Loading...
HomeMy WebLinkAbout06794Reception 1433653 04/09/2002 ORDINANCE NO. 6794 AN ORDINANCE ANNEXING THE AREA COMMONLY KNOWN AND DESCRIBED AS NORTH OF HIGHWAY 78 AND WEST OF REGENCY RIDGE WHEREAS, the City Planning and Zoning Commission has recommended that the area described in Section 1 hereof be annexed to the City of Pueblo, subject to the conditions set forth in the Annexation Agreement; 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 Municipal Corporation, subject to the terms and conditions set forth in the Petition For Annexation and the Annexation Agreement attached hereto, which is hereby approved, and the official map of the City shall be amended to show such annexation: Area No. 1: All that portion of the E '/z of the NE 1 /4 of Section 17, Township 21 South, Range 65 West of the 6 1h P.M., lying North of the Northerly right -of -way line of Colorado State Highway No. 78, as presently located, in the County of Pueblo, State of Colorado. Containing 69.28 acres, more or less. Area No. 2: all of the W 1 /2 of the NE 1/4 of Section 17, Township 21 South, Range 65 West of the 6th P.M. in the County of Pueblo, State of Colorado. Containing 81.47 acres, more or less. SECTION 2. shall: Within thirty (30) days after the effective date of the Ordinance, the City Clerk (a) File one copy of the annexation map with the original of this ordinance in the office of the City Clerk; (b) File two certified copies of this ordinance and annexation map with the Pueblo County Clerk and Recorder; (c) File one certified copy of the annexation map and this Ordinance with the Southeastern Colorado Water Conservancy District. SECTION 3 The City Council hereby consents to the inclusion of the annexed area in the Southeastern Water Conservancy District pursuant to C.R.S. § 37 -45 -136 (3.6). SECTION 4. This ordinance is hereby approved on final presentation and shall become effective upon the Petitioner for Annexation executing and delivering the Annexation Agreement to the City Clerk within thirty days. If the Petitioner for Annexation fails to execute and deliver the Annexation Agreement within said 30 -day period, this ordinance shall automatically be deemed void and of no effect, and the area described in Section 1 hereof shall not be annexed to Pueblo, a municipal corporation. If this ordinance X becomes effective as herein provided, it shall be effective for ad valorem tax proposed on and after January 1, 2003. o pt �. h AT r r% o ATTEST BY: CITY CLERK INTRODUCED February 25, 2002 BY Al Gurule COUNCILPERSON APPROVED. --� PRE IDENT OF CITY COUNCIL PASSED AND APPROVED: Mar ch 25, 2002 1, �` • � , Background Paper for Proposed ORDINANCE AGENDA ITEM # _�g 3 DATE: FEBRUARY 25, 2002 DEPARTMENT: PLANNING AND COMMUNITY DEVELOPMENT/ JIM MUNCH TITLE AN ORDINANCE ANNEXING THE AREA COMMONLY KNOWN AND DESCRIBED AS NORTH OF HIGHWAY 78 AND WEST OF REGENCY RIDGE ISSUE Shall City Council approve a request to annex property located north of Highway 78 and west of Regency Ridge? RECOMMENDATION The Planning and Zoning Commission voted 4 -0 to recommended approval of the annexation subject to the Annexation Agreement being finalized and presented to the Planning and Zoning Commission for review before the matter goes before City Council. At the January 17, 2002 Planning and Zoning Commission Work Session, Mr. Munch informed the Commission of the annexation of Ventana subject to the provisions of the annexation agreement. Planning will put it on the January 28, 2002 City Council Meeting with a hearing in March. After Further discussion regarding Highway 78 and Ventana with 70 units for Bandara the will support the temporary move for the intersection. Also, a fund will be set up with residence to help with the annexation of Bandara. BACKGROUND This is a 150.76 -acre area located north of Highway 78 and west of the Regency Ridge area. The property has two parcels including Area No. 1 containing 69.28 acres, and area No. 2 to the west containing 81.47 acres. The area is proposed to be developed with approximately 310 to 330 single - family residential units at a density of 2.5 dwelling units per acre. The site is vacant property that is identified in both the 1980 Pueblo Regional Comprehensive Development Plan and the soon to be adopted Pueblo Regional Development Plan as Urban Residential. FINANCIAL IMPACT Exhibit B of the Ventana Annexation Agreement stipulates the following financial conditions: 1. The petitioner will, on or before the issuance of the fiftieth (50 building permit for construction within the property, commence and complete construction of two lanes of travel, each lane not less than 12 feet in width, and a 16 foot median in Bandera Boulevard between SH 78 and the petitioner's property. 2. In order to fund the cost for the construction of Bandera Boulevard including traffic signalization, the petitioner and any subsequent owner shall pay as a condition of the issuance of a building permit a development fee of $2,000.00 for each dwelling unit constructed within the property. Monies shall be deposited in the Bandera Boulevard Account and be used only for the Bandera Project. 3. If the petitioner incurs costs for the construction of any part of the Bandera Project that was not required pursuant to the City's subdivision ordinances or any Subdivision Improvements Agreement, the petitioner may request reimbursement from the Bandera Boulevard Account for reimbursable costs. 4. As a condition to approval of the first subdivision on the property, the petitioner will enter into an agreement to pay a pro -rata share of a traffic control signalization at the intersection of Bandera Boulevard and SH 78. The City of Pueblo will be responsible for providing police and fire protection services to the property. In addition the public roads and sanitary sewer main extensions will be maintained by the City of Pueblo once they have been constructed and accepted by the City. Reception 1433655 04/09/2002 ANNEXATION AGREEMENT This Annexation Agreement entered into as of Marc 25 between the City of Pueblo, a Municipal Corporation, (the "City ") and kr pueigLo _ L 4 e-- "Petitioner "), WITNESSETH ,20 ,by and Ii oC �G•9'r� (the 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 foregoing, and the covenants and conditions set forth herein, the City and Petitioner agree as follows: I. REPRESENTATION AND WARRANTIES OF PETITIONER Petitioner hereby represents and warrants to, and covenants with, the City as follows: (1) Petitioner is an (ind al) (a 4/4— duly organized and validly existing under the laws of Co%Pe -sari ) (strike and complete as applicable). (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. (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. (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 this Annexation Agreement or to comply with the provisions hereof. (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, as if made on the date of such recording. II. MASTER DEVELOPMENT PLAN Petitioner will prepare and submit or cause to be prepared and submitted to the Planning and Zoning Commission for approval a Master Development Plan for the Property. The Master Development Plan shall be prepared in consultation with the City's Subdivision Review Committee and Department of Planning and Development and submitted in its entirety to the Planning and Zoning Commission. The Master Development Plan will comply with the policies of the Pueblo Regional Comprehensive Development Plan existing as of the date the Master Development Plan is approved, and will be designed to address, identify and resolve all development, drainage, utilities, traffic and other infrastructure needs and requirements and the wide range of planning and development issues involved in and with respect to the development of the Property. The Master Development Plan as submitted and approved by the Planning and Zoning Commission will have the flexibility to adapt to changing conditions over the estimated time period for the development of the Property and shall consist of the following: (a) Development Plan, (b) Drainage Plan, (c) Sanitary Sewer Plan, (d) Transportation Plan, and (e) Environmental Study: (1) Development Plan The Development Plan shall be prepared in accordance with the requirements of Sections 12- 4- 5(a)(2) and 12- 4 -6(a) of the Pueblo Municipal Code. A development plan establishing the anticipated phasing of the development of the Property shall be prepared as part of the Development Plan. (2) Drainage Plan The Drainage Plan shall be prepared in accordance with the Storm Drainage Design Criteria and Drainage Policies for the City of Pueblo, Colorado, published June 9, 1997, or as same may hereafter be amended (MANUAL) and be certified by a Professional Engineer competent in the field of surface water drainage engineering and registered in the State of Colorado. The Drainage Plan shall address surface water drainage within the Property and onto the Property from other areas, as well as the effects of the development of the Property upon downstream properties and drainage facilities. Water quality management and erosion control measures will be incorporated in the Drainage Plan to meet future NPDES requirements. Associated impacts on City's existing and proposed surface water drainage system shall be identified in the Drainage Plan, and those impacts which are reasonably attributable to the development of the Property as -2- determined by the City, in its sole discretion, shall be mitigated through surface water drainage improvements installed by and at the expense of the Petitioner. The Drainage Plan shall include a phasing plan or schedule for such improvements. Storm water detention facilities, designed and constructed in accordance with the MANUAL, may be used to mitigate the increased runoff due to development of the Property. (3) Sanitary Sewer Plan The Sanitary Sewer Plan shall be prepared in accordance with the Sanitary Sewer Design Criteria and Policies for City of Pueblo published May 12, 1999, or as same may hereafter be amended, and be certified by Professional Engineers competent in the field of sanitary sewer engineering and registered in the State of Colorado. The Sanitary Sewer Plan shall address the needs of the entire gravity -fed sanitary sewer drainage basin of which the Property is a part. The sewer drainage basin shall be approved by the Director of Public Works. Associated impacts on City's existing non - backbone system (less than 15 -inch diameter) and proposed sanitary sewer system shall be identified in the Sanitary Sewer Plan, and those impacts which are reasonably attributable to the development of the Property as determined by the City, in its sole discretion, shall be mitigated through the installation of sanitary sewer improvements installed by and at the expense of the Petitioner. The Sanitary Sewer Plan shall include a phasing plan or schedule for such sanitary sewer improvements. If sanitary sewers within the Property are oversized to serve future development outside the Property but within the sewer drainage basin, an Agreement to partially recover cost of constructing oversized or off -site sewer collection system improvements ( "Agreement ") will be entered into between the Petitioner and the City in accordance with Chapter 5, Title XVI of the Pueblo Municipal Code or as same may hereafter be amended. If sanitary sewers are constructed downstream from the Property which will serve future development outside the Property but within the sewer drainage basin, the Agreement may include provisions allowing the Petitioner to be reimbursed in accordance with said Chapter 5 of the City's ordinances. The Agreement will comply with the City's then existing applicable ordinances but shall not require any cost recovery from the City except to the extent that funds therefor are made available by Resolution of the City Council pursuant to Section 16 -11 -4 of the Pueblo Municipal Code or as same may hereafter be amended for oversizing the sanitary sewer system within the Property. (4) Transportation Plan The Transportation Plan shall be prepared in accordance with the criteria and general outline specified by the City Traffic Engineer and shall be supported by studies and reports prepared by Professional Engineers competent in the field of transportation and registered in the State of Colorado. Associated impacts on City's existing and proposed traffic and roadway systems shall be identified in the Transportation Plan and studies, and those impacts which are reasonably attributable to the development of the Property as determined by the City, in its sole discretion, shall be mitigated through traffic improvements constructed and installed by and at the expense of the Petitioner (such as, but not limited to, traffic signals, signal interconnect, conduit and -3- wire, deceleration/acceleration lanes, and median islands). The Transportation Plan shall include a phasing plan or schedule of such traffic improvements. If street improvements through or adjacent to property outside the Property are required to be constructed, the Petitioner will pay the entire cost of such improvements and thereafter be eligible for such cost recovery as may be provided under Section 12 -4 -12 of the Pueblo Municipal Code or as same may hereafter be amended, but shall not be eligible for any cost recovery from the City. (5) Environmental Studies In addition to the requirements of Section 12- 4- 6(b)(3) of the Pueblo Municipal Code, if the Property includes any land that is adjacent to or has previously been used for solid waste disposal by land filling, the Petitioner at its expense, shall provide the City with a Phase I Environmental Study of the Property and a further in -depth study of any potential methane gas presence on, or migration from or to the Property. Such studies shall be performed by Professional Engineers competent in environmental engineering. The boundaries of the landfill area shall be identified on the Master Development Plan and shall be tested for the presence of methane gas in accordance with procedures approved by the appropriate State Agencies and the results summarized as a comparison to State and Federal regulatory limits of the landfill area and at the exterior boundary of the landfill area. Petitioner may submit the Master Development Plan to the Planning and Zoning Commission for approval any time after the City Council has found the petition for annexation of the Property to be valid in accordance with the provisions of section 31 -12 -107, C.R.S.; provided however, that the proposed Master Development Plan shall not be approved prior to the time the ordinance annexing the Property is approved on final presentation. The City may refuse to approve any building or occupancy permit for any portion or all of the Property until after a Master Development Plan is approved. III. ZONING AND SUBDIVISION (1) No application for subdivision of all or any part of the Property shall be submitted to or considered by the City until after the Master Development Plan has been approved by the Planning and Zoning Commission; provided, however, that if the Property is intended to be included in a single subdivision, the application for such subdivision may be submitted at the time the Master Development Plan is submitted to the Planning and Zoning Commission. No subdivision of the Property shall be approved prior to the time the ordinance annexing the Property is approved on first presentation. (2) Petitioner must initial either of the following: The Property shall be classified in the City zone or classification district most nearly corresponding to the zone or classification district in which the Property was classified under the terms and provisions of the Pueblo County Zoning Resolution, or Petitioner will file an application to rezone the Property to A 4ul� Z Districts -4- no later than ninety (90) days after the time of approval of the annexation ordinance. If the Property is not so zoned, City may refuse to approve any building or occupancy permit for any portion or all of the Property. (3) A petition to zone the Property may be filed concurrently with the petition for annexation of the Property. The Planning and Zoning Commission may hear the petition for rezoning and make its recommendations thereon prior to annexing the Property, but such rezoning may not be approved prior to the time the ordinance annexing the Property is approved on final presentation. IV. PUBLIC FACILITIES The Petitioner shall dedicate land and right -of -way for public uses and facilities 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, sanitary and storm sewers, drainage ways and facilities, utilities, streets, roadways, trail systems and parks. The Petitioner at its expense shall 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, 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. V. UTILITIES The Petitioner shall comply with all applicable City of Pueblo (sanitary and storm sewers), Public Service Company (natural gas), WestPlains Energy Company (electric), TCI Cablevision (cablevision), Pueblo Board of Water Works (water), and Qwest (telephone /data transmission) requirements for the installation of mains, lines, stations, and any other appurtenant utility facilities in effect at the time of such installation. VI. COMPLIANCE WITH ORDINANCES 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. VII. 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 -5- 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 subdivi- sion, 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. VIII. 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 the appropriate City Departments and such Departments have submitted their findings and recommendations to the City Council. All amendments to the Master Development Plan must be approved by the Planning and Zoning Commission after review and recommendation by the appropriate City Departments. IX. 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. X. VESTED RIGHTS 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. XI. BUILDING PERMITS No building or occupany 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 approved by the City after adoption of the ordinance annexing the Property which meets and complies with this Annexation Agreement and in City's ordinances, standards, and regulations. XII. 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 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, for any reason, the Master Development Plan is not approved and adopted by the Planning and Zoning Commission within three (3) years from date of this Annexation Agreement, 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. XIII. 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 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. XIV. SPECIAL IMPROVEMENTS, DEDICATIONS AND IMPACT FEES In addition to the on -site and off -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 the impact fees described in Exhibit "B" attached hereto and incorporated herein. The improvements, dedication, and impact fees described in said Exhibit "B" are in addition to and not in substitution for any improvements or dedications otherwise required by this Annexation Agreement. -7- (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: .+k AU &'g C- as P:::C>,e 0 09/ 1/'0 me;-, Ga Eto ; or to such other address as either party by written notice given hereunder may designate. (2) Governing Law 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. (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 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. acectted at P4leblo, Colorado as of the day and year first above written. 71 1 PUEB , a Municipal Corporation By Attu'. President of the City Council .:i C Ir -8- APPROVED AS TO FORM: City Attor Uy [SEAL] Attest: By Title STATE OF COLORADO ) ss. COUNTY OF PUEBLO Ridgegate at Pueblo, LLC By: Title: Man ger The foregoing instrument was acknowledged before me this l 20 G2 by Mi chael Occhi ato as President Gina Dutcher day of V , of City douncil and as City Clerk of Pueblo, a Municipal Corporation. Witness my hand and official seal. �; w �; ,• pTA R • F AL] ; O . a0 �0 C!� GpL STA LOW expires: - Notary Public 1433655 Page: 9 of 15 04/09/2002 11:27A ChrisC.Munoz Pueb1oCtyC1k &Rec ANNX AG R 75.00 D 0.00 PETITIONER: ss. The foregoing instrument was acknowledged before me this 14th day of March , 2002 by Roger H. Fonda as Manager of Ridgegate at Pueblo, LLC Witness my hand and official seal My commission expires: 06103103 [S N oo 'y : NC�0 co � �. 0 � e 'C1 �; " ; z ° ocoaao o in J. qm�= N otary Public Sharon T ohnson EXHIBIT "A" LEGAL DESCRIPTION AREA NO. 1: ALL THAT PORTION OF THE E V2 OF THE NE V4 OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 65 WEST OF THE 6 TH P.M., LYING NORTH OF THE NORTHERLY RIGHT -OF -WAY LINE OF COLORADO STATE HIGHWAY NO. 78, AS PRESENTLY LOCATED, IN THE COUNTY OF PUEBLO, STATE OF COLORADO. CONTAINING 69.28 ACRES, MORE OR LESS. ALL OF THE W V2 OF THE NE1 /4 OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 65 WEST OF THE 6 TH P.M. IN THE COUNTY OF PUEBLO, STATE OF COLORADO. CONTAINING 81.47 ACRES, MORE OR LESS. 1433655 Page: f 04/09/20021 ChrisC.Munoz PuebloCtYClk&Reo RNNX AG R 75.00 D 0.00 EXHIBIT "B" SPECIAL IMPROVEMENTS, DEDICATIONS, AND IMPACT FEES (VENTANA ANNEXATION AGREEMENT A- 01 -04) 1. The primary access to and from the Property shall be Bandera Boulevard. Any access from State Highway 78 (SH 78) will be secondary and restricted to three - quarter movement (left -in, right -in and right -out permitted; left -out prohibited). The Transportation Plan and roads within the Property will be designed and developed so that primary access is to Bandera Boulevard and secondary limited access is to SH 78. Notwithstanding the foregoing, Petitioner may elect to provide access for the first subdivision of the Property (not to exceed seventy lots) from SH 78. In such event, City will support Petitioner's request to the Colorado Department of Transportation (CDOT) for a temporary full- movement access permit from SH 78 until Bandera Boulevard is constructed. Such temporary access will be located approximately one - quarter mile west of the intersection of Bandera Boulevard and SH 78. If a temporary full movement access permit from SH 78 is obtained from CDOT, Petitioner shall in writing advise all purchasers of lots in the Property of the temporary nature of and future restrictions on such access. All costs and expenses of obtaining either the three- quarter movement or the temporary full- movement access permit from CDOT and all improvements required thereby shall be the sole responsibility of Petitioner and shall not be subject to reimbursement as Reimbursable Costs described in Section 3 hereof. 2. Petitioner shall, at its cost and expense, not later than one - hundred eighty (180) days after the issuance of the first building permit for construction within the first subdivision that includes any portion of the Property (a) obtain an access permit for Bandera Boulevard pursuant to the SH 78 Access Control Plan from CDOT, (b) dedicate to the public or deed to the City a 100 -foot right -of -way for Bandera Boulevard in an alignment approved by the Director of Public Works 2/22/02 -1- between SH 78 and the Property, and (c) construct and install all improvements required by CDOT and the access permit. All such costs and expenses incurred by Petitioner shall be part of the Reimbursable Costs described in Section 3 hereof. Should the Petitioner, after good faith efforts, not be able to acquire from the property owners the 100 -foot Bandera Boulevard right -of -way between the Property and SH 78 in an alignment acceptable to the City, the City will, to the extent legally permissible, exercise its power of eminent domain to acquire the right -of -way. Petitioner shall be responsible for all compensation, damages, cost and expense of condemnation, including reasonable appraisal, expert witness and attorney fees, which shall be part of the Reimbursable Costs described in Section 3 hereof. On or before the issuance of the fiftieth (50th) building permit for construction within the Property, Petitioner shall commence and thereafter diligently complete construction and installation of (a) two (2) lanes of travel, each lane not less than 12 feet in width, and a 16 foot wide median and landscaping in Bandera Boulevard between SH 78 and the Property at such locations in Bandera Boulevard as the Director of Public Works shall approve, and (b) all improvements required by CDOT and the access permit. All road and other improvements shall comply with the City's Standard Construction and Standard Details (February 26, 2001). All costs of construction and installation of such improvements incurred by Petitioner shall be part of the Reimbursable Costs described in Section 3 hereof. If any of the above requirements are not timely met and complied with for any reason, the City may in its sole discretion refuse to issue additional building permits for construction within the Property. If the roadway right -of -way is not dedicated or deeded to the City within said one - hundred (180) day period, or if construction of two lanes of travel and median of Bandera Boulevard is not commenced upon the issuance of the fiftieth (50th) building permit, all then existing and outstanding -2- building permits for construction within the property, except those building permits under which actual construction commenced prior to the expiration of said one - hundred eighty (180) day period, shall be canceled. 3. In order to fund the cost and expenses for the development and construction of Bandera Boulevard including access and traffic signalization ( "Bandera Project "), Petitioner and any subsequent owner of all or any part of the Property shall, as a condition of the issuance of a building permit for the construction of one or more dwelling units within the Property, pay a development fee of $2,000.00 for each dwelling unit to be constructed within the Property ( "Fee "). The Fee shall be paid to the City at the time a building permit is issued for each dwelling unit and shall be deposited in an interest - bearing account identified as the "Bandera Boulevard Account." Monies on deposit in the Bandera Boulevard Account shall be used only for the Bandera Project. Petitioner, for itself and its successors and assigns, including all subsequent owners of land within the Property, stipulate and agree that there is an essential nexus between the Fee and the City's legitimate interest in providing for the construction and development of Bandera Boulevard, and that the Fee is roughly proportionate both in nature and extent to the impact of the proposed development of the Property. If Petitioner incurs cost and expenses for the installation and construction of any part of the Bandera Project which Petitioner was not required to install or construct pursuant to City's subdivision ordinances or any Subdivision Improvements Agreement between City and Petitioner ( "Reimbursable Costs "), Petitioner may request reimbursement from the Bandera Boulevard Account for the Reimbursable Costs. If Petitioner is required by the Subdivision Improvements Agreement to install all four lanes, median and landscaping of Bandera Boulevard adjacent to the Property, the cost of installing two (2) lanes of travel and 1/2 of the median and landscaping costs shall be part of the Reimbursable Costs. All requests for reimbursement shall be made to the Director of Public -3- Works upon such forms and with such supporting documents as the Director of Public Works shall determine. Request for reimbursement may not be submitted until after the improvements comprising a part of the Bandera Boulevard Project for which reimbursement is requested have been constructed or installed and approved by the Director of Public Works, but in no event later than two (2) years after the improvements have been constructed or installed. If there are inadequate monies in the Bandera Boulevard Account to pay in full the requested Reimbursable Costs, the unpaid balance thereof shall be paid without interest as monies in the Bandera Boulevard Account become available for such payment. Reimbursable Costs shall not be in addition to any cost recovery available to Petitioner under Section 12 -4 -12 of the Pueblo Municipal Code ( "Cost Recovery "). Any Cost Recovery to which Petitioner shall be entitled pursuant to said Section 12 -4 -12 with respect to all or any part of the Reimbursable Costs for which Petitioner has filed a request for reimbursement shall be collected by the City and deposited in the Bandera Boulevard Account. 4. If the City shall impose an impact fee for the purpose of developing and constructing Bandera Boulevard including access and traffic signalization as presently established and as located and constructed in the future ( "Impact Fee "), the Fee required by Section 3 hereof shall no longer be required to be paid for that portion of the Property subject to the Impact Fee prior to the issuance of building permits for dwelling units within the Property issued after the effective date of the imposition of the Impact Fee, provided, however, that Petitioner and each subsequent owner of land within the Property shall consent to and pay the Impact Fee in lieu of the Fee. In order to implement this Section and Section 3 above, Petitioner shall place restrictive covenants of record sufficient to bind all land within the Property thereto. 5. Petitioner may design, construct, and maintain a monument -style roadway -4- identification sign at or near the Bandera Boulevard access to the Property within the non - roadway portions of the Bandera Boulevard public right -of -way, including the median on Bandera Boulevard for the purpose of identifying Bandera Boulevard as the primary entrance to the Property. Such sign shall not create a traffic hazard and must be in conformance with all City regulations and be approved by the Subdivision Review Committee and maintained by the Petitioner or a subsequent Homeowner's Association. 6. As a condition to the approval of the first subdivision which includes any portion of the Property, the Petitioner will enter into an agreement to pay a pro -rata share of a traffic control signalization at the intersection of Bandera Boulevard and SH 78. Petitioner's pro -rata share will be determined at the time of approval of the first subdivision which includes any portion of the Property by a traffic analysis approved by the City and CDOT. Petitioner's pro -rata share will not be subject to reimbursement as Reimbursable Costs described in Section 3 hereof. 7. Petitioner will, at the request of the City, sign a petition pursuant to Chapter 9, Title XII, of the Pueblo Municipal Code to include the Property within a special district for the purpose of providing for the maintenance of all landscaping within the right -of -way along Bandera Boulevard as presently established and as located and constructed in the future. In order to implement this covenant, Petitioner shall place restrictions of record sufficient to bind all the land within the Property and subsequent owners thereof to this covenant. 8. After dedication of Bandera Boulevard right -of -way described in Section 2 hereof, City will request Pueblo County to rezone the triangular parcel of land between Bandera Boulevard, SH 78, and the easterly portion of the Property to a zone district compatible with Petitioner's proposed use of the Property. -5-