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Home My WebLink About09465 ORDINANCE NO. 9465 AN ORDINANCE APPROVING A DECLARATION OF PROTECTIVE COVENANTS FOR LOT 4, HISTORIC ARKANSAS RIVERWALK PROJECT FILING NO. 3, AS AMENDED BY REARRANGEMENT OF PROPERTY BOUNDARIES NO. RPB-19-04, COUNTY OF PUEBLO, STATE OF COLORADO AND AUTHORIZING THE MAYOR TO EXECUTE SAID DECLARATION OF PROTECTIVE COVENANTS BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Declaration of Protective Covenants for Lot 4, Historic Arkansas Riverwalk Project Filing No. 3, as amended by Rearrangement of Property Boundaries No. RPB- 19-04, County of Pueblo, State of Colorado, a copy of which is attached hereto, having been approved as to form by the City Attorney is hereby approved. The Mayor is hereby authorized and directed to execute said Declaration of Protective Covenants for and on behalf of the City and the Acting City Clerk is directed to affix the seal of the City thereto and attest same. Following execution of the Declaration of Protective Covenants by the Mayor, the Acting City Clerk is directed to file and record same in the real estate records of the Pueblo County Clerk and Recorder. SECTION 2. The officers and staff of the City are authorized and directed to perform any and all acts consistent with this Ordinance and the attached Declaration of Protective Covenants to implement the purposes of same. SECTION 3. This Ordinance shall become effective on the date of final action by the Mayor and City Council. Action by City Council: Introduced and initial adoption of Ordinance by City Council on May 13, 2019 . Final adoption of Ordinance by City Council on May 28, 2019 . President of City Council Action by the Mayor: ☒ Approved on June 1, 2019 . ☐ Disapproved on based on the following objections: Mayor Action by City Council After Disapproval by the Mayor: ☐ Council did not act to override the Mayor's veto. ☐ Ordinance re-adopted on a vote of , on ☐ Council action on __________________failed to override the Mayor’s veto. President of City Council ATTEST Acting Deputy City Clerk City Clerk’s Office Item # R-7 BACKGROUND PAPER FOR PROPOSED ORDINANCE COUNCIL MEETING DATE: May 13, 2019 TO: President Dennis E. Flores and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Brenda Armijo, Acting City Clerk FROM: Steven Meier, Director of Planning and Community Development SUBJECT: AN ORDINANCE APPROVING A DECLARATION OF PROTECTIVE COVENANTS FOR LOT 4, HISTORIC ARKANSAS RIVERWALK PROJECT FILING NO. 3, AS AMENDED BY REARRANGEMENT OF PROPERTY BOUNDARIES NO. RPB-19-04, COUNTY OF PUEBLO, STATE OF COLORADO AND AUTHORIZING THE MAYOR TO EXECUTE SAID DECLARATION OF PROTECTIVE COVENANTS SUMMARY: Attached is a proposed Ordinance approving and authorizing the Mayor to sign a Declaration of Protective Covenants for Lot 4, Historic Arkansas Riverwalk Project Filing No. 3, as amended by Rearrangement of Property Boundaries No. RPB-19-04, County of Pueblo, State of Colorado (“Subject Property”). PREVIOUS COUNCIL ACTION: Not applicable to this Ordinance. BACKGROUND: The Subject Property consists of an approximately 15,760 square foot parcel of unimproved land located adjacent to the PBR Sports Performance Center and the expanded Pueblo Convention Center. By RFP No. 19-030, the City has requested proposals for the purchase of the Subject Property to be developed as a hotel and/or mixed commercial use. The hotel is required to have a minimum of 100 rooms and to be oriented toward a business / family clientele. The Subject Property is located within the boundaries of the Historic Arkansas Riverwalk Project (“HARP”). The HARP Authority has requested that the City of Pueblo record the attached Declaration of Protective Covenants to ensure that the Subject Property is developed and maintained in a manner consistent with the overall HARP development. The attached Declaration of Protective Covenants are similar to those made applicable when the City sold the former Police Building property in 2013. FINANCIAL IMPLICATIONS: None. The recording of the Declaration of Protective Covenants will not have a direct financial impact on the City of Pueblo. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: If this Ordinance is not approved, the new hotel property will not be subject to the HARP covenants. RECOMMENDATION: Approve the Ordinance. Attachments: Proposed Ordinance Proposed Declaration of Protective Covenants Reception 2141932 06/10/2019 03:32:44 PM re: Ordinance 9465 1 DECLARATION OF PROTECTIVE COVENANTS, CONDITIONS AND RESTRICTIONS 1. Introduction Pueblo, a Colorado Municipal Corporation ("City") the declarant, is the owner of the real property described in the attached Exhibit A(hereinafter referred to as the"Subject Property") and owns substantial real estate adjacent to, and in the vicinity of, land which the City is developing as part of its Historic Arkansas Riverwalk of Pueblo (HARP) Development. It is essential to HARP that the Subject Property be developed and maintained in a manner consistent with the overall HARP Development. The HARP Authority is the entity designated to operate and manage HARP; Consequently, the following Covenants are hereby placed on the Subject Property: 2. Applicability These covenants, conditions and restrictions are imposed upon the Subject Property and are to run with the land as a servitude in favor of the City. Failure to abide by any of the covenants, conditions and restrictions contained herein would adversely affect the health, safety and welfare of the public in general and the adjacent and nearby property owners in particular. 3. Use of Subject Property The Subject Property shall be used only for the uses permitted by right, without waiver or variance, under the HARP 2 Zone District, as defined by the zoning ordinances of the City of Pueblo. The Subject Property is located adjacent to a public project known as HARP. Owners and occupants understand and agree that the use of HARP and activities conducted thereon by City, HARP Authority and the public may interfere with the use and enjoyment of the Subject Property and/or annoy or inconvenience owners and users of the Subject Property. Owners and occupants shall not complain about any lawful activities conducted on HARP or the lawful use of HARP by the City, HARP Authority or the public and waive any and all claims of nuisance or interference with the use and enjoyment of the Subject Property arising out of, or resulting, directly or indirectly, from any such lawful use or activity. Owner shall not undertake or perform any activity on or use the Subject Property in a manner which will limit or interfere with the reasonable use and enjoyment of HARP by the City, HARP Authority or the public. 1 2141932 06/10/2019 03:32:44 PM Page: 2 of 9 R 53.00 D 0.00T 5 .00 Gilbert Ortiz Clerk/Recorder, Pueblo County, Co 1��1R,4twi �«I�,�il��rL��ilvit R��"� 'r'��+�ii4�� 11111 4. Underground Utilities All telephone and power lines and lines for transmission of electronic signals installed upon the Subject Property shall be underground, except for customary surface devices for access or control. 5. Architectural Control 5.1 Rezoning and Resubdividing. The Subject Property shall neither be rezoned nor resubdivided except by the express approval of the City. 5.2 Construction Documents. Before any building permit is obtained or any work is commenced on any Improvement (as defined below), there shall be delivered to the City Director of Planning and Community Development, the HARP Authority, and the City Planning and Zoning Commission, final plans and specifications for any Improvement, including, as applicable, elevations, site plans, grading and drainage plans, landscaping plans,outline specifications, samples of exterior materials,and exterior colors, proposed signing and site lighting, construction access to the Subject Property and construction site. All such submittals must be approved by the City pursuant to the Pueblo Municipal Code and the HARP Authority before a building permit is issued and construction begins on any Improvement. Construction schedules shall also be delivered to the HARP Authority and the City Director of Planning and Community Development for informational purposes before construction begins on any Improvement. All Improvements shall be constructed substantially in accordance with plans and specifications approved by the HARP Authority and the City Planning and Zoning Commission pursuant to these Covenants. As used in these covenants, "Improvement" shall mean any object, thing or activity of any kind installed, located or occurring on the Subject Property which changes the external appearance to the Subject Property, from its external appearance as it existed immediately prior to the installation, location or occurrence of the object, thing or activity. Improvements include, but are not limited to, all buildings, structures, landscaping and lawns, exterior walkways, parking areas, drives and truck loading areas, signs, fences, poles, walls, utility lines, lighting, excavations, grading, berms, drainage facilities, repairs, alterations, painting and all other things or objects of any type or kind installed or constructed on the Subject Property. 5.3 Common Use Documents. All documents either attempting to establish condominiums or other forms of common use or ownership, or regulating use or maintenance of any portions of the Subject Property, shall be submitted to and approved in writing by the HARP Authority and the City's Land Use Administrator before their being recorded, and prior to the sale or rental of any Improvement on the Subject Property to any 2 2141932 06/10/2019 03:32:44 PM Page: 3 of 9 R 53.00 D 0.00 T 53.00 Gilbert Ortiz Clerk/Recorder, Pueblo County. Co IIIII RUT rig Wilk 1111 party. HARP Authority and the City's review of these documents is for the purpose of ensuring that adequate provisions are made for first class maintenance of the Subject Property and all Improvements thereon, for controlling and approving any exterior changes or modifications to Improvements, for establishing of enforceable covenants that prescribe standards for use of the Subject Property and all Improvements thereon including, but not limited to the use of balconies, garages, parking areas and landscaping areas, and for adequate assessment procedures to fund the implementation of the documents, including the reimbursement of charges assessable against the Subject Property pursuant to section 6.3 of these Covenants. 5.4 Changes. No substantial change in or to any plat, special area plan, master plan, plans and specifications or document relating to the Subject Property shall be made unless approved by the City and the HARP Authority. 5.5 Names and Logos. Neither the names "HARP" or "Historic Arkansas Riverwalk of Pueblo"nor any derivatives thereof, nor the logos associated with such names may be used in any way in connection with the Subject Property, any use, or any promotion of it, unless HARP Authority has given its prior written approval to such use. 5.6 Approval Procedures. These Covenants require the owners and occupants of the Subject Property to obtain the City Planning and Zoning Commission's and the HARP Authority's approval of various plans, information, documents, writings and materials delivered to City and HARP pursuant to this Section 5.The City will not withhold its approval if it reasonably determines such items contemplate architecturally integrated and high-quality Improvements consistent with the aesthetic and functional standards of the HARP Development, the HARP 2 Zone District and the specific provisions of these Covenants. If either the City Planning and Zoning Commission or HARP Authority does not approve, the respective body shall, within sixty days after submission, deliver notice stating its reasons for disapproval to the party desiring the approval, who may then deliver a resubmission to eliminate the City Planning and Zoning Commission's or the HARP Authority's objections. If the City Planning and Zoning Commission or HARP Authority fails to act on any submission or resubmission within such sixty (60) day period after receipt thereof, the respective body shall be deemed to have approved. The time periods referred to above shall begin on the date the City Planning and Zoning Commission or HARP Authority receives any submission or resubmission. Requests for approval shall be submitted subject to Section 12, below. 3 2141932 06/10/2019 03:32:44 PM Page: 4 of 9 R 53.00 D 0.00 T 53.00 Gilbert Ortiz Clerk/Recorder, Pueblo County, Co 1111111cgirliffiiia1111111KIALIVilliMICIIIIIIIIIIiiii 11111 6. Maintenance of Improvements 6.1 Obligation to Maintain Improvements. All Improvements constructed on the Subject Property shall be maintained, or caused to be maintained, by the owner thereof in first-class condition. Such maintenance shall include, but not necessarily be limited to, repairing any structural damage to or defects in Improvements, keeping the exteriors of any Improvements on the Subject Property in first class condition, including painting as required, maintaining in good condition and repair all landscaping, walks, streets and parking facilities on the Subject Property, keeping vehicular and pedestrian areas free from accumulations of snow and ice, keeping the Subject Property free of trash and debris, and keeping all signs and lighting on the Subject Property clean and functional. At all times, but particularly during construction, the Subject Property owner shall control noxious weeds and fugitive dust in accordance with applicable governmental requirements and shall keep adjacent sidewalks, streets and roads free from accumulations of mud, dirt and debris originating on the Subject Property. The owner of Improvements shall maintain at all times at its cost and in full force and effect "all risk" casualty insurance (including without limitation flood and earthquake coverage to the extent reasonably available), for not less than 100% of the replacement value of the Improvements. In the event of damage thereto or destruction thereof, the owner of the Improvements shall proceed forthwith to repair, reconstruct, and restore the damaged or destroyed portions of such Improvements to substantially the same condition and value as existed prior to such damage or destruction, applying for such purposes all the proceeds of such casualty insurance to the payment or reimbursement of the costs of such repairs, reconstruction and restoration. 6.2 City's Right to Maintain Improvements. If City, in good faith, reasonably determines any portion of the Subject Property or the Improvements located thereon are not being maintained or repaired in the manner specified in Section 6.1 above, City shall give the owner thereof, or the person occupying the portion of the Subject Property involved, a written notice specifying the maintenance or repairs which City determines is required under these Covenants. If the maintenance or repairs specified in such notice is not satisfactorily performed within thirty days after delivery of such notice, or within such longer time as City reasonably determines is required to perform such maintenance or repair, City shall thereafter have the right, but not the obligation, to perform such maintenance or repair and to enter any of the Subject Property and perform any acts reasonably necessary to complete such maintenance or repairs. City shall not be liable for any losses, costs or damages to any tenant or owner of the Subject Property on account of its performance of such maintenance or repairs, except for any such loss, cost or damage caused by City's gross negligence or willful misconduct. City may delegate its maintenance rights hereunder to the HARP Authority. 4 2141932 06/10/2019 03:32:44 PM Page: 5 of 9 R 53.00 D 0.00 T 53.00 Gilbert Ortiz Clerk/Recorder, �Pueebllo County; Co �`II ,��III��f ��l I,I■ I�� I �-(l��ll � ll�.■Ili II III 6.3 Reimbursement and Lien. In the event City elects to perform maintenance or repairs pursuant to section 6.2 above, the City will submit to the owner or the tenant of the Subject Property upon which or for whose benefit such maintenance or repairs was performed, a written statement of the costs incurred by the City in performing the maintenance or repairs. These costs shall be paid to the City within twenty days after receipt of such notice. If the City's costs have not been paid after expiration of this twenty-day period, the City may thereafter record a lien against the Subject Property for all costs (including reasonable attorneys' fees) incurred by the City in performing the maintenance or repairs and in collecting such costs and foreclosing upon the lien. Such lien shall be junior to first deeds of trust of record with respect to the Subject Property on the date the lien is recorded. The lien and the lien described in Section 6.4 may thereafter be foreclosed upon in the manner provided by Colorado law for foreclosing upon mechanics liens. This lien shall provide that all sums expended by the City or the HARP Authority in foreclosing the lien and collecting the amounts due City or the HARP Authority (including reasonable attorneys' fees) shall be additional indebtedness secured by such lien. 6.4 Common Area Maintenance Expenses. The Owner of the Subject Property shall pay, in the amount set forth below, a common area maintenance charge to the HARP Authority to partially pay for maintaining the common areas and the public improvements in the HARP Development which shall include, but not be limited to, the cost of: gardening and maintaining the landscaping; operating and maintaining the HARP Channel and identification signs; replacing plants and planters; providing seasonal and holiday decorations; painting; lighting; resurfacing; repairing utility service lines in the common areas; clearing and removing snow,trash,rubbish,garbage and other refuse; paying interest on any funds advanced; providing personnel to implement such services and paying for administrative expenses. The HARP Authority will use all funds so collected to provide for the afore described maintenance. To compensate the HARP Authority for providing such maintenance of the common areas, and public improvements in the HARP Development, the Owner of the Subject Property shall pay the then current amount per square foot per year, as set by the HARP Authority, for each square foot of gross building area under roof in each building located on the Subject Property. Payment of the common area maintenance expenses shall begin on the first day of the month following the month in which a temporary or permanent certificate of occupancy is issued for each building located on the Subject Property ("Commencement Date"). Monthly payments of 1/12th the total amount due shall be made on the first day of each month. The common area maintenance charge shall be annually increased by the percentage increase, if any, in the U.S. Consumer Price Index for All Items - Urban Wage Earners and Clerical Workers ("CPI-W") (base year 1982-1984 - 100) (the "Index"). If the Index changes so the first year differs from that used in this Section, the 5 2141932 06/10/2019 03:32:44 PM Page: 6 of 9 R 53.00 D 0.00 T 53.00 liii lbert Ortiz Clerk/Recorder Pueblo County; Co �i�a woe AY Nra E Leh tr)i 11111 Index shall be converted according to the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics, to the 1982-84 base. If the Index is discontinued or revised, such other governmental index or computation which replaces it shall be used to obtain substantially the same result as would be obtained if the Index had not been discontinued or revised. The Index published nearest to the first payment of the Common Area maintenance charge shall be the Beginning Index. The Index published nearest the Adjustment Date shall be the Adjustment Index. The Adjustment Date shall be the first day of January of each year. The base common area maintenance charges shall be adjusted as follows: On each Adjustment Date, the base common area maintenance charge shall be adjusted by multiplying the initial base common area maintenance charge under these Covenants by a fraction, the numerator of which is the applicable Adjustment Index and the denominator of which is the Beginning Index. Failure to pay the common area maintenance charge on or before its due date shall cause it to be delinquent. If a charge becomes delinquent, the HARP Authority may place a lien on the Subject Property and foreclose on such lien as provided above in Section 6.3. 6.5 Vendor Agreement. In the event the owner of the Subject Property wishes to use outdoor dining space, or other uses which are acceptable to the HARP Authority, on the HARP property, abutting or adjacent to the Subject Property a separate vendor agreement with the HARP Authority will be required including, but not limited to, a negotiated lease rate for use of the HARP property and HARP Authority approval of the design and amenities; the cost of the amenities and utilities associated with the use of the HARP property will be the responsibility of the owner of the Subject Property. 7. Use of Riverwalk Facilities Any use of HARP property and/or facilities adjacent to the Subject Property for commercial or private functions shall be subject to a separate lease/vendor agreement with the HARP Authority. 8. Remedies Remedies at law may not adequately compensate the City for a violation of these Covenants. Therefore, City shall have the right to obtain from any court of competent 6 21419328 06/10/2019 03:32:44 PM Palbert7orot z9C1ek5Rec0ordderO Peblo5Cou0nty Co lIII Milt!WY i'I tiM0l hi' 111:�,l�'.�'E.71M:4J1114 11I II I jurisdiction injunctive relief against any owner or tenant of any of the Subject Property, or any of their agents, contractors, or assigns, or enjoining any activity which is in violation of these Covenants. The City's right to such injunctive relief shall not be affected by arbitration provisions in contracts executed by such owner, tenant or their agents. The rights and remedies of City shall be in addition to, and not in lieu of, other rights and remedies City may have in the event of a violation of these Covenants. All such rights and remedies shall be cumulative, and the exercise of any one or more of such rights and remedies shall not be deemed an election precluding the exercise of any of the others. All reasonable costs incurred in any dispute or litigation involving enforcement of these Covenants(including expert witness fees and attorneys'fees)shall be awarded as additional damages to the prevailing party, who shall also be entitled to all such additional costs incurred in enforcing or collecting any judgment rendered. The City may assign and delegate to the HARP Authority the enforcement of its remedies. Venue for all litigation arising under these Covenants shall be in Pueblo County, Colorado. 9. Land Benefitted These Covenants shall run with and burden the Subject Property and are for the benefit of City and all land owned by City in the HARP Development. These Covenants shall be enforceable only by City and its specific assigns herein or pursuant to Section 12 below. 10. Amendment These Covenants may be amended at any time by an instrument executed by City and the then current owners of at least 50 percent of the Subject Property. Amendments to these Covenants shall become effective upon their being recorded with the Pueblo County Clerk and Recorder. 11. Term These Covenants, and any amendments hereto, shall remain in effect for a period of twenty (20) years from the date of the recording of same and shall automatically be renewed for successive ten year periods unless, prior to the expiration of the initial term or any ten year extensions thereof, an instrument stating that extension is not desired, signed and acknowledged by at least fifty percent of the then owners of the Subject Property and the City, is filed of record with the Pueblo County Clerk and Recorder. 7 2141932 06/10/2019 03:32:44 PM Page: 8 of 9 R 53.00 D 0..00 T 53.00 Gilbert Ortiz Clerk/Recorder, Pueblo County. co 11111��AP'rr4�lhilMillihi'i�?�r�i hl�k?Nilr.«i�'v. luull 12. Successors and Assigns The City may assign its rights and authority hereunder by an express written assignment referring to these Covenants. Any reference in these Covenants to City shall also mean any successors of the City pursuant to such assignment. 13. Notices Any notice or other document or materials required or permitted to be delivered under these Covenants shall be in writing and shall be deemed properly delivered upon receipt by the party to whom the same are to be delivered. Notices shall be addressed as follows: If to City, to Mayor, One City Hall Place, Pueblo, CO 81003, with a copy to City Attorney, One City Hall Place, Pueblo, CO 81003, and Executive Director, HARP Authority, 125 Riverwalk Place, Pueblo, CO 81003. 4. °, 1 Y OF PUEBLO /46,- , /\`' /lAi 'A'�� \,I LORADO MUNICIPAL CORPORATION ',,,)-1-,"-\,:, e � =j ', ( & adisar Mayor STATE OF COL 6'"".!! c~" „roc .:.// t COUNTY OF PUEBLO) The foregoing instrument was acknowledged before me on this kr day of Jit At— 2019, by the City of Pueblo, a Colorado Municipal Corporation, by Nicholas A. Gradisar, as Mayor of the City of Pueblo. Witness my official hand and seal. My Commission Expires: _, l 0-Z6 oR d,, O TAMMY A MARTINEZ ,9 -/YY-/yt T� I AA 7//,--e) NOTARY PUBLIC Notary Publi STATE OF COLORADO NOTARY ID 20164028200 COMMISSION EXPIRES 07/28/2020 8 2141932 06/10/2019 03:32:44 PM Page: 9oi9a cO500 Gilbert Ortiz PuebloCounty Co 111114Ird v � If 111 II I EXHIBIT A Legal Description Lot 4, Historic Arkansas Riverwalk Project Filing No. 3, as amended by Rearrangement of Property Boundaries No. RPB-19-04 dated A P r',( at. , 2019, Pueblo County, State of Colorado, according to the recorded plat thereof filed in the records of the Pueblo County Clerk and Recorder. 9