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HomeMy WebLinkAbout09744ORDINANCE NO. 9744 AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO SIGN A PARTIAL ASSIGNMENT OF EASEMENT AND ASSUMPTION AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION, AND CSU PUEBLO SOLAR PPA PROJECT CO, LLC BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Partial Assignment of Easement and Assumption Agreement (“Agreement”), by and between Pueblo, a municipal corporation, and CSU Pueblo Solar PPA Project Co, LLC, a limited liability company, a copy of which is attached hereto and incorporated herein by this reference, having been approved as to form by the City Attorney, is hereby approved. The Mayor is authorized to execute and deliver said 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 2. The officers and staff of the City are authorized and directed to perform any and all acts consistent with the intent of this Ordinance and the Agreement which are necessary or desirable to implement the transactions described therein. 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 26, 2020 . Final adoption of Ordinance by City Council on July 27, 2020 President of City Council Action by the Mayor: ☒ Approved on July 30, 2020 . □ 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 City Clerk City Clerk’s Office Item # R-1 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: May 26, 2020 TO: President Dennis E. Flores and Members of City Council CC: Mayor Nicholas A. Gradisar VIA: Brenda Armijo, City Clerk FROM: Robert P. Jagger, Sr. Asst. City Attorney Sam Vigil, Director of Public Works SUBJECT: AN ORDINANCE APPROVING AND AUTHORIZING THE MAYOR TO SIGN A PARTIAL ASSIGNMENT OF EASEMENT AND ASSUMPTION AGREEMENT BETWEEN THE CITY OF PUEBLO, A COLORADO MUNICIPAL CORPORATION, AND CSU PUEBLO SOLAR PPA PROJECT CO, LLC SUMMARY: Attached is an Ordinance approving and authorizing the Mayor to sign a Partial Assignment of Easement and Assumption Agreement (“Agreement”) by and between Pueblo, a municipal corporation (“City”), and CSU Pueblo Solar PPA Project Co, LLC, a limited liability company, (“CSU-P”). PREVIOUS COUNCIL ACTION: By Resolution 11051, approved July 9, 2007, City became holder of an exclusive easement from the Board of Water Works of Pueblo, Colorado. The easement area is located north of the CSU- Pueblo campus (the “Board of Water Works Belmont Tank Site”) and is used by the City in the operation of City’s radio tower. BACKGROUND: Colorado State University-Pueblo (“University”) is constructing a new 7.2 megawatt solar array that will result in “net zero” for the main campus meter. This project is strongly supported by the Governor’s Office and the Colorado Energy Office. The site for the new solar array is on University property located North of the softball fields. To get the electric feed and fiber optic communications cables from the new solar field back to the University’s primary electric meter located at the Old Heat Plant, the University has asked for a 15’ Private Utility Easement through the Board of Water Works Belmont Tank Site. That request has been granted. In addition, the University needs a partial assignment from the City with respect to City’s exclusive easement located upon the Board of Water Works Belmont Tank Site. The proposed Agreement provides for such easement and permits the University to proceed with its project. FINANCIAL IMPLICATIONS: There will be no direct financial impact to the City. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: If this Ordinance is not approved, the University will have to find an alternative route for the electric feed and fiber optic communications cables in order to proceed with the new 7.2 megawatt solar array. RECOMMENDATION: Attachments: Proposed Ordinance and proposed Agreement Reception 2190308 08/26/2020 04:19:06 PM re: Ordinance 9744 PARTIAL ASSIGNMENT OF EASEMENT AND ASSUMPTION AGREEMENT This Partial Assignment of Easement and Assumption Agreement ("Agreement") is entered into as of the Effective Date, as herein identified, by and between Pueblo, a municipal corporation ("City"), and CSU Pueblo Solar PPA Project Co, LLC, a limited liability company, ("CSU-P"). WHEREAS, City is holder of an exclusive easement from the Board of Water Works of Pueblo, Colorado ("Board") pursuant to that Easement Agreement dated July 18, 2007 and recorded at Reception No. 1736289 of the Pueblo County Clerk and Recorder, State of Colorado ("Easement"). WHEREAS, CSU-P desires a partial assignment of the Easement, and City is agreeable to such assignment subject to the terms and conditions herein set forth. Now therefore, in consideration of the foregoing recitals and the mutual promises herein contained, Pueblo and CSU-P agree as follows: 1. City assigns to CSU-P a non-exclusive easement for the area described in Exhibit A that is located within the Easement for the purpose of construction, installation, maintenance and repair of an underground utility line ("Assigned Easement Area"). 2. CSU-P shall pay for any and all damage to City property caused by or arising out of the construction, installation, maintenance, repair or use of the Assigned Easement Area. 3. CSU-P assumes all liability of the City to the Board under the Easement which is caused by or arising out of the construction, installation, maintenance, repair or use of the Assigned Easement Area. 4. CSU-P shall maintain at its expense commercial general liability insurance or self-insurance covering actions by CSU-P for a limit not less than $1,000,000 for each occurrence and aggregate for personal injury including death and bodily injury and $1,000,000 for each occurrence and aggregate for property damage. Coverage shall include independent contractor's protection, premises-operations, products/completed operations and contractual liability with respect to the liability assumed by CSU-P hereunder. This policy of insurance shall name the City of Pueblo, its agents, officers and employees as additional insureds and shall contain an endorsement waiving subrogation against the City. 2190308 08/26/2020 04:19:06 PM Page: 2 of 8 R 48.00 D 0.00 T 48.00 Gilbert Ortiz Clerk/Recorder; Pueblo County; Co uIII � ��N� r;4 ,;��hLN���'�F � r�M ��k�Ail 111111 5. CSU-P agrees to indemnify and hold harmless the City from any and all claims, expenses, liabilities, loss, or damage to property or injury to or death of persons, caused by or arising out of the construction, installation, maintenance, or use of the Assigned Easement Area. 6. In the event of any material breach of this Agreement by CSU-P, City shall have the right to terminate CSU-P's rights hereunder upon thirty (30) days advance written notice. Notice to CSU-P shall be provided to the addresses listed below and such notice shall be deemed to have been given when deposited in the regular United States mail: CSU Pueblo Solar PPA Project Co, LLC Distributed Generation Solar CEI, LLC c/o Capital Dynamics Group 10 East 53"d Street, Floor 17 New York, NY 10022 Attn: Benoit Allehaut Email: ballehaut@capdyn.com With copy to: c/o CD Arevon USA, Inc. 8800 N. Gainey Center Dr., Suite 250 Scottsdale, AZ 85258 Email: JJ(a)cdarevon.com Attention: Justin Johnson AND Colorado State University-Pueblo Dept. of Facilities Mgt. 2200 Bonforte Blvd. Pueblo, CO 81001 7. City reserves the right to occupy and use the Assigned Easement Area for all purposes not inconsistent with the rights herein granted. 8. CSU-P agrees to be strictly bound by all terms of the Easement as through these terms were set out herein. 9. City does not warrant the Board's title to the Assigned Easement Area nor City's Easement which exists upon said title. CSU-P accepts this Agreement based on title work which it obtained prior to execution of this Agreement. 10. This Agreement may not be assigned by CSU-P without the written consent of City, which consent may be withheld in City's sole and absolute discretion. Any assignment or attempted assignment in violation of this Section shall be void. 2190308 08/26/2020 04:19:06 PM Page: 3 of 8 R 48.00 D 0.00 T 48.00 Gilbert Ortiz Clerk/Recorder, Pueblo County, Co 1II1 kir,i1WriieI l id 11111 11. This Agreement is expressly contingent upon the approval of the Board, and shall become effective only when signed by all parties, approved by the Board, and recorded (the recording date being the "Effective Date"). IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their undersigned duly authorized representatives. PUEBLO, A MUNICIPAL CORPORATION,• � By: / �y[t.�iBi/ orredtohlegy Mayor ATTEST: By 4tirk C Lwcp City Clerk CSU PUEBLO SOLAR PPA PROJECT CO, LLC, By: Authorized Signatory STATE OF ) ss. COUNTY OF ) The foregoing instrument was duly acknowledged before me this day of , 2020 by , as Authorized Signatory of CSU Pueblo Solar PPA Project Co, LLC, a limited liability company. Witness my hand and official seal. My commission expires: [ SEAL ] Notary Public • P2a1g903048 oi@88/26R/2�0R20oO4d:19:06 M 4lert0rtZC1keererPueblo County Co IIIII 1� nt.� � �w�4K',IK�yik'Mk 11111 PUEBLO, A MUNICIPAL CORPORATION, By: Mayor ATTEST: By: City Clerk CSU PU : ► • SOLAR PPA PROJECT CO, LLC, II By: A 3,A.-ksx) "ill "ki.£-t kor STATE OF 1\1'0U; /c ( ) ) ss. COUNTY OF Queens . The foregoing instrument was duly acknowledged before me this day of _ , 2020 by BoryAl‘eIU.4- , as Au-Ihvize 5)(046,,,/ of CSU Pueblo Solar PPA Project Co, LLC, a limited liability company. d z Witness my hand and official seal. My commission expires: Og/05/0W cO. j r C Notary Public . Linda N Granja 4- NOTARY PUBLIC.STATE OF NEW YORK 40.-- ,7114. \ Registration No.01GR6395765 Qualified in Queens County""� Commission Expires 08.05"_'023 2190308 08/26/2020 04:19:06 PM T — Page: 5 of 8 R 48.00 D 0.00 T 48.00 Gilbert Ortiz Clerk/Recorder, Pueblo County, Co ■III promo Erie I 'Iryl Fif Pal Milli'Aiilligiiitiih 111111 STATEMENT OF AUTHORITY 1. This Statement of Authority relates to an entity named CSU Pueblo Solar PPA Project Co, LLC,and is executed on behalf of the entity pursuant to the provisions of Section 38-30-172,C.R.S. 2. The type of entity is a: ❑corporation ❑ registered limited liability partnership ❑ nonprofit corporation ❑registered limited liability limited partnership ® limited liability company ❑ limited partnership association ❑general partnership D government or governmental subdivision or agency ❑ limited partnership ❑trust(Section 38-30-108.5,C.R.S.) 0 other: 3. The entity is formed under the laws of Delaware. 4. The mailing address for the entity is: c/o Capital Dynamics, Inc.; 10 East 53rd Street, 17th Floor; New York,NY 10022. 5. The❑ name® position of each person authorized to execute instruments conveying,encumbering, or otherwise affecting title to real property on behalf of the entity is Benoit Allehaut,as an Authorized Signatory,acting alone without the need for multiple signatures. 6. The authority of the foregoing person(s)to bind the entity is ®not limited ❑ limited as follows: 7. Other matters concerning the manner in which the entity deals with interests in real property:None. Executed this ( day of April 2020. Distributed Generation Solar CEI,LLC, a Delaware limited liability company ''..-6Z---A By: Name: -"7706.-1 44!144 7 Title: frAvr,w{ S.:71,.km2 ) STATE OF NEW ORK Uee'(1S. ) ss. COUNTY OF ) q �] / The foregoing instrument was acknowledged Wore me this ! day of I► it 2020, by 7 i m Sh o t as 4ufh0//re 1 ,'9/27/v'- of 06-tribuied )YA'ohm ioktl; a P LAJct e timi+ed ttOlbitrij Company. ✓ eJ Witness my hand and official seal. X/1711(}% dillif - My commission expires:0g/05 /a0Q3 Notary Public Linda N Granja V`.•��6.T.W i.�'' / 1. �r r(TARV'PUBLIC.STATE OF NEW YORK ��pr 9 �11tiY1ti . •% Resistntrion No.01GR6395765 : rAr4'1f' i n. ..t t Qualified in Queens County +.►• Ciek, e% • .. Commission Expires 08'05 20_3 zC/y Cy'...+A1++CW1' 64 • . 2190308 08/26/2020 04:19:06 PM Page: 6 of 8 R 48.00 D 0.00 T 48.00 Gilbert Ortiz Clerk/Recorder, Pueblo County, Co lIII101011110r164IPE IION?LIVilLiiN N1,11.1414 11111 APPROVED THIS/7day of �J /1 (y , 2020 by the BOARD OF WATERWORKS OF PUEBLO, COLO' , DO. By: ` < ~,.yam ��_ ecutive Director STATE OF COLORADO ) ) ss. COUNTY OF PUEBLO ) The foregoing i r�um�ent was duly acknowledged before me this( 27 day of , 2020 b)k 1/]bi r O, as Executive Director of the Board of W ter rks of Pueblo, Colorado. Witness my hand and official seal. My commission expires: ,,.... CY `a V 2 [ SEAL ] a J Notary Public CARLOTTA J.DELGADO NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20124040641 MY COMMISSION EXPIRES JULY 2,2024 • 2190308 08/26/2020 04:19:06 PM Page: 7 of 8 R 48.00 D 0.00 T 48.00 Gilbert Ortiz Clerk/Recorder, Pueblo County, Co 1111 WNkIIf/15 01:1 rAt 1311,00,14 M 11rh 11111 EXHIBIT A EASEMENT #2 15' PRIVATE UTILITY EASEMENT LAND DESCRIPTION An easement for Private Utility purposes located in a portion of land located in the SW 1/4 of Section 17, Township 20 South, Range 64 West of the 6th P.M. in the County of Pueblo and State of Colorado and being more particularly described as follows: Considering the North line of Section 17, Township 20 South, Range 64 West of the 6th P.M. to bear N. 88°45'07" E., and all bearings contained herein being relative thereto. Commencing from the Northeast Corner of Section 17, thence S. 41°25'54" W., a distance of 1,463.31 feet to the Northeast corner of a Tract of Land, as described in Book 1 405 at Pages 255 & 258 and in Book 1419 at Page 5 of the Pueblo County Records; thence S. 01°50'55" E., a distance of 637.97 feet along the Easterly line of said Tract of Land to the Northeast corner of City of Pueblo Communications Tower Easement at Reception No. 1736289 of the Pueblo County Records and being the Point of Beginning; thence S. 88°08'23" W., a distance of 15.00 feet along the Northerly line of said Communications Tower Easement; thence S. 01°50'55" E., a distance of 50.00 feet to a point on the Southerly line of said Communications Tower Easement; thence N. 88°08'23" E., a distance of 15.00 feet along the Southerly line of said Communications Tower Easement to a point on the Easterly line of said Tract of Land; thence N. 01°50'55" W., a distance of 50.00 feet along the Easterly line of said Tract of Land to the Point of Beginning. I, Michael L. Cuppy, being a licensed Land Surveyor in the State of Colorado, do hereby state that this land description and exhibit, being made a part hereof, were prepared under my responsible charge and are accurate to the best of my knowledge, information and belief. Michael L. Cuppy Colorado P.L.S. 38485 NorthStar Engineering and Surveying, Inc. April 1, 2020 JN 19 009 00 • . . i ,wit/Nip //7, qPA oP tcptiA\H-ttutt?)tt = , II.- 2 / _, ' / OWNER 1 - 0TOLODADO STATE BOARD 0D1- / 0!" A07110!!I TURE P.a c: NORTH ONE 01 SEC 1 ION Ii / f CD-, 6)c 4r 1 N88'4507"E &A 515 .c.) f AR)NGS 5308.87! ' ,,:- .D I i I ,' •41' aJI E 0 t•S"' _ . (DID 2–4C 1 ti OWNER: 4)!!, 1 GS 2!ae .. . . ! GOTORADO STATE HOARD \. Oi ADP/CULTURE ! "owI. '"-- ;, i -.-. .• •,. . A , t. . . . i ..i I is,0 1P7-- . ' I ,'' cs) •0)g N ca ce I CD cl•1- :n 1 1 • N ' t , : l'.._ .!,"L "','L! •:- ! ,' „,,,L 11.1....M LO N -'-.I- o OWNER! I ••••03 X 1 .' ' COLORADO STATE. BOAR OF AGRICULTURE 0''' o IL- , .,,,P',' w al 01_, 1 AI- — (\' ,1.':` 1 •-•0,-)me N 0.0 IIIMI , \ - ' , , '/ , ..„ I , - . )).i', .- ' , k ' , 91ILIA 1405,PAU- ,>T-, t ,Tti OWN R BOOK 14)5 Pkir 5 COLORADO STATE ROAR() 01 ACRIOUL 1 l_11,1E 1 ti OWNER: !.! I 1 PUEBLO MUNICIPAL CORPORA110N i ! ! ! I I ! i 0 11' j I 1 , ! ' CI 1 I I I 1 i { S S8808.1.)T'W e :!I 15.00! 50'N Iti \ i SC COiQUICTATTONS TOZIALAnit? \ ' T t .1, . 1 - 1. )k . I S RUA:PITON NO 1736289 , % 1 /1. 0.BI _L. . 1 LI 1 1 ___ ' 100' 200 400. i 1 Ti ( ) uinrIIIIII.=IIIIIIIIII=R ) / N(;/•505515/ S01 0 '5550 ! 1 t t 50 00 ‘,0.1.10 1 1 1 ' ! -t - N88'08.23 Y. , — , , t•-.,.ow L rc-,ENp ! ! —..---—_—_—_- OaCY- B. HG ti-.GININING in'''—7,--- i I,p.„, pciNT Or CONNIENCCMEN7 ' \ 1 POT POINT or TERMINUS \ It .....-----'--\\ ...., ' ( .. 41 r=-N,.;UNG(OJR6N'E'xi6"Of'S[DOENCET',NUIM/H'-'C'H,SELED "5" ON ' ' TNO0PR TSHE.wrEs.N1 2040![N21E4ii(.:0!)-NCRER GETTEONPA,D7 SOUTHEAST • CORNEP Cr ARTA DRAIN SO P „. R E . !,w...15 o!T, at A I t I N(.,S,, P i-,,,,, NORTH ;_,TOE OF sEci-loN 1 7, IOWNSHIP 20 SOUTH, ,ANCE 64 WED' OF II-IL 615 P M BEARS 6884-507E. A R E D NorE: HIS EXHIBIT WAS NOT PREPARED AS A B YON:JmEN'TD AN SURVEY, AND WAS oritY ,TTITirt,AHED TO DE.P,C7 1HL Ar/ACHED LAND Y: NORTHSTAR ENGINEERING AND SURVEYING, INC. Di S:RIP:ION T'AGt. T OT