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HomeMy WebLinkAbout10137ORDINANCE NO. 10137 AN ORDINANCE APPROVING A STORMWATER FACILITY MAINTENANCE AGREEMENT BETWEEN THE CITY OF PUEBLO AND T & M, LLC, AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT AND ACCEPTING A RELATED EASEMENT AND RIGHT-OF-WAY FOR THE PURPOSE OF DRAINAGE DETENTION AND DRAINAGE UTILITIES BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The Stormwater Facility Maintenance Agreement between T & M, LLC (“Developer”) and the City of Pueblo and (the “Agreement”), a copy of which is attached hereto, 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. Consistent with and related to the Agreement, Developer has granted an easement and right-of-way for drainage detention and drainage utilities to the City of Pueblo. The Easement and Right-of-Way granted, a copy of which is attached hereto, having been approved as to form by the City Attorney, is hereby approved and accepted. SECTION 3. The City Clerk is directed to cause said Agreement and Easement and Right-of-Way to be both recorded in the office of the Pueblo County Clerk and Recorder forthwith. The recording fees for same to be paid for by the Developer. SECTION 4. The officers and staff of the City are authorized to perform any and all acts consistent with this Ordinance and the attached Agreement which are necessary or desirable to implement the transactions described therein. SECTION 5. 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 March 14, 2022 . Final adoption of Ordinance by City Council on March 28, 2022 . President of City Council Action by the Mayor: ☒ Approved on March 30, 2022 . □ 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-5 Background Paper for Proposed Ordinance COUNCIL MEETING DATE: March 14, 2022 TO: President Heather Graham and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Marisa Stoller, City Clerk FROM: Jeff Hawkins, Director of Stormwater SUBJECT: AN ORDINANCE APPROVING A STORMWATER FACILITY MAINTENANCE AGREEMENT BETWEEN THE CITY OF PUEBLO AND T & M, LLC, AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT AND ACCEPTING A RELATED EASEMENT AND RIGHT-OF-WAY FOR THE PURPOSE OF DRAINAGE DETENTION AND DRAINAGE UTILITIES SUMMARY: This Ordinance approves a Stormwater Facility Maintenance Agreement with the City of Pueblo and T & M, LLC and accepts an easement granted by T & M, LLC for the purpose of water quality. PREVIOUS COUNCIL ACTION: On September 23, 2019, Council passed Ordinance No. 9560, amending chapter 5 of title VII, chapters 4 and 6 of title XII, and chapter 12 of title XVI of the Pueblo Municipal code relating to needed amendments to meet the minimum requirements of the MS4 permit. . BACKGROUND: th This parcel of real property located at 1015 W 10 St, Pueblo, CO 81003 is required to have a water quality facility installed per the City of Pueblo’s MS4 permit requirements. This easement and Stormwater Facility Maintenance Agreement will provide assurances that the water quality facility continues to function properly. FINANCIAL IMPLICATIONS: There are no financial implications for the City. BOARD/COMMISSION RECOMMENDATION: Not applicable to this Ordinance. STAKEHOLDER PROCESS: Not applicable to this Ordinance. ALTERNATIVES: Alternatives No. 1 – No action Under this alternative, the detention facility could still be built but there would be no legal assurance to prevent improvements from being built in the detention facility. Such improvements could hinder or prevent operation of the detention facility thus, potentially causing detrimental stormwater impacts to the properties and citizens downstream. Without the Stormwater Facility Maintenance and easement, the City of Pueblo would be in violation of the MS4 permit requirements regulated by the Colorado Department of Public Health & Environment. RECOMMENDATION: Approval of the Ordinance. Attachments: Stormwater Facility Maintenance Agreement DPW-110 (Easement) re: Ordinance 10137 Reception 2271889 04/07/2022 03:07:11 PM STORMWATER FACILITY MAINTENANCE AGREEMENT This Stormwater Maintenance Agreement is entered into this 13 day of August 2021,by and between Pueblo,a municipal corporation("the City")and T&M,LLC (the"Owner"),and collectively referred to as the"Parties". RECITALS WHEREAS,Owner owns certain real property located in the City of Pueblo legally described as follows: Parcel A.Rearrangement of Property Boundaries.RPB-21-02.filed for record July 19?021 as Reception No 2735387 In the records of the Pueblo County Clerk arty Recorder and more commonly known as 1015 W 10TH ST PUEBLO,CO 81003 (the"Property");and WHEREAS,a Drainage Report and Plan("Plan")for the Property has been approved by the City subject to and conditioned upon faithful performance by Owner of all duties created by this Agreement;and WHEREAS,said Plan provides for stormwater management facilities including such facilities intended to reduce,detain,convey,and manage stormwater runoff and also water quality facilities(collectively referred to as"Facilities");and WHEREAS,the Facilities shown on the Plan shall be constructed and adequately maintained by the Owner;and WHEREAS,the City requires that the Owners submit an Operation and Maintenance Manual("0&M Manual")as specified by the City. NOW,THEREFORE, in consideration of the foregoing and mutual covenants contained herein,the sufficiency of which is mutually acknowledged,the Parties agree as follows: AGREEMENT I. The Owner shall maintain the Facilities as described in the Plan to ensure that such Facilities are and will remain in proper working condition in accordance with the approved 0&M Manual and other applicable legal requirements.Maintenance shall include,but not be limited to,routine landscaping, sediment removal,repair,reconstruction,or replacement of the Facilities as necessary to meet the requirements of this Agreement. 2. The maintenance of the Facilities shall be performed in accordance with the 0&M Manual for the Facilities. 2271.88 04/07/2022 03:07:11 Pr Pace: 2 of 5 R 33.00 D 0.00 T 33.00 Gilbert Or`iz Clerk/Recorder, Pueblo County Co till k Pilrdflt IROCC',/111;, L 3. The Owner shall cause the inspections of the Facilities to be conducted as follows: a. The Owner agrees to cause inspections of the Facilities,at the Owner's expense at least once every calendar year. b. An inspection report for the facilities shall be submitted in writing to the City for each calendar yearby no later than April 1'of the following year.The inspection report shall be in accordance with the requirement set forth in the 0& M Manual. c. The Owner agrees to perform promptly all needed maintenance and repairs and report such activity to the City pursuant to the 0&M Manual. 4. The Owner,hereby,grants,bargains and conveys to the City,officers,agents,and employees an easement over the Property for access from public rights-of-way,abutting private roadways,and/or private driveways,to the Facilities for the purpose of inspecting,operating,installing,constructing, reconstructing,maintaining,repairing or replacing the Facilities to the extent that the Owner fails to do so and asnecessary to ensure their proper working condition as provided in paragraphs one and two above. 5. In the event the Owner fails to inspect,report,or properly maintain the Facilities within thirty(30)days after written notice by the City of such deficiencies to the Owner,the City may enter upon the Property and take whatever steps it deems necessary to maintain or repair the Facilities and bill the owner for such expense plus an administrative charge of 15%. However,if the Owner's failure to properly maintain the facilities could cause damage to property,loss of life or violation of a NPDES MS-4 Permit,the City may take immediate action,without notice to the Owner,to maintain or repair the Facilities. It is expressly understood and agreed that the City is under no obligation to maintain or repair the Facilities,and in no event shall this Agreement be considered to impose any such obligation on the City. 6. The Owner agrees that it will not at any time dedicate the Facilities to the public,to public use or to the City without the City's written consent,nor will it subdivide or convey the Property without a covenant providing that a proportional share of the cost of-maintenance and other costs associated with any other of the obligations and duties contained herein runs with each subdivided part of the original tract or parcel of land. 7. In an event of emergency involving the Facilities,the City,its officers,agents,and employees may enter immediately upon the Property and take whatever reasonable steps it deems necessary to meet the emergency.The City shall notify the Owner of such emergency and entry as soon as possible but in no event later than twenty-four(24)hours after such entry. Alternatively,the City may notify the Owner by phone to take whatever reasonable action is necessary within a specified time period.Should the Owner fail to respond,or should the Owner inform the City that it intends to not respond within the specified period of time,the City, its officers,agents,and employees may enter immediately upon the emergency. 8. The City shall not pay any compensation at any time for its use of the Property in any way necessary for the inspections and maintenance of the Facilities,including access to the Facilities. 2271889 04/07/2022 03:07:11 PFI Page 3 of 5 R 33.00 0 0.00 T 33.00 Gilo_rt Ortiz Cle,krrzecorder Puehlc County. Co ■III .rrR` L a ' r 'i ; ,3.K ' ' frA ,MU, AI II 9. In the event the City,pursuant to this Agreement,performs work or expends any funds reasonably necessary for the maintenance or repair of the Facilities,including labor,equipment,supplies and materials, the Owner agrees to reimburse the City within thirty(30)days after the City gives the Owner written notice of such expense. If the Owner or its successors or assigns fail to make timely payment as required herein, interest on such payment shall accrue at the rate of 1.5%per month until paid in full. 10. Any amount owed to the City and not paid within thirty(30)days of notification shall be the joint and several obligation of any owner of record of the Property or any portions thereof served by the Facilities and any successors in interest to such owner on the date such maintenance or repair was performed. I I. The Owner,its successors,and assigns shall indemnify and hold harmless the City,its officers,agents,and employees for any and all damages,accidents,casualties,occurrences or claims which might arise or be asserted against the City arising out of or resulting from the construction,presence,existence of maintenance or use of the Facilities.The Owner shall notify the City when the Owner transfers its interest in the Property or any portion thereof. The Owner shall provide the City with a copy of any such deed. I2. The responsibilities and obligations of the Owner shall constitute a covenant running with the land,and shall be binding upon all present and subsequent owners,their administrators,executors,assigns,heirs,and any other successors in interest so long as they own an interest in the Property or any portion thereof served by the Facilities. 13. The Owner acknowledges that any future site plan,master plan,drainage plan or other process determined by the City to be a final plan,shall include the following language: "The property owner,its successors, and assigns shall be responsible for maintenance of the Stormwater Facilities pursuant to the Operations and Maintenance(0& M)Manual and all permanent Best Management Practices(BMPs). Requirements include,but are not limited to,installing the specified BMPs contained in the Drainage Report and Plan and maintaining the Facilities as shown in the 0& M Manual as approved by the City. If the Facilities are not properly maintained,the City may provide necessary maintenance and assess the cost to the Owner of the property in accordance with the Stormwater Facility Maintenance Agreement approved by the City and recorded at the Pueblo County Clerk and Recorder's Office." 14. This Agreement shall be recorded at the Pueblo County Clerk and Recorder's Office. 15. In the event either of the Parties hereto files a lawsuit to enforce the terms of the Agreement,the prevailing party shall be entitled to its reasonable costs and attorney fees. [Remainder of this page left intentionally blank] 2271E69 04/e7/2022 03'07:11 PM Paye: a of 5 p 33.00 D 0.00 7 33 00 Gilbert Ortiz C1erki eoarder Pueblo County, Co ill!M P.r tau .L ,hr" t' 1 . Y II II t IN WITNESS WHEREOF,the City and the Owner have exectttedbis,Agreement on the date set forth above. CITY: ``r v ' ayor 1 Attest: 7 City Cle OWNER: T& M ,a LLC (corp/IIc, indicate) By: Mohammed Ghamdi / t ,as Member Or(if non corporate entity) (The Acknowledgement(notarization)will vary for Owner depending on if Owner is an individual,corporation, partnership,etc.Also,where there is a mortgage on the property,the mortgage holder must sign the Subordination section of this Agreement) An Affidavit of Authority/Incumbency to execute shall be supplied for any entity. 2271889 04/07/2022 03:07:11 PM " • • ■• Page. 5 of 5 R 33.00 f) 0.00 T 33.00 Gilbert Ortiz Cl rk:Recorder Pueblo Count./ Co II/1 Piilia infill"t11.l41111 i'irEi ri MN IlliT:'Iitlil II III ACKNOWLEDGEMENT (For a limited liability company) STATE OF OD 1(YQ_ ) ss. COUNTY OF Paulo ) The foregoing instrument was acknowledged before me this 's,?at by Qom/ ghai p i (name of m nager(s))as manager(s)of T'4 JNIA LLC.. ! (name of limited liability company)a orad( (state of organization), limited liability company. Witness my hand and official seal My commission expires: ep/141A0,13 LEAH PULSIFER Notary Public (SEAL) - State of Colorado Notary Public(or official title) Notary ID#20194022691 My Commission Expires 06-14-2023 re: Ordinance 10137 Reception 2271890 04/07/2022 03:07:11 PM EASEMENT AND RIGHT OF WAY (Facilities To Be Installed And Maintained By Grantor) THIS EASEMENT,granted this 12 day of August 2021 ,by T&M,LLC ,Grantor,to Pueblo,a Municipal Corporation,Grantee: WITNESSETH: THAT IN CONSIDERATION of the sum of One Dollar($1.00)and other good and valuable consideration,paid by the Grantee,receipt of which is hereby acknowledged,Grantor hereby grants to Grantee, its successors and assigns,an easement and right of way for the purpose of Drainage Utilities—..______, in, through, over,under and across Grantor's property situated in Pueblo County,Colorado described in the attached Exhibit'•A•'(the"Property"). Grantor shall install Drainage Facilities (the"Facilities") in the Property in accordance with plans and specifications therefore approved by,and on file with Grantee,and,thereafter,Grantor shall maintain the Facilities in good working order and condition, and repair and replace the Facilities. Grantee shall have the right at its option(hut not the obligation)to inspect,control, maintain,repair and replace the Facilities and recover all costs and expenses thereof plus an administrative charge of 15% from the Grantor.For such purposes,Grantee is granted the right to enter upon the Property and adjoining property of Grantor. Failure of Grantee to inspect,control,maintain,repair or replace the Facilities shall not subject the Grantee to any liability for such failure. Grantor reserves the right to use and occupy the Property for any purpose not inconsistent with the privilege above granted and which will not interfere with or endanger any equipment or facilities therein or use thereof. Such reservation by the Grantor shall in no event include the right to locate or erect or cause to he located or erected on the Property any building or any other structure or manufactured or mobile home or trailer unit. Grantor warrants to Grantee that Grantor(a)has good and sufficient right and title in and to the Property and full power to grant this easement and right-of-way,and(h)will defend Grantee's quiet and peaceful possession of the Property and easement and right-of-way against all persons who may lawfully claim title to the Property. "Grantee"shall include the plural and the feminine.This Easement and Right of Way shall he binding upon, and shall inure to the benefit of the heirs,personal representatives,successors and assigns of the Grantor and Grantee. SIGNED this 12 day of August , 2021 GRAN211, B Y DPW 110 12/03/98 • 2271890 04/07/2022 03:07:11 PM Page: 2 4 P 28. 0.00 T 28.00 GiJbart Qi�.of:z Clerk/Recc00ideDr Fue.bJo Ccurt> Co 111:11e,hd Y14, 11111 ACKNOWLEDGEMENT (For a limited liability company) STATE OF y.o ss. COUNTY OF Pib The foregoing instrument was acknowledged before me this Ail 12, 2011 by Mbha wed Clornc i"(name of man�ger(s))as manager(s)ofTi fry), LLG (name of limited liability company)a l:.aIDrad1 (state of organization), limited liability company. Witness my hand and official seal. My commission expires:bre- g114 - 3 c LEAH PULSIFER (SEAL) Notary Public Notary Public(or official title) State of Colorado Notary ID#20194022691 My Commission Expires 08-14-2023 DPW 110 12/03/98 2271890 04/07/2022 03:07:11 PM page: 3 of 4 P 28.00 D 0.00 1 28.00 Gi:bert Ortiz :le-k/Recordeer ``Puebllc County�lCo` J W VIII�I�id6���'� 1,IC 1,14 rid�1'f I�11��'hilli Li Ill II STORMWATER MAINTENANCE EASEMENT EXHIBIT A An easement located within a portion of Parcel A, Rearrangement of Property Boundaries RPB-21-02, according to the recorded plat thereof, filed for record July 19, 2021, as Reception No. 2235387 in the records of the Pueblo County Clerk and Recorder, being within a portion of the SW 1/4 of Section 25, Township 20 South, Range 65 West of the Principal Meridian, being more particularly described as follows: An easement for the purpose of stormwater utility and maintenance purposes being more particularly described as follows: BEGINNING at the SE corner of said Parcel A; thence along the southerly line of said Parcel A, the following two courses: 1.) N 89°50'38" W (bearings based on the south line of Parcel A, Rearrangement of Property Boundaries RPB-21-02, filed for record July 19, 2021, as Reception No. 2235387 in the records of the Pueblo County Clerk and Recorder, monumented at the east end with a No. 4 rebar and yellow plastic cap PLS 22101 and at the west end with a No. 4 rebar and yellow plastic cap PLS 6128 to bear N 89°50'38" W as established on the recorded plat thereof), a distance of 25.66 feet; 2.) N 53°31'08" W, a distance of 182.76 feet; thence N 34°01'44" E, a distance of 108.46 feet; thence S 89°50'38" E, a distance of 112.45 feet to a point on the easterly line of said Parcel A; thence S 00°09'22" W, along said easterly line, a distance of 198.31 feet to the POINT OF BEGINNING Said easement contains 0.542 acres, more or less. (23,596 sq. ft., more or less). S'EPr. /'51( Zozl RAN G. 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