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HomeMy WebLinkAbout2023 Ordinance No. 003 1 BY AUTHORITY ORDINANCE NO. 3 COUNCIL BILL NO. 74 SERIES OF 2022/2023 INTRODUCED BY COUNCIL MEMBER NUNNENKAMP AN ORDINANCE AUTHORIZING THE CITY OF ENGLEWOOD, COLORADO’S ACCEPTANCE OF A PERMANENT UTILITY EASEMENT AND TEMPORARY CONSTRUCTION EASEMENT LOCATED AT 1301 W. STANFORD AVENUE FROM CRI (AZ-CO) QRS 16-4 INC. WHEREAS, in response to flood events in July 2018 and July 2019, the City of Englewood (“City”) completed a Stormwater Analysis and Alternatives Feasibility Study for all flood-prone areas of the City, identified and prioritized various capital infrastructure projects, and ultimately prepared a Stormwater Master Plan to mitigate flooding; and WHEREAS, the South Englewood Flood Reduction Project (formerly referred to Projects S1 and S2) is an identified necessary improvement to eliminate bottlenecks in the existing storm sewer system that creates backups and flooding during major rain events; and WHEREAS, a final Feasibility Report confirmed that construction of a detention pond is the most feasible and cost-effective method to resolve sewer system backups; and WHEREAS, the City authorized a contract to purchase land at 4450 S. Windemere in order to acquire the property necessary to construct the detention pond as a first step of the project; and WHEREAS, a Permanent Utility Easement and Temporary Construction Easement is necessary to move forward with final design and construction of the outfall pipe to allow for a portion of the proposed outfall pipe between Rotolo Park and the new detention pond to cross private property at the end of Stanford Avenue east of Navajo Street; and WHEREAS, funding for the easement acquisition is included in the 2022 Stormwater Enterprise Fund budget; and WHEREAS, the passage of this Ordinance authorizes the City to accept a 2,094 Permanent Utility Easement located at 1301 W. Stanford Avenue and temporary construction easement; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, THAT: Section 1. The City Council of the City of Englewood, Colorado herby approves and authorizes the acceptance of “Grant of an Easement” from CRI (AZ-CO) QRS 16-4 Inc., DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 2 the owner of the parcel located at 1301 W. Stanford Avenue, attached as Exhibit 1 with corresponding Exhibit A. Section 2. The Temporary Construction Easement between from CRI (AZ-CO) QRS 16-4 Inc. and the City of Englewood, Colorado, attached hereto as Exhibit 2, is hereby accepted and approved by the Englewood City Council. Section 3. The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 3 any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance. G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Introduced, read in full, and passed on first reading on the 12th day of December, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 15th day of December, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 14th day of December, 2022. for thirty (30) days. Read by Title and passed on final reading on the 3rd day of January, 2023. Published by Title in the City’s official newspaper as Ordinance No. 03, Series of 2022/23, on the 6th day of January, 2023. Published by title on the City’s official website beginning on the 5th day of January, 2023 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by Title as Ordinance No. 03, Series of 2022/2023. Stephanie Carlile DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 -1- GRANT OF UTILITY EASEMENT THIS GRANT of a Utility Easement ("this Grant") is made this ____ day of ___________________, 2022 by 18,846., a Delaware corporation, ("Grantor"), whose address is c/o W.P. Carey Inc., One Manhattan West, 395 9th Avenue, 58th Floor, New York, NY 10001, to the CITY OF ENGLEWOOD, COLORADO ("Grantee" or "City"), whose address is 1000 Englewood Parkway, Englewood, Colorado 80110. City and Grantor are collectively referred to herein as (the “Parties”). The Parties covenant and agree as follows: 1. Easement Property. The "Easement Property" shall mean the real property located in the City of Englewood, County of Arapahoe, State of Colorado, more particularly described in Exhibit A and identified as “Permanent Storm Easement”, attached hereto consisting of two pages. 2. Consideration. As consideration for this Grant, Grantee shall pay to Grantor the sum of Eighteen Thousand Eight Hundred Forty-Six Dollars ($18,846.00) and other good and valuable consideration paid by Grantee, receipt of which is hereby acknowledged by Grantor. 3. Grant of Utility Easement. Grantor hereby grants to City, its successors and assigns, a perpetual utility easement (the "Utility Easement") over, under, across and through the Easement Property for the purpose of operating, maintaining, repairing, replacing, removing, and enlarging those structures or improvements of City that City constructs pursuant to the grant of temporary construction easement described in the Temporary Construction Easement agreement between the Parties for a storm sewer pipeline including related equipment. 4. Access. City shall have the perpetual, nonexclusive right to ingress and egress in, on, to, over, through, under and across the Easement Property for any purpose necessary for the full enjoyment of the rights granted to City under this Grant. 5. Restoration. Grantee agrees that after the construction, maintenance, repair, replacement, enhancement or enlargement of any of the lines and appurtenances, Grantee shall restore the surface of the Easement Property as nearly as reasonably possible to the grade and condition the surface of the Easement Property was in immediately prior to said construction, maintenance, repair, replacement, enhancement or enlargement, except as may be necessary to accommodate the storm sewer pipeline and appurtenances (e.g., a manhole cover). 6. No improvements. Grantor covenants and agrees not to construct, erect, place or plan any "improvements," as hereinafter defined, including without limitation any structures, on the Easement Property without obtaining the prior written consent of Grantee. Grantee shall have the right to remove, without any liability to Grantor, any improvements constructed, erected, placed or planted on the Easement Property without Grantee's having obtained the prior written consent of Grantor. For purposes of this Grant, the term “improvements” shall not include the paving of the surface of the Easement Property and use of such surface for (x) parking of passenger and/or commercial vehicles and/or (y) ingress and egress of passenger and/or commercial vehicles (the “Permitted Improvements”) and for the avoidance of doubt, Grantor shall be permitted to construct and use the Permitted Improvements without DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 -2- permission of Grantee and same shall not be a violation of this Grant. Grantee confirms there is no weight limit for vehicles that may park on, or drive over, the Easement Area. 7. Subjacent and Lateral Support. Grantor covenants and agrees that Grantee shall have the right of subjacent and lateral support on the Easement Property to the extent necessary for the full rights granted to Grantee under this Grant. It is specifically agreed between and among the parties that, except as provided in this Agreement, the Grantor shall not take any action, which would impair the lateral or subjacent support for the storm sewer pipeline and related equipment. 8. Rights of Grantor. Grantor reserves the full right to the undisturbed ownership, use and occupancy of the Easement Property insofar as said ownership, use, and occupancy is consistent with and does not impair the rights granted to Grantee in this Grant. For the avoidance of doubt, Grantor reserves the right to construct, maintain, and use the Permitted Improvements. 9. Abandonment. In the event that Grantee shall abandon the rights granted to it under this Grant, all rights, title and interest hereunder of Grantee shall cease and terminate, and Grantor shall hold the Easement Property, free from the rights of Grantee so abandoned and shall own all materials and structures of Grantee so abandoned, and shall own all materials and structures of Grantee so abandoned, provided that Grantee shall have a reasonable period of time after said abandonment in which to remove any or all utility lines and appurtenances from the Easement Property. In the event that Utility Line Easement is abandoned by Grantee, Grantor shall have the right, at its sole option, to require Grantee to remove or neutralize any improvements constructed in the Easement Property by Grantee. 10. Warranty of Title. Grantor warrants and represents that Grantor that it is the fee simple owner of the Easement Property, subject to any encumbrances of record, and that Grantor has full right, title and authority, and that this Grant is effective to grant and convey to Grantee the easement provided for herein. Grantor further covenants and agrees to the extent permitted by law, to indemnify, defend and hold Grantee harmless from and against any adverse claim to the title of the Easement Property by all and every person or persons lawfully claiming or to claim the whole or any part thereof. 11. Binding Effect. This Grant shall extend to and be binding upon the heirs, personal representatives, successors and assignees of the respective parties hereto. The terms, covenants, agreements and conditions in this Grant shall be construed as covenants running with the land. [Signature Page Follows] DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 -3- IN WITNESS WHEREOF, the parties hereto have executed this Grant of Easement on the day and year first above written. GRANTOR: CRI (AZ-CO) QRS 16-4, INC., a Delaware corporation By: ______________________________________ Name: Sam Rubenstein Title: Vice President STATE OF NEW YORK ) ) ss. COUNTY OF NEW YORK ) The foregoing instrument was acknowledged before me this ____ day of _________________, 2022, by Sam Rubenstein, Vice President of CRI (AZ-CO) QRS 16-4, Inc., a Delaware corporation, on behalf of said corporation. ___________________________________ Notary Public My Commission expires: ___________________________________ GRANTEE: CITY OF ENGLEWOOD, COLORADO By: _______________________________________ ATTEST: Othoniel Sierra, Mayor __________________________________ Stephanie Carlile, City Clerk DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84