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HomeMy WebLinkAbout07371Reception 1644578 10/21/2005 Substituted Copy ORDINANCE NO. 7371 AN ORDINANCE ANNEXING THE AREA COMMONLY KNOWN AS THE COMANCHE ANNEXATION PHASE 1 AND DESCRIBED AS WEST OF LIME ROAD AND SOUTHEAST OF THE INTERSTATE 25 AND PUEBLO BOULEVARD INTERCHANGE AND APPROVING AN ANNEXATION AGREEMENT RELATING THERETO 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 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: Comanche Phase 1 A parcel of land located within the West one -half of Section 20, Township 21 South, Range 64 West of the 6 th Principal Meridian, in the County of Pueblo, State of Colorado, being more particularly described as follows: Beginning at the Northwest corner (found monument is a 3 Yd' aluminum cap, L.S. #33651) of Section 20, Township 21 South, Range 64 West; 1. Thence S 89 23' 07" E, along the North line of said Section 20, a distance of 2,649.81 feet (Existing City Limits Line); 2. Thence S 00° 38' 19" E a distance of 4,573.57 feet to the beginning of a non - tangent curve to the right having a radius of 510.66 feet; 3. Thence along the arc of a curve to the right, through a central angle of 83 41'28", a distance of 745.91 feet whose chord bears S 41 48' 54" W a distance of 681.35 feet; 4. Thence S 89 07'25" W a distance of 2,188.00 feet to a point on the West line of said Section 20; 5. Thence N 00 39' 11" W, along the West line of said Section 20, a distance of 5,143.32 feet to the Northwest corner of said Section 20 and the Point of Beginning. Said Parcel contains 309.38 acres, more or less. BASIS OF BEARINGS Bearings are based on the North line of Section 20, Township 21 South, Range 64 West from the Northwest corner (found monument is a 3'/;' aluminum cap, L.S. #33651) to the Northeast corner (found monument is a 3 % /:' aluminum cap, L.S. #33651) to bear S 89 23' 07" E. 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. SECTION 4. The City Council of the City of Pueblo hereby finds, determines and declares that the health, safety and welfare of the people of Pueblo are dependent upon the attraction of new private enterprises; that incentives are often necessary to attract private enterprises; that providing such incentives stimulates economic development in the City of Pueblo and results in the creation and maintenance of new jobs; that the incentives offered to Public Service Company of Colorado to annex its properties to the City of Pueblo, Colorado set forth and contained in the Annexation Agreement are in the best interest of the City of Pueblo and its citizens and will promote the public health, safety and welfare; that such incentives and annexation will increase the City's tax base, the availability of electric energy, and the opportunities for employment for the citizens of the City of Pueblo; and that such incentives and annexation will further the economic development of the City of Pueblo and provide funding for much needed and required infrastructure within the City of Pueblo. SECTION 5 Pursuant to Article XX of the State Constitution and the Charter of the City of Pueblo, the City Council of the City of Pueblo hereby finds, determines and declares that the incentives, economic and otherwise, granted to Public Service Company of Colorado pursuant to and under the Annexation Agreement to be local matters and all provisions of statutes of the State of Colorado which might be in conflict with such incentives are hereby superseded to the extent of any such conflict, and to the extent such provisions of the statutes of the State of Colorado are not in conflict with such incentives, the City of Pueblo chooses to apply such provisions. SECTION 6. 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; (b) File for recording three 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 7 All ordinances, or parts thereof, resolutions, rules or regulations of the City in conflict with any provision of this Ordinance or the Annexation Agreement shall be and they are hereby suspended in their application and enforcement to the extent of such conflict. SECTION 8. The officers of the City are hereby authorized and directed to take all other action necessary or appropriate, on behalf of the City, to effectuate the provisions of this Ordinance and the Annexation Agreement. SECTION 9. 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 to any extent whatsoever. SECTION 10. 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 11. 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, 2006. n� on �� y o 'ATTEST: CITY CLERK INTRODUCED August 22. 2005 PASSED AND APPROVED: September 12, 2005 Background Paper for Proposed ORDINANCE AGENDA ITEM #15; r D DATE: AUGUST 22, 2005 DEPARTMENT: COMMUNITY DEVELOPMENT /JIM MUNCH PLANNING DEPARTMENT /JIM MUNCH TITLE AN ORDINANCE ANNEXING THE AREA COMMONLY KNOWN AS THE COMANCHE ANNEXATION PHASE 1 AND DESCRIBED AS WEST OF LIME ROAD AND SOUTHEAST OF THE INTERSTATE 25 AND PUEBLO BOULEVARD INTERCHANGE AND APPROVING AN ANNEXATION AGREEMENT RELATING THERETO ISSUE Shall the City Council approve the proposed annexation of property that is west of Lime Road and southeast of the interstate 25 and Pueblo Boulevard interchange? The Planning and Zoning Commission, at their August 10, 2005 Regular Meeting, voted 6-0 to recommend approval. BACKGROUND The Comanche Annexation Phase 1 submitted by Public Service Company of Colorado, Inc. ("PSCO ") comprises 309.38 acres located west of Lime Road and southeast of the Interstate 25 and Pueblo Boulevard interchange. This annexation petition is the first in a series of two phased annexations of property into the City of Pueblo that comprise the PSCO property containing the existing Comanche Power Plant and the property on which the new power plant will be constructed. The applicant has concurrently filed an application to rezone the property to an 1-3 Heavy Industrial Zone District and will subdivide the property prior to the issuance of building permits. The final action on the ordinance amending the zoning is subject to the approval of the annexation ordinance. Under the Annexation Agreement, the City has granted the following economic incentives to PSCO in conjunction with the annexation of its land and facilities into the City of Pueblo: (a) During the construction of Unit 3 and until it becomes operational, a property tax credit equal to 100% of property taxes attributable to Unit 3. (b) For ten years after Unit 3 becomes operational, a property tax credit equal to 50% of property taxes attributable to Unit 3. (c) Pursuant to Ordinance No. 7347, exemption from sales and use tax on tangible personal property purchased for use in the initial construction of Unit 3, and, for 10 years after Unit 3 becomes operational, purchased for use in the maintenance, repair, remodeling or replacement of Unit 3. PSCO will pay to the City (a) a lump -sum payment of $13 million in lieu of sales and use tax relating to Unit 3 and (b) all property taxes and sales and use taxes attributable to Units 1 and 2. The $13 million payment will be paid to the City within 60 days after the date construction of Unit 3 commences, which is defined as the date excavation begins on the first foundation of Unit 3 (excluding smokestack and environmental control systems) within the Unit 3 construction fence area, or 180 days after approval of the annexation, whichever occurs first. If PSCO is legally prohibited from constructing Unit 3 by injunction or other court order before it commences construction, the date of construction will be deferred until the order is dismissed or resolved to permit construction of Unit 3. Once paid to the City, the $13 million is nonrefundable even if PSCO disconnects the property from the City. Due to the uniqueness and location of the property and electric power generation facilities located thereon, PSCO is not required to construct any off -site improvement in the subdivision and development of the property, except those specifically required by PSCO to serve the property. PSCO will construct all on -site improvements reasonably required as a condition of approval of rezoning, subdivision and special use permit. Unless requested by PSCO and until PSCO extends the sanitary sewer or stormwater system to the property, City will not provide sewer or stormwater service to the property. However, PSCO will pay all stormwater utility service charges imposed by City's ordinances. Fire protection, hazardous material response and emergency medical services are to be provided to the property under contract by Pueblo Rural Fire Protection District until December 21, 2009. Thereafter, City will provide such services to the property. Except for the foregoing, City will provide the same municipal services to the property on the same general condition as the rest of the City receives. Except as otherwise specifically provided in the Annexation Agreement to the contrary, the property and PSCO shall be subject to the Charter, ordinances, rules and regulations of the City. PSCO may disconnect the property from the City if it is unable to obtain within 6 months all permits and approvals necessary and required for the construction and operation of Unit 3, or if the City fails to perform any material provisions of the Annexation Agreement or if any material provision of the Annexation Agreement is determined to be invalid or unenforceable by a final court decision. The foregoing is only a brief description of general provisions of the Annexation Agreement and is qualified by the more complete information and provisions contained in the Annexation Agreement. FINANCIAL IMPACT See Background. Reception 1644580 10/21/2005 ANNEXATION AGREEMENT Case No. A -05 -03 This Annexation Agreement entered into as of July 12, 2005 by and between the City of Pueblo, a Municipal Corporation, (the "City "), and Public Service Company of Colorado, a Colorado corporation (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 "); and 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 and City have agreed to enter into a mutually acceptable annexation agreement 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: REPRESENTATIONS AND WARRANTIES OF PETITIONER Petitioner hereby represents and warrants to, and covenants with, the City as follows: (1) Petitioner is a Colorado corporation duly organized and validly existing under the laws of the State of Colorado. (2) Petitioner has marketable fee simple title to the Property subject only to the Permitted Encumbrances attached hereto as Exhibit 'B." 1 111111111111111111111111111111111111111111111111111111 ll00 644580 D 0.00 Chris C. Munoz (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, subject to the provisions of Article XV. (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 The City and Petitioner acknowledge and agree that the entire Property is to be included in a single subdivision, and Petitioner shall not be required to file a Master Development Plan for the Property under Section 12- 4 -5(a) of the Pueblo Municipal Code. I I I I I I I I III 1644580 Page: 3 of 31 10/21/2005 III. ZONING AND SUBDIVISION Chris I II I Munoz I PuebloCtyClk&Rec R II I NNIIII R 156.00 D 1 :33fi 0.00 (1) Because the Property is to be included in a single subdivision ( "Subdivision"), the application for such Subdivision shall be submitted by Petitioner as soon as possible after the Substantial Compliance Resolution (as hereafter defined) is adopted by City Council of City ( "City Council "). No subdivision of the Property shall be approved prior to the time the ordinance annexing the Property is approved on final presentation. (2) The Property shall be zoned Heavy Industrial District (I -3) ("I-3 Zone District"), the land use classification most nearly corresponding to the land use classification into which the Property has been (or will be) classified under the City's comprehensive plan ("Zoning "). The City shall be responsible for amending the City's comprehensive plan as it relates to the Property to Employment Center - Industry to establish electric power generation facilities as an authorized use. A petition for use by review under Section 17- 4- 51(15)(c)(5) of the Pueblo Municipal Code required to allow Petitioner's contemplated use of a portion of the Property for disposal of nonhazardous solid waste generated on -site in compliance with Colorado Department of Public Health and Environment Solid Waste Regulations (the "Special Use Permit ") shall be filed by Petitioner as soon as possible after the Substantial Compliance Resolution is approved. The petition shall be processed by the City (and the Zoning Board of Appeals) concurrently with the rezoning of the Property to the I -3 Zone District classification. Because of the substantial public need and benefit of the uninterrupted operation of Units 1 and 2 (as defined in Article XIV below), the City hereby agrees to recognize and allow Petitioner to continue to operate Units 1 and 2 within the terms of the existing special use permit granted by Pueblo County during the pendency of the application and review process for the Special Use Permit. (3) A petition to zone the Property shall be filed by Petitioner as soon as possible after the petition for annexation has been found to be in substantial compliance with the provisions of X Page: Chris C. Munoz PuebloCtyClk6Rec ANN% RGR 156.00 D 0.00 Section 31- 12- 107(1), C.R.S. (the "Substantial Compliance Resolution "). The Planning and Zoning Commission may hear the petition for rezoning and make its recommendations thereon prior to annexing the Property, but the proposed Zoning ordinance (and the Special Use Permit) shall not be passed on final presentation prior to the date the ordinance annexing the Property is approved on final presentation. (4) Petitioner shall submit and file all applications and accompanying maps, engineering and other information required to accomplish and obtain approval of the Subdivision, Zoning and Special Use Permit as soon as possible after the date the Substantial Compliance Resolution is adopted by City Council and Petitioner shall thereafter diligently pursue such applications through final approval. IV. PUBLIC FACILITIES Petitioner at its expense shall construct and install all on -site and off -site improvements to the extent specifically required by Petitioner to serve the Property or, with respect to on -site improvements, reasonably required by the City as a condition of approval of the Zoning, Subdivision or Special Use Permit. Except for such on -site improvements required by the City as a condition of approval of the Zoning, Subdivision or Special Use Permit, Petitioner shall have no obligation with respect to the ownership, development and use of the Property for any other public facilities, dedications or payments in lieu thereof, impact fees or exactions, 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, open space, trail systems and parks, or public buildings such as fire stations. Without limiting the generality of the foregoing, the City agrees, for a period of thirty-three (33) years after the effective date of this Annexation Agreement, that it will not take any action without the consent of Petitioner to include III III IIII II I IIII III IIII III 164 of 31 8 Chris C. Munoz Pueti OCtyClk &Rec ANN% AGR 156.00 D 0.00 the Property, or any portion thereof, in any special, metropolitan or other district, or any other special assessment area. V. UTILITIES (1) Services Except as provided in this Article V, effective upon annexation of the Property, City shall provide the same municipal services to the Property on the same general terms and conditions as the rest of the City receives. (2) Water Service The City acknowledges that Petitioner has a separate agreement with the Board of Water Works of Pueblo, Colorado and the Parties agree that raw water service for the Property shall be carried out pursuant to that agreement. (3) Other Utility Service and Connections Petitioner, through its internal operations at the Property, currently provides potable water, electricity service, and sanitary sewer service to its existing facilities at the Property ("Utility Services "). The City acknowledges and agrees that Petitioner may continue to provide such Utility Services to the Property. City agrees that Petitioner has the right, but no obligation, to tap into the City's sanitary sewer system. In the event that Petitioner requests to tap into City's sanitary sewer system, then the City will provide such service subject to and in conformity with the City's ordinances, rules and regulations relating to its sanitary sewer system and services, provided City will not be required to extend its sewer mains to the Property. Petitioner shall comply with all applicable City requirements for the installation of mains, lines, stations, and any other appurtenant sewer facilities in effect at the time of such request for sewer service. City acknowledges that Petitioner currently operates and maintains a stormwater retention and drainage facility on the Property ( "Stormwater Facility"). So long as (i) Petitioner continues to operate and maintain the Stormwater Facility on the Property, (ii) the Petitioner holds a stormwater discharge permit for the Stormwater Facility issued by the Colorado Department of 1644580 I IIIIII II II VIII IIil I 1 ll lll C IIIIIII 111 VIII I 156 .00 Page: 21 /20.00 31 :338 Public Health and Environment and complies with the requirements of such permit, and (iii) the Stormwater Facility is not connected to or discharging stormwater into City owned or managed stormwater facilities, City agrees that Petitioner shall not be in violation of City's stormwater utility ordinances (Chapter 12, Title XVI of the Pueblo Municipal Code) and as same may, from time to time, be amended ( "Stormwater Ordinance "). Notwithstanding the foregoing, Petitioner and the Property shall be subject to the stormwater utility service charges imposed pursuant to the Stormwater Ordinance. (4) Fire Protection Petitioner and the City agree that fire protection, hazardous material response, and emergency medical services for the Property through December 31, 2009 will be provided by the Pueblo Rural Fire Protection District ( "PRFPD ") pursuant to an existing agreement. Effective January 1, 2010, the City shall thereafter provide all fire protection, hazardous material response, and emergency medical services for the Property on the same general terms and conditions the rest of the City receives. The City further agrees that it will cause its Fire Department to participate in the periodic training sessions run by the PRFPD at the Facility so that the City's Fire Department is adequately trained (as of January 1, 2010) to provide the fire protection services required at the Facility. (5) Petitioner stipulates and agrees that it will not seek disconnection of the Property and waives its rights, if any, to do so under Section 31 -12 -119, C.R.S. based upon the City not providing (i) sanitary sewer services to the Property prior to Petitioner's request to tap into City's sanitary sewer system and Petitioner's extension of sewer mains to the Property, (ii) fire protection, hazardous material response, and emergency medical services for the Property prior to January 1, 2010, and (iii) stormwater services to the Property prior to Petitioner's request to connect to City's stormwater system and Petitioner's extension of City's stormwater system to the Property. 11111111111111111111111111111111111111111111111111111110 6445 �O33A Chris L. Munoz D 0.00 VI. COMPLIANCE WITH ORDINANCES Except as otherwise specifically provided in this Annexation Agreement to the contrary, the development, subdivision and zoning of the Property shall otherwise meet and comply with all applicable ordinances, resolutions, regulations, and standards of the City now existing or hereinafter enacted or amended. VII. BINDING EFFECT AND ENFORCEMENT (1) 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 the benefit of and be binding upon the City and Petitioner and their respective 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, subject to the provisions of Article XV. (2) If Petitioner defaults in any of its obligations under this Annexation Agreement, including, without limitation, payment of $13,000,000 required to be paid by Petitioner under Article XIV(1)(g) (the "Payment'), upon notice given to Petitioner specifying the default and, if the alleged default constitutes a matter other than making the Payment, providing a reasonable opportunity to cure the alleged default, City may pursue a remedy for specific performance, injunction or declaratory judgment or, if applicable, the enforcement and collection of the Payment and interest thereon. The preceding remedies shall be exclusive and in lieu of all other remedies available at law or in equity, including, without limitation, the recovery of damages of any type or nature. (3) If City defaults in any of its obligations under the Annexation Agreement, upon notice given to the City specifying the default and providing a reasonable opportunity to cure the alleged default, Petitioner may pursue a remedy for specific performance, injunction, or 1111111111111111111111111111111111111111111111111111111 6?4580 D 0.00 Chris C. Munoz Pueb1oCtyC1k&RscANNX AGR declaratory judgment or, if applicable, proceed to disconnect the Property under Article XII . The preceding remedies shall be exclusive and in lieu of all other remedies available at law or in equity, including, without limitation, the recovery of damages of any type or nature. (4) Venue in any and all actions and proceedings related to this Agreement shall be in the Pueblo County District Court or the federal courts in and for the State of Colorado, which courts shall have personal and subject matter jurisdiction for such purpose, and the parties hereto irrevocably submit to the jurisdiction of such courts. The Court in any such action shall award to the prevailing party its costs and expenses of litigation, including reasonable attorney fees. To the extent permitted by law, City and Petitioner waive their right to jury trial. VIII. AMENDMENTS Amendments to this Annexation Agreement may only be made by a writing executed by Petitioner and City and following 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. 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 PROPERTY RIGHTS (1) Since property rights may only be vested by the City pursuant to the provisions of Chapter 12, Title XVII of the Pueblo Municipal Code, Petitioner and the City hereby expressly acknowledge and agree that neither this Annexation Agreement (nor the corresponding approval of the amendment to the comprehensive plan authorizing the electric power generation facility as 111111111111111111111111111111111111111111111111111111111 164 of 31 8 Chris C. Munoz Pueb1OCtyC1k&Rec ANN% RGR 155.00 D 0.00 an approved use, or the Zoning, Subdivision, or Special Use Permit), either collectively, 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. (2) Notwithstanding the provisions of section (1) above, City expressly agrees that Petitioner and its successors and assigns shall have the vested property right to undertake and complete the development and use of the Property under the terms and conditions of the following after approval and issuance thereof by the City in compliance with City's ordinances, including, but not limited to, Chapter 12, Title XVH of the Pueblo Municipal Code, to -wit: (i) Zoning, (ii) Subdivision, (iii) Special Use Permit, and (iv) comprehensive plan amendment authorizing an electric power generation facility as an approved use, all of which shall collectively constitute a site specific development plan. (3) In light of all relevant circumstances, including, but not limited to, the long -term nature of the development and use of the Property and the extended periods involved in the incentive tax credits and exemptions with respect to the Property and Facility provided in Article XIV below, City agrees to an extension of the vesting period for the vested property right granted in section (2) above to a period of ten (10) years after the date Unit 3 becomes operational (as such term is defined in Article XIV below). (4) The establishment of such vested property right shall not, however, preclude the application of ordinances or regulations which are general in nature and are applicable to all property subject to land use regulations by the City, including, but not limited to, building, fire, plumbing, electrical, mechanical, water and sewer codes or ordinances. 1111111111111111111111111111111111111111111111111111111111 0644580 Chris C. Munoz Pueb1oCtyC1k &Reo ANN% RGR 156.00 D 0.00 XI. BUILDING PERMITS All matters relating to local building permits for Unit 3 and related facilities are administered by the Pueblo Regional Building Department. Therefore, all local building permit applications, processing fees or requirements for building permits shall be submitted by Petitioner to the Pueblo Regional Building Department. City will, at no out of pocket third party cost to City, cooperate with Petitioner in filing and processing its applications before the Pueblo Regional Building Department. X11. DISCONNECTION (1) Petitioner acknowledges and agrees that upon annexation of the Property into the City, the Property shall become subject to this Annexation Agreement, the Charter, ordinances and rules and regulations of the City. In the event that (i) after application by Petitioner and Petitioner's diligent effort to obtain same, Petitioner does not obtain the Approvals, as listed on Exhibit C hereto, within six (6) months after the effective date of this Annexation Agreement or within six (6) months after application is made for such Approvals, whichever is later; (ii) the vested property right granted by Section 2 of Article X or any material provision of Section 1 of Article XIV is determined to be invalid or unenforceable by a final decision of a court of competent jurisdiction; (iii) the City takes any final action in violation of any material provision of Article IV; (iv) the City takes any final action in violation of any material provision regarding vested rights as provided in Sections (2) and (3) of Article X; or (v) the City takes any final action inconsistent with any material provision of Sections (1), (3) or (4) of Article XIV or fails to take any action required of it under any material provision of Sections (1), (3) or (4) of Article XIV, then it is agreed that Petitioner shall have the right to disconnection of the Property from the City subject only to the following: Petitioner shall file a verified written petition with the City Clerk which states that one or more of the above conditions exist; promptly upon receipt of such petition, 10 CIIIIII Munoz IIIIII IIII ueoCtyC1k&Reo IIIIII II N IIIIII III 155 Page: 64458O33A ris the City Council of City shall schedule and provide notice to Petitioner of a public hearing; and, upon showing by competent evidence at the public hearing that any of the above conditions in fact exist, the City shall within one hundred twenty (120) days enact all measures necessary to accomplish such disconnection. For purposes of this Section (1), an action of the City shall be "final" ninety (90) days after the vote of the City Council of City thereon, without any requirement to appeal any decision of the City Council to the courts or any other venue for appeal. Notwithstanding the foregoing, if any of the above conditions in fact exist and the City takes all final and uncontested actions necessary or required to correct, remedy or remove such condition within ninety (90) days after the public hearing, the Property may not be disconnected; provided, however, that if Petitioner is not satisfied that City has taken all final and uncontested actions necessary or required to correct or remedy such condition prior to the expiration of said 90 -day period, Petitioner shall have the right to seek judicial review thereof without the necessity of filing a verified written petition with the City Clerk. (2) Except as otherwise provided in Section 4 of Article V, nothing in section (1) above shall waive or limit the right of Petitioner to exercise any other right it may have to disconnect the Property from the City pursuant to the provisions of Section 31 -12 -119, C.R.S., or any other statute or ordinance applicable to Petitioner and the City which now exists or may hereafter be enacted which authorizes disconnection from a home rule municipality. (3) Upon disconnection of the Property, whether pursuant to Ordinance of the City under section (1) above, or judgement from a court pursuant to section (2) above, the parties expressly acknowledge and agree that from and after the effective date of the disconnection, all zoning, permits, subdivisions, and other land use restrictions imposed upon the Property by, through or under the City shall thereafter be immediately null and void and the parties shall be 11 1111111111111111111111111111111111111111111111111111111 Page: 6412 of 31 R Chris C. Munoz Pueb1cCtyC1k &Rec PNNX RGR 156.00 D 0.00 released and discharged from all future obligations and liabilities under this Annexation Agreement. 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 PROVISIONS (1) Taxes. Incentives and Credits In accordance with Colorado Constitution; the Pueblo Municipal Code; the Pueblo City Charter; and the Colorado Revised Statutes, the parties agree as follows: (a) Definitions The following terms shall have the following meaning as utilized in this Article XIV and, except as otherwise limited below, throughout the balance of the Annexation Agreement: "Facility" shall mean, collectively Units 1 and 2, and Unit 3. "Operational" shall mean the date that Unit 3 is deemed by Petitioner or any regulatory agency with appropriate jurisdiction to be placed into commercial operation pursuant to standards published by the Federal Energy Regulatory Commission and Financial Accounting Standards Board applicable to electric power generation facilities. Petitioner shall notify the City in writing within twenty (20) calendar days after Unit 3 becomes Operational. 12 IIIIIIVIIIIIIIIIIIIIVIIIVIIIIIIIIIIIIIIIIIIIIIIIIII 06413 of 31 580 Q Chris C. Munoz Pueb1OCtyC1k &Rec QNNX RGR 156.00 D 0.00 "Property Taxes" shall equal the City's applicable mill levy rate multiplied by the assessed valuation of the real and personal property comprising Unit 3 as defined below ( "Property Taxes "). "Shared Facilities" shall generally mean the shared real and personal property on the Property that City and Petitioner mutually agree are utilized in connection with the operation and maintenance of Units 1 and 2, and Unit 3. The parties acknowledge that Shared Facilities will be utilized in connection with the operation of the entire Facility, but may not be capable of being specifically and exclusively allocated as part of either Units 1 and 2 or Unit 3. As such, the parties agree that for purposes of this Annexation Agreement: (A) one hundred percent (100 %) of all Shared Facilities located on the Property on the effective date of this Annexation Agreement shall be allocated to Units 1 and 2, and one hundred percent (100 %) of all modifications, additions and improvements to the Shared Facilities needed or required for the construction or operation of Unit 3 made after the effective date of this Annexation Agreement shall be allocated to Unit 3; and (B) Shared Facilities shall specifically mean: (i) the coal handling system and storage necessary to support coal handling operations including the rail and rail cars; (ii) the raw and waste water piping, storage and treatment systems necessary to support intake and discharge operations including the water system for fire protection; (iii) the ash disposal handling and storage systems necessary to support all ash handling operations; and (iv) a shared maintenance warehouse to be built primarily for Unit 3. "Units 1 and 2" shall mean collectively (i) all real and personal property utilized in connection with the operation and maintenance of the electric power 13 III IIII IIII I II I II IIII IIIIII II II III II III 064458O33A Chris C. Munoz PuebloCtvClk &Rec RNNX RGR 156.00 0 0.00 generation facilities and accompanying solid waste disposal site located on the Property as of the effective date of this Annexation Agreement or thereafter installed or acquired for use in such existing facilities, and (ii) one hundred percent (100 %) of all Shared Facilities located on the Property as of the effective date of this Annexation Agreement. "Unit 3" shall mean collectively (i) all real and personal property utilized in connection with the construction, operation and maintenance of the proposed new 750- megawatt electric power generation facilities with accompanying solid waste disposal site located on the Property installed or acquired for use in the new facilities after the effective date of this Annexation Agreement and (ii) one hundred percent (100 %) of all modifications, additions and improvements to the Shared Facilities needed or required for the construction or operation of Unit 3 made after the effective date of this Annexation Agreement. The parties agree that Unit 3 is a "new business facility" as such tern is defined by C.R.S. §39- 22- 508.2, and that Unit 3 is within an "enterprise zone," as such term is used in Title 39, Article 30 of the Colorado Revised Statutes. (b) Pronertv Taxes During Construction of Unit 3 Subject to the provision of subparagraph (d) below, for the period from the effective date of this Annexation Agreement through the property tax year in which Unit 3 becomes Operational, the City shall provide Petitioner with an annual incentive property tax credit equal to 100% of the Property Taxes. (c) Property Taxes After Construction of Unit 3 Subject to the provision of subparagraph (d) below, for the ten (10) year period following the property tax year in 14 11111111111111111111111111111111111111111111111111111111 Page: 6415 of 31 a Chris C. Munoz PUeb1OCtyC1k8,Rec ANN% AGR 150.00 D 0.00 which Unit 3 becomes Operational, the City shall provide Petitioner with an annual incentive property tax credit equal to fifty (50) percent of the Property Taxes. (d) Annual Property Tax Credit The obligation to provide the annual incentive property tax credit set forth in subparagraphs (b) and (c) above is subject to the following (i) approval of each annual incentive tax credit by the City Council of City, (without any liability to the City for failure to do so, except, that such failure, together with a failure to issue a refund under subsection (f) below, shall allow Petitioner to disconnect pursuant to Article XII above), and (ii) the annual credit shall be structured, granted and implemented in such a manner that the credit and the amount thereof shall not be or be construed to be City's fiscal year spending or revenue or a multiple - fiscal year direct or indirect City debt or other financial obligation whatsoever under the provisions of Article X, Section 20 of the Colorado Constitution. In each year the City Council approves the credit described in (b) or (c) above, the City Council of the City will transmit written notice of its approval of such credit as part of its annual certification of its mill levy to the Board of County Commissioners of Pueblo County, Colorado. Petitioner shall annually comply with Section 39 -4 -103, C.R.S. and thereafter the actual value as determined by the administrator shall be apportioned pursuant to Section 39 -4 -106, C.R.S. After apportionment, City and Petitioner agree to cooperate in good faith with the Pueblo County Assessor and/or the Pueblo County Treasurer to structure, grant and implement the annual incentive property tax credit and the amount thereof so that the credit and amount thereof shall not be or be construed to be City's fiscal year spending or revenue under the provisions of Article X, Section 20 of the Colorado Constitution. (e) Refund hi Lieu of Annual Property Tax Credit If the annual incentive property tax credit cannot be structured, granted and implemented as set forth in (d) above, 15 ge: 16 of 31 VIII II II III I IIII I II I I III III III II III II II 064458033A Chris C. Munoz Pueb1OCtyC1k4Rec ANN% AGR 156.00 D 0.00 and City receives the full amount of Property Taxes without deduction for the annual incentive property tax credits described in (b) or (c) above, City, subject to the provisions of subparagraph (f) below, will annually refund to Petitioner an amount equal to the annual incentive property tax credit described in (b) and (c) above. (f) Annual Refund The obligation of the City to pay or make any annual refund described in (e) above is subject to the following: (i) City's receipt of the full amount of Property Taxes without deduction for the annual incentive property tax credit described in (b) or (c) above for the year of refund, (ii) funds being annually appropriated and budgeted by the City Council of City for purposes of each refund, (without any liability to the City for failure to do so, except that such failure shall allow Petitioner to disconnect pursuant to Article X11 above), and (iii) each annual refund and the amount thereof is intended to be a refund of property tax revenue generated by or attributable to Unit 3. If City has excess revenue in any fiscal year under the provisions of Article X, Section 20 of the Colorado Constitution identified and attributable to property tax revenue or other revenue generated by Unit 3 and received by City in such fiscal year ( "Unit 3 Excess Revenue "), that portion or all of the refund for such fiscal year in an amount not to exceed the Unit 3 Excess Revenue shall be and be construed to be a refund of Unit 3 Excess Revenue under Article X, Section 20 of the Colorado Constitution for that fiscal year. The parties stipulate and agree that the refunds provided for herein and in (e) above do not create nor constitute a multiple -fiscal year direct or indirect City debt or other financial obligation whatsoever under Article X, Section 20 of the Colorado Constitution. (g) Payment In Lieu of Sales and Use Tax Petitioner shall pay to City a single, lump sum payment in lieu of sales and use taxes related to the construction, installation and acquisition of Unit 3 in the amount of Thirteen Million Dollars ($13,000,000.00) (the T 1644580 Chris C. Munoz VIII VIII III II IIII VIII 1 lil l lll III III IIIIII III III6 00 Page; 21 /2 11 :33A 00 "Payment "). Such Payment shall be due and payable sixty (60) days after the later of the following to occur: (i) final (and uncontested in a court of competent jurisdiction) ordinance adopted by the City Council approving the annexation of the Property to the City; or (ii) the date Petitioner commences construction on Unit 3. For purposes of this subsection (1) "the date Petitioner commences construction on Unit 3" means the date excavation begins on the first foundation for the balance of plant within the Unit 3 construction fence area or one hundred eighty (180) days after the effective date of this Annexation Agreement, whichever occurs first; provided, however, that if Petitioner is legally prohibited from constructing Unit 3 by injunction or other court order ( "Order ") entered at any time prior to the date excavation begins on the first foundation for the balance of the plant within the Unit 3 construction fence area and before the expiration of said 180 -day period, the date Petitioner commences construction on Unit 3 will be deferred until the Order is dismissed or resolved to permit the construction of Unit 3 by a final, non- appealable order or judgment issued in such litigation, or the dismissal of the litigation, with no further right of appeal, and (2) "balance of plant" means Unit 3 excluding smokestack and air quality control systems. Petitioner shall notify City in writing within twenty (20) calendar days after the date Petitioner commences construction of Unit 3. If not paid when due the Payment shall accrue interest at the rate of eight (8) percent per annum until paid in full. Upon the occurrence of (i) and (ii) above, Petitioner's obligation to make the Payment within sixty (60) days thereafter is absolute and unconditional and shall not be offset, abated, reduced or withheld for any cause or reason whatsoever. Upon payment of the Payment to the City, the Payment shall be irrevocable and nonrefundable for any cause or reason and shall be kept and retained by the City notwithstanding the 17 I 164 IS of 31 R Chris C. Munoz Pueb10Ct YC1k8.Rec ANN% AGR 156.00 D 0.00 disconnection of the Property or any other provision of this Annexation Agreement to the contrary. (h) Sales and Use Tax Exemption The City hereby acknowledges that the existence of Ordinance No. 7347 amending Chapter 4 of Title XIV of the Pueblo Municipal Code granting an exemption for sales and use tax on tangible personal property purchased for use in the initial construction and equipping of a new 600 or more - megawatt electric power generation facility constructed on or after January 1, 2005 ( "electric power generation facility ") and providing that such exemption applies for a period of ten (10) years after such an electric power generation facility becomes operational for sales and use taxes on tangible personal property stored, used or consumed in the maintenance, repair, refurbishing, remodeling, substitutions, relocation, or replacement of such an electric power generation facility, or any part thereof, was a material factor in the decision by Petitioner to annex the Property into the City. As such, City hereby covenants and agrees that so long as the Property remains annexed to the City it will not for a period of ten (10) years after Unit 3 becomes operational undertake any action to amend, modify or repeal the exemptions granted under Ordinance No. 7347 as they apply to Unit 3. Immediately after the effective date of the Ordinance and this Annexation Agreement, the City will issue an exemption certification that Petitioner may provide to all contractors, vendors, suppliers and other agents employed or working in connection with the construction, operation or maintenance of Unit 3 to ensure that no sales or use taxes are collected or paid on tangible personal property used or purchased for Unit 3 contrary to the exemptions granted under the foregoing Ordinance. (i) Exclusion from Sales and Use Taxes The City hereby acknowledges and agrees that the purchase and sale of coal, steam and water for use in electric power M 1111111111111111111111111111111111111111111111111111111111 Page: 6419 of 31 Q Chris C. Munoz PuebloCtyClk8Reo RNNX RGR 156.00 D 0.00 generation at or from the Facility are and will be considered exempt from City sales and use taxes; except coal, steam or water used for lighting or space heating in such operations as measured by metered house electric power shall not be exempt. (j) Solid Waste Disposal Exclusion The City acknowledges that the existence of Ordinance No. 7265, amending Chapter 12 of Title IV of the Pueblo Municipal Code exempting facilities disposing nonhazardous solid waste generated on -site in compliance with Colorado Department of Public Health and Environment Solid Waste Regulations from the City's Certificate of Designation requirements was a material factor in the decision of Petitioner to annex the Property into the City. As such, the City hereby covenants and agrees that so long as the Property remains annexed to the City it will not undertake any action to amend, modify or repeal the exemption granted under Ordinance No. 7625 as it applies to the Property. (k) No Incentive Tax Credit or Exemption for Units 1 and 2 Notwithstanding any provision contained in this Annexation Agreement to the contrary or which may be construed to the contrary, no incentive tax credit or exemption is or shall be granted for (i) sales and use tax upon tangible personal property used or purchased for use in Units 1 and 2, and (ii) real or personal property tax attributable to Units 1 and 2. (1) Consistent with Article XVI(3) of this Annexation Agreement, the tax incentives and credit benefits provided to Petitioner by this Annexation Agreement shall also inure to the benefit of any of Petitioner's assigns, including assigns who may participate in the development and operation of Unit 3. (2) Environmental Acknowledgment Petitioner will comply with its obligations under the Comprehensive Settlement Agreement executed as part of the public hearings before the Public W, V1111111111111111111 Page: 6420 of 31 R Chris C. Munoz Puebl OCtyClk&Rec ANN% AGR 156.00 D 0.00 Utilities Commission as well as other applicable federal and state environmental laws, rules and regulations in the operation of the Facility. (3) Noise. The City has adopted noise regulations, currently codified as Sec. 11 -1 -607 of the Pueblo Municipal Code (as now or hereafter adopted the "City Noise Ordinance'). The Facility is also regulated by state noise regulations, currently codified as Section 25 -12 -103, C.R.S. (as now or hereafter adopted the "State Noise Statute "). hi order to promote certainty and consistency in the regulation of noise at the Facility, the City hereby agrees, that notwithstanding provisions of City Noise Ordinance which may be interpreted to the contrary, the Facility will not be in violation of the City Noise Ordinance so long as it is in compliance with the State Noise Statute. (4) Further Actions to hnrolement Intent of Provision If any provision of this Annexation Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination shall not affect the remaining provisions of this Annexation Agreement, provided, however, Petitioner and City agree that they will at the request of the other party execute and deliver such documents and further instruments, and take such other lawful actions as may be reasonably required and necessary to effectuate the purpose and intent of such provision of this Annexation Agreement determined to be invalid or unenforceable. XV. EFFECTIVE DATE This Annexation Agreement shall become effective on the date City Council of City approves by ordinance the annexation of the Property to the City. XVI. 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: 20 VIII II II V I I I IIII III I I III VIII V III 064 of 31 Q Chris C. Munoz PuebloCtyCik&Reo ANN% PGR 156.00 0 0.00 (a) if to the City: Department of Public Works - City of Pueblo 211 East 'D" Street Pueblo, Colorado 81003 Attention: Director of Public Works (b) if to the Petitioner: Xcel Energy 550 15th Street, Suite 700 Denver, Colorado 80202 -4256 Attention: Manager Siting and Land Rights 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 Petitioner and their respective successors and assigns 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 and their respective successors and assigns, including parties who may participate in the development and operation of Unit 3 and to whom Petitioner assigns certain of the rights and benefits set forth in this Annexation Agreement. No assignment of any interest in this Annexation Agreement by Petitioner shall relieve Petitioner of any of its obligations hereunder. (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 21 1 111111 VIII IIIIII IIII 1111111111111111111111111111111111111 Pa ge: 6422 of 31 R Chris C. Munoz Pueb1OCtyC1k&Rsc ANN% RGR 156.00 D 0.00 Annexation Agreement are merged in this Annexation Agreement, which constitutes the entire agreement between the parties. (6) Confirmation Statements The City hereby agrees that it shall, from time to time within sixty (60) days after written request from Petitioner, deliver to Petitioner, or Petitioner's designee, a certificate or other written statement (in form sufficient for recording) evidencing that Petitioner has performed its obligations under this Annexation Agreement or specifically itemizing those items which remain outstanding, as well as confirming such other factual matters (if true and correct) pertaining to this Annexation Agreement as may be requested by Petitioner. This .Annexation Agreement is executed effective as set forth in Article XV. tloa�e, n PUEBLO, a Municip Co ati ATTEST.' z Cit . rk President o e City Coun9 APPROVED AS TO FORM: City Attorney PETITIONER: Public Service Company of Colorado, a Colorado corporation Title: 22 tIII 1644580 '- I MI IIII IIII 1 IIII ` IIIIII III �I III III 00 Pa 21 / 2 0 0 00 1 113341 STATE OF COLORADO ) ) ss. COUNTY OF PUEBLO ) The foregoine instrument was acknowledged before me this day o , 2005, by Ro t n _ S h i 11 i nT, _jyV President of City Council and Gina Dut her as City Clerk of Pueblo, a Municipal Corporation. .,,.,,Witness my hand and official seal. " 'vlxolpmissiol �F.0040 �,,•, z v,..• un STATE OF � � D expires: j �p,C�( o /0 No ary Public COUNTY OF j e +"-+- j ss. The foregoing instrument was !cl befoF� me 2005, by 6";4 A u) , 1 K 5 as V i e e_ Company of Colorado, a Colorado corporation. Witness my hand and official seal. My commission expires: 7 13 - 0 8 � s 1 day of `l / " res i den -• of Public Service [SEAL] el o k Notary Public Y � d► Ot�R /• 23 EXHIBIT A TO ANNEXATION AGREEMENT COMANCHE LEGAL DESCRIPTION COMANCHE PHASE 1 LEGAL A parcel of land located within the West one -half of Section 20, Township 21 South, Range 64 West of the 6 Principal Meridian, in the County of Pueblo, State of Colorado, being more particularly described as follows: Beginning at the Northwest comer (found monument is a 3 ''/4" aluminum cap, L.S. #33651) of Section 20, Township 21 South, Range 64 West; 1. Thence S 89 23' 07" E, along the North line of said Section 20, a distance of 2,649.81 feet (Existing City Limits Line); 2. Thence S 00° 38' 19" E a distance of 4,573.57 feet to the beginning of a non - tangent curve to the right having a radius of 510.66 feet; 3. Thence along the arc of a curve to the right, through a central angle of 83° 41' 28 ", a distance of 745.91 feet whose chord bears S 41° 48' 54" W a distance of 681.35 feet; 4. Thence S 89° 07' 25" W a distance of 2,188.00 feet to a point on the West line of said Section 20; 5. Thence N 00° 39' 11" W, along the West line of said Section 20, a distance of 5,143.32 feet to the Northwest comer of said Section 20 and the Point of Beginning. Said Parcel contains 3 09.3 8 acres, more or less. COMANCHE PHASE 2 LEGAL A parcel of land located within the East one -half of Section 20 and the East one -half of Section 29, Township 21 South, Range 64 West of the 6 Principal Meridian, in the County of Pueblo, State of Colorado, being more particularly described as follows: Beginning at the Northwest corner of the East one -half of said Section 20 from which the Northwest comer (found monument is a 3 ' /d' aluminum cap, L.S. #33651) of Section 20, Township 21 South, Range 64 West bears N 89° 23' 07" W a distance of 2,649.81 feet; 1. Thence S 89° 23' 07" E, along the North line of said Section 20 to a point on the Westerly Right of Way line of Lime Road, a distance of 2,499.99 feet; 2. Thence S 05 29' 27" E, along said Westerly Right of Way line, a distance of 900.07 feet; 3. Thence S 0P 0V 28" E, continuing along said Westerly Right of Way line, a distance of 1,633.62 feet; 4. Thence S 00 42' 35" E, continuing along said Westerly Right of Way line, a distance of 2,715.65 feet; 5. Thence S 47° 10' 53" W a distance of 38.94 feet; 6. Thence N 89° 41' 56" W a distance of 404.78 feet; 7. Thence S 07 26' 55" E a distance of 15.38 feet; 8. Thence S 89° 26' 55" E a distance of 28.87 feet; 9. Thence S 36° 33' 00" W a distance of 3,635.24 feet; 10. Thence N 00° 26' 18" W, to a point on the South line of said Section 20, a distance of 2,941.46 feet; V 064 24 of 31 Q Chris C. Munoz PUeb1OCtyC1k4Reo ANN% AGR 156.00 D 0.00 11. Thence N 00° 3 8' 19" W a distance of 717.15 feet; 12. Thence N 00° 38' 19" W (Existing City Limits Line) a distance of 4,573.57 feet to the Point of Beginning. Said Parcel contains 386.64 acres, more or less. Both Parcels (COMANCHE PHASE 1 and COMANCHE PHASE 2) together contain 696.02 acres, more or less. BASIS OF BEARINGS Bearings are based on the North line of Section 20, Township 21 South, Range 64 West, from the Northwest comer (found monument is a 3 %4 aluminum cap, L.S. #33651) to the Northeast corner (found monument is a 3 ' / 4" aluminum cap, L.S. #33651) to bear S 89 23' 07" E. For and on Behalf of Public Service Company of Colorado Dennis R Pirtle, PLS 33651 Abel Engineering Professionals, Inc. 102 South Oneida St, Pueblo CO 81003 644580 1111111111111111111111111111111111111111111111111111111 00 33A D 0.00 IIIIIIIIIIIIIIIIIIIIIII III III VIII IIIIIIIIIIII 164 of 31 11:33A Chris C. Munoz PuebloC[yC1k&Rec ANN% AGR 155.00 D 0.00 Exhibit B 7U peicy a poidea b b kXUW 10 codalo WAmpdm to Ow falm 6w a" Op nna one apo w of to da mmildwdam aftha Cato". 1. Rights erranionscdpudampowwammt6ombyth epublicsenoras, I Eaaameas, a cleans ofeauommfi, mt eheanbythe poblio ncarda 3. 11; wW=oies, conflicts in bamdary k^ dome a in area, maosc3mm% or mW facb, vAemb a correct aurvery sad a,epedion of dto pnxdsa world d~sotcae; and which ate not ahean by the public rasorda 4. Any Han, or right to alien, Ow son WoA labor or nwarial he rdabe or b railer fmniahed, imI O by laws andnot dxwm bydw p Micreeada. 5. DdooK limo emvambcuwm adverse chaos or other matt& if any, oveabd Ent appom ing to public mom& or aging mbwgamt to the effoo4ive dab Meat' but prior to do dab the prapossd ionued acgmita ofreoo rd for valmthe cow or interest or nwdpge dmw wmvd by this ccmtnimoai. 6. Uhpambd mining dam4 raatvatiom or eaepticw m patent; or an amt a r&mzimg the issuame t mac water rigbt4 daims or ticto to vvator. 7. PaymmtcfallUm and mwmnwb mffwdy due awl piryablo,ifany S. Eaeazats for public uti *e% 4mwage, ampere, and odrer purposes as mbo m on the recorded wWwaicn plat 9. Title to all mortals wsttlm and underlying to pnmisaq togdher wllh all miming and drilling rigtds sad odwr rigb% privilege and odes` imm midim relaaag thereto. 10. Any and all moating roads, higwvmye, ditdhea, csW4 m vcim wdl1 raihoad tadu4 pipdiam water lines, power lima, telephone lines, and any and all rigbb ofway or mow obthaefore. 11. Anyand all Im es and tmeoe a. 12, bdW me dated Dwmtw 1, 1939 by and botwom Public Service company of Colorado to Guara dy TmstCcv4m nyofNawYmk, tanatw mom" March 15. 1946 in Book 15M at Page 911, 13. Supplemaial Inds m darted May 1, 1966 by and bevA= Public Striae Compeapr of Colorado to Morgan th aWy Rod Company of New Y414 Rabe ceoatded May 27,1966 m Hook 1596 at Page 317. 1111111111111111111111111111111111111111111111111111111 164 of 31 q Chris C. Munoz PuebloCtyClk4Rec ANN% RGR 156.00 0 0.00 14. SupplamamW Indenbde dated Fobnbxy 1;1971 b 4nd bdwerh Pubftc Sarvica CompavycfCalcra b b Main 13ustudy Tmd Company of Nov York ttw too moordd Fabm uy 18,1971 is Hoak 1685 at Aye 620. 15. btitpplemental ldentu a dated June 1, 1973 by said between A& Savioe of Colorado io Mogan Gamely Tmst CwVeny of New York, tnt" molded June 18, 1973 m Bock 1752 at Page 536. 16. Supplemental bdmbm dated Much 1, 1974 by and between Public Service Cm pay of Cd crado to Mdgam Qumssdy Tmst Camp my cf Naw Yolk, trustee mdadad Match 1, 1974 m Book 1779 at Page 489. 17. SuRi mmtat lndentum dated Oduber 6, 1973 by and bdwem Atblic Suvioa Company afCCorado b MmW Qwmdty Trust Camptmy of Nov Yalta; trustee madded Nwember 6, 1973 is Bock 1829 at Page 08. 18. Suppbtmmial badmtute dated November 1, 1977 by and between Public Service Campsny of C crab ID Mogan Guxrsuly Twat Company afNewYmk, trudw rocarded Downber 1% 1977 is Bodo 1914 at Page 503. 19. Supplemental Indmtiim dated March 1, 1985 by and between Public Service Cmvmy of Cdorado b Morgan Guar my Trust Campeny of Nov York, trustee tecerded Jane 03, 1983 m Book 2244 at Page 407. 20. SapocramW Wmal a dated November 1. 1986 by and between Public Service Company of Colorado b Morgan Guaranty Trust Cmtpany of New Yolk, tmetee r maW Much 27, 1987 m Bock 2339 at Page 500. 21. daiad tkaaber.l, 1993 by "between Public Service Company of Cdatado b Morgan GuarantyTmetCampany ofNow York, tiudoamaarded Odobw 12,1993 m Book 2685 at Fags 768. 22. Mamaaadum of 1ndmam detedMay 23,1996 atad moor" May29,1996 in Bock 2895 9OW 230 23. Sti"Wnmtsl Inds tm& tad May 1, 1996 by and bdm m Public SwAmCempany OfCaioradobFula Trust ofNew Yod4 NA, trndw recarded Jelly 11, 1996 is Bock 29M at Page 5%. 24. SuR* moatallndeot rue& dad May 1, 19% by and bdwamPublieServimCampmWefColoruk +toFit tst Trust dW&wYadk, NA, ttudw mmff&d July 11, 1996 in Book 2909 at Page 634. 25. Memm=damt ofItdeanuedated Ju o0 21, 2000 and remnied Jane23, 2000 at ReoeplimNo.1339007, 26. Sopplan ulal Indenture dated August 15, 2002 by and between FWAc Service Company ofGblarada b U.S. Bank Tz"Nadodd ArdssOau, trustee to - o Ind September 13, 2002 at Rwopdw No.14$8702. 27. SupplammW bdmtiue doted Auglad 15, 2002 by ud between Public Service Campanyaft^olanub b U.S. Bank TmdNaticoal Assmadon , ttudeo recorded September 13, 2002 atRaogdm No.1458703. III IIII IIII I II II II IIII IIIIII II II III II III 064458033A Chris C. Munoz PuebloCtyClk &Rec ANN% AGR 156.00 D 0.00 28. Resw aliens fN Lease Agnxmmt contained m Warranty Dead to Pubhc Setvrce Company recur" March 4 1975 in Book 1807 at Pegs 196. ("K"j 29. The Use and hfiWmanw of ftomeutr ocotained m Wwrawy Dad tD Public SetvIw Company reoadadMwvh5,1993 inBook2642atPage681. 30. VA Deed and Laasc Agraemant byaadbatvrem CF & I Slam a d Union PaciSaltailroad Comp ny lwxM Odobar 22,1985 in Book 2312 atPage724. (-L-) 31. Right cf Way A* *aPbablo And Souftm Railroad Company as aU $Yffi on Daa0 reowded Fabrauy 18,. 1911 in Book 346 at Page 284. 32. The right of a prapridor of a vain of loch to admat or rmooln his ace ffiero&om, should the am be fiamd 16 inierseot or pandcato the subject p Warty, as reserved in United SW= Patartrecorded AM in Book 305 at Page 184. 33. The Use and MakUnance of and the Fasmrent granted to Public Service Company ofColwtdo mcaded May 19,1971 in 1691 at Page 811. ("M') 34. SMic oaaial FasemeutrecottW Daow9w 16,1994 in Book 2774 at Page 512. M& M') 35. Oil & Ow WSW contained in Special Warranty Dads rwwded tame 15, 1988 in Book 2401 at Page 564 and roomled July 28,1999 in Book 2407 at Pap 90 36. Mmead Dead convoyed to Kenoath M Hodgm twos" June 15,1988 in Book 2401 at Page 5%. 37. Monad Daed conveyed to Aldmse Ranch Ltd, recorded Juno 15, 1998 in Book 2407 at Page 97. 38. 00 & Ou Rigkls contained in Dead io Colorado & Utah Lard Company rooasded December 17,1982 in Book 2139 at Page 626. (°N"j 39 ftwoawta greened to Carnal Tdephoos and Utilities Corporation mootded Oolobw 2D, 1977 in Book 1907 at Page 188, at Page 192 cad at Page 197. CV) 40. Any sasawant aagaimd by Public Sav= Company of Colon& by lie Paudms reoordad August 25, 1971 in Book 1698 at Pap 964. 41. Tama, agreamade, p vvisioos, conditions and obligatima contained in Lem Agaaemrvt moarded October 22, 1996 in Book 2312 at Pegs 727. 42. NWoe of D4WP by C F & 1 Steel +Co[paation 4s topired by CM 1007-3, wokon 261.119 tooatdod F&nwy 14,1992 in Book 2578 at Page 220. 43. Tams, agreements, pwWolo r, cooftow and obligations contained In S2ppianwal Agmanent moonW Siapha bar 12, 1955 in Bo* 1278 atPage353, 111�1111111 I I III 164 o 31 R Chris C. Munoz PuebloCtyClk &Rec RNNX RGR 156.00 D 0.00 44. Fils®cat Agro®mt pwftd to ffia Cdorado & Wyamb* Railway Campmy and CF & I Stad Corperatica sounded July 30,1971 in Hoak 1697 at Page 100. NOTE: Trustee's Dead muvrrymg easement io Puhlio Saeviee Company of Cdarado mootdad Mardi 5, 1993 in Book 2642 at Page 691, 45. Besemeat granlad to U** Pacific Railroad C,omPwymooeded October 22,1966 in Hook 2312 at Page 724. 46. Quit Chum Dmd fra n The County of Pueblo to Public Service Caaapeay of Colorado recorded ApiI 9, 1971 in Hook 16294t Page 192. (" N" ) 47. Reservations, cand boas and mmepfiem omtained m Deed 8om Colorado Utah Load Company to PUBLIC SSRVIC E COWANY OF COd ORADO reoa<de'Mach 5, 1991 in Bodo 2642 at Page 674. 49. Any tide, intaeek right or daims adverse to file vesteca herein auadag or claimed to emiet by seam of the fact that aW portion ar pardons ofaaid land weaowar at any have been below thoaaliaaryhigh wets mark ofthe St Chmies River or by mason ofthe Stat or claim tort any portion or potions lbarcof bavc bem formal, created, built up, uncovacd, ratdereed monavigable or joined to aoodret pomm ofsaid land or brought Whin ono hannd.rics of said land by avul iao, or by sudden or rapid damage or by any odurdannanaal can= orbovebomflamedbyaccrobwto may much pwhmarpwboaL K"j 49. Lady of aright of socess to and from rho Lend. The mowing pravisim as to aooees is hrday deleted. 50. Tide lying within boundaries ofComsnohe Road. IIIIII VIII IIIIII IIII VIII VIII IIIIIII III IN 111111111 e64 of 31 Q Chris C. Munoz Pueb1nCtyC1k&Rac ANN% RGR 156.00 D 0.00 EXHIBIT C LIST OF REQUIRED PERMITS AND APPROVALS Final, fully executed (by all parties thereto), and uncontested agreement with the Board of Water Works of Pueblo, Colorado for the supply of raw water to the Property; The final and uncontested Zoning of the Property in accordance with Article III(2) of this Annexation Agreement with extended vested rights pursuant to Article X, Sections (2) and (3) of this Annexation Agreement; The final and uncontested Subdivision of the Property in accordance with Article III(1) of this Annexation Agreement with extended vested rights pursuant to Article X, Sections (2) and (3) of this Annexation Agreement; A final and uncontested Special Use Permit in accordance with Article III(2) of this Annexation Agreement with extended vested rights pursuant to Article X, Sections (2) and (3) of this Annexation Agreement; The final and uncontested Ordinance adopted by the City Council of the City of Pueblo, Colorado amending Chapter 12 of Title IV of the Pueblo Municipal Code exempting facilities disposing of nonhazardous solid waste generated on site in compliance with Colorado Department of Public Health and Environment Solid Waste Regulations from the City's Certificate of Designation requirements; The final and uncontested Comprehensive Plan amendment pursuant to Article II1(2) of this Annexation Agreement with extended vested rights pursuant to Article X, Sections (2) and (3) of this Annexation Agreement; All final and uncontested demolition, grading, and/ or construction (or building) permits, if any, necessary and required by the Pueblo Regional Building Department to commence construction of Unit 3 and related facilities necessary and required to commence construction of Unit 3; All final and uncontested PSD (Prevention of Significant Deterioration) Regulation #3 construction permits for the Facility from the Colorado Department of Public Health and Environment necessary and required to commence construction of Unit 3. Any final and uncontested permits and/or fully executed agreements necessary or required by Pueblo County or any other govemmental (or quasi - governmental) entity with jurisdiction thereof to provide access to Unit 3. The foregoing are collectively referred to as the "Approvals." The term "uncontested" as used herein means that no appeal, action, lawsuit or other claim (collectively, a "Claim') has been asserted or filed in a court of competent jurisdiction or with any body with appropriate jurisdiction within the applicable appeal period after the occurrence or granting of any such Approval but in no event later than one hundred eighty (180) days thereafter. Notwithstanding the foregoing, if a Claim has been timely filed or asserted, then the Approval 1111111111111111111111111111111111111111111111111111111 I 0 64 31 of 31 a 6.00 0 0.00 shall only be considered "uncontested" when such Claim is dismissed or resolved to uphold the Approval sought by or previously granted to Petitioner by a final, non - appealable order or judgment issued in such litigation or proceeding, or the dismissal of the litigation or proceeding, with no further right of appeal.