COUNCIL COMMUNICATION

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1 Meeting Date: November 10, 2016 COUNCIL COMMUNICATION Agenda Item: Agenda Location: Consent Calendar Work Plan # Legal Review: 1 st Reading 2 nd Reading Subject: A resolution approving a revocable permit between the City of Thornton and Cornerstone Townhomes II, LLC to occupy a portion of City of Thornton right-of-way. Recommended by: Jeff Coder Approved by: Jack Ethredge Ordinance previously Presenter(s): Jason O Shea, Development Director introduced by: SYNOPSIS: Cornerstone Townhomes II, LLC (the Applicant) is requesting the City grant a revocable permit to use a portion of the Colorado Boulevard Right-of-Way (ROW), comprising an area of approximately 32,782 square feet, west of the River Valley Village Development property line. The applicant proposes to maintain the existing fence and install landscaping with a potable irrigation system in the ROW. The existing fence was constructed in approximately Staff believes the fence was constructed in its current location due to the site topography, which slopes down from the existing position to the east. If the fence were located on the property line (ROW line), it would not serve to screen the private property from the street or provide any form of noise mitigation. RECOMMENDATION: Staff recommends Alternative No. 1, approval of the request for a revocable permit. Staff s recommendation is based on the following findings: Section 15.4 of the City Charter allows City Council to grant revocable permits to occupy City property. The existing fence has been located within the Colorado Boulevard ROW for over 10 years, and its placement will provide for a more effective screening and noise mitigating instrument for future residents than if the fence were located on River Valley Village property line. The City has no immediate plans to widen Colorado Boulevard. Cornerstone will be responsible for maintenance of the area, and will provide insurance coverage naming the City as an additional insured during the term of the revocable permit. The City Manager or designee may revoke and thereby terminate this revocable permit upon 30 days written notice, specifying the date upon which revocation and termination are to be effective. Upon termination, Cornerstone will remove the improvements at its own expense and restore the area to its previous condition. BUDGET/STAFF IMPLICATIONS: There are no budget or staff implications.

2 COUNCIL COMMUNICATION PAGE 2 ALTERNATIVES: 1. Approve the resolution to grant the revocable permit. 2. Deny the resolution to grant the revocable permit. BACKGROUND: (includes previous City Council action) The property was annexed into the City of Thornton on August 28, 1972, by Ordinance No. 504, and originally zoned R-3 for residential land uses. The property was rezoned to Single-Family Attached as part of the City-wide Zoning Transition program by Ordinance A Preliminary Plat for River Valley Village was approved by City Council for the development of 494 townhome lots. The Final Plat for River Valley Village was approved and recorded on April 5, 2002 for the development of 480 townhome lots. A Subdivision Plat Amendment was recorded on April 25, 2006 to reduce the number of residential lots to 427. City Council approved Planned Development (PD) zoning for a total of 228 residential units on the property on February 9, An amendment to the perimeter setbacks listed in the approved PD Standards was approved by City Council on September 27, A subdivision plat amendment and Minor Development Permit for landscaping are currently under review.

3 R E S O L U T I O N A RESOLUTION APPROVING A REVOCABLE PERMIT BETWEEN THE CITY OF THORNTON AND CORNERSTONE TOWNHOMES II, LLC TO OCCUPY A PORTION OF CITY OF THORNTON RIGHT-OF-WAY. WHEREAS, Cornerstone Townhomes II, LLC is the developer of River Valley Village which is located in the City of Thornton, adjacent to the Colorado Boulevard right of way owned by the City of Thornton; and WHEREAS, Cornerstone Townhomes II, LLC desires permission to continue to allow an existing fence to be located within the City-owned right-of-way and to maintain the right-of-way area for its use, as depicted in Exhibit A, attached to Exhibit 1; and WHEREAS, Section 15.4 of the Charter of the City of Thornton provides the City Council may grant a revocable permit for such temporary use or occupation of Cityowned property. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THORNTON, COLORADO, AS FOLLOWS: 1. That the Revocable Permit to Cornerstone Townhomes II, LLC attached as Exhibit 1, is hereby approved. 2. That the City Manager, on behalf of the City of Thornton, is hereby authorized to sign and the City Clerk to attest the attached Revocable Permit. 3. That this Revocable Permit shall be recorded with the office of the Adams County Clerk and Recorder. PASSED AND ADOPTED at a regular meeting of the City Council of the City of Thornton, Colorado, on, CITY OF THORNTON, COLORADO ATTEST: Heidi K. Williams, Mayor Nancy A. Vincent, City Clerk

4 EXHIBIT 1 REVOCABLE PERMIT This Revocable Permit entered into this day of, 201, by and between the City of Thornton, 9500 Civic Center Drive, Thornton, CO ( City ), and Cornerstone Townhomes II, LLC PO Box 1863 Broomfield, CO ( Cornerstone ), or collectively the Parties. WITNESSETH WHEREAS, the City of Thornton owns property located adjacent to River Valley Village in Thornton as depicted in Exhibit A attached hereto (the Permitted Property ); and WHEREAS, Cornerstone is the owner of property located at the northeast corner of Thornton Parkway and Colorado Boulevard in Thornton located adjacent to the Permitted Property and desire to allow their currently located fence to be retained within the Permitted Property; and WHEREAS, the City is willing to provide a revocable permit to Cornerstone on the Permitted Property subject to the terms and conditions contained herein. NOW THEREFORE in consideration of the approval of a revocable permit and the promises and conditions contained herein, the Parties hereto agree as follows: 1. The City hereby approves this Revocable Permit to Cornerstone subject to the terms and conditions contained herein. 2. Cornerstone may fence the Permitted Property into its back yards with fencing, at its sole cost, in accordance with all applicable City Code requirements. 3. Cornerstone shall maintain landscaping, mowing, trash removal, weed control and other customary maintenance of the Permitted Property at its sole cost. Cornerstone shall replace any dead plant materials and replace with similar plants at its sole cost. 4. Cornerstone shall not change the existing grade, construct, erect, maintain or permit any structure, installation, facility, or obstruction of any kind on, below, or above the surface of the ground of the Permitted Property, without the prior written approval from the City, which approval may be withheld for any reason. 5. Cornerstone shall not permit or cause any lien to be put upon, arise, or accrue against any part of the Permitted Property in favor of any parties furnishing labor or material to Cornerstone or in favor of any other persons. Cornerstone shall hold the City and the Permitted Property free from and against any and all liens, or rights or claims thereof that might accrue under or be based upon any mechanic s lien, law now in force or hereafter to be enacted, resulting from Cornerstone s use and occupancy of the Permitted Property. Cornerstone shall not use the Permitted Property as security of any nature whatsoever.

5 6. Cornerstone shall not claim at any time any interest or estate of any kind or nature whatsoever in the Permitted Property by virtue of this Revocable Permit or Cornerstone s occupancy or use thereunder and the City may, upon reasonable notice to Cornerstone, access the Permitted Property when necessary for purposes as determined by the City. Cornerstone shall disclose the existence of this Revocable Permit to anyone claiming an interest in Cornerstone s property, including potential and future purchasers. Nothing in this Revocable Permit shall infer or grant an interest to any third party beneficiary. Cornerstone shall hold the City harmless and defend the City from any third parties claiming an interest in the Permitted Property. 7. The City may revoke this Revocable Permit with or without cause by providing Cornerstone with six (6) month notice of its intent to revoke. If not revoked earlier, this Revocable Permit shall be revoked at such time the Permitted Area, or any portion thereof is required by the City for roadway or other public improvements. Cornerstone may terminate this Revocable Permit at any time upon applying for, and receiving the necessary permits to relocate the fence. Upon revocation of this Revocable Permit; Cornerstone shall remove any fixtures and personal property from the Permitted Property and restore such property to its previous condition. 8. The Parties hereto understand and agree that the City, its officers, and its employees, are relying on, and do not waive or intend to waive, by any provision of this agreement, the monetary limitations (currently $150,000 per person and $600,000 per occurrence) or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S et seq., as it is from time to time amended, or otherwise available to Thornton, its officers, or its employees. 9. Cornerstone expressly agrees to indemnify and hold harmless and defend the City or any of its officers or employees from any and all claims, damages, liability, or court awards, including costs and attorney's fees that are or may be awarded as a result of any loss, injury, or damages sustained or claimed to have been sustained by anyone, including but not limited to, any person, firm, partnership, or corporation, in connection with or arising out of any omission or act of omission by Cornerstone or agents in the use and maintenance of the Permitted Property. 10. In the event of any breach of any of the terms of this Revocable Permit, the City may pursue any remedies available to it in equity or in law. 11. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in the County of Adams, State of Colorado. 12. Any notice required or permitted by this Revocable Permit shall be in writing, and shall be deemed to have been sufficiently given for all purposes if sent by certified mail or registered mail, postage and fees prepaid, addressed to the party to whom such notice is to be given at the address set forth above. Such notice shall be deemed to have been given when deposited in the United States Mail. 2

6 13. Cornerstone hereby warrants that it has the full and lawful authority to execute this Revocable Permit. 14. In the event of any of the terms of Paragraphs 3 and 4 are violated by Cornerstone or by any person in privity with Cornerstone, such violation shall be immediately corrected and eliminated upon receipt of notice from the City, and if not corrected, the City shall have the right to correct and eliminate such violation, and Cornerstone, its successors and assigns, shall promptly pay the costs to correct said violation including, but not limited to, the City s reasonable attorney costs. If such violation is not corrected, the City shall also have the right to file appropriate proceedings to enjoin any violation and request specific performance of the conditions described herein. This provision shall not preclude the City from recovery of damages to the improvements caused by Cornerstone s acts or omissions. The City reserves the right to do all acts necessary to immediately remedy any emergency situation that may arise that disrupts or affects the Revocable Permit. 15. Cornerstone agrees to procure and maintain in force during the term of this Revocable Permit, at its own cost, primary insurance with the following coverages: a. Premises Liability Insurance with minimum combined single limits of five hundred thousand dollars each occurrence and five hundred thousand dollars ($500,000) general aggregate. The policy shall be applicable to all premises and operations. The policy shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual acts), and blanket coverage. b. A Certificate of Insurance shall be completed by Cornerstone insurance carrier or agent as evidence that policies providing the required coverages, conditions, and minimum limits are in full force and effect and shall be subject to review and approval by the City. The Certificate shall identify this Revocable Permit and shall provide that the coverage afforded under the policy shall not be canceled, terminated or materially changed until at least 30 days prior written notice has been given to the City. The Certificate shall name the City, its officers and its employees, as additional insured with respect to the liability coverage. The completed Certificate of Insurance shall be sent to: City of Thornton Risk Management 9500 Civic Center Dr. Thornton, CO

7 c. Failure on the part of Cornerstone to procure or maintain policies providing the required coverage, conditions, and minimum limits shall constitute a material breach of this Revocable Permit upon which the City shall terminate this Revocable Permit. 16. In the event that any suit or action is brought against Cornerstone, Cornerstone will give notice thereof to the City. 17. City shall have no responsibility, liability or obligation with respect to securing any personal property located on the Permitted Property. It is hereby acknowledged by Cornerstone that the safety and security of any such property is the sole responsibility of Cornerstone. 18. Cornerstone acknowledges and agrees that City makes no representations or warranties to Cornerstone regarding the Permitted Property or its suitability for Cornerstone s purposes. 19. Cornerstone agrees not to use nor permit use of the Permitted Property for the storage of hazardous or dangerous materials or contaminants. Cornerstone shall not use or permit to use of the Permitted Property for any purpose prohibited by law, nor in any matter which would constitute a nuisance or be hazardous to persons or property. 20. The termination of the Revocable Permit shall not affect any rights, claims or causes of actions based (in whole or in part) in rights hereunder and events accruing prior to the termination, all of which shall survive the termination. 21. In the resolution of any dispute over them terms and conditions of this Revocable Permit; each Party shall be responsible for its costs, including attorney s fees, in resolution of said dispute, whether the matter proceeds to litigation or not except as provided in Paragraph 8 herein. 22. If at any time Cornerstone or Cornerstone s property owners move or replace any portion of the fence on the Permitted Property, the fence shall be relocated to Cornerstone s property and off the Permitted Property. This requirement shall not apply to fences existing on the Permitted Property at the time of execution of this Revocable Permit, as depicted in the attached Map marked as Exhibit A. 23. In the event all the fences and structures are relocated to outside the Permitted Property, this Revocable Permit shall automatically terminate. 24. This Revocable Permit shall be assignable only upon written approval from the City. IN WITNESS WHEREOF, the Parties hereto have executed this Revocable Permit effective as of the date first above written. 4

8 CITY OF THORNTON, COLORADO Jack Ethredge, City Manager ATTEST: Nancy A. Vincent, City Clerk APPROVED AS TO FORM: Luis A. Corchado, City Attorney 5

9 CORNERSTONE TOWNHOMES II, LLC By: Title: STATE OF COLORADO ) )ss. COUNTY OF ADAMS ) Acknowledged before me this day of, 2016, by as CORNERSTONE TOWNHOMES II, LLC. WITNESS my hand and official seal. My commission expires:. NOTARY PUBLIC 6