the excess and shall design a plan to address the excess noise within sixty (60) days of the date of notification by the City. The Permittee will then apply for any necessary permits required by the City to make such design adjustments. The Permittee will then commence to make or employ such additional noise mitigation measures as necessary to bring the noise source within the limits allowed by this permit and shall provide the City with new measurements showing such compliance within 120 days. In the event compliance is not achieved within 120 days, the Permittee shall have an additional 30 days within which to achieve compliance, after which if Permittee is not diligently pursuing such compliance and does not reasonably obtain such compliance within thirty (30) days such event of noncompliance shall be subject to enforcement by the City in the Municipal Court. The City agrees the receiving locations for any tests for compliance will solely be at the locations set forth in the table. v. The City Manager is authorized to suspend the RMBC permit in the event noise measurements exceed the allowable limits after the period for remediation has expired. vi. The permittee shall conduct noise measurements at Locations 1 and 2, in the manner required by Paragraphs B(i) and (ii) above on a quarterly basis commencing June 1, 2021 until June 1, 2022, and thereafter on an annual basis or upon request by the City, with the results of such measurements being provided to the City Manager. C. Effective Date. This Resolution shall be effective upon approval by the City Council and electronic signature by the Mayor. DONE AND RESOLVED this 12th day of April 2021. Bud Starker, Mayor ATTEST: Steve Kirkpatrick, City Clerk Behrens and Associates, Inc. Environmental Noise Control Corporate Office: Hawthorne, California Carson, California ~ Aledo, Texas ~ Napa California ~ Longmont, Colorado ~ McDonald, Pennsylvania Phone 800-679-8633 ~ Fax 310-331-1538 www.environmental-noise-control.com ~ www.drillingnoisecontrol.com ATTACHMENT 2 March 29, 2021 Rocky Mountain Bottle Company 10619 W. 50th Ave., Mail Stop RR836 Wheat Ridge, CO 80033 Attention: Noel Guerrero Subject: City of Wheat Ridge Ordinance 16-103(C) Permit Application – Variance Letter Executive Summary Reference: New B Furnace Oxygen Plant of RMBC Wheatridge Facility Dear Mr. Guerrero, Per your request, Behrens and Associates Environmental Noise Control (BAENC) has prepared the following executive summary in support of Rocky Mountain Bottle Company’s (RMBC) permit application petitioning for adjusted allowable sound levels associated with the New B Furnace Oxygen Plant (Oxygen Plant B) area of the Wheat Ridge RMBC facility. If additional details are required beyond this executive summary then the full variance letter titled City of Wheat Ridge Ordinance 16-103(C) Permit Application – New B Furnace Oxygen Plant of RMBC Wheat Ridge Facility and dated January 13, 2021 shall be referenced. What does the data show? • Ambient noise was measured with the B Furnace Oxygen Plant off (pre project noise level). • At Location #1, cumulative ambient noise measured over several days was 57dBA (Table 3), which exceeds the allowable noise levels in the residential zone of 55db day and 50dB night (Figure 1) • The human ear has difficulty detecting sound level changes of less than 5dB per FHWA (Table 2) What are we proposing? • To follow the existing precedent in the COGCC (Colorado Oil & Gas Conservation Commission) regulations that allow for adjusted noise levels of Ambient plus 5 dBA. • Therefore we would ask for 62db (57 + 5db) at Location 1 - Receiving Property and 65dB (60 + 5db) at Location 2 - Source Property as shown in Table 3 – Adjusted RMBC Noise Limits. Table 3 – Adjusted RMBC Noise Limits Location 1 – Receiving Property Location 2 – Source Property Measured Cumulative Ambient Leq 57 dBA 60 dBA Allowance based upon relative perception and logarithmic addition 5 dBA 5 dBA Adjusted Allowable Noise Limits 62 dBA 65 dBA Behrens and Associates, Inc. Environmental Noise Control Rocky Mountain Bottle Company March 29, 2021 Page 2 Proof of Compliance • Quarterly noise testing will be performed to verify permit compliance at the source location. • Annual testing to be allowed after one year of proof of compliance. Response in event of noncompliance • Verification measurements would be with Class 2 or better noise meter following the protocol referenced on page 5 “Proposed Compliance Verification Procedure”. • If proven non-compliant, RMBC would undertake further noise mitigation within a mutually agreed amount of time with the city, and will commence the mitigation within a reasonable period of time. Please contact me if you have any questions or comments. Regards, Andrew Truitt BAENC Senior Engineer Behrens and Associates, Inc. Environmental Noise Control Corporate Office: Hawthorne, California Carson, California ~ Aledo, Texas ~ Napa California ~ Longmont, Colorado ~ McDonald, Pennsylvania Phone 800-679-8633 ~ Fax 310-331-1538 www.environmental-noise-control.com ~ www.drillingnoisecontrol.com January 13, 2021 Rocky Mountain Bottle Company 10619 W. 50th Ave., Mail Stop RR836 Wheat Ridge, CO 80033 Attention: Noel Guerrero Subject: City of Wheat Ridge Ordinance 16-103(C) Permit Application Reference: New B Furnace Oxygen Plant of RMBC Wheatridge Facility Dear Mr. Guerrero, Per your request, Behrens and Associates Environmental Noise Control (BAENC) has prepared the following letter in support of Rocky Mountain Bottle Company’s (RMBC) permit application petitioning for adjusted allowable sound levels associated with the New B Furnace Oxygen Plant (Oxygen Plant B) area of the Wheat Ridge RMBC facility. The permit application is being prepared per the Wheat Ridge Code of Laws, Ordinance No. 1697, Series 2020, Amending Section 16-103, Section 1., (C), (3). In August of 2020, the City of Wheat Ridge City Council approved a new noise ordinance with industrial noise limits as detailed in Figure 1 below. The New B Furnace Oxygen Plant area of the RMBC Wheatridge Facility was in operation prior to the approval of the new Noise Ordinance (1697, series of 2020). Per section 16-103(C)(3) of the new Noise Ordinance: NOTWITHSTANDING THE FORGOING, A BUSINESS OWNER IN AN INDUSTRIAL ZONE DISTRICT, UPON WHICH THERE EXISITS A NOISE SOURCE IN OPERATION AT THE TIME THIS SECTION 16-103(C) BECOMES EFFECTIVE, MAY APPLY TO THE CITY MANAGEER FOR A PERMIT FOR A DIFFERENT DECIBEL LEVEL, REQUIRMENT, AND/OR TIME LIMITATION SPECIFIC TO SUCH REAL PROPERTY. Based on acoustical studies conducted by BAENC dating back to 2018 at the RMBC Wheat Ridge facility and adjacent residential neighborhood to the north of the New B Furnace Oxygen Plant, we believe an adjusted allowable noise level limit derived from measured noise levels in the northern residential area prior to the construction of the New B Furnace Oxygen Plant are appropriate for the site. This letter will present previously measured ambient noise levels, proposed adjusted allowable noise levels for the site, noise mitigation measures planned for the site, and a proposed compliance verification procedure. ATTACHMENT 3 Behrens and Associates, Inc. Environmental Noise Control Rocky Mountain Bottle Company January 13, 2021 Page 2 Figure 1 – New Allowable Industrial Noise Levels in 16-103(C)(2) Measured Ambient Noise Levels The noise complaints levied against RMBC, which were the impetus for the series of acoustical studies that have culminated with this letter, started when operation of the Oxygen Plant B began. Prior to that time, the facility had been operating in a manner in which the surrounding neighbors found it to be subjectively acceptable. During various meetings between RMBC, the City of Wheat Ridge, and surrounding neighbors, it was agreed upon that if the noise levels of Oxygen Plant B could be mitigated to a level prior to its operational startup then that would be acceptable to the city and the neighbors. An ambient sound level study was commissioned to gather ambient sound level data at the northern most property line of the RMBC facility, which is directly north of the Oxygen Plant B, as well as at points adjacent to the nearest property lines of the neighbors to the north of the facility. For the purpose of this study, ambient is define as the sound levels produced by RMBC, and the surrounding land uses, when the Oxygen Plant B is not operational but all other aspects of RMBC are still operational. This provides a pre- Oxygen Plant B baseline (ambient) sound level. The ambient sound level study was conducted between August 14th, 2020 and August 21st, 2020 and observed three separate Oxygen Plant B shutdown periods. Per RMBC, operations at the Oxygen Plant B were shutdown from approximately 6:00am until 9:20am on August 15th, 6:00am until 9:34am on August 17th and from 11:00pm August 18th until 2:15am on August 19th. A Class 1 sound level meter was deployed at each monitoring location, calibrated prior to deployment, and configured in accordance with the American National Standards Institute (ANSI). Figure 2 shows the ambient monitoring locations and proposed acoustical wall location for Oxygen Plant B. Table 1 below documents the cumulative logarithmic sound level average (Leq) measured over the entirety of the three separate shutdown events with Location 1 deployed at the southern property boundary of the nearest neighbor, 5300 Nelson Street, Wheat Ridge, CO, and Location 2 deployed at the northern property line of RMBC directly north of Oxygen Plant B. As can be seen in Table 1, the ambient noise levels are above both the 55 dBA daytime and 50 dBA nighttime residential limit established in the new Noise Ordinance prior to the operation of the New B Furnace Oxygen Plant at the RMBC Wheatridge facility. Because ambient noise levels exceeded operational noise level limits per code when no operations are occurring, it is not possible for measured operational noise levels to comply with the limits. Therefore, it is appropriate to apply an adjusted allowable noise limit that takes this ambient data into account and ensures that any noise complaints are fairly assessed. Behrens and Associates, Inc. Environmental Noise Control Rocky Mountain Bottle Company January 13, 2021 Page 3 Table 1 – Measured RMBC Ambient Sound Levels Location 1 – Receiving Property Location 2 – Source Property Cumulative Daytime Ambient (7am-7pm) Leq – Measured From 8/15/2020 to 8/19/2020 57 dBA 61 dBA Cumulative Nighttime Ambient (7pm-7am) Leq– Measured From 8/15/2020 to 8/19/2020 56 dBA 60 dBA Total Measured Ambient Leq– Measured From 8/15/2020 to 8/19/2020 57 dBA 60 dBA Figure 2 – Ambient Measurement Locations Monitoring Location #2 Monitoring Location #1 Proposed Acoustical Barrier Wall Oxygen Plant B Behrens and Associates, Inc. Environmental Noise Control Rocky Mountain Bottle Company January 13, 2021 Page 4 Proposed Adjusted Allowable Noise Levels In similar situations, it is typical to establish an adjusted allowable sound level based on the measured ambient sound levels. As a result, an adjusted noise level limit has been established by adding 5 decibels to the measured ambient noise level at each location. A 5 dB change corresponds to a readily perceptible change in noise level. The relative loudness of environmental noise correlates a decibel change in sound levels with a perceived relative loudness as shown in Table 2. Based on measured ambient levels of 57 dBA, a noise limit of 62 dBA would ensure that any day-to-day variations are at or below a “readily perceptible” threshold. Table 2 - FHWA Relative Loudness of Environmental Noise Sound Level Change Relative Loudness Acoustic Energy Loss 0 dB(A) Reference 0 -3 dB(A) Barely Perceptible Change 50% -5 dB(A) Readily Perceptible Change 67% -10 dB(A) Half as Loud 90% -20 dB(A) 1/4 as Loud 99% -30 dB(A) 1/8 as Loud 99.9% *Table adapted from FHWA Highway Traffic Noise: Analysis and Abatement Guidance, revised December 2010. Similar table in CALTRANS Technical Noise Supplement to the Traffic Noise Analysis Protocol. This method of amending the allowable noise levels based upon ambient sound level studies has precedent at the state level in Colorado. The Colorado Oil and Gas Conservation Commission (COGCC) recently amended many aspects of its code, including allowable noise standards. This code went through extensive comment and review sessions and was adopted by state and local jurisdictions in August of 2020. Per Section 423 of the newly amended COGCC code, if the measured ambient sound levels exceed the allowable noise limits of a given zone, then ambient plus 5 dBA shall constitute the amended allowable noise level. The adjusted allowable noise limits based upon the presented ambient sound level data and allowance outlined above are shown in Table 3. Table 3 – Adjusted RMBC Noise Limits Location 1 – Receiving Property Location 2 – Source Property Measured Cumulative Ambient Leq 57 dBA 60 dBA Allowance based upon relative perception and logarithmic addition 5 dBA 5 dBA Adjusted Allowable Noise Limits 62 dBA 65 dBA Behrens and Associates, Inc. Environmental Noise Control Rocky Mountain Bottle Company January 13, 2021 Page 5 Noise Mitigated Planned for the Site At the time of this letter the final site plans for the proposed acoustical wall are in review with the City of Wheat Ridge and have not yet been finalized. The wall design will be in compliance with the outline development plan (ODP) currently under review as well as the Architectural and Site Design Manual (ASDM) of the City of Wheat Ridge though, in principle, RMBC does not agree that the architectural standard should apply. The wall design under review includes an acoustically engineered barrier wall of approximately 40 feet in height and minimum Sound Transmission Class (STC) rating of 40. Once approved, RMBC is committed to install a barrier wall to be located on the north, west, and east boundaries of Oxygen Plant B in order to reduce the operational noise levels of Oxygen Plant B to the proposed adjusted allowable noise levels listed in Table 3. Proposed Compliance Verification Procedure In order to assess compliance with the proposed adjusted allowable noise limits, measurements should be conducted at the property line of Location 1, or other residential receiving property, for a minimum of 15 minutes. The measurement is to be taken with a meter capable of integrating over the 15-minute period and providing an average (Leq) noise level. The meter should be calibrated prior to the measurement and should adhere to other applicable ANSI standards per Ordinance 1697. Measurements should be taken with calm winds, making sure no extraneous noise sources like train or lawnmowers are present. Measurements should also avoid periods of high traffic such as 6am-9am and 3pm-6pm. The measured sound levels at the receiving property shall be compared against the receiving property dBA limits (62 dBA) listed in Table 3. If the measured levels are less than 62 dBA at the receiving property, then the measured sound levels are complaint per this permit. If the measured sound levels at the receiving property exceed 62 dBA then a follow up measurement at the source (RMBC) property is required. This measurement shall be taken at the source property line in the direction of the receiving property (Location 2). If this measurement is less than the allowable limit for the source property (65 dBA) listed in Table 3 then the measurements are in compliance with this permit and suggest that the offending source of noise is not the Oxygen Plant B. A noncompliance will be established only if both the receiving and source locations exceed the allowable adjusted noise limits listed in Table 3. Please contact me if you have any questions or comments. Regards, Andrew Truitt BAENC Senior Engineer