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HomeMy WebLinkAbout10040Reception 2262884 02'01/2022 02:18:36 P11 ORDINANCE NO. 10040 AN ORDINANCE ANNEXING UNINCORPORATED LAND COMMONLY KNOWN AS THE PUEBLO SPRINGS APARTMENTS ANNEXATION TO THE CITY OF PUEBLO DESCRIBED AS 18.20 ACRES OF LAND LOCATED SOUTH OF WEST 31ST STREET AND EAST OF NORTH PUEBLO BOULEVARD WHEREAS, the City Planning and Zoning Commission has recommended that the area described in Section 1 hereof be annexed to the City of Pueblo; and, WHEREAS, the City Council has heretofore found and determined by Resolution that the Petition for Annexation and the area described in Section 1 hereof to be in compliance with the notice and other applicable provisions of the Municipal Annexation Act of 1965 and C.R.S. §31-12-104, 105 and 107(1); and, WHEREAS, the City Council has by Resolution found and determined that an election is not required under C.R.S. §31-12-107 (2) and no additional terms and conditions are to be imposed upon the area described in Section 1 other than those set forth in the Petition for Annexation and the Annexation Agreement; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The following described area situated in Pueblo County, Colorado, is hereby annexed to Pueblo, a Colorado Municipal Corporation, subject to the terms and conditions set forth in the Petition for Annexation and the Annexation Agreement, and the official map of the City shall be amended to show such annexation: 1. AREA TO BE ANNEXED ANNEXATION All of the South one-half of the Northwest one-quarter of the Northwest one-quarter of Section 22, Township 20 South, Range 65 West of the 6th P,M. in the County of Pueblo, State of Colorado, being more particularly described as follows: Commencing at Northwest corner of said Section 22, said point being on the west line of Park West Business Campus, Filing No. 7, according to the recorded plat thereof, as filed for record on March 16, 2012 at Reception No. 1901886 in the Pueblo County records and being on the east line of Colorado State Highway No. 45 as presently located; thence S. 00°32'37" E. along said the west line of said Section 22, the west line of said Park West Business Campus, Filing No. 7 and the east line of said Colorado State Highway No. 45, a distance of 706.76 feet to the Present City Limits line and the Point of Beginning; thence 2.262884 02/01/2022 02:18:36 PM Page: 2 of 4 R 28.00 0 0 00 T 28.00 Gilbart Ortiz C1e a/Recrr'ier. Pueblo County, Co 1III kills IVAII:NIl'` IIINIMINKEMiili t III line of the South one-half of the Northwest one-quarter of the Northwest one-quarter of said Section 22; thence S. 01°18'05" E. along said east line of the said South one-half, a distance of 605.96 feet to the Southeast corner of the said South one-half; thence S. 88°39'35" W. along the south line of the said South one-half, a distance of 1,315.09 feet to the Southwest corner of said South one-half and the east line of Colorado State Highway No. 45 as presently located; thence N. 00°32'37" W. along the west line of said South one-half and said east line of Colorado State Highway No. 45, a distance of 606.90 feet to the Present City limits line and the Point of Beginning. Containing 18.20 acres, more or less. 2. PROPOSED NEW CITY LIMITS LINE: Commencing at Northwest corner of said Section 22, said point being on the west line of Park West Business Campus, Filing No. 7, according to the recorded plat thereof, as filed for record on March 16, 2012 at Reception No. 1901886 in the Pueblo County records and being on the east line of Colorado State Highway No. 45 as presently located; thence S. 00°32'37" E. along said the west line of said Section 22 , the west line of said Park West Business Campus, Filing No. 7 and the east line of said Colorado State Highway No. 45, a distance of 706.76 feet to the Present City Limits line and the Point of Beginning; thence S. 00°32'37" E. along the west line of South one-half of the Northwest one-quarter of the Northwest one-quarter of Section 22, Township 20 South, Range 65 West of the 6th P,M and said east line of Colorado State Highway No. 45, a distance of 606.90 feet to the Southwest corner of said South one-half; thence N. 88°39'35" E. along the south line of the said South one-half, a distance of 1,315.09 feet to the Southeast corner of the said South one-half; thence N. 01°18'05" W. along said east line of the said South one-half, a distance of 605.96 feet to a point on the Present City Limits line and Point the of Terminus. 3. CERTIFICATION OF PERIMETER: At least one-sixth of the boundary of the land described in paragraphs one (1) above, is now existing City Limits Line. SECTION 2. The owners of one hundred percent (100%) of the property to be annexed have petitioned for such annexation. SECTION 3. The Annexation Agreement in the form and content presented to the City Council at this meeting is hereby authorized and approved. The President of the City Council is hereby directed and authorized to execute and deliver the Annexation Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. 226288.4 02/01/2022 02:18:36 PPI Par�e: t 3 otf 4 R 2i8.00 0 0.00 T 28.00 CllberOr' i:4r :4„, P.0eb10 C,,unt,. Co SECTION 4. VIII FAIT Orki°I40:h vile ����Pl l����1 ,�kW 11111 Within thirty (30) days after the effective date of the Ordinance, the City Clerk shall: (a) File one copy of the annexation map with the original of this ordinance in the office of the City Clerk; and, (b) File for recording three certified copies of this Ordinance and annexation map with the Pueblo County Clerk and Recorder; and, (c) File one certified copy of the annexation map and this Ordinance with the Southeastern Colorado Water Conservancy District. SECTION 5. The officers of the City are hereby authorized to take all other actions necessary or appropriate, on behalf of the City, to implement the provisions of this Ordinance and the Annexation Agreement. SECTION 6. If any provisions of this Ordinance or Annexation Agreement shall be held or deemed to be illegal, inoperative or unenforceable, the same shall not affect any other provisions or provisions of this Ordinance or Annexation Agreement or render the same invalid, inoperative or unenforceable, except as otherwise expressly provided in the Annexation Agreement. SECTION 7. The City Council hereby consents to the inclusion of the annexed area in the Southeastern Colorado Water Conservancy District pursuant to C.R.S. §37-45-136 (3.6). SECTION 8. This Ordinance shall become effective immediately upon final passage and the annexation shall be effective for ad valorem tax purposes on and after January 1, 2019. Action by City Council: Introduced and initial adoption of Ordinance by City Council on October 25, 2021. Final adoption of Ordinance by City Council on November 8, 2021 . resident of City Council 2262884 02/0'1/2022 02:1E 35 PPI t 4profI ,4C R Ierk28.r0me0Q r PuEt.00eblo T Co28.00 6iI erIPeurts coL �r 1I�rY1�1��1�� t,tl?�(➢�I �. III Action by the Mayor: Approved on lO ate/ ❑ Disapproved on based on the following objections: ..2joeigatisieecci4A4dediei Mayor Action by City Council After Disapproval by the Mayor: 0 Council did not act to override the Mayor's veto. ❑ Ordinance re-adopted on a vote of , on 0 Council action on failed to override the Mayor's veto. President of City Council ATTEST Cit //:;0",. 6+�N6M p'aWC ww.V 9' City Clerk’s Office Item # R-8 BACKGROUND PAPER FOR PROPOSED ORDINANCE COUNCIL MEETING DATE: October 25, 2021 TO: President Lawrence W. Atencio and Members of City Council CC: Nicholas A. Gradisar, Mayor VIA: Marisa Stoller, City Clerk FROM: Scott Hobson, Acting Director of Planning and Community Development SUBJECT: AN ORDINANCE ANNEXING UNINCORPORATED LAND COMMONLY KNOWN AS THE PUEBLO SPRINGS APARTMENTS ANNEXATION TO THE CITY OF PUEBLO DESCRIBED AS 18.20 ACRES OF LAND LOCATED SOUTH OF WEST 31ST STREET AND EAST OF NORTH PUEBLO BOULEVARD SUMMARY: The applicant is requesting to annex the property containing 18.20 acres into the City of Pueblo commonly known as the Pueblo Springs Apartments Annexation to the City of Pueblo. PREVIOUS COUNCIL ACTION: On July 12, 2021 City Council approved a Resolution No. 14657 preliminarily determining that the petition for annexation of the area commonly known as the Pueblo Springs Apartments Annexation is valid under the provisions of Colorado Revised Statutes Section 31-12-107(1). BACKGROUND: st The Pueblo Springs Apartments Annexation is located south of West 31 Street and east of North Pueblo Boulevard. The Petitioners are requesting to annex 18.20 acres into the City to facilitate the development of multifamily residential apartments. The area is currently undeveloped, and st access is provided to the property by West 31 Street, no additional access points will be required. The proposed annexation site is located south of the Park West Business Campus, Filing No. 7, subdivision, east of the Bluffs PUD, north and west of undeveloped Pueblo County A-1, Agricultural One land. Park West Business Campus consists of B-3, Highway Arterial Commercial and R-5, Multiple Residential and Office zoned parcels. The R-5 zoned land is developed with multifamily residential reserved for retirement aged individuals (Bonaventure) and the B-3 zoned lots are undeveloped and intended for future commercial development. The Bluffs PUD, located west of the proposed annexation site and across North Pueblo Boulevard, is reserved for commercial and light industrial uses. The Bluffs PUD is located approximately 360 feet to the west of the proposed annexation site and future multifamily residential development. The proposed annexation and multifamily residential development are compatible with the surrounding commercial and multifamily uses. The area is currently zoned A-1, Agricultural One in Pueblo County, and the annexation agreement identifies that the property will be zoned City A-1, Agricultural One as an interim zone district. The annexation agreement allows for the A-1 zone district to continue for not more than 10 years and prohibits building permits from being issued until the property is rezoned to a zone district that is consistent with the Pueblo Comprehensive Plan. Following annexation, the applicant intends to subdivide the 18.2-acre parcel into two lots and rezone for multifamily development. FINANCIAL IMPLICATIONS: The Petitioners acknowledge and agree that upon the annexation, the property shall become subject to the Charter, Ordinances, Resolutions, rules, and regulations of the City, but that the City shall have no obligation to furnish or extend municipal services, including but not limited to sanitary sewer services, to the area proposed to be annexed. BOARD/COMMISSION RECOMMENDATION: The City Planning and Zoning Commission reviewed the annexation at the September 8, 2021, Regular Meeting. A motion to approve the proposed annexation was made by Commissioner Bailey, Commissioner Schilling to recommend approval of the proposed annexation petition. Motion passed 6-0 (Commissioner Pasternak absent). STAKEHOLDER PROCESS: Annexation Impact Reports have been filed with taxing entities as required by Colorado Revised Statutes. ALTERNATIVES: Upon request of City Council, the Ordinance could be returned to the Planning and Zoning Commission for consideration of proposed modifications. City Council could vote to not approve the annexation Ordinance. The applicant could resubmit an annexation petition in the future subject to the applicable provisions of the Municipal Annexation Act of 1965 and C.R.S. §31-12-104, 105 and 107(1). RECOMMENDATION: Approval of the Ordinance. Attachments: Proposed Ordinance Minutes of the Planning and Zoning Commission September 8, 2021, Public Hearing Planning and Zoning Commission Staff Report with Exhibits Reception 2262886 02'01/2022 02:18:36 P11 ANNEXATION AGREEMENT CASE NO. A-21-0-01 PUEBLO SPRINGS APARTMENTS ANNEXATION r-- This Annexation Agreement is made effective as of J@,." ) Q 20y and between the City of Pueblo, a Colorado Municipal Corporation, (the "City"), for the use and benefit of Pueblo Springs Apartments LLC, a Colorado limited liability company(the "Petitioner"), WITNESSETH WHEREAS, the Petitioner is the owner of the real property located in Pueblo County, Colorado, and described in Exhibit "A" attached hereto and incorporated herein (the "Property"); WHEREAS, the Petitioner has submitted a petition for the annexation of the Property to the City; and WHEREAS, as a condition precedent to the annexation of the Property, Petitioner has agreed to enter into an annexation agreement with the City setting forth certain terms and conditions with respect to such annexation. NOW THEREFORE, in consideration of the above, and the following covenants and conditions; the City and Petitioner agree as follows: I. REPRESENTATION AND WARRANTIES OF PETITIONER Petitioner represents and warrants to, and covenants with, the City as follows: (1) The Colorado Department of Transportation is a state agency of the State of Colorado. (2) Petitioner has good and marketable fee simple title to the Property subject only to Permitted Encumbrances attached hereto as Exhibit"B." (3) Petitioner is authorized to, and has taken all action required by it (a) to annex the Property to the City and (b) to execute, deliver and perform its obligations under this Annexation Agreement, and (c) to carry out and consummate all of its transactions contemplated by this Annexation Agreement. (4) This Annexation Agreement when executed and delivered, constitutes a valid and legally binding obligation of the Petitioner enforceable against Petitioner according to its terms. The document entitled "Special Improvements and Dedications" marked and attached as Exhibit "C" is incorporated herein by reference. In the event of a conflict between the terms and conditions of Exhibit C and this Agreement, the terms and conditions contained in Exhibit "C" shall control. (5) Neither the execution and delivery of this Annexation Agreement nor the fulfillment of or compliance with its terms and conditions, nor the consummation of the transactions contemplated hereby, conflicts with or results in a breach of the terms, conditions or provisions or any restriction or any agreement or instrument to which the Petitioner is bound, or constitutes a default under any of the foregoing. -1- 2262886 02/01/2022 02'18.36 PM Page. 2 of 15 R 83.00 D 0.00 T 83.00 Gltba•-t Ortiz CIe-k%Recorder Puenlo Ceunty, Co ■III L u . 1'Ih�w��'�� I'�!�'� 4rh �!111 (6) There is no litigation pending, or to the knowledge of Petitioner threatened, against the Petitioner or any person affecting the right of the Petitioner to execute and comply with this Annexation Agreement. (7) The representations and warranties of Petitioner contained herein will be true and correct in all material respects as of the date of recording the annexation plat and Ordinance of the City Council approving the annexation of the Property. IL ZONING AND SUBDIVISION (1) A zoning map amendment application may be filed any time after the petition for annexation has been found to be valid in accordance with the provisions of Section 31-12-107, C.R.S. The Planning and Zoning Commission may hear the application for zoning and make its recommendations thereon prior to annexing the Property, but the proposed zoning ordinance shall not be passed on final presentation prior to the date the ordinance annexing the Property is approved on final presentation. (2) No rights shall exist in Petitioner nor with respect to the Property arising from its preexisting subdivision or use at the time of annexation. No subdivision of the Property shall be approved prior to the time the ordinance annexing and zoning the Property is approved on final presentation. (2) The property may be classified as an Agriculture One (A-1) zone district for no more than ten (10) years. No building permit shall be issued for any part of the land classified as an A-1 zone district until after such land is zoned according to the land use classification corresponding with the City's Comprehensive Plan future land use designation. (3) The zoning provisions of this Article it relate to the initial zoning of the Property after annexation. Such zoning is not guaranteed, and the City Council of City retains its full discretion with respect to such zoning. Nothing contained in this Article II shall be construed to limit the power of the City Council to rezone the Property or any part thereof after approval of the initial zoning of the Property after annexation. Ill. PUBLIC FACILITIES The Petitioner shall dedicate land and rights-of-way for public uses and facilities necessary and required to serve the Property in accordance with the approved Master Development Plan or required as a result of the development of the Property as determined by the City, in its sole discretion, including, but not limited to, sanitary and storm sewers, drainage ways and facilities, utilities, streets, roadways, trail systems, parks and open space. The Petitioner at its expense shall timely construct and install all on-site and off-site improvements necessary and required to serve the Property or required as a result of the development of the Property as determined by the City, in its sole discretion, including, but not limited to, trail systems, parks, streets, street lights, curbs and gutters, sidewalks, bridges, traffic control devices, sanitary sewers, storm sewers, drainage and channel improvements and facilities, but excluding public buildings such as fire stations. All such improvements shall meet and comply with applicable City Ordinances in effect at the time of installation of such improvements. -2- 2262886 02(01/2022 02:18:36 PM Page. 3 cif 15 R 83.00 0 0.00 T 83.00 Gilbert Ortiz C!erk/Recorder, Pueblo Cojnty Co IV. UTILITIES 11111 kI rriErikain«,ail lilt'/i `��4�1� 1111 The Petitioner shall comply with all applicable City of Pueblo (sanitary and storm sewers), Xcel Energy (natural gas), the applicable electric utility franchised and holding a Certificate of Public Convenience and Necessity for electric service within the annexed area, Comcast of Colorado IV, LLC (cablevision), Pueblo Board of Water Works (water), and authorized ILEC and CLEC (telephone/data transmission) for the installation of mains, lines, stations, and any other appurtenant utility facilities in effect at the time of such installation. All existing and new power lines fewer than 30,000 volts and all other overhead utilities (1) within the Property, (2) within the public rights-of-way adjoining the Property, and (3) within the areas adjacent to the Property which serves the Property shall be installed underground. V. COMPLIANCE WITH ORDINANCES Except as otherwise specifically provided in this Annexation Agreement to the contrary, the development, subdivision and zoning of the Property shall meet and comply with all applicable ordinances, resolutions, regulations, and standards of the City now existing or hereinafter enacted or amended. VI. BINDING EFFECT The covenants, restrictions, and agreements herein set forth are covenants running with the Property, shall run with and bind the Property, and shall extend to and be binding upon the Petitioner and its legal representatives, successors, assigns and transferees. The Petitioner expressly accepts and agrees to the covenants, restrictions, and agreements set forth herein by execution of this Annexation Agreement and by the filing of its petition for annexation. If Petitioner defaults in any of its obligations under this Annexation Agreement, including, without limitation, land dedication obligations, City, upon notice given to Petitioner specifying the default, may withhold all subdivision, special area plan, and other development approvals as well as building and occupancy permits for any building or structure within the Property until such default has been corrected to the satisfaction of the City. VII. AMENDMENTS Amendments to this Annexation Agreement may only be made through formal petition to and approval by Resolution of the City Council after such amendment has been submitted to and reviewed by all appropriate City Departments and such Departments have submitted their findings and recommendations to the City Council. VIII. SEVERABILITY If any section, clause, or other provision of this Annexation Agreement is for any reason determined to be invalid or unenforceable by any court of competent jurisdiction, such determination shall not affect any of the remaining provisions of this Annexation Agreement. -3- 2262886 02/01/2022 02.18 36 PM Page: 4 of 15 R 83 00 0 0.00 r 83.00 Gilbert Ortiz CJ1Jerk//Recoroert. Pueblo County Co{� ` IX. VESTED RIGHTS 11111M1.117.7 Ri> E��RR'�N�+� r�rwI1!f��lrai���n i 117 ,tri II III As a condition of and in consideration of the City annexing the Property, the Petitioner, for itself and its successors and assigns waives and releases all previously acquired or existing vested property rights attached to or established with respect to the Property. The Petitioner acknowledges and agrees that neither this Annexation Agreement nor any provision hereof, nor the annexation of the Property to the City, nor the approval of the Master Development Plan, zoning or subdivision, either separately or jointly (a) creates or establishes a vested property right in or for the benefit of the Petitioner or its successors or assigns, or with respect to the Property; or (b) constitutes a site-specific development plan. The terms "vested property right" and "site-specific development plan" shall have the same meaning as set forth in Section 17-12-2 of the Pueblo Municipal Code and §24-68-101, et seq., C.R.S. X. BUILDING PERMITS No building or occupancy permit shall be approved by the City or issued by the Pueblo Regional Building Department to occupy, construct or install any building, structure or other improvement on the Property except within a subdivision and zone district, which corresponds to the land use category designated by the City's Comprehensive Plan, after adoption of the ordinance annexing the Property which meets and complies with this Annexation Agreement and City's ordinances, standards, and regulations. XI. DISCONNECTION (1) Disconnection by Petitioner. Petitioner acknowledges and agrees that upon annexation of the Property, the Property shall become subject to this Annexation Agreement, the Charter, ordinances and rules and regulations of the City, but that City shall not have any obligation to furnish or extend municipal services to the Property. Petitioner may, three (3) or more years after annexation, petition under §31-12-119 C.R.S. for disconnection from the City if the City does not, upon reasonable demand, provide the same municipal services to the Property on the same general terms and conditions as the rest of the City receives. (2) Disconnection by City. If Petitioner defaults in any provision or condition of this Annexation Agreement and such default is not cured within ninety (90) days after written notice specifying the default is given by City to Petitioner, or, if the default is one which cannot be cured within said 90-day period, and Petitioner fails to undertake the cure of such default within said 90-day period and diligently prosecutes same to completion, proceedings may be instituted by the City to disconnect the Property from the City, and for such purpose, the Petitioner irrevocably consents to such disconnection proceedings and waives any and all rights to contest such disconnection. XII. CONTRACTUAL NATURE OF ANNEXATION AGREEMENT The terms, conditions and obligations of this Annexation Agreement are and shall be construed to be purely contractual in nature, as terms, conditions and obligations voluntarily agreed to by -4- 2262886 02/01/2022 02:18:36 PM Pace: 5 of 15 R 83.00 D 0.00. T 83.00 Gif.::ert Ortiz ClerklPeccrder. P,ieb.o Courcy: Co 11111 KoM hillf11+;SILIKIIIIINVCIs CIMPIVII!Milli ti Ili City and Petitioner prior to annexation of the Property to the City. The terms, conditions and obligations imposed on Petitioner and the Property by this Annexation Agreement are not nor shall they individually or cumulatively be construed to be conditions upon granting land-use approvals within the meaning of sections 29-20-201 to 29-20-204, C.R.S. XIII. SPECIAL IMPROVEMENTS AND DEDICATIONS In addition to the on-site improvements and land dedications required to be made by the provisions of this Annexation Agreement, Petitioner will construct and install the improvements, dedicate the land, and pay or cause to be paid any fees described in Exhibit "C" attached hereto and incorporated herein. The improvements, dedication, and fees described in said Exhibit "C" are in addition to and not in substitution for any improvements or dedications otherwise required by this Annexation Agreement. XIV. MISCELLANEOUS (1) Notice. All notices or other communications hereunder shall be sufficiently given and shall be deemed given when personally delivered, or mailed by registered or certified mail, postage prepaid, addressed as follows: (a) if to the City: Department of Public Works - City of Pueblo 211 East"D" Street, Pueblo, Colorado Attention: Director of Public Works (b) if to the Petitioner: Pueblo Springs Apartments LLC c/o ESH Development LLC, its Manager 5671 North Oracle Rd, Suite 1102 Tucson, AZ 85704 Attn: Emery S. Chukly (c) copies to: Michael Cuppy NorthStar Engineering and Surveying 111 E. 5`h St. Pueblo, CO 81002 or to such other address as either party by written notice given hereunder may designate. (2) Governing Law and Venue. This Annexation Agreement shall be governed and construed in accordance with the laws of the State of Colorado, without regard to conflict of law principles. Venue for any action arising out of this Annexation Agreement shall be Pueblo County, Colorado. (3) No Third Party Beneficiaries. Nothing in this Annexation Agreement expressed or implied is intended to or shall be construed to confer upon, or to give to, any person other than -5- 2252886 02/01/2022 02:18:36 PM Page: 6 of 15 R 83.00 D 0.00 T 83.00 Gilbart Ort:.r C1ark/Reoorder, Pueblo County, Co IIII Mi liViltkiiin yOliaha' 1FIVI f;Flail irilir1 3 i h III 111 the City and the Petitioner any right, remedy or claim under or by reason of this Annexation Agreement or any covenant, condition or stipulation hereof; and all the covenants, agreements and stipulations in this Annexation Agreement contained by and on behalf of the City or the Petitioner shall be for the exclusive benefit of the City and the Petitioner. (4) Singular, Plural. Unless the context requires otherwise, words denoting the singular may be construed as denoting the plural. Words of the plural may be construed as denoting the singular. Words of one gender may be construed as denoting the other gender, if applicable. (5) Entire Agreement. All prior discussions, representations, understandings and agreements, whether oral or written, between the parties with respect to the subject matter of this Annexation Agreement are merged in this Annexation Agreement, which constitutes the entire agreement between the parties. (6) Liability of City. This Agreement is not and shall not be interpreted as a waiver of the rights and protections given to the City by the Colorado Governmental Immunity Act, C.R.S. 24- 10-101, et seq. In addition, in no event shall City, its officers, agents or employees be liable to Petitioner for damages, including without limitation, compensatory, punitive, indirect, special or consequential damages, resulting from or arising out of or related to this Agreement or the performance or breach thereof by City or the failure or delay of City in the performance of any covenant or provision under this Agreement on its part to be performed. In consideration of City entering into this Agreement, Petitioner hereby waives and discharges City, its officers, agents and employees from all claims for any and all such damages. No breach, default, delay or failure of City under this Agreement shall be or be construed to be a waiver, discharge or release of Petitioner's obligations under this Agreement. In the event of a breach of this Agreement by the City, Petitioner's sole and exclusive remedy shall be to bring an equitable action for specific performance in the District Court of Pueblo County, Colorado. Such violations may be restrained, or such obligations enforced by injunction at the instance and request of Petitioner without the showing of any special damages or an inadequate remedy at law. Execs te0 j fitla ,day and year first above written. Vil, y ,. v CITY OF PUEBLO, COLORADO ,, ''1.4.:.'� 1 . , . ,n a Colorado Municipal Corporation §. .Y J 1111-1 i �Q r •• .x By (G40e4/ ,t4K-‘449edor p , fp.0 Nicholas A. Gradisar, Mayor Attest: City k APPROVED AS TO FORM: -6- 2262886 02/01/2022 02:18:16 PM Pagge: 7 of 15 R 83.00 0 0.00 T 83.00 9i'hert Ortiz Clerk/Recorder. P_eblo �uunt,, Co 1111 llida'!QNfi'iil*ti1+:��#ia4tit�I h. rilii'Hum ikBill -- .- ,,,,,,,,j- ..,... 1-<"7.e--11;&--i2-4 City Attorney PETITIONER: PUEBLO SPRINGS APARTMENTS LLC, a Colorado limited liability company By: ESH Development LLC, a Colorado limited liability company, its: Manager By: Emery S. Chukly, Manager STATE OF A rl• no.. ) ) ss COUNTY OF P[M4 ) The foregoing instrument was acknowledged before me this 4- day of Ser ,,,ber,, 2021, by Emery S. Chukly, Manager of ESH Development LLC, a Colorado limited liability company, the Manager of Pueblo Springs Apartments LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: c -.2,/• .?D24- [ SEAL ] � sOJNRrNOraa��",, AL (( : ! ) Notary Public fxp. 01 A' ,,,,,,'/q/CO,`Q.,%�� -7- 2262886 02/01/2022 02:18 36 PM Page: 8 of 15 R 83.00 D 0.00 T 83.00 Gilbert, Ortiz C1erk!Reccrder, P,eMo Count., Co i li I Exhibit A AREA TO BE ANNEXED All of the South one-half of the Northwest one-quarter of the Northwest one-quarter of Section 22, Township 20 South, Range 65 West of the 611 P,M. in the County of Pueblo, State of Colorado, being more particularly described as follows: Commencing at Northwest corner of said Section 22, said point being on the west line of Park West Business Campus, Filing No. 7, according to the recorded plat thereof, as filed for record on March 16, 2012 at Reception No. 1901886 in the Pueblo County records and being on the east line of Colorado State Highway No. 45 as presently located; thence S. 00°32'37" E. along said the west line of said Section 22, the west line of said Park West Business Campus, Filing No. 7 and the east line of said Colorado State Highway No. 45, a distance of 706.76 feet to the Present City Limits line and the Point of Beginning; thence N. 88°41'55" E. along the Present City Limits line, a distance of 1,307.06 feet to the east line of the South one-half of the Northwest one-quarter of the Northwest one-quarter of said Section 22; thence S. 01°18'05" E. along said east line of the said South one-half, a distance of 605.96 feet to the Southeast corner of the said South one-half; thence S. 88°39'35" W. along the south line of the said South one-half, a distance of 1,315.09 feet to the Southwest corner of said South one-half and the east line of Colorado State Highway No. 45 as presently located; thence N. 00°32'37" W. along the west line of said South one-half and said east line of Colorado State Highway No. 45, a distance of 606.90 feet to the Present City limits line and the Point of Beginning. Containing 18.20 acres, more or less. PROPOSED NEW CITY LIMITS LINE: Commencing at Northwest corner of said Section 22, said point being on the west line of Park West Business Campus, Filing No. 7, according to the recorded plat thereof, as filed for record on March 16, 2012 at Reception No. 1901886 in the Pueblo County records and being on the east line of Colorado State Highway No. 45 as presently located; thence S. 00°32'37" E. along said the west line of said Section 22 , the west line of said Park West Business Campus, Filing No. 7 and the east line of said Colorado State Highway No. 45, a distance of 706.76 feet to the Present City Limits line and the Point of Beginning; thence S. 00°32'37" E. along the west line of South one-half of the Northwest one-quarter of the Northwest one-quarter of Section 22, Township 20 South, Range 65 West of the 61" P,M and said east line of Colorado State Highway No. 45, a -8- 2262886 02/01/2022 02:18:36 Pr Page: 9 of 15 R 83.00 0 0.00 T a3.00 Gilbert Ortiz Clerk/Peco+der, Pueblo County. Co 1111 11111 distance of 606.90 feet to the Southwest corner of said South one-half; thence N. 88°39'35" E. along the south line of the said South one-half, a distance of 1,315.09 feet to the Southeast corner of the said South one-half; thence N. 01°18'05" W. along said east line of the said South one- half, a distance of 605.96 feet to a point on the Present City Limits line and Point the of Terminus. CERTIFICATION OF PERIMETER: The perimeter of the parcel of land to be annexed, as shown and described hereon, meets the required 1/6 contiguity with the current city limits of the City of Pueblo. -9- 2262886 02/01/2022 02: 18.36 PM Page: 10 of 15 R 83,00 0 0,00 7 83,00 Gilbert Ortiz ClerkRecorier, Pueblo County, Cc VIII FAF. IA, MI gni 11111 EXHIBIT B -10- 2262886 02/01/2022 02:18:36 PM Page: 11 of 15 R 83.00 0 0.00 T 83.00 Gilbert Ortiz Clerk Reoorder Pueblo County, Co 11!I!tfrriediN aii'i�� l '?���k'i'� ,'������N� P�irY�rh I!!11 EXHIBIT C SPECIAL IMPROVEMENTS AND DEDICATIONS PUEBLO SPRINGS APARTMENTS (A-21-01) ANNEXATION AGREEMENT 1. Off-Site Roadways In compliance with the Pueblo Roadway Development Plan and the Pueblo Area Council of Governments Roadway Corridor Preservation Plan, the City of Pueblo will identify for the Petitioner the alignment of off-site freeways, arterials and collectors, which provide connectivity to the Property. Petitioner will cause all local roadways within the Property to connect with all adjoining local roadways. "Identify" does not mean or include surveying or engineering services. 2. Access to Property The primary access to the Property is from 31'' Street, which is classified as a Collector Roadway. The alignments of the roadways shall comply with the General Provisions for Roadway Classification Design Standards and Policies and the City's Standard Construction and Standard Details (Revised: March 28, 2005) or as same may be hereafter amended and in accordance with construction plans, all which shall be approved by the Director of Public Works. If not previously done, the Petitioner, at its sole cost, shall dedicate or convey by general warranty deed the necessary right-of-way in an alignment that is acceptable to the Director of Public Works. Such dedication or conveyance shall be done within 180 days after the Property, which either roadway or portion of roadway crosses, is subdivided. 3. Secondary Fire Apparatus Access The Petitioner, in accordance with the 2015 International Fire Code as amended and as -11- 2262886 02/01/2022 02:18.36 PM Pagertl2r of 1.5PrkP 83.r001D F0 00oTc 83.00 Co Gilltt ■III E ' i'i' kliwi rill:iY 1i SI II I enacted in City Ordinance 8900, shall provide secondary fire apparatus access to the Property. The alignment, design, construction and installation of the secondary fire apparatus access shall comply with the General Provisions for Roadway Classification Design Standards and Policies and the City's Standard Construction and Standard Details (Revised: March 28, 2005) as later amended and in accordance with construction plans, all which shall be approved by the Director of Public Works. Petitioner may be eligible for Cost Recovery from adjoining property owners for secondary fire apparatus access constructed outside the Property as provided in Section 12-4-12 of the Pueblo Municipal Code. City may refuse to approve any subsequent subdivision or issue building permits until such secondary fire apparatus access is provided. If the Director of Public Works determines a "pioneer road" is appropriate, to serve as a secondary fire apparatus access to the Property, the paved roadway width shall be constructed in an alignment acceptable to the Director of Public Works, no fewer than twenty-eight (28) feet in width and constructed to the design standards and standard details as shown on attached Exhibit C-3. 4. Sanitary Sewer If not already installed, prior to the approval of the subdivision of any portion of the Property, Petitioner shall, at its sole expense, design and install the off-site sanitary sewer system connecting to the existing sewer in such size, location and alignment approved by the Director of Wastewater including, but not limited to sewer lines, mains, pump stations in compliance with the Sanitary Sewer Master Plan as provided in Article II, Section 3 hereof. The sanitary sewer mains and system for the Property must be designed by a Colorado Licensed Professional Engineer and approved by the Director of Waste Water. In order to comply with the City of Pueblo's Discharger Specific Variance from the Colorado Water Quality Commission, all -12- 2262886 02/01/2022 02'18:36 PCI Page: 13 of 15 R 83.00 D 0.t0 T 83.00 Gilbert Ortiz ClerkIRecorCer, Pueblo Cont ,ayCo NIACA:10, manholes shall be epoxy coated to eliminate the infiltration of ground water into sanitary sewer lines. Prior to, or at the time of subdivision, Petitioner is responsible for completing a flow analysis of the City's sanitary sewer system. Based upon the flow analysis of the City's sanitary sewer system, , if any portion of City's existing sanitary sewer that would carry wastewater flows from Property is at capacity, Petitioner shall construct and install at Petitioner's sole expense additional sewer lines, mains, pump stations, and/or upgrades to pump stations in order to provide sanitary sewer service to the Property. The size, location and capacity of such sewer lines, mains, and pump stations will be determined by the Director of Waste Water based upon the Sanitary Sewer Design Criteria and Policies for the City of Pueblo published February 22, 2010 or as same may be hereafter amended. Such additional sewer lines, mains, pump stations shall be installed as part of the public improvements required for subdivisions within the Property as determined by the Director of Wastewater. Depending upon the point of connection to the sanitary sewer system and additional capacity resulting from the construction of the sewer mains, the Petitioner may incur and have to pay and/or be eligible for Cost Recovery per Section 16-5-5 of the Pueblo Municipal Code for all or a portion of the cost of the sewer main extension or improvements to the existing sanitary sewer system. In order to be eligible for cost recovery, Petitioner must comply with and meet the requirements and conditions of said section 16-5-5. If not already dedicated to the public or conveyed to the City, it will be the Petitioner's responsibility, at its sole cost, to acquire, dedicate and grant to the public sanitary sewer easements, in ++widths and alignments according to the approved Sanitary Sewer Master Plan, and secure any permits that may be required by Pueblo County for the installation of the sanitary sewer lines outside of the city limits of Pueblo. -13- Reception 2262884 02'01/2022 02:18:36 P11 ORDINANCE NO. 10040 AN ORDINANCE ANNEXING UNINCORPORATED LAND COMMONLY KNOWN AS THE PUEBLO SPRINGS APARTMENTS ANNEXATION TO THE CITY OF PUEBLO DESCRIBED AS 18.20 ACRES OF LAND LOCATED SOUTH OF WEST 31ST STREET AND EAST OF NORTH PUEBLO BOULEVARD WHEREAS, the City Planning and Zoning Commission has recommended that the area described in Section 1 hereof be annexed to the City of Pueblo; and, WHEREAS, the City Council has heretofore found and determined by Resolution that the Petition for Annexation and the area described in Section 1 hereof to be in compliance with the notice and other applicable provisions of the Municipal Annexation Act of 1965 and C.R.S. §31-12-104, 105 and 107(1); and, WHEREAS, the City Council has by Resolution found and determined that an election is not required under C.R.S. §31-12-107 (2) and no additional terms and conditions are to be imposed upon the area described in Section 1 other than those set forth in the Petition for Annexation and the Annexation Agreement; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The following described area situated in Pueblo County, Colorado, is hereby annexed to Pueblo, a Colorado Municipal Corporation, subject to the terms and conditions set forth in the Petition for Annexation and the Annexation Agreement, and the official map of the City shall be amended to show such annexation: 1. AREA TO BE ANNEXED ANNEXATION All of the South one-half of the Northwest one-quarter of the Northwest one-quarter of Section 22, Township 20 South, Range 65 West of the 6th P,M. in the County of Pueblo, State of Colorado, being more particularly described as follows: Commencing at Northwest corner of said Section 22, said point being on the west line of Park West Business Campus, Filing No. 7, according to the recorded plat thereof, as filed for record on March 16, 2012 at Reception No. 1901886 in the Pueblo County records and being on the east line of Colorado State Highway No. 45 as presently located; thence S. 00°32'37" E. along said the west line of said Section 22, the west line of said Park West Business Campus, Filing No. 7 and the east line of said Colorado State Highway No. 45, a distance of 706.76 feet to the Present City Limits line and the Point of Beginning; thence 2.262884 02/01/2022 02:18:36 PM Page: 2 of 4 R 28.00 0 0 00 T 28.00 Gilbart Ortiz C1e a/Recrr'ier. Pueblo County, Co 1III kills IVAII:NIl'` IIINIMINKEMiili t III line of the South one-half of the Northwest one-quarter of the Northwest one-quarter of said Section 22; thence S. 01°18'05" E. along said east line of the said South one-half, a distance of 605.96 feet to the Southeast corner of the said South one-half; thence S. 88°39'35" W. along the south line of the said South one-half, a distance of 1,315.09 feet to the Southwest corner of said South one-half and the east line of Colorado State Highway No. 45 as presently located; thence N. 00°32'37" W. along the west line of said South one-half and said east line of Colorado State Highway No. 45, a distance of 606.90 feet to the Present City limits line and the Point of Beginning. Containing 18.20 acres, more or less. 2. PROPOSED NEW CITY LIMITS LINE: Commencing at Northwest corner of said Section 22, said point being on the west line of Park West Business Campus, Filing No. 7, according to the recorded plat thereof, as filed for record on March 16, 2012 at Reception No. 1901886 in the Pueblo County records and being on the east line of Colorado State Highway No. 45 as presently located; thence S. 00°32'37" E. along said the west line of said Section 22 , the west line of said Park West Business Campus, Filing No. 7 and the east line of said Colorado State Highway No. 45, a distance of 706.76 feet to the Present City Limits line and the Point of Beginning; thence S. 00°32'37" E. along the west line of South one-half of the Northwest one-quarter of the Northwest one-quarter of Section 22, Township 20 South, Range 65 West of the 6th P,M and said east line of Colorado State Highway No. 45, a distance of 606.90 feet to the Southwest corner of said South one-half; thence N. 88°39'35" E. along the south line of the said South one-half, a distance of 1,315.09 feet to the Southeast corner of the said South one-half; thence N. 01°18'05" W. along said east line of the said South one-half, a distance of 605.96 feet to a point on the Present City Limits line and Point the of Terminus. 3. CERTIFICATION OF PERIMETER: At least one-sixth of the boundary of the land described in paragraphs one (1) above, is now existing City Limits Line. SECTION 2. The owners of one hundred percent (100%) of the property to be annexed have petitioned for such annexation. SECTION 3. The Annexation Agreement in the form and content presented to the City Council at this meeting is hereby authorized and approved. The President of the City Council is hereby directed and authorized to execute and deliver the Annexation Agreement in the name of the City and the City Clerk is directed to affix the seal of the City thereto and attest same. 226288.4 02/01/2022 02:18:36 PPI Par�e: t 3 otf 4 R 2i8.00 0 0.00 T 28.00 CllberOr' i:4r :4„, P.0eb10 C,,unt,. Co SECTION 4. VIII FAIT Orki°I40:h vile ����Pl l����1 ,�kW 11111 Within thirty (30) days after the effective date of the Ordinance, the City Clerk shall: (a) File one copy of the annexation map with the original of this ordinance in the office of the City Clerk; and, (b) File for recording three certified copies of this Ordinance and annexation map with the Pueblo County Clerk and Recorder; and, (c) File one certified copy of the annexation map and this Ordinance with the Southeastern Colorado Water Conservancy District. SECTION 5. The officers of the City are hereby authorized to take all other actions necessary or appropriate, on behalf of the City, to implement the provisions of this Ordinance and the Annexation Agreement. SECTION 6. If any provisions of this Ordinance or Annexation Agreement shall be held or deemed to be illegal, inoperative or unenforceable, the same shall not affect any other provisions or provisions of this Ordinance or Annexation Agreement or render the same invalid, inoperative or unenforceable, except as otherwise expressly provided in the Annexation Agreement. SECTION 7. The City Council hereby consents to the inclusion of the annexed area in the Southeastern Colorado Water Conservancy District pursuant to C.R.S. §37-45-136 (3.6). SECTION 8. This Ordinance shall become effective immediately upon final passage and the annexation shall be effective for ad valorem tax purposes on and after January 1, 2019. Action by City Council: Introduced and initial adoption of Ordinance by City Council on October 25, 2021. Final adoption of Ordinance by City Council on November 8, 2021 . resident of City Council 2262884 02/0'1/2022 02:1E 35 PPI t 4profI ,4C R Ierk28.r0me0Q r PuEt.00eblo T Co28.00 6iI erIPeurts coL �r 1I�rY1�1��1�� t,tl?�(➢�I �. III Action by the Mayor: Approved on lO ate/ ❑ Disapproved on based on the following objections: ..2joeigatisieecci4A4dediei Mayor Action by City Council After Disapproval by the Mayor: 0 Council did not act to override the Mayor's veto. ❑ Ordinance re-adopted on a vote of , on 0 Council action on failed to override the Mayor's veto. President of City Council ATTEST Cit //:;0",. 6+�N6M p'aWC ww.V 9' Reception 2262886 02'01/2022 02:18:36 P11 ANNEXATION AGREEMENT CASE NO. A-21-0-01 PUEBLO SPRINGS APARTMENTS ANNEXATION r-- This Annexation Agreement is made effective as of J@,." ) Q 20y and between the City of Pueblo, a Colorado Municipal Corporation, (the "City"), for the use and benefit of Pueblo Springs Apartments LLC, a Colorado limited liability company(the "Petitioner"), WITNESSETH WHEREAS, the Petitioner is the owner of the real property located in Pueblo County, Colorado, and described in Exhibit "A" attached hereto and incorporated herein (the "Property"); WHEREAS, the Petitioner has submitted a petition for the annexation of the Property to the City; and WHEREAS, as a condition precedent to the annexation of the Property, Petitioner has agreed to enter into an annexation agreement with the City setting forth certain terms and conditions with respect to such annexation. NOW THEREFORE, in consideration of the above, and the following covenants and conditions; the City and Petitioner agree as follows: I. REPRESENTATION AND WARRANTIES OF PETITIONER Petitioner represents and warrants to, and covenants with, the City as follows: (1) The Colorado Department of Transportation is a state agency of the State of Colorado. (2) Petitioner has good and marketable fee simple title to the Property subject only to Permitted Encumbrances attached hereto as Exhibit"B." (3) Petitioner is authorized to, and has taken all action required by it (a) to annex the Property to the City and (b) to execute, deliver and perform its obligations under this Annexation Agreement, and (c) to carry out and consummate all of its transactions contemplated by this Annexation Agreement. (4) This Annexation Agreement when executed and delivered, constitutes a valid and legally binding obligation of the Petitioner enforceable against Petitioner according to its terms. The document entitled "Special Improvements and Dedications" marked and attached as Exhibit "C" is incorporated herein by reference. In the event of a conflict between the terms and conditions of Exhibit C and this Agreement, the terms and conditions contained in Exhibit "C" shall control. (5) Neither the execution and delivery of this Annexation Agreement nor the fulfillment of or compliance with its terms and conditions, nor the consummation of the transactions contemplated hereby, conflicts with or results in a breach of the terms, conditions or provisions or any restriction or any agreement or instrument to which the Petitioner is bound, or constitutes a default under any of the foregoing. -1- 2262886 02/01/2022 02'18.36 PM Page. 2 of 15 R 83.00 D 0.00 T 83.00 Gltba•-t Ortiz CIe-k%Recorder Puenlo Ceunty, Co ■III L u . 1'Ih�w��'�� I'�!�'� 4rh �!111 (6) There is no litigation pending, or to the knowledge of Petitioner threatened, against the Petitioner or any person affecting the right of the Petitioner to execute and comply with this Annexation Agreement. (7) The representations and warranties of Petitioner contained herein will be true and correct in all material respects as of the date of recording the annexation plat and Ordinance of the City Council approving the annexation of the Property. IL ZONING AND SUBDIVISION (1) A zoning map amendment application may be filed any time after the petition for annexation has been found to be valid in accordance with the provisions of Section 31-12-107, C.R.S. The Planning and Zoning Commission may hear the application for zoning and make its recommendations thereon prior to annexing the Property, but the proposed zoning ordinance shall not be passed on final presentation prior to the date the ordinance annexing the Property is approved on final presentation. (2) No rights shall exist in Petitioner nor with respect to the Property arising from its preexisting subdivision or use at the time of annexation. No subdivision of the Property shall be approved prior to the time the ordinance annexing and zoning the Property is approved on final presentation. (2) The property may be classified as an Agriculture One (A-1) zone district for no more than ten (10) years. No building permit shall be issued for any part of the land classified as an A-1 zone district until after such land is zoned according to the land use classification corresponding with the City's Comprehensive Plan future land use designation. (3) The zoning provisions of this Article it relate to the initial zoning of the Property after annexation. Such zoning is not guaranteed, and the City Council of City retains its full discretion with respect to such zoning. Nothing contained in this Article II shall be construed to limit the power of the City Council to rezone the Property or any part thereof after approval of the initial zoning of the Property after annexation. Ill. PUBLIC FACILITIES The Petitioner shall dedicate land and rights-of-way for public uses and facilities necessary and required to serve the Property in accordance with the approved Master Development Plan or required as a result of the development of the Property as determined by the City, in its sole discretion, including, but not limited to, sanitary and storm sewers, drainage ways and facilities, utilities, streets, roadways, trail systems, parks and open space. The Petitioner at its expense shall timely construct and install all on-site and off-site improvements necessary and required to serve the Property or required as a result of the development of the Property as determined by the City, in its sole discretion, including, but not limited to, trail systems, parks, streets, street lights, curbs and gutters, sidewalks, bridges, traffic control devices, sanitary sewers, storm sewers, drainage and channel improvements and facilities, but excluding public buildings such as fire stations. All such improvements shall meet and comply with applicable City Ordinances in effect at the time of installation of such improvements. -2- 2262886 02(01/2022 02:18:36 PM Page. 3 cif 15 R 83.00 0 0.00 T 83.00 Gilbert Ortiz C!erk/Recorder, Pueblo Cojnty Co IV. UTILITIES 11111 kI rriErikain«,ail lilt'/i `��4�1� 1111 The Petitioner shall comply with all applicable City of Pueblo (sanitary and storm sewers), Xcel Energy (natural gas), the applicable electric utility franchised and holding a Certificate of Public Convenience and Necessity for electric service within the annexed area, Comcast of Colorado IV, LLC (cablevision), Pueblo Board of Water Works (water), and authorized ILEC and CLEC (telephone/data transmission) for the installation of mains, lines, stations, and any other appurtenant utility facilities in effect at the time of such installation. All existing and new power lines fewer than 30,000 volts and all other overhead utilities (1) within the Property, (2) within the public rights-of-way adjoining the Property, and (3) within the areas adjacent to the Property which serves the Property shall be installed underground. V. COMPLIANCE WITH ORDINANCES Except as otherwise specifically provided in this Annexation Agreement to the contrary, the development, subdivision and zoning of the Property shall meet and comply with all applicable ordinances, resolutions, regulations, and standards of the City now existing or hereinafter enacted or amended. VI. BINDING EFFECT The covenants, restrictions, and agreements herein set forth are covenants running with the Property, shall run with and bind the Property, and shall extend to and be binding upon the Petitioner and its legal representatives, successors, assigns and transferees. The Petitioner expressly accepts and agrees to the covenants, restrictions, and agreements set forth herein by execution of this Annexation Agreement and by the filing of its petition for annexation. If Petitioner defaults in any of its obligations under this Annexation Agreement, including, without limitation, land dedication obligations, City, upon notice given to Petitioner specifying the default, may withhold all subdivision, special area plan, and other development approvals as well as building and occupancy permits for any building or structure within the Property until such default has been corrected to the satisfaction of the City. VII. AMENDMENTS Amendments to this Annexation Agreement may only be made through formal petition to and approval by Resolution of the City Council after such amendment has been submitted to and reviewed by all appropriate City Departments and such Departments have submitted their findings and recommendations to the City Council. VIII. SEVERABILITY If any section, clause, or other provision of this Annexation Agreement is for any reason determined to be invalid or unenforceable by any court of competent jurisdiction, such determination shall not affect any of the remaining provisions of this Annexation Agreement. -3- 2262886 02/01/2022 02.18 36 PM Page: 4 of 15 R 83 00 0 0.00 r 83.00 Gilbert Ortiz CJ1Jerk//Recoroert. Pueblo County Co{� ` IX. VESTED RIGHTS 11111M1.117.7 Ri> E��RR'�N�+� r�rwI1!f��lrai���n i 117 ,tri II III As a condition of and in consideration of the City annexing the Property, the Petitioner, for itself and its successors and assigns waives and releases all previously acquired or existing vested property rights attached to or established with respect to the Property. The Petitioner acknowledges and agrees that neither this Annexation Agreement nor any provision hereof, nor the annexation of the Property to the City, nor the approval of the Master Development Plan, zoning or subdivision, either separately or jointly (a) creates or establishes a vested property right in or for the benefit of the Petitioner or its successors or assigns, or with respect to the Property; or (b) constitutes a site-specific development plan. The terms "vested property right" and "site-specific development plan" shall have the same meaning as set forth in Section 17-12-2 of the Pueblo Municipal Code and §24-68-101, et seq., C.R.S. X. BUILDING PERMITS No building or occupancy permit shall be approved by the City or issued by the Pueblo Regional Building Department to occupy, construct or install any building, structure or other improvement on the Property except within a subdivision and zone district, which corresponds to the land use category designated by the City's Comprehensive Plan, after adoption of the ordinance annexing the Property which meets and complies with this Annexation Agreement and City's ordinances, standards, and regulations. XI. DISCONNECTION (1) Disconnection by Petitioner. Petitioner acknowledges and agrees that upon annexation of the Property, the Property shall become subject to this Annexation Agreement, the Charter, ordinances and rules and regulations of the City, but that City shall not have any obligation to furnish or extend municipal services to the Property. Petitioner may, three (3) or more years after annexation, petition under §31-12-119 C.R.S. for disconnection from the City if the City does not, upon reasonable demand, provide the same municipal services to the Property on the same general terms and conditions as the rest of the City receives. (2) Disconnection by City. If Petitioner defaults in any provision or condition of this Annexation Agreement and such default is not cured within ninety (90) days after written notice specifying the default is given by City to Petitioner, or, if the default is one which cannot be cured within said 90-day period, and Petitioner fails to undertake the cure of such default within said 90-day period and diligently prosecutes same to completion, proceedings may be instituted by the City to disconnect the Property from the City, and for such purpose, the Petitioner irrevocably consents to such disconnection proceedings and waives any and all rights to contest such disconnection. XII. CONTRACTUAL NATURE OF ANNEXATION AGREEMENT The terms, conditions and obligations of this Annexation Agreement are and shall be construed to be purely contractual in nature, as terms, conditions and obligations voluntarily agreed to by -4- 2262886 02/01/2022 02:18:36 PM Pace: 5 of 15 R 83.00 D 0.00. T 83.00 Gif.::ert Ortiz ClerklPeccrder. P,ieb.o Courcy: Co 11111 KoM hillf11+;SILIKIIIIINVCIs CIMPIVII!Milli ti Ili City and Petitioner prior to annexation of the Property to the City. The terms, conditions and obligations imposed on Petitioner and the Property by this Annexation Agreement are not nor shall they individually or cumulatively be construed to be conditions upon granting land-use approvals within the meaning of sections 29-20-201 to 29-20-204, C.R.S. XIII. SPECIAL IMPROVEMENTS AND DEDICATIONS In addition to the on-site improvements and land dedications required to be made by the provisions of this Annexation Agreement, Petitioner will construct and install the improvements, dedicate the land, and pay or cause to be paid any fees described in Exhibit "C" attached hereto and incorporated herein. The improvements, dedication, and fees described in said Exhibit "C" are in addition to and not in substitution for any improvements or dedications otherwise required by this Annexation Agreement. XIV. MISCELLANEOUS (1) Notice. All notices or other communications hereunder shall be sufficiently given and shall be deemed given when personally delivered, or mailed by registered or certified mail, postage prepaid, addressed as follows: (a) if to the City: Department of Public Works - City of Pueblo 211 East"D" Street, Pueblo, Colorado Attention: Director of Public Works (b) if to the Petitioner: Pueblo Springs Apartments LLC c/o ESH Development LLC, its Manager 5671 North Oracle Rd, Suite 1102 Tucson, AZ 85704 Attn: Emery S. Chukly (c) copies to: Michael Cuppy NorthStar Engineering and Surveying 111 E. 5`h St. Pueblo, CO 81002 or to such other address as either party by written notice given hereunder may designate. (2) Governing Law and Venue. This Annexation Agreement shall be governed and construed in accordance with the laws of the State of Colorado, without regard to conflict of law principles. Venue for any action arising out of this Annexation Agreement shall be Pueblo County, Colorado. (3) No Third Party Beneficiaries. Nothing in this Annexation Agreement expressed or implied is intended to or shall be construed to confer upon, or to give to, any person other than -5- 2252886 02/01/2022 02:18:36 PM Page: 6 of 15 R 83.00 D 0.00 T 83.00 Gilbart Ort:.r C1ark/Reoorder, Pueblo County, Co IIII Mi liViltkiiin yOliaha' 1FIVI f;Flail irilir1 3 i h III 111 the City and the Petitioner any right, remedy or claim under or by reason of this Annexation Agreement or any covenant, condition or stipulation hereof; and all the covenants, agreements and stipulations in this Annexation Agreement contained by and on behalf of the City or the Petitioner shall be for the exclusive benefit of the City and the Petitioner. (4) Singular, Plural. Unless the context requires otherwise, words denoting the singular may be construed as denoting the plural. Words of the plural may be construed as denoting the singular. Words of one gender may be construed as denoting the other gender, if applicable. (5) Entire Agreement. All prior discussions, representations, understandings and agreements, whether oral or written, between the parties with respect to the subject matter of this Annexation Agreement are merged in this Annexation Agreement, which constitutes the entire agreement between the parties. (6) Liability of City. This Agreement is not and shall not be interpreted as a waiver of the rights and protections given to the City by the Colorado Governmental Immunity Act, C.R.S. 24- 10-101, et seq. In addition, in no event shall City, its officers, agents or employees be liable to Petitioner for damages, including without limitation, compensatory, punitive, indirect, special or consequential damages, resulting from or arising out of or related to this Agreement or the performance or breach thereof by City or the failure or delay of City in the performance of any covenant or provision under this Agreement on its part to be performed. In consideration of City entering into this Agreement, Petitioner hereby waives and discharges City, its officers, agents and employees from all claims for any and all such damages. No breach, default, delay or failure of City under this Agreement shall be or be construed to be a waiver, discharge or release of Petitioner's obligations under this Agreement. In the event of a breach of this Agreement by the City, Petitioner's sole and exclusive remedy shall be to bring an equitable action for specific performance in the District Court of Pueblo County, Colorado. Such violations may be restrained, or such obligations enforced by injunction at the instance and request of Petitioner without the showing of any special damages or an inadequate remedy at law. Execs te0 j fitla ,day and year first above written. Vil, y ,. v CITY OF PUEBLO, COLORADO ,, ''1.4.:.'� 1 . , . ,n a Colorado Municipal Corporation §. .Y J 1111-1 i �Q r •• .x By (G40e4/ ,t4K-‘449edor p , fp.0 Nicholas A. Gradisar, Mayor Attest: City k APPROVED AS TO FORM: -6- 2262886 02/01/2022 02:18:16 PM Pagge: 7 of 15 R 83.00 0 0.00 T 83.00 9i'hert Ortiz Clerk/Recorder. P_eblo �uunt,, Co 1111 llida'!QNfi'iil*ti1+:��#ia4tit�I h. rilii'Hum ikBill -- .- ,,,,,,,,j- ..,... 1-<"7.e--11;&--i2-4 City Attorney PETITIONER: PUEBLO SPRINGS APARTMENTS LLC, a Colorado limited liability company By: ESH Development LLC, a Colorado limited liability company, its: Manager By: Emery S. Chukly, Manager STATE OF A rl• no.. ) ) ss COUNTY OF P[M4 ) The foregoing instrument was acknowledged before me this 4- day of Ser ,,,ber,, 2021, by Emery S. Chukly, Manager of ESH Development LLC, a Colorado limited liability company, the Manager of Pueblo Springs Apartments LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: c -.2,/• .?D24- [ SEAL ] � sOJNRrNOraa��",, AL (( : ! ) Notary Public fxp. 01 A' ,,,,,,'/q/CO,`Q.,%�� -7- 2262886 02/01/2022 02:18 36 PM Page: 8 of 15 R 83.00 D 0.00 T 83.00 Gilbert, Ortiz C1erk!Reccrder, P,eMo Count., Co i li I Exhibit A AREA TO BE ANNEXED All of the South one-half of the Northwest one-quarter of the Northwest one-quarter of Section 22, Township 20 South, Range 65 West of the 611 P,M. in the County of Pueblo, State of Colorado, being more particularly described as follows: Commencing at Northwest corner of said Section 22, said point being on the west line of Park West Business Campus, Filing No. 7, according to the recorded plat thereof, as filed for record on March 16, 2012 at Reception No. 1901886 in the Pueblo County records and being on the east line of Colorado State Highway No. 45 as presently located; thence S. 00°32'37" E. along said the west line of said Section 22, the west line of said Park West Business Campus, Filing No. 7 and the east line of said Colorado State Highway No. 45, a distance of 706.76 feet to the Present City Limits line and the Point of Beginning; thence N. 88°41'55" E. along the Present City Limits line, a distance of 1,307.06 feet to the east line of the South one-half of the Northwest one-quarter of the Northwest one-quarter of said Section 22; thence S. 01°18'05" E. along said east line of the said South one-half, a distance of 605.96 feet to the Southeast corner of the said South one-half; thence S. 88°39'35" W. along the south line of the said South one-half, a distance of 1,315.09 feet to the Southwest corner of said South one-half and the east line of Colorado State Highway No. 45 as presently located; thence N. 00°32'37" W. along the west line of said South one-half and said east line of Colorado State Highway No. 45, a distance of 606.90 feet to the Present City limits line and the Point of Beginning. Containing 18.20 acres, more or less. PROPOSED NEW CITY LIMITS LINE: Commencing at Northwest corner of said Section 22, said point being on the west line of Park West Business Campus, Filing No. 7, according to the recorded plat thereof, as filed for record on March 16, 2012 at Reception No. 1901886 in the Pueblo County records and being on the east line of Colorado State Highway No. 45 as presently located; thence S. 00°32'37" E. along said the west line of said Section 22 , the west line of said Park West Business Campus, Filing No. 7 and the east line of said Colorado State Highway No. 45, a distance of 706.76 feet to the Present City Limits line and the Point of Beginning; thence S. 00°32'37" E. along the west line of South one-half of the Northwest one-quarter of the Northwest one-quarter of Section 22, Township 20 South, Range 65 West of the 61" P,M and said east line of Colorado State Highway No. 45, a -8- 2262886 02/01/2022 02:18:36 Pr Page: 9 of 15 R 83.00 0 0.00 T a3.00 Gilbert Ortiz Clerk/Peco+der, Pueblo County. Co 1111 11111 distance of 606.90 feet to the Southwest corner of said South one-half; thence N. 88°39'35" E. along the south line of the said South one-half, a distance of 1,315.09 feet to the Southeast corner of the said South one-half; thence N. 01°18'05" W. along said east line of the said South one- half, a distance of 605.96 feet to a point on the Present City Limits line and Point the of Terminus. CERTIFICATION OF PERIMETER: The perimeter of the parcel of land to be annexed, as shown and described hereon, meets the required 1/6 contiguity with the current city limits of the City of Pueblo. -9- 2262886 02/01/2022 02: 18.36 PM Page: 10 of 15 R 83,00 0 0,00 7 83,00 Gilbert Ortiz ClerkRecorier, Pueblo County, Cc VIII FAF. IA, MI gni 11111 EXHIBIT B -10- 2262886 02/01/2022 02:18:36 PM Page: 11 of 15 R 83.00 0 0.00 T 83.00 Gilbert Ortiz Clerk Reoorder Pueblo County, Co 11!I!tfrriediN aii'i�� l '?���k'i'� ,'������N� P�irY�rh I!!11 EXHIBIT C SPECIAL IMPROVEMENTS AND DEDICATIONS PUEBLO SPRINGS APARTMENTS (A-21-01) ANNEXATION AGREEMENT 1. Off-Site Roadways In compliance with the Pueblo Roadway Development Plan and the Pueblo Area Council of Governments Roadway Corridor Preservation Plan, the City of Pueblo will identify for the Petitioner the alignment of off-site freeways, arterials and collectors, which provide connectivity to the Property. Petitioner will cause all local roadways within the Property to connect with all adjoining local roadways. "Identify" does not mean or include surveying or engineering services. 2. Access to Property The primary access to the Property is from 31'' Street, which is classified as a Collector Roadway. The alignments of the roadways shall comply with the General Provisions for Roadway Classification Design Standards and Policies and the City's Standard Construction and Standard Details (Revised: March 28, 2005) or as same may be hereafter amended and in accordance with construction plans, all which shall be approved by the Director of Public Works. If not previously done, the Petitioner, at its sole cost, shall dedicate or convey by general warranty deed the necessary right-of-way in an alignment that is acceptable to the Director of Public Works. Such dedication or conveyance shall be done within 180 days after the Property, which either roadway or portion of roadway crosses, is subdivided. 3. Secondary Fire Apparatus Access The Petitioner, in accordance with the 2015 International Fire Code as amended and as -11- 2262886 02/01/2022 02:18.36 PM Pagertl2r of 1.5PrkP 83.r001D F0 00oTc 83.00 Co Gilltt ■III E ' i'i' kliwi rill:iY 1i SI II I enacted in City Ordinance 8900, shall provide secondary fire apparatus access to the Property. The alignment, design, construction and installation of the secondary fire apparatus access shall comply with the General Provisions for Roadway Classification Design Standards and Policies and the City's Standard Construction and Standard Details (Revised: March 28, 2005) as later amended and in accordance with construction plans, all which shall be approved by the Director of Public Works. Petitioner may be eligible for Cost Recovery from adjoining property owners for secondary fire apparatus access constructed outside the Property as provided in Section 12-4-12 of the Pueblo Municipal Code. City may refuse to approve any subsequent subdivision or issue building permits until such secondary fire apparatus access is provided. If the Director of Public Works determines a "pioneer road" is appropriate, to serve as a secondary fire apparatus access to the Property, the paved roadway width shall be constructed in an alignment acceptable to the Director of Public Works, no fewer than twenty-eight (28) feet in width and constructed to the design standards and standard details as shown on attached Exhibit C-3. 4. Sanitary Sewer If not already installed, prior to the approval of the subdivision of any portion of the Property, Petitioner shall, at its sole expense, design and install the off-site sanitary sewer system connecting to the existing sewer in such size, location and alignment approved by the Director of Wastewater including, but not limited to sewer lines, mains, pump stations in compliance with the Sanitary Sewer Master Plan as provided in Article II, Section 3 hereof. The sanitary sewer mains and system for the Property must be designed by a Colorado Licensed Professional Engineer and approved by the Director of Waste Water. In order to comply with the City of Pueblo's Discharger Specific Variance from the Colorado Water Quality Commission, all -12- 2262886 02/01/2022 02'18:36 PCI Page: 13 of 15 R 83.00 D 0.t0 T 83.00 Gilbert Ortiz ClerkIRecorCer, Pueblo Cont ,ayCo NIACA:10, manholes shall be epoxy coated to eliminate the infiltration of ground water into sanitary sewer lines. Prior to, or at the time of subdivision, Petitioner is responsible for completing a flow analysis of the City's sanitary sewer system. Based upon the flow analysis of the City's sanitary sewer system, , if any portion of City's existing sanitary sewer that would carry wastewater flows from Property is at capacity, Petitioner shall construct and install at Petitioner's sole expense additional sewer lines, mains, pump stations, and/or upgrades to pump stations in order to provide sanitary sewer service to the Property. The size, location and capacity of such sewer lines, mains, and pump stations will be determined by the Director of Waste Water based upon the Sanitary Sewer Design Criteria and Policies for the City of Pueblo published February 22, 2010 or as same may be hereafter amended. Such additional sewer lines, mains, pump stations shall be installed as part of the public improvements required for subdivisions within the Property as determined by the Director of Wastewater. Depending upon the point of connection to the sanitary sewer system and additional capacity resulting from the construction of the sewer mains, the Petitioner may incur and have to pay and/or be eligible for Cost Recovery per Section 16-5-5 of the Pueblo Municipal Code for all or a portion of the cost of the sewer main extension or improvements to the existing sanitary sewer system. In order to be eligible for cost recovery, Petitioner must comply with and meet the requirements and conditions of said section 16-5-5. If not already dedicated to the public or conveyed to the City, it will be the Petitioner's responsibility, at its sole cost, to acquire, dedicate and grant to the public sanitary sewer easements, in ++widths and alignments according to the approved Sanitary Sewer Master Plan, and secure any permits that may be required by Pueblo County for the installation of the sanitary sewer lines outside of the city limits of Pueblo. -13- If the Petitioner, after good faith efforts, is not able to acquire from the intervening property owners the sanitary sewer easement in an alignment acceptable to the City, the City will, to the extent legally authorized, exercise its power of eminent domain to acquire the easement. Petitioner shall be responsible for all compensation for the land taken, damages, if any, to the remainder of the owner's property, and Condemnation Costs, including but not limited to reasonable appraisal, relocation assistance and costs, if any, expert witness, and attorneys' costs and fees. Petitioner shall within ten (10) days, after request by the City, deposit with the City an estimate of Condemnation Costs, as determined by the City Attorney, before the City will commence condemnation proceedings. Petitioner shall pay the balance of the Condemnation Costs within ten (10) days after request therefore. Prior to condemnation, the City may attempt to acquire the property required for the easement and will not begin condemnation proceedings as long as the property owner is negotiating with the City. In addition to costs of acquiring the required property mentioned above, the Petitioner is responsible for all costs incurred by the City from negotiations with the property owner(s). 5. Stormwater All stormwater flows from subdivisions within the Property must be detained or retained as determined by the Director of Stormwater. All stormwater releases shall meet NPDES stormwater quality requirements. The Petitioner shall acquire and dedicate at its sole expense all easements for such purposes. The Petitioner also shall construct and install at its sole expense a stormwater drainage system and detention facility in compliance with the City's Drainage Criteria Manual (June 9, 1997) and the City's Standard Construction Specifications and Standard Details (March 25, 2005) or as same may be later amended and as shown on construction plans approved by the Director of Stormwater. 2252886 02/01/2022 02.18.36 PM Page:GL1bt l4 Ortof izClerk/Recorder 00 () ueb0 County Co -14- ow III �:11)1I E'pAOI P'att ut!t'h+ttl'iNtIAh'i 31Ykrh UI II I If the Petitioner, after good faith efforts, is not able to acquire from the intervening property owners the sanitary sewer easement in an alignment acceptable to the City, the City will, to the extent legally authorized, exercise its power of eminent domain to acquire the easement. Petitioner shall be responsible for all compensation for the land taken, damages, if any, to the remainder of the owner's property, and Condemnation Costs, including but not limited to reasonable appraisal, relocation assistance and costs, if any, expert witness, and attorneys' costs and fees. Petitioner shall within ten (10) days, after request by the City, deposit with the City an estimate of Condemnation Costs, as determined by the City Attorney, before the City will commence condemnation proceedings. Petitioner shall pay the balance of the Condemnation Costs within ten (10) days after request therefore. Prior to condemnation, the City may attempt to acquire the property required for the easement and will not begin condemnation proceedings as long as the property owner is negotiating with the City. In addition to costs of acquiring the required property mentioned above, the Petitioner is responsible for all costs incurred by the City from negotiations with the property owner(s). 5. Stormwater All stormwater flows from subdivisions within the Property must be detained or retained as determined by the Director of Stormwater. All stormwater releases shall meet NPDES stormwater quality requirements. The Petitioner shall acquire and dedicate at its sole expense all easements for such purposes. The Petitioner also shall construct and install at its sole expense a stormwater drainage system and detention facility in compliance with the City's Drainage Criteria Manual (June 9, 1997) and the City's Standard Construction Specifications and Standard Details (March 25, 2005) or as same may be later amended and as shown on construction plans approved by the Director of Stormwater. 2252886 02/01/2022 02.18.36 PM Page:GL1bt l4 Ortof izClerk/Recorder 00 () ueb0 County Co -14- ow III �:11)1I E'pAOI P'att ut!t'h+ttl'iNtIAh'i 31Ykrh UI II I To the maximum extent practicable as determined by the Director of Stormwater, Petitioner must reduce the peak flows and run-off volumes from the Property through stormwater detention and retention facilities to levels that existed before the Property was developed, or to levels that are capable of being handled by the downstream drainage facilities, whichever is less. Prior to the approval of any subdivision of land within the Property, the subdivision drainage report and drainage facilities must be approved by the City's Director of Stormwater. 2262886 02/01/2022 02 18.36 PCI Page. 15 of 15 R 83.00 D 0.00 T 133.00 Gilbert Ortiz Clerk/Rrdar Pueblo Cot,r!y. Co uIli .rl I OW K %K �eP K n rig kill Bill —15—