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HomeMy WebLinkAbout05382ORDINANCE NO. 5382 AN ORDINANCE RELATING TO TRANSFER AND ALLOCATION OF FUNDS FROM THE SALES AND USE TAX CAPITAL IMPROVEMENT FUND TO THE SPECIAL AIRPORT IMPROVEMENT FUND HEREBY CREATED AND ACCEPTING AND APPROVING A DEED OF RELEASE FROM THE FEDERAL AVIATION ADMINISTRATION TO THE CITY OF PUEBLO RELATING TO LAND AT PUEBLO MEMORIAL AIRPORT. BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, COLORADO, THAT: SECTION 1: THERE IS HEREBY APPROPRIATED AND TRANSFERRED FROM THE SALES AND USE TAX CAPITAL IMPROVEMENT FUND TO A SPECIAL FUND HEREBY CREATED AND KNOWN AS THE "SPECIAL AIRPORT IMPROVEMENT TRUST FUND - 1987' (HEREIN CALLED "SPECIAL FUND ") THE SUM OF $48,600.00 BEING THE APPRAISED VALUE OF 4.47 ACRES OF LAND LOCATED AT PUEBLO MEMORIAL AIRPORT TO BE CONVEYED TO KURT MANUFACTURING COMPANY. THE FUNDS IN THE SPECIAL FUND HEREBY CREATED WILL NOT BE ELIGIBLE AS CITY MATCHING FUNDS FOR DEVELOPMENT OF THE AIRPORT UNDER THE FEDERAL AIRPORT IMPROVEMENT PROGRAM. SECTION 2• WITHIN FIVE YEARS FROM THE DATE OF THIS ORDINANCE, THE FUNDS DEPOSITED INTO SAID SPECIAL FUND HEREBY CREATED SHALL BE EXPENDED ON PROJECTS AND IN PRIORITY MUTUALLY AGREEABLE TO THE FEDERAL AVIATION ADMINISTRATION AND THE CITY FOR THE FURTHER DEVELOPMENT OF PUEBLO MEMORIAL AIRPORT. SECTION 3: THE SPECIAL FUND EREBY CREATED AND THIS ORDINANCE SHALL REMAIN IN EFFECT UNTIL THE SPECIAL FUND IS EXPENDED IN ACCORDANCE WITH THE PROVISIONS OF SECTION 2 HEREOF. SECTION 4: THE DEED OF RELEASE FROM THE FEDERAL AVIATION ADMINISTRATION UNDER DATE OF , IN SUBSTANTIALLY THE FORM ATTACHED HERETO, IS HEREBY APPROVED AND ACCEPTED. THE PRESIDENT OF THE CITY COUNCIL IS HEREBY AUTHORIZED AND DIRECTED TO EXECUTE FOR AND ON BEHALF OF THE CITY THE DEED OF RELEASE WITH SUCH MODIFICATIONS AND CHANGES HE AND THE CITY ATTORNEY MAY APPROVED. THE CITY CLERK IS AUTHORIZED AND DIRECTED TO ATTEST SAME AND AFFIX THE SEAL OF THE CITY THERETO. SECTION 5: THIS ORDINANCE SHALL BECO14E EFFECTIVE IMMEDIATELY UPON FINAL APPROVAL. INTRODUCED JANUARY 26,1 87 BY PAUL. JONES COUNCILMAN APPROVE J PRESIDENT OF CITY COUNCIL on IA" ��N:./ ITA I N MR r4o. 830011 ruExa :.r+rr, COL.ORAOO DEED OF RELEASE APR 3 1987 Book2340 mrE900 This instrument, a Deed of Release, made by the United States of America acting by and through the Administrator of the Federal Aviation Administration, under and pursuant to the powers and authority contained in the provisions of Public Law 81 -311 (63 Stat. 700), as amended, to the City of Pueblo a municipal corporation organized and existing under the laws of the State of Colorado, witnesseth: WHEREAS, the UNITED STATES OF AMERICA, acting by and through the War Assets Administrator, under and pursuant to Reorganization Plan One of 1947 (12 Fed. Reg. 4534) and the Property Act of 1944, as amended, and applicable rules, regulations and orders, did by instrument entitled Quitclaim Deed dated July 20, 1948 and recorded in Book 1074, pages 87 to 117 by the Pueblo County Recorder, Colorado, remise, release, and quitclaim to the City of Pueblo, and now known as the Pueblo Memorial Airport being that some land transferred to the City of Pueblo by quitclaim deed dated July 20, 1948, subject to certain conditions, reservations, covenants, and restrictions, and WHEREAS, the City of Pueblo has requested the Administrator of the Federal Aviation Administration to release the hereinafter described real property from all conditions, reservations, and restrictions contained in said quitclaim deed for the purpose of selling said property, and WHEREAS, the Administrator of the Federal Aviation Administration under and pursuant to the powers and authority contained in Public Law 81 -311 (63 Stat. 700), as amended, is authorized to grant a release from any of the terms, conditions, reservations, covenants, and restric- tions contained in the quitclaim deed for the purpose of selling said property and pursuant to Section 13 of the Surplus Property Act of 1944, as amended, and WHEREAS, the Administrator of the Federal Aviation Administration has determined that the release of such real property as is herein described, from all terms, conditions, reservations and restrictions as set forth in the above identified instruments is in the best interests of the United States and civil aviation, and that the release herein will not prevent accomplishment of the purpose for which the property was transferred and is necessary to protect or advance the interests of the United States in civil aviation. 800K2340 PArF901 2 PROVIDED FURTHER, that the City of Pueblo include in the Deeds of Conveyance of the hereinafter described real property the following reservations and covenants: a. That the City of Pueblo reserves unto itself, its successors and assigns, for the use and benefit of the public a right of flight for the passage of aircraft in the airspace above the surface of the real property herein described, together with the right to cause in said airspace such noise as may be inherent in the operation of aircraft, now known or hereafter used, for navigation of or flight in said airspace, and for use of said airspace for landing on, taking off from or operating on Pueblo Memorial Airport. b. That the Grantee expressly agrees for itself, its successors and assigns to restrict the height of structures, objects of natural growth and other obstructions on the said property being conveyed to a height of not more than 4700 feet above sea level. c. That the Grantee expressly agrees for itself, its successors and assigns to prevent any use of the herein described real property which would interfere with landing or taking off of aircraft at the Pueblo Memorial Airport, or otherwise constitute an airport hazard. NOW, THEREFORE, for and in consideration of the benefits to accrue to the United States and to civil aviation, the UNITED STATES OF AMERICA, acting by and through the Administrator of the Federal Aviation Administration, hereby releases the following described property from all terms, conditions, reservations, and restrictions contained in the aforementioned quitclaim deed and grant agreements: A parcel of land located in the County of Pueblo, State of Colorado, to -wit: A parcel of land being a portion of the N 1/2 of the SW 1/4 and the S 1/2 of the NW 1/4 of Section 30, Township 20 South, Range 63 West of the 6th Principal Meridian, being more particularly described as follows: 800X2340 PAGE90 3 Commencing at a point from which the NW corner of said Section 30 bears N 15 41' 24" W (Bearings are based on the North line of said Section 30 to bear N 89 59' 27" E), a distance of 2371.24 feet; thence S O1° 31' 26" E, a distance of 220.00 feet to the True Point of Beginning; thence N 88° 26' 39" E, a distance of 389.14 feet; thence .S 01 31' 52" E, a distance of 500.33 feet; thence S 88° 27' 57" W, a distance of 389.20 feet; thence N 01° 31' 26" W, a distance of 500.18 feet to the True Point of Beginning. Said parcel contains 4.47 acres, more or less. IN WITNESS WHEREOF the United States of America has caused this Deed of Release to be executed as of the ?3A4 day of D&.C5na 65 ,.Z , 19& UNITED STATES OF AMERICA ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION Manager, Airports Division Northwest Mountain Region Federal Aviation Administration STATE OF WASHINGTON ) COUNTY OF ) On thi s a3" j day of - bE0'EM &EP , 19 S t, , before me !tn/,V ,E WCn O� y a Notary Public in and for the State of Washington, personally appeared Edward G. Tatum, Manager, Airports Division, Northwest Mountain Region, Federal Aviation Administration, and known to me to be the person whose name is subscribed to this Deed of Release and acknowledged that he executed the same on behalf of the Administrator, Federal Aviation Administration and the United States of America. �C ali '�ss hand and official seal. Al, `C�r6; iysV on_ expires I Q /w CF ' ^�,.�� Notary Public ATTEST: By L C / c ACCEPTED City of Pueblo, Colorado By President of the City Counci 1 ty . Atto F t CIVIL PENALTY CONSENT AGREEMENT PUEBLO PRETREATMENT PROGRAM This Civil Penalty Consent Agreement is entered this day of May, 1991 by and between the City of Pueblo, a Municipal Corporation (hereinafter "Pueblo ") and Kurt Manufacturing Company, a Minnesota Corporation (hereinafter "Company "). WHEREAS, Pueblo is a home rule city organized and existing under and by virtue of Article XX of the Colorado Constitution; and WHEREAS, Pueblo owns and operates publicly owned treatment works (POTW) for the collection and treatment of municipal wastewater, including industrial wastes of a liquid nature; and WHEREAS, Pueblo has an Approved POTW Pretreatment Program approved by the Regional Administrator of the U.S. Environmental Protection Agency ( "EPA ") pursuant to 40 C.F.R., §403.11 and provisions of the Clean Water Act, 33 USC 51251, et. sec .; and WHEREAS, Pueblo has received delegation from EPA of responsi- bility to enforce against violations of the Federal Pretreatment Program Standards including Categorical Pretreatment Standards, and prohibitions against Pass Through and Interference, including those embodied in both EPA regulations and local limits; and WHEREAS, Section 307(d) of the Clean Water Act (33 USC 91317(d)) prohibits the owner or operator of any source from violating any pretreatment standard, including local limits (see 40 CFR 9403.5(d)); and WHEREAS, Pueblo has duly adopted pretreatment Ordinances, including those set forth in Chapters 7 and 9 of Title XVI of the 1971 Code of Ordinances of the City of Pueblo, as amended, establishing local limits for ph and prohibiting discharge to its system of any wastewater having a ph of less than 5.0 or greater than 9.0 (Sections 16- 9- 3(A)(3) and 16- 7- 13(d); and WHEREAS, Categorical Pretreatment Standards have been promulgated and are applicable to Metal Finishing operations. See 40 CFR §433.16. Said Categorical Pretreatment Standards provide for a maximum daily discharge of total Cadmium of 0.11 mg /1. and maximum daily discharge of total Chromium of 2.77 mg /1, and provide that ph shall not exceed 9.0; and WHEREAS, Company conducts Metal Finishing operations on real property ( "Property ") conveyed to Company by Deed dated September 25, 1986 and recorded April 14, 1987 in the records of the Pueblo County Clerk and Recorder in Book 2342 at Page 481 (hereinafter "Deed "), which Deed was duly acknowledged and accepted by Company; and WHEREAS, Deed contained restrictive covenants which run with the land including a covenant that: (g) Wastewater discharged from the Property into City's sanitary sewer system and Company's use thereof are limited by and subject to City's sewer user, industrial cost recovery, high strength surcharge, and pretreatment ordinances, rules and regulations applicable to City's sanitary sewer system at Pueblo Memorial Airport, now in effect or hereafter adopted or amended. and; WHEREAS, Deed also provides in paragraph 8 thereof that the City of Pueblo shall have the right to enforce the restrictions, covenants and conditions hereof by injunction or other lawful procedure and to recover damages, costs, expenses, including reason- able attorney fees, resulting from any violation thereof or arising out of their enforcement and; WHEREAS, Pueblo provides wastewater treatment services for Company in connection with its manufacturing operations and facilities located at Pueblo Memorial Airport and Industrial Park including those on Property; and WHEREAS, City contends it is under no contractual or legal obligation to provide wastewater treatment services to Company for treatment of industrial process wastewater; and WHEREAS, Pueblo is further authorized to enforce its Pretreatment Program at Pueblo Memorial Airport through injunctive action pursuant to and in furtherance of its police power and Section 16- 9 -13(c) of the 1971 Code of Ordinances of the City of Pueblo, as amended; and WHEREAS, Pueblo is authorized to obtain penalties and damages for violation of its pretreatment ordinances; and WHEREAS, Pueblo contends it is authorized to suspend or terminate wastewater treatment service to any user who discharges wastewater harmful to City's treatment system; and WHEREAS, Interference is any discharge that alone or in conjunction with other discharges inhibits or disrupts the POTW or causes a violation of the POTW's discharge permit or exceedance of receiving stream water quality standards; and WHEREAS, Pueblo prohibits discharge to its system of any wastewater which will cause Interference, including but not limited to any discharge which would cause Pueblo to violate its -2- NPDES permit or exceed receiving stream water quality standards. (See Section 16- 9- 3(A)(10), 1971 Code of Ordinances and 40 CFR §403.5 40 CFR §403.3(i)); and WHEREAS, National Pretreatment Standards require industrial users to notify a POTW immediately of all discharges that could cause problems to the POTW, see 40 CFR §403.12 (f), and of all substantial changes in their discharges, 40 CFR §403.12(j), and within 24 hours of learning of any violation discovered by sampling, 40 CFR §403.12(g)(2); and WHEREAS, in response to an anonymous report of pretreatment violations occurring at Company, Pueblo sampled Company's waste- water discharge for ph on January 29, 1991 and January 30, 1991. The ph of Company's discharge was found to be 10.25 on January 29, 1991 and 9.53 on January 30, 1991 in violation of pretreatment standards for ph; and WHEREAS, Company's discharge of wastewater containing high ph caused Interference to Pueblo's POTW sufficient to cause Pueblo's POTW to exceed the 7 day average BOD limit contained in NPDES permit No. CO- 0022764; and WHEREAS, Company's self- monitoring for February, 1991 indicated that on February 18, 1991, Company exceeded categorical pretreatment standards by discharging wastewater containing 0.14 mg /l of total Cadmium and 3.29 mg /l of total Chromium; and WHEREAS, EPA has heretofore advised Pueblo that Pueblo must take "appropriate enforcement actions against all non - complying industrial users. Such actions must include the assessment of penalites when appropriate," and WHEREAS EPA has represented to Pueblo on March 28, 1989 that EPA is nationally preparing a major enforcement initiative against publicly owned treatment works that have failed to properly implement their pretreatment programs. and; WHEREAS, if EPA determines that the enforcement action taken by a POTW with an Approved POTW Pretreatment Program is not "appropriate ", EPA may seek to directly enforce pretreatment standards pursuant to Section 309(f) of the Clean Water Act (33 USC §1319(f)); and WHEREAS, the parties hereto wish to avoid needless expense of formal judicial proceedings and desire to act in a manner which EPA may consider to be appropriate enforcement action; NOW, THEREFORE, in consideration of the foregoing recitals the truth of which is stipulated, and of the terms and conditions hereinafter set forth, the parties agree as follows: -3- 1. (a) Company admits that an exceedance of categorical pretreatment standards for total Cadmium and total Chromium occurred on February 18, 1991. (b) Company admits that it exceeded local pretreatment limits by discharging wastewater with a ph greater than 9.0 on January 29, 1991 and January 30, 1991. (c) Company admits that it violated pretreatment standards prohibiting Interference by discharging wastewater with high ph during January 29 and 30, 1991, sufficient to cause Pueblo's POTW to exceed the 7 day average BOD limitation contained in NPDES permit No. CO- 0022764. 2. Within 30 days of execution of this Agreement, Company shall pay to Pueblo a civil penalty of $6,000.00 for the aforesaid violations. 3. Company shall, commencing immediately, again be required to monitor its process wastewater not less than twice monthlygr each of the fol�2wing comp2nents: ph, TCN, Ag, Zn, Cd, Cr, CR , Cu, Pb, t1i, Ni , and Zn TTO shall be monitored not less than once every 3 months. Analysis shall be performed by both quali- fied . personnel and laboratory. Monthly reports for these compo- nents shall be provided to Pueblo monthly by not later than the last day of the month following the month when sampled. (4) (a) Company shall immediately cease all non - compliance with pretreatment standards for ph. If such non - compliance cannot be ceased except through capital construction or modification of facilities, Company shall either (a) cease all process discharge causing such violation or (b) propose to City and negotiate a compliance schedule to eliminate all future violations of pretreatment standards as expeditiously as possible without causing undue hardship or economic dislocation. Any such compliance schedule shall provide for both operational and facilities changes which Company deems necessary to avoid future non - compliance. (b) Within 60 days of date of this Agreement, Company shall commence implementation of its approved compliance schedule, if any. Any failure of Company to comply with pretreatment standards shall.not be excused because Company has submitted a compliance schedule, it being expressly understood that adherence to the compliance schedule will only be considered as a factor in mitigation with respect to the amount of any civil penalty which should be imposed for a standards violation and not as a bar to any enforcement or civil penalty for future violations. 5. Company agrees to defend, indemnify and hold Pueblo harmless from all claims, administrative and judicial actions, costs, damages, and civil penalties which are brought against Pueblo on account of any discharge by Company which caused the -4- exceedance on or about January 29 and 30, 1991 of effluent limitations for BOD contained in Pueblo's discharge permit No. CO- 0022764. Company shall not settle any enforcement proceeding against Pueblo or action against Pueblo for civil penalties, nor admit to or confess any violation of any standard, law or regula- tion by Pueblo without express written authorization from Pueblo to do so. 6. Nothing in this Agreement shall restrict or limit Pueblo from taking enforcement action with respect to any other future violation of pretreatment and sewer user ordinances, requirements and regulations. 7. This Agreement is intended to be specifically enforce- able through suit for specific performance and injunction. In the event Pueblo commences an action for enforcement of this Agreement and substantially prevails thereon, Pueblo shall be entitled to recover its attorney fees, costs and expert witness fees incurred in prosecuting such action. In the event Pueblo commences an action to enforce this Agreement which is determined by a court of competent jurisdiction to be substantially frivolous, substantial ly groundless or substantially vexatious and without merit, Company shall be entitled to recover its reasonable attorney fees, costs and expert witness fees incurred in defending such action. WHEREFORE, the parties have executed this instrument the day and year first above written. KURT MANUFACTURING COMPA14Y B y K.G. Walker, U. P. Human Resources CITY OF PUEBLO, A MUNICIPAL CORPORATION By Lewis Quigley City Manager TF 43.5 -5-