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HomeMy WebLinkAbout09362Reception 2126469 12/26/2018 02:37:39 PM ORDINANCE NO. 9362 AN ORDINANCE ANNEXING UNINCORPORATED LAND COMMONLY KNOWN AS THE EVRAZ ANNEXATION NO. 1 DESCRIBED AS 8.84 ACRES OF LAND EAST OF 1-25 AND AT THE TERMINUS OF INDIANA AVENUE WHEREAS, the City Planning and Zoning Commission has recommended that the area described in Section 1 hereof be annexed to the City of Pueblo; and, WHEREAS, the City Council has heretofore found and determined by Resolution that the Petition for Annexation and the area described in Section 1 hereof to be in compliance with the notice and other applicable provisions of the Municipal Annexation Act of 1965 and C.R.S. §31-12-104, 105 and 107(1); and, WHEREAS, the City Council has by Resolution found and determined that an election is not required under C.R.S. §31-12-107 (2) and no additional terms and conditions are to be imposed upon the area described in Section 1 other than those set forth in the Petition for Annexation and the Annexation Agreement; NOW THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The following described area situated in Pueblo County, Colorado, is hereby annexed to Pueblo, a Municipal Corporation, subject to the terms and conditions set forth in the Petition for Annexation and the Annexation Agreement, and the official map of the City shall be amended to show such annexation: 1. AREA TO BE ANNEXED A parcel of land located in a portion of the East one-half (1/2) of Sections 12, and 13, Township 21 South, Range 65 West of the 6th P.M. in the County of Pueblo and State of Colorado, being more particularly described as follows. Considering the South line of Block 39 in Lake Minnequa Addition as filed for record in the Pueblo County records to bear N. 88°54'21" E. and all bearings contained herein being relative thereto. Commencing at the Southeast corner of said Block 39 and the present City limits line; thence N. 88°54'21" E., a distance of 125.00 feet to the east right- of-way line of the Denver and Rio Grande Railroad as presently located; thence N. 01°04'44" W. along said east right-of-way line, a distance of 300.00 feet to the Point of Beginning; thence N. 01°04'44" W. continuing along said east right-of-way line, a distance of 950.00 feet; thence N. 88°54'21" E., a distance of 226.00 feet; thence N. 40°24'00" E., a distance of 128.98 feet; thence S. 01°05'39" E., a distance of 1,896.61 feet; thence S. 88°54'21" W., a distance of 100.00 feet; thence N. 01°05'39" W., a distance of 850.00 feet; thence S. 88°54'21" W. a distance of 211.71 feet to the said east right-of-way line and the Point of Beginning. Containing 8.84 acres, more or less 2. PROPOSED NEW CITY LIMITS LINE: Commencing at the Southeast corner of said Block 39 and the present City limits line; thence N. 88°54'21" E., a distance of 125.00 feet to the east right- of-way line of the Denver and Rio Grande Railroad as presently located; thence N. 01°04'44" W. along said east right-of-way line, a distance of 300.00 feet to the Point of Beginning; thence N. 01°04'44" W. continuing along said east right-of-way line, a distance of 950.00 feet; thence N. 88°54'21" E., a distance of 226.00 feet; thence N. 40°24'00" E., a distance of 128.98 feet; thence S. 01°05'39" E., a distance of 1,896.61 feet; thence S. 88°54'21" W., a distance of 100.00 feet; thence N. 01°05'39" W., a distance of 850.00 feet; thence S. 88°54'21" W. a distance of 211.71 feet to the said east right-of-way line and the Point of Beginning. 3. CERTIFICATION OF PERIMETER: At least one-sixth of the boundary of the land described in paragraphs one (1) above, is now existing City Limits Line. SECTION 2. The owners of one hundred percent (100%) of the property to be annexed have petitioned for such annexation. SECTION 3. The Annexation Agreement in the form and content presented to the City Council ' on or before second reading of this Ordinance, with such minor changes as the President of City Council and City Attorney may approve, is hereby authorized and approved. The President of the City Council is hereby authorized and directed to execute and deliver the Annexation Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. SECTION 4. Within thirty(30) days after the effective date of the Ordinance, the City Clerk shall: (a) File one copy of the annexation map with the original of this Ordinance in the office of the City Clerk; and, (b) File for recording three certified copies of this Ordinance and annexation map with the Pueblo County Clerk and Recorder; and, (c) File one certified copy of the annexation map and this Ordinance with the Southeastern Colorado Water Conservancy District. SECTION 5. The officers of the City are hereby authorized and directed to take all other actions necessary or appropriate, on behalf of the City, to implement the provisions of this Ordinance and the Annexation Agreement. SECTION 6. If any provisions of this Ordinance or Annexation Agreement shall be held or deemed to be illegal, inoperative or unenforceable, the same shall not affect any other provisions or provisions of this Ordinance or Annexation Agreement or render the same invalid, inoperative or unenforceable, except as otherwise expressly provided in the Annexation Agreement. SECTION 7. The City Council hereby consents to the inclusion of the annexed area in the Southeastern Colorado Water Conservancy District pursuant to C.R.S. §37-45-136 (3.6). SECTION 8. This Ordinance shall become effective immediately upon final passage and the annexation shall be effective for ad valorem tax purposes on and after January 1, 2019. 44 1.- 0o t zi °4, \ --0,‘‘,;:\ INTRODUCED: October 22, 2018 ° ;:;?,;'1,,\/ . Y: Ed Brown .►` `'° " A • MEMBE F CITY COUNCIL • ' V o , 4, APPROVED: _ °' pc ' PRESIDENT OF CITY COUNCIL ATTESTED Bl --1SL QFiCtet_ l; ACTING CITY Laii<44° PASSED AND APPROVED: November 12, 2018 Reception 2126471 12/26/2018 02:37:39 PM 11111 ANNEXATION AGREEMENT This Annexation Agreement is hereby entered into as of the 10 day of Na yev't &r , 2018 by and between the City of Pueblo, Colorado, a Colorado Municipal Corporation, (the "City"), and CF&I Steel, L.P., a Delaware limited partnership (the "Petitioner"). WITNESSETH WHEREAS, the Petitioner is the owner of the real property located in Pueblo County, Colorado, and described in Exhibit "A" attached hereto and incorporated herein (the "Property"); and, WHEREAS, the Petitioner has submitted a petition for the annexation of the Property to the City; and, WHEREAS, as a condition precedent to the annexation of the Property, Petitioner and City have agreed to enter into a mutually acceptable annexation agreement setting forth certain terms and conditions with respect to such annexation. NOW, THEREFORE, in consideration of the foregoing, and the covenants and conditions set forth herein, the City and Petitioner agree as follows: I. REPRESENTATIONS AND WARRANTIES OF PETITIONER. Petitioner hereby represents and warrants to, and covenants with, the City as follows: (1) Petitioner is a limited partnership duly organized and validly existing under the laws of the State of Delaware and is authorized to transact business in the State of Colorado. (2) Petitioner has marketable fee simple title to the Property subject only to the Permitted Encumbrances attached hereto as Exhibit"B." (3) Petitioner is authorized to and has taken all action required by it (a) to annex the Property to the City and (b) to execute, deliver and perform its obligations under this Annexation Agreement, and (c) to carry out and consummate all the transactions contemplated by this Annexation Agreement. (4) This Annexation Agreement when executed and delivered, constitutes a valid and legally binding obligation of the Petitioner enforceable against Petitioner according to its terms, subject to the provisions of Article XV. (5) Neither the execution and delivery of this Annexation Agreement nor the fulfillment of or compliance with its terms and conditions, nor the consummation of the transactions contemplated hereby, conflicts with or results in a breach of the 1 2126471 12/26/2018 02:37:39 PM • Pager. 2 of 14 R 78.00 D 0.00 T 78.00 Gilbert Ortiz Clerk/Recorder. Pueblo County, Co ■III l��ll.rtnifil'l�lgi'6 �'I '1611 f 7t 1� ���th�',441 11111 terms, conditions or provisions or any restriction or any agreement or instrument to which the Petitioner is bound, nor constitutes a default under any of the foregoing. (6) There is no litigation pending, or to the knowledge of Petitioner threatened, against the Petitioner or any person affecting the right of the Petitioner to execute this Annexation Agreement or to comply with the provisions hereof. (7) The representations and warranties of Petitioner contained herein will be true and correct in all material respects as of the date of recording the annexation plat and Ordinance of the City Council approving the annexation of the Property, as if made on the date of such recording. II. MASTER DEVELOPMENT PLAN. The City and Petitioner acknowledge and agree that the entire Property is to be included in a single subdivision, and Petitioner shall not be required to file a Master Development Plan for the Property under Section 12-4-5(a) of the Pueblo Municipal Code. III. ZONING AND SUBDIVISION. (1) Because the Property is to be included in a single subdivision ("Subdivision"), the application for such Subdivision shall be submitted by Petitioner as soon as possible after the Substantial Compliance Resolution (as hereafter defined) is adopted by City Council of City ("City Council"). No subdivision of the Property shall be approved prior to the time the ordinance annexing the Property is approved on final presentation. (2) The Property shall be zoned Heavy Industrial District (1-3) ("1-3 Zone District"), the land use classification most nearly corresponding to the land use classification into which the Property has been (or will be) classified under the City's comprehensive plan ("Zoning"). If the Petitioner is contemplating using a portion of the Property for disposal of nonhazardous solid waste generated on-site in compliance with Colorado Department of Public Health and Environment Solid Waste Regulations, an application for a "Special Use Permit" must be approved by the City of Pueblo Zoning Board of Appeals in compliance with Section 17-4-51(c) of the Pueblo Municipal Code for a nonhazardous solid waste site to be operated on the Property. (3) A petition to zone the Property shall be filed by Petitioner as soon as practicable after the petition for annexation has been found to be in substantial compliance with the provisions of Section 31-12-107(1), C.R.S. (the "Substantial Compliance Resolution"). The Planning and Zoning Commission may hear the petition for rezoning and make its recommendations thereon prior to annexing the Property, but the proposed Zoning ordinance (and the Special Use Permit) shall not be passed on final presentation prior to the date the ordinance annexing the Property is approved on final 2 2126471 12/26/2018 02:37:39 PM Page: 3 of 14 R 78.00 D 0,00 T 78.00 Gilbert Ortiz Cie-lc/Recorder, Pueblo County, Co presentation. EDI fri lthVII�u:I1F101150114, II III (4) Petitioner shall submit and file all applications and accompanying maps, engineering and other information required to accomplish and obtain approval of the Subdivision, Zoning and Special Use Permit as soon as practicable after the date the Substantial Compliance Resolution is adopted by City Council and Petitioner shall thereafter diligently pursue such applications through final approval. (5) In lieu of the City requiring the approval of a Special Area Plan, the Petitioner can in accordance with Sec. 12-4-7(0(1) of the Pueblo Municipal Code provide a City-approved private street that directly connects with a public street to access lots within an approved subdivision. IV. PUBLIC FACILITIES. Petitioner at its expense shall construct and install all on-site and off-site improvements to the extent specifically required by Petitioner to serve the Property or, with respect to on-site improvements, reasonably required by the City as a condition of approval of the Zoning, Subdivision or Special Use Permit. Except for such on-site improvements required by the City as a condition of approval of the Zoning, Subdivision or Special Use Permit, Petitioner shall have no obligation with respect to the ownership, development and use of the Property for any other public facilities, dedications or payments in lieu thereof, impact fees or exactions, including, but not limited to streets, street lights, curbs and gutters, sidewalks, bridges, traffic control devices, sanitary sewers, storm sewers, drainage and channel improvements and facilities, open space, trail systems and parks, or public buildings such as fire stations. The main access to the Property is from Harlem Street, a private road, that extends east of the right-of-way of Indiana Avenue which terminates at the eastern edge of the northbound on-ramp to Interstate 25. Without limiting the generality of the foregoing, the City agrees, for a period of thirty-three (33) years after the effective date of this Annexation Agreement, that it will not take any action without the consent of Petitioner to include the Property, or any portion thereof, in any special, metropolitan or other district, or any other special assessment area. Petitioner and City further agree that for a period of thirty-three (33) years after the effective date of this Annexation Agreement, the Property shall not be subject to the street repair utility service charges imposed pursuant to the Street Repair Utility Ordinance. V. UTILITIES. (1) Services. Except as provided in this Article V, effective upon annexation of the Property, City shall provide the same municipal services to the Property on the same general terms and conditions as the rest of the City receives. (2) Water Service. The City acknowledges that Petitioner has a separate agreement with the Board of Water Works of Pueblo, Colorado and the Parties agree that water service for the Property shall be carried out pursuant to that agreement. 3 2126471 12/26/2018 02:37:39 PM Page: 4 of 14 R 78.00 D 0,00 T 78.00 Gilbert Ortiz Clerk/Recorder; Pueblo County, Co 1111 r.11,17K611CN:rikolliNFLIVIIM'i111III (3) Electric and Natural Gas Service. The City acknowledges that Petitioner has a separate agreement with the Public Service Company of Colorado and the Parties agree that electric and natural gas service for the Property shall be carried out pursuant to that agreement. (4) Other Utility Service and Connections. Petitioner, through its internal operations at the Property, currently provides potable water and sanitary sewer service to its existing facilities at the Property ("Utility Services"). The City acknowledges and agrees that Petitioner may continue to provide such Utility Services to the Property. City agrees that Petitioner has the right, but no obligation, to tap into the City's sanitary sewer system. In the event that Petitioner requests to tap into City's sanitary sewer system, then the City will provide such service subject to and in conformity with the City's ordinances, rules and regulations relating to its sanitary sewer system and services, provided City will not be required to extend its sewer mains to the Property. Petitioner shall comply with all applicable City requirements for the installation of mains, lines, stations, and any other appurtenant sewer facilities in effect at the time of such request for sewer service. City and Petitioner agree that the Property shall not be subject to the wastewater utility service charges imposed pursuant to the wastewater Ordinance unless Petitioner taps into the City's sanitary sewer system. (5) Stormwater. City acknowledges that Petitioner granted an Environmental Covenant to the Colorado Department of Public Health and Environment on March 5, 2013 containing specific limitations on soil disturbance activities, sediment disturbance, and a prohibition on surface water uses. Furthermore, Petitioner currently operates and maintains an industrial wastewater system in accordance with the EVRAZ RMS National Pollution Discharge Elimination System Permit No. C00000621 issued March 24, 2011. So long as (i) Petitioner continues to operate and maintain an industrial wastewater system in accordance with the EVRAZ RMS National Pollution Discharge Elimination System Permit and complies with the requirements of such permit, and (ii) the Discharge Facility is not connected to or discharges stormwater into City owned or managed stormwater facilities,City agrees that Petitioner shall not be in violation of City's stormwater utility ordinances (Chapter 12, Title XVI of the Pueblo Municipal Code) and as same may, from time to time, be amended ("Stormwater Ordinance"). City agrees that Petitioner has the right, but no obligation, to tap into the City's stormwater system. In the event that Petitioner requests to tap into City's stormwater system, then the City will provide such service subject to and in conformity with the City's ordinances, rules and regulations relating to its stormwater system and services, provided City will not be required to extend its stormwater mains to the Property. Petitioner shall comply with all applicable City requirements for the installation of mains, lines, stations, and any other appurtenant stormwater facilities in effect at the time of such request for stormwater service. City and Petitioner agree that the Property shall not be subject to the stormwater utility service charges imposed pursuant to the Stormwater Ordinance, unless Petitioner connects to and discharges into the City's stormwater facilities. (6) Fire Protection. Petitioner, through its internal operations at the Property, currently provides fire protection, hazardous material response, and emergency 4 2126471 12/26/2018 02:37:39 PM Page: 5 of 14 R 78.00 D 0.00 T 78.00 Gilbert Ortiz Clerk/Recorder. Pueblo County, Co 111111 medical services for the Property. The City acknowledges and agrees that Petitioner may continue to provide such services to the Property. (7) Disconnection. Petitioner stipulates and agrees that it will not seek disconnection of the Property and waives its rights, if any, to do so under Section 31- 12-119, C.R.S. based upon the City not providing (i) sanitary sewer services to the Property prior to Petitioner's request to tap into City's sanitary sewer system and Petitioner's extension of sewer mains to the Property, (ii) fire protection, hazardous material response, and emergency medical services for the Property; and (iii) stormwater services to the Property prior to Petitioner's request to connect to City's stormwater system and Petitioner's extension of stormwater mains to the Property. VI. COMPLIANCE WITH ORDINANCES. Except as otherwise specifically provided in this Annexation Agreement to the contrary, the development, subdivision and zoning of the Property shall otherwise meet and comply with all applicable ordinances, resolutions, regulations, and standards of the City now existing or hereinafter enacted or amended. VII. BINDING EFFECT AND ENFORCEMENT. (1) The covenants, restrictions, and agreements herein set forth are covenants running with the Property, shall run with and bind the Property, and shall extend to the benefit of and be binding upon the City and Petitioner and their respective successors, assigns and transferees. The Petitioner expressly accepts and agrees to the covenants, restrictions, and agreements set forth herein by execution of this Annexation Agreement and by the filing of its petition for annexation, subject to the provisions of Article XV. (2) If Petitioner defaults in any of its obligations under this Annexation Agreement, including, without limitation, payment of $4,400,000 required to be paid by Petitioner under Article XIV(I) (the "Payment"), upon notice given to Petitioner specifying the default and, if the alleged default constitutes a matter other than making the Payment, providing a reasonable opportunity to cure the alleged default, City may pursue a remedy for specific performance, injunction or declaratory judgment or, if applicable, the enforcement and collection of the Payment and interest thereon. The preceding remedies shall be exclusive and in lieu of all other remedies available at law or in equity, including, without limitation, the recovery of damages of any type or nature. (3) If City defaults in any of its obligations under the Annexation Agreement, upon notice given to the City specifying the default and providing a reasonable opportunity to cure the alleged default, Petitioner may pursue a remedy for specific performance, injunction, or declaratory judgment or, if applicable, proceed to disconnect the Property under Article XII. The preceding remedies shall be exclusive and in lieu of all other remedies available at law or in equity, including, without 5 2126471 12/26/2018 02:37:39 PM Page: 6 of 14 R 78.00 D 0.00 T 78.00 Gilbert Ortiz Clerk/Recorder, Pueblo County; Co ■iii k�rdtIr��N1y: 5,li'VliEtti�r������� ,ii 111111 limitation, the recovery of damages of any type or nature. (4) Venue in any and all actions and proceedings related to this Agreement shall be in the Pueblo County District Court, State of Colorado, which court shall have personal and subject matter jurisdiction for such purpose, and the parties hereto irrevocably submit to the jurisdiction of such court. The Court in any such action shall award to the prevailing party its costs and expenses of litigation, including reasonable attorney fees. To the full extent permitted by law, City and Petitioner waive their right to jury trial. VIII. AMENDMENTS. Amendments to this Annexation Agreement may only be made by a writing executed by Petitioner and City and following formal petition to and approval by Resolution of the City Council after such amendment has been submitted to and reviewed by the appropriate City Departments and such Departments have submitted their findings and recommendations to the City Council. IX. SEVERABILITY. If any section, clause, or other provision of this Annexation Agreement is for any reason determined to be invalid or unenforceable by any court of competent jurisdiction, such determination shall not affect any of the remaining provisions of this Annexation Agreement. X. VESTED PROPERTY RIGHTS. (1) Since property rights may only be vested by the City pursuant to the provisions of Chapter 12, Title XVII of the Pueblo Municipal Code, Petitioner and the City hereby expressly acknowledge and agree that neither this Annexation Agreement, nor the corresponding approval of the amendment to the comprehensive plan nor the Zoning, Subdivision, or Special Use Permit, either collectively, separately or jointly (a) creates or establishes a vested property right in or for the benefit of the Petitioner or its successors or assigns, or with respect to the Property; or (b) constitutes a site-specific development plan. The terms "vested property right" and "site-specific development plan" shall have the same meaning as set forth in Section 17-12-2 of the Pueblo Municipal Code and §24-68-101, et seq., C.R.S. (2) Notwithstanding the provisions of section (1) above, City expressly agrees that Petitioner and its successors and assigns shall have the vested property right to undertake and complete the development and use of the Property under the terms and conditions of the following after approval and issuance thereof by the City in compliance with City's ordinances, including, but not limited to, Chapter 12, Title XVII of the Pueblo Municipal Code, to-wit: (i) Zoning, (ii) Subdivision, (iii) Special Use Permit, and (iv) comprehensive plan amendment, all of which shall collectively constitute a site specific development plan. 6 2126471 12/26/2018 02:37:39 PM Page: 7 of 14 R 78.00 D 0.00 T 78.00 Gilbert Ortiz Clerk/Recorder, Pueblo County.. Co ■III I��r �'a:M'�'� I'J 1140111':R111Ir Ia4kh 1111 (3) In light of all relevant circumstances, including, but not limited to, the long- term nature of the development and use of the Property and the extended periods involved in the exemptions with respect to the Property and Facility provided in Article XIV below, City agrees to an extension of the vesting period for the vested property right granted in section (2) above to a period of ten (10) years after the date the new rail mill becomes operational (as such term is defined in Article XIV below). (4) The establishment of such vested property right shall not, however, preclude the application of ordinances or regulations which are general in nature and are applicable to all property subject to land use regulations by the City, including, but not limited to, building, fire, plumbing, electrical, mechanical, water and sewer codes or ordinances. XI. BUILDING PERMITS. All matters relating to local building permits for the new rail mill and related facilities are administered by the Pueblo Regional Building Authority. Therefore, all local building permit applications, processing fees or requirements for building permits shall be submitted by Petitioner to the Pueblo Regional Building Authority. City will, at no out of pocket third party cost to City, cooperate with Petitioner in filing and processing its applications before the Pueblo Regional Building Authority. XII. DISCONNECTION. (1) Petitioner acknowledges and agrees that upon annexation of the Property into the City, the Property shall become subject to this Annexation Agreement, the Charter, ordinances and rules and regulations of the City. In the event that (i) after application by Petitioner and Petitioner's diligent effort to obtain same, Petitioner does not obtain the Approvals within six (6) months after the effective date of this Annexation Agreement or within six (6) months after application is made for such Approvals, whichever is later; (ii) the vested property right granted by Section 2 of Article X or any material provision of Section 1 of Article XIV is determined to be invalid or unenforceable by a final decision of a court of competent jurisdiction; (iii) the City takes any final action in violation of any material provision of Article IV; (iv) the City takes any final action in violation of any material provision regarding vested rights as provided in Sections (2) and (3) of Article X; or (v) the City takes any final action inconsistent with any material provision of Sections (1), (3) or (4) of Article XIV or fails to take any action required of it under any material provision of Sections (1), (2), (3) or (4) of Article XIV, then it is agreed that Petitioner shall have the right to disconnection of the Property from the City subject only to the following: Petitioner shall file a verified written petition with the City Clerk which states that one or more of the above conditions exist. Promptly upon receipt of such petition, the City Council of City shall schedule and provide notice to Petitioner of a public hearing; and, upon showing by competent evidence at the public hearing that 7 2126471 12/26/2018 02:37:39 PM Pagge: 8 of 14 R 78.00 D 0.00 T 78.00 Cilbert Ortiz Clerk/Recorder. Pueblo County, Co 11111MOrlivrArKtirliih.'FillinailiNkilik,i, 11111 any of the above conditions in fact exists, the City shall within one hundred twenty (120) days enact all measures necessary to accomplish such disconnection. For purposes of this Section (1), an action of the City shall be "final" ninety (90) days after the vote of the City Council of City thereon, without any requirement to appeal any decision of the City Council to the courts or any other venue for appeal. Notwithstanding the foregoing, if any of the above conditions in fact exists and the City takes all final and uncontested actions necessary or required to correct, remedy or remove such condition within ninety (90) days after the public hearing, the Property may not be disconnected; provided, however, that if Petitioner is not satisfied that City has taken all final and uncontested actions necessary or required to correct or remedy such condition prior to the expiration of said 90-day period, Petitioner shall have the right to seek judicial review thereof without the necessity of filing a verified written petition with the City Clerk. (2) Except as otherwise provided in Section 6 of Article V, nothing in section (1) above shall waive or limit the right of Petitioner to exercise any other right it may have to disconnect the Property from the City pursuant to the provisions of Section 31-12-119, C.R.S., or any other statute or ordinance applicable to Petitioner and the City which now exists or may hereafter be enacted which authorizes disconnection from a home rule municipality. (3) Upon disconnection of the Property, whether pursuant to Ordinance of the City under section (1) above, or judgement from a court pursuant to section (2) above, the parties expressly acknowledge and agree that from and after the effective date of the disconnection, all zoning, permits, subdivisions, and other land use restrictions imposed upon the Property by, through or under the City shall thereafter be immediately null and void and the parties shall be released and discharged from all future obligations and liabilities under this Annexation Agreement. XIII. CONTRACTUAL NATURE OF ANNEXATION AGREEMENT. The terms, conditions and obligations of this Annexation Agreement are and shall be construed to be purely contractual in nature, as terms, conditions and obligations voluntarily agreed to by City and Petitioner prior to annexation of the Property to the City. The terms, conditions and obligations imposed on Petitioner and the Property by this Annexation Agreement are not nor shall they individually or cumulatively be construed to be conditions upon granting land-use approvals within the meaning of Sections 29-20- 201 to 29-20-204, C.R.S. XIV. SPECIAL PROVISIONS. (1) Payment In Lieu of Sales and Use Tax. Petitioner shall pay to City a single, lump sum pre-payment of the estimated sales and use taxes related to the construction, installation and acquisition of the new rail mill in the amount of Four Million Four Hundred Thousand Dollars ($4,400,000.00) (the "Payment"). Such 8 2126471 12/26/2018 02:37:39 PM Page: 9 of 14 R 78.00 D 0.00 T 78.00 Gilbert Ortiz Clerk/Recorder, Pueblo County. Co VIII PI.rRI�hk� �l,r�h+�K 111111iI v I Payment shall be due and payable 30 days following the date of the first economic incentive payment to New CF&I pursuant to Employment Agreement. (2) Sales and Use Tax Exemption. The City hereby acknowledges that the existence of Ordinance No. amending Chapter 4 of Title XIV of the Pueblo Municipal Code granting an exemption for sales and use tax on tangible personal property purchased for use in the initial construction and equipping of a new manufacturing facility, with investment of private funds in excess of Two Hundred Million Dollars, constructed on or after January 1, 2019 ("large manufacturing facility") and providing that such exemption applies for a period of ten (10) years after such a large manufacturing facility becomes operational for sales and use taxes on tangible personal property stored, used or consumed in the maintenance, repair, refurbishing, remodeling, substitutions, relocation, or replacement of such a large manufacturing facility, or any part thereof, was a material factor in the decision by Petitioner to annex the Property into the City. As such, City hereby covenants and agrees that so long as the Property remains annexed to the City it will not for a period of ten (10) years after the new rail mill becomes operational undertake any action to amend, modify or repeal the exemptions granted under Ordinance No. as they apply to the new rail mill. Immediately after the effective date of the Ordinance and this Annexation Agreement, the City will issue an exemption certification that Petitioner may provide to all contractors, vendors, suppliers and other agents employed or working in connection with the construction, operation or maintenance of the new rail mill to ensure that no sales or use taxes are collected or paid on tangible personal property used or purchased for the new rail mill contrary to the exemptions granted under the foregoing Ordinance. (3) Solid Waste Disposal Exclusion. The City acknowledges that the existence of Ordinance No. 7265, amending Chapter 12 of Title IV of the Pueblo Municipal Code exempting facilities disposing nonhazardous solid waste generated on-site in compliance with Colorado Department of Public Health and Environment Solid Waste Regulations from the City's Certificate of Designation requirements, was a material factor in the decision of Petitioner to annex the Property into the City. As such, the City hereby covenants and agrees that so long as the Property remains annexed to the City it will not undertake any action to amend, modify or repeal the exemption granted under Ordinance No. 7625 as it applies to the Property. (4) Noise. The City has adopted noise regulations, currently codified as Sec. 11-1-607of the Pueblo Municipal Code (as now or hereafter adopted the "City Noise Ordinance"). The new rail mill is also regulated by state noise regulations, currently codified as Section 25-12-103, C.R.S. (as now or hereafter adopted the "State Noise Statute"). In order to promote certainty and consistency in the regulation of noise at the new rail mill, the City hereby agrees, that notwithstanding provisions of City Noise Ordinance which may be interpreted to the contrary, the new rail mill will not be in violation of the City Noise Ordinance so long as it is in compliance with the State Noise Statute. 9 2126471 12/26/2018 02:37:39 PM • Page: 10 of 14 R 78.00 D 0.00 T 78.00 Gilbert Ortiz Clerk/Recorder, Pueblo County, Co ■iii PIrallir� � �x�aMrlr� , ,�� X111 ■iii i (5) Further Actions to Implement Intent of Provision. If any provision of this Annexation Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the remaining provisions of this Annexation Agreement. Petitioner and City agree that they will, at the request of the other party, execute and deliver such documents and further instruments, and take such other lawful actions as may be reasonably required and necessary, to effectuate the purpose and intent of such provision of this Annexation Agreement determined to be invalid or unenforceable. XV. EFFECTIVE DATE. (1) This Annexation Agreement shall become effective on the date City Council of City approves by ordinance the annexation of the Property to the City. (2) The Parties agree that on or before December 1, 2019, Petitioner, at its sole option, may terminate this Annexation Agreement and City and Petitioner shall thereafter be released and discharged from all obligations hereunder. XVI. MISCELLANEOUS. (1) Notice. All notices or other communications hereunder shall be sufficiently given and shall be deemed given when personally delivered, or mailed by registered or certified mail, postage prepaid, addressed as follows: (a) if to City, City Manager or, after February 1, 2019, Mayor, City of Pueblo, 1 City Hall Place, 2nd Floor, Pueblo, CO 81003, with copy to City Attorney, 1 City Hall Place, 3rd Floor, Pueblo, CO 81003, or (b) if to the Company, Attn: General Manager, Evraz North America, 1612 E. Abriendo Ave., Pueblo, CO 81004 or to such other address as either party by written notice given hereunder may designate. (2) Governing Law. This Annexation Agreement shall be governed and construed in accordance with the laws of the State of Colorado, without regard to conflict of law principles. (3) No Third Party Beneficiaries. Nothing in this Annexation Agreement expressed or implied is intended to or shall be construed to confer upon, or to give to, any person other than the City and Petitioner and their respective successors and assigns any right, remedy or claim under or by reason of this Annexation Agreement or any covenant, condition or stipulation hereof; and all the covenants, agreements and stipulations in this Annexation Agreement contained by and on behalf of the City or the Petitioner shall be for the exclusive benefit of the City and the Petitioner and their respective successors and assigns, including parties who may participate in the development and operation of the new rail mill and to whom Petitioner assigns certain 10 2126471 12/26/2018 02:37:39 PM • Pge: 11 of 14 R 7800 0 0.00 T 78.00 Gilbert Ortiz Clerk/Recorder. , Pueblo County. Co IIIII KAPP ILEI:VrL IR P110141V I4lFilfRitYivh 11111 of the rights and benefits set forth in this Annexation Agreement. No assignment of any interest in this Annexation Agreement by Petitioner shall relieve Petitioner of any of its obligations hereunder. (4) Singular, Plural. Unless the context requires otherwise, words denoting the singular may be construed as denoting the plural. Words of the plural may be construed as denoting the singular. Words of one gender may be construed as denoting the other gender, if applicable. (5) Entire Agreement. All prior discussions, representations, understandings and agreements, whether oral or written, between the parties with respect to the subject matter of this Annexation Agreement are merged in this Annexation Agreement, which constitutes the entire agreement between the parties. (6) Confirmation Statements. The City hereby agrees that it shall, from time to time, within sixty (60) days after written request from Petitioner, deliver to Petitioner, or Petitioner's designee, a certificate or other written statement (in form sufficient for recording) evidencing that Petitioner has performed its obligations under this Annexation Agreement or specifically itemizing those items which remain outstanding, as well as confirming such other factual matters (if true and correct) pertaining to this Annexation Agreement as may be requested by Petitioner. (7) Counterparts. This Agreement may be executed in any number of counterparts, and each such counterpart shall be deemed for all purposes to be an original, and all such counterparts shall together constitute but one and the same original. This Annexation Agreement is executed at Pueblo, Colorado effective as set forth in M -A. ��� 044 . . o. .0 ' / ,,,,,„\ N<<',i:12 �A City of Pueblo, Colorado °"" " '�'�" • i a Colorado Municipal Corporation ,tie C-it � a-44.0 Bei A� , Attest. $ ' C6 `fit,.:. By Acting City Clerk - President of the City Council - Brenda Armijo Christopher A. Nicoll 11 2126471 12/26/2018 02:37:39 PM Page: 12 of 14 R 78.00 D 0.00 T 78.00 Gilbert Ortiz ClerkiRecorder, Pueblo County, Co CF&I Steel, L.P 1111Kr12X1,1; ►11R+ 144fikflik;;iIII a Delaware limited partnership By: (Sig rture) (Print Name) rO n)MtD i, Jt.I'e. (Print Title) N1.ta►Ip41t 'U.o0.¢af( 1°t g4&t2 STATE OF .L I l % v\ci is ) ss. COUNTY OF I— ( 1<'1/4- The kmsThe foregoing instrument was acknowledged before me this 21di day of N v ate►,,b - , 2018 by as rYlevn1 r G-6►1em-I l ri►,t►-- of CF&I Steel, L.P., a Delaware limited partnership. Witness my hand and official seal. My commission expires: 2-) 1°I`i [ SEAL ] , �r ��`� i 1, L C� --- Notary Pu • ANITA L JAGUDEN SPENCER Official Seal (. Notary Public -State of Illinois My Commission Expires Dec 2,2019 12 2126471 12/26/2018 02:37:39 PM 1Pa9e. 13 of 4 R d Dblc uu00G1bertOrtiz Cerk/ReorrPueblo County, Co■111kL ?N N1i15,1:iijw F41 III III Exhibit A A parcel of land located in a portion of the East one-half (1/2) of Sections 12, and 13, Township 21 South, Range 65 West of the 6th P.M. in the County of Pueblo and State of Colorado, being more particularly described as follows. Considering the South line of Block 39 in Lake Minnequa Addition as filed for record in the Pueblo County records to bear N. 88°54'21" E. and all bearings contained herein being relative thereto. Commencing at the Southeast corner of said Block 39 and the present City limits line; thence N. 88°54'21" E., a distance of 125.00 feet to the east right- of-way line of the Denver and Rio Grande Railroad as presently located; thence N. 01°04'44" W. along said east right-of-way line, a distance of 300.00 feet to the Point of Beginning; thence N. 01°04'44" W. continuing along said east right-of-way line, a distance of 950.00 feet; thence N. 88°54'21" E., a distance of 226.00 feet; thence N. 40°24'00" E., a distance of 636.00 feet; thence N. 88°54'21" E., a distance of 342.00 feet; thence S. 01°05'39" E., a distance of 90.00 feet; thence S. 88°54'21" W., a distance of 44.00 feet; thence S. 01°05'39" E., a distance of 190.00 feet; thence N. 88°54'21" E., a distance of 120.00 feet; thence S. 01°05'39" E., a distance of 1,314.00 feet; thence S. 29°59'20" W., a distance of 548.00 feet; thence S. 01°05'39" E., a distance of 534.00 feet; thence S. 88°54'21" W., a distance of 471.00 feet; thence S. 01°05'39" E., a distance of 1,121.71 feet; thence S. 88°54'21" W., a distance of 100.00 feet; thence N. 01°05'39" W., a distance of 2,292.65 feet; thence S. 88°54'21" W. a distance of 211.71 feet to the said east right-of-way line and the Point of Beginning. Containing 49.97 acres, more or less 13 EXHIBIT B (none) 2126471 12/26/2018 02:37:39 PM Page: 14 of 14 R 78.00 D 0.00 T 78.00 Gilbert Ort12 Clerk/Recorder, Pueblo Count 1111 � .r1�L'�II1'f1�.�6i���1��'#Eh11441!1r,i Ill III 14 Reception 2156822 10/24/2019 03:33:02 PM AMENDMENT TO ANNEXATION AGREEMENT This Amendment to Annexation Agreement entered into as the 23rd day of September 2019 by and between the City of Pueblo, Colorado, a Colorado Municipal Corporation, (the "City"), and New CF&I Inc., a Delaware Corporation (the "Petitioner") (together "Parties"). WITNESSETH WHEREAS, on November 12, 2018, by Ordinance No. 9362, the City Council approved the Annexation Agreement dated November 12, 2018 and recorded under Reception No. 2126469 in the office of the Pueblo County Clerk and Recorder (the "Annexation Agreement"); and, WHEREAS, the term "Property" as used herein means and includes the real property described in Exhibit A-Amendment to Annexation Agreement Cases No.s A-19- 07, A-19-08, and A-19-09 dated September 23, 2019; and, WHEREAS, Petitioner represents and warrants that it is the owner of the Property in fee simple; and, WHEREAS, the Parties desire to amend Exhibit A of the Annexation Agreement, Case No. A-18-01 entered into for the property commonly known and described as east of 1-25 and at the terminus of Indiana Avenue. NOW THEREFORE, in consideration of the foregoing recitals and the mutual promises, covenants and conditions contained herein and other good and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereby agree as follows: 1. Exhibit A, Legal Description of the Evraz Annexation Agreement, is hereby amended to read as follows: Exhibit A AMENDED EVRAZ ANNEXATION LEGAL DESCRIPTION A parcel of land located in a portion of the East one-half (1/2) of Sections 12, and 13, Township 21 South, Range 65 West of the 6th P.M. in the County of Pueblo and State of Colorado, being more particularly described as follows. -1- . 2156822 10/24/2019 03:33:02 PM Page: 2 of 3 R 23.00 D 0.00 T 23.00 Gilbert Ortiz Clerk/Recorder, Pueblo County, Co ■III lliAlli �111fl '�VI�'���hi lartiliNI UMW, 11111 Considering the South line of Block 39 in Lake Minnequa Addition as filed for record in the Pueblo County records to bear N. 88°54'21" E. and all bearings contained herein being relative thereto. Commencing at the Southeast corner of said Block 39; thence N. 88°54'21" E., a distance of 125.00 feet to the east right-of-way line of the Denver and Rio Grande Railroad as presently located; thence N. 01°04'44" W. along said east right-of-way line, a distance of 300.00 feet to the Point of Beginning; thence N. 01°04'44" W. continuing along said east right-of-way line, a distance of 950.00 feet; thence N. 88°54'21" E., a distance of 226.00 feet; thence N. 40°24'00" E., a distance of 636.00 feet; thence N. 88°54'21" E., a distance of 342.00 feet; thence S. 01°05'39" E., a distance of 90.00 feet; thence S. 88°54'21"W., a distance of 44.00 feet; thence S. 01°05'39" E., a distance of 190.00 feet; thence N. 88°54'21" E., a distance of 120.00 feet; thence S. 01°05'39" E., a distance of 1,711.00 feet; thence S. 88°54'21"W., a distance of 239.32 feet; thence S. 29°59'20"W., a distance of 84.44 feet; thence S. 01°05'39" E., a distance of 918.00 feet; thence S. 88°54'21"W., a distance of 471.00 feet; thence S. 01°05'39" E., a distance of 737.71 feet; thence S. 88°54'21" W., a distance of 175.00 feet; thence N. 01°05'39" W., a distance of 2292.65 feet; thence N. 88°54'21" E., a distance of 136.71 feet to the east right-of-way line of the Denver and Rio Grande Railroad as presently located and the Point of Beginning. Containing 59.16 acres, more or less 2. The Annexation Agreement and Exhibit A, amended Evraz Annexation Legal Description, continue in full force and effect binding on Petitioner and City and their respective successors and assigns. 41,x:.Ecgted at Pueblo, Colorado as of the day and year first above written. . � 7'J} d'\ City of Pueblo, Colorado %' :r ' �. ���� v , bat < a Colorado Municipal Corporation Il ;,!!';t `rmijo-Cit Cle 4icholas A. Gradisar-Mayor CF&I STEEL, L.P. a Delaware limited partnership By: : •nature) (Print Name) �I ✓Yl C rct/11 (Print Title) D►rec.:iu/`) F Pd'/9- -2- 2156822 10/24/2019 03:33:02 PM Page: 3 of 3 R 23. De 0.00 23.0 Gilbert Ortiz Clerk/Recorder00 ; Pueblo Count0 y, Co STATE OF COLORADO ) Villin 1 :'« OMIKA Yi r II 111 ) ss. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this day of September 2019, by Nicholas A. Gradisar as Mayor and Brenda Armijo as City Clerk of Pueblo, a Colorado Municipal Corporation. Witness my hand and official seal. My commission expires: [ SEAL ] Notary Public STATE OF COthatik) ) ss. COUNTY OF~ 0121O ) The foregoing instrument was acknowledged before me thisI(d day of , 2019, by JIM (1a.ifl as 'Director OF FP4 A- of CF&I STEEL, L.P., a Delaware limited partnership. Witness my hand and official seal. My commission expires: i i 2U -702, [ SEAL ] Lk. LEAHA ZINANTI Notary ' blic Notary Public State of Colorado Notary ID#20174048643 My Commission Expires 11-28-2021 -3- City Clerk’s Office Item # R-6 BACKGROUND PAPER FOR PROPOSED ORDINANCE COUNCIL MEETING DATE: October 22, 2018 TO: President Christopher A. Nicoll and Members of City Council CC: Sam Azad, City Manager VIA: Brenda Armijo, Acting City Clerk FROM: Steven Meier, Director of Planning and Community Development SUBJECT: AN ORDINANCE ANNEXING UNINCORPORATED LAND COMMONLY KNOWN AS THE EVRAZ ANNEXATION NO. 1 DESCRIBED AS 8.84 ACRES OF LAND EAST OF I-25 AND AT THE TERMINUS OF INDIANA AVENUE SUMMARY: The applicant is requesting to annex the property containing 8.84 acres into the City of Pueblo commonly known as the Evraz Annexation, No. 1. PREVIOUS COUNCIL ACTION: On August 27, 2018 City Council approved a Resolution No. 14038 preliminarily determining that the petition for annexation of the area commonly known as the Evraz Annexation, No. 1 is valid under the provisions of Colorado Revised Statutes Section 31- 12-107(1). BACKGROUND: The Evraz Annexation, No. 1 is the first parcel of a two-phase annexation totaling 49.97 acres. The Evraz Annexation area No.1 is located east of I-25 at the terminus of Indiana Avenue. The Petitioners are requesting to annex 8.84 acres into the City to facilitate the development of heavy industrial uses. The area currently contains some pre-existing industrial facilities and undeveloped property. Access to the property currently is via private roads that extend from the terminus of Indiana Avenue east of the I-25 interchange. Sanitary Sewer Evraz, through its internal operations on the steel mill property, currently provides potable water and sanitary sewer service to its existing facilities. The Annexation Agreement (“Agreement”) acknowledges and agrees that Evraz may continue to provide such utility services on their property. The Agreement stipulates that Evraz has the right, but no obligation, to tap into the City's sanitary sewer system. If Evraz requests to tap into the City's sanitary sewer system, then the City will provide such service subject to and in conformity with the City's ordinances, rules and regulations relating to its sanitary sewer system and services, provided the City will not be required to extend its sewer mains to the Property. Petitioner shall comply with all applicable City requirements for the installation of mains, lines, stations, and any other appurtenant sewer facilities in effect at the time of such request for sewer service. Stormwater Evraz currently operates and maintains a stormwater retention and drainage facility on their property. The Agreement stipulates that so long as (i) Evraz continues to operate and maintain the stormwater facility on their property, (ii) Evraz holds a stormwater discharge permit for the stormwater facility issued by the Colorado Department of Public Health and Environment and complies with the requirements of such permit, and (iii) the stormwater facility is not connected to or discharging stormwater into City-owned or managed stormwater facilities, Evraz shall not be in violation of City's stormwater utility ordinances (Chapter 12, Title XVI of the Pueblo Municipal Code) and as same may, from time to time, be amended ("Stormwater Ordinance"). Evraz would have the right, but no obligation, to tap into the City's stormwater system. If Evraz requests to tap into the City's stormwater system, then the City will provide such service subject to and in conformity with the City's ordinances, rules and regulations relating to its stormwater system and services, provided the City will not be required to extend its stormwater mains to the Evraz property. Evraz will be required to comply with all applicable City requirements for the installation of mains, lines, stations, and any other appurtenant stormwater facilities in effect at the time of such request for stormwater service. Fire Protection Evraz, through its internal operations at the property, currently provides fire protection, hazardous material response, and emergency medical services. The Agreement acknowledges and agrees that Evraz may continue to provide such services to the property. The area is currently zoned I-3, Heavy Industry in Pueblo County, and the annexation agreement identifies that the property will be requested to be zoned into an I-3, Heavy Industry zone district within the City. Evraz has concurrently applied to zone the property within the City into an I-3 Heavy Industry zone district. The I-3 Heavy Industry zone district is consistent with the future development map contained in the Pueblo Regional Comprehensive Development Plan. The approval of the zoning request cannot be approved until the Annexation Ordinance is approved by City Council. FINANCIAL IMPLICATIONS: The Petitioners acknowledge and agree that upon the annexation, the property shall become subject to the Charter, ordinances, resolutions, rules, and regulations of the City. The City is prepared to furnish or extend municipal services, including but not limited to sanitary sewer services, to the area proposed to be annexed. However, if Evraz requests such services, Evraz will be required to comply with all applicable City requirements for the extension or installation of municipal services, including the payment of appropriate costs. BOARD/COMMISSION RECOMMENDATION: The City Planning and Zoning Commission reviewed the annexation at the September 12, 2018 Regular Meeting. A motion to approve the proposed annexation was made by Council Member Schilling, seconded by Commissioner Bailey to recommend approval of the proposed annexation petition. Motion passed 6-0 (San Filippo-Rosser absent). STAKEHOLDER PROCESS: Annexation Impact Reports have been filed with taxing entities as required by Colorado Revised Statutes. ALTERNATIVES: Upon request of City Council, the Ordinance could be returned to the Planning and Zoning Commission for consideration of proposed modifications. City Council could vote to not approve the Annexation Ordinance. The applicant could resubmit an annexation petition in the future subject to the applicable provisions of the Municipal Annexation Act of 1965 and C.R.S. §31-12-104, 105 and 107(1). RECOMMENDATION: Approval of the Ordinance. Attachments: Annexation Agreement Minutes of the Planning and Zoning Commission September 12, 2018 Public Hearing Planning and Zoning Commission Staff Report with Exhibits