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HomeMy WebLinkAbout07896Reception 1787989 11/12/2008 ORDINANCE NO. 7896 AN ORDINANCE ANNEXING THE AREA COMMONLY KNOWN AS THE VESTAS ANNEXATION A AND DESCRIBED AS LAND EAST OF INTERSTATE 25 AND SOUTH OF THE CURRENT CITY LIMITS 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: 1. AREA TO BE ANNEXED A portion of the SE % of Section 35, Township 21 South, Range 65 West of the 6 th P,M. in the County of Pueblo, State of Colorado and being more particularly described as follows: Beginning at a point on the Easterly right -of -way line of Colorado Interstate No. 25 as presently located said point also being on the Northerly line of the SE ' / 4 of Section 35; thence S. 89 0 42'11" E., along the Northerly line of the SE '/4 of said Section 35, a distance of 130.00 feet; thence S. 00 °17'49" W., a distance of 103.43 feet; thence N. 89 0 42'11" W., a distance of 135.52 feet to a point on the Easterly right -of -way line of said Colorado Interstate No. 25; thence N. 03 0 21'00" E., along the Easterly right -of -way line of said Colorado Interstate No. 25, a distance of 103.58 feet to the Point of Beginning. Containing 0.32 acres, more or less. 2. PROPOSED NEW CITY LIMITS LINE: Commencing at a point on the Easterly right -of -way line of Colorado Interstate No. 25 as presently located said point also being on the Northerly line of the SE % of Section 35; thence S. 89 °42'11" E., along the Northerly line of the SE '/4 of said Section 35, a distance of 80.11 feet to the Point of Beginning and the Present City Limits line; thence S. 89 0 42'11" E. continuing along the Northerly line of the SE '/4 of said Section 35, a distance of 49.89 feet; thence S. 00 0 17'49" W., a distance of 103.43 feet; thence N. 89 0 42'11" W., a distance of 135.52 feet to a point on the Easterly right -of -way line of said Colorado Interstate No. 25; thence N. 03 0 21'00" E., along the Easterly right -of -way line of said Colorado Interstate No. 25, a distance of 103.58 feet to the Present City Limits line and the Point of Terminus. 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. 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 5 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). 1788g 2 7989 ORO 11/12/2008 03:41:11 PIS Gllberl Ort 3 C1erk1Reoorder0 Pueblo l blo Cou Co ■III KIFI MlNA'h411'4 Ih'al�N �'r�IkI�GI IiIIZ�lY4rh ®III I f 1787989 ORD 11/12/2008 03:41:11 PM ` Pa 3 of 3 R 16,00 D 0.00 T 16.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Co SECTION 6. ®III MI "I M 11111AtfrJ'fAMWW,wilih& 11 111 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, 2009. , INTRODUCED September 22 2008 BY: Randy Thurston y COUNCIL PERSON R� 4 t z APPROVE � PRESIDENT OF CITY COUNCIL 0 CLERK PASSED AND APPROVED: October 14, 2008 Background Paper for Proposed ORDINANCE AGENDA ITEM # 45 DATE: SEPTEMBER 22, 2008 DEPARTMENT: PLANNING AND COMMUNITY DEVELOPMENT JERRY M. PACHECO, DIRECTOR TITLE AN ORDINANCE ANNEXING THE AREA COMMONLY KNOWN AS THE VESTAS ANNEXATION A AND DESCRIBED AS LAND EAST OF INTERSTATE 25 AND SOUTH OF THE CURRENT CITY LIMITS AND APPROVING AN ANNEXATION AGREEMENT RELATING THERETO ISSUE Shall City Council approve the proposed annexation of property that is located east of Interstate 25 and south of the current City limits? RECOMMENDATION The Planning and Zoning Commission, at their September 10, 2008 Regular Meeting, voted 5 -0 to recommend approval. BACKGROUND The Vestas Annexation A is a 0.32 -acre portion of the larger 842.33 -acre Vestas Towers America, Inc. Annexation. This annexation will facilitate the Vestas job creating capital improvement project. The property is currently zoned in an A -1, Agricultural Zone District within Pueblo County. The applicant will submit applications to zone the property to an 1 -3, Heavy Industrial District Zone District and A -1, Agricultural One Zone District. FINANCIAL IMPACT 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 1787990 11/12/2008 ANNEXATION AGREEMENT CASE NO. A -08 -09 VESTAS TOWERS AMERICA THIS ANNEXATION AGREEMENT is entered into as of October 14 , 2008, by and between the City ofPueblo, a Municipal Corporation, (the "City ") and Vestas Towers America, Inc., a Delaware corporation ( "Petitioner "), WITNESSETH WHEREAS, the Petitioner is the owner of the real property located in Pueblo County, Colorado, and described in Exhibit "A" attached hereto and incorporated herein (the "Property "); WHEREAS, the Petitioner has submitted a petition for the annexation of the Property to the City; and WHEREAS, as a condition precedent to the annexation ofthe Property, Petitioner has agreed to enter into an annexation agreement with the City setting forth certain terns 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: 1. REPRESENTATION AND WARRANTIES OF PETITIONER Petitioner hereby represents and warrants to, and covenants with, the City as follows: (1) Petitioner is a Delaware corporation duly organized and validly existing under the laws of Delaware and authorized to do business in the State of Colorado. (2) Petitioner has 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 corporate 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. 178 RNNX_RG 11/12/2008 03:41:11 PM -'` Gl /Recortle, Puebla Co 0r8.00 Co ®III I�GI�YhMr�h�G�1���4ttFtEil�ati �1+ iri�ll ®� ��� (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 within three (3) years from the date of this Annexation Agreement. 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. Petitioner anticipates developing the Property in two phases: (a) "Phase 1" being the construction of a wind turbine tower manufacturing facility and business on that portion of the Property described on Exhibit "C" attached hereto (the "Industrial Parcel "); and (b) "Phase 2" being the possible development for uses not permitted in the Agricultural One (A -1) zone district on that portion of the Property described on Exhibit "D" attached hereto (the "Agricultural Parcel "). Petitioner, in Petitioner's reasonable discretion, may either develop Phase 2 or may so long as it is zoned A -1 continue to use the Agricultural Parcel for agricultural purposes. 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 (the "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 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 determined by the City, in its reasonable discretion, shall be mitigated through surface -2- 1787990 ANNX_PC 11/12/2008 03:41:11 PM Page: 3 of 19 R 96.00 D 0.00 T 96.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc ®III NFO YN 1INTI VIWTV w:hih IT 11WA4 11111 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, and for such purposes a fifteen inch diameter main for the Phase 1 Off -Site Sanitary Sewer (as defined below) and a twelve inch diameter main for the Phase 2 Offsite Sanitary Sewer (as defined below) will meet such needs. 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, which plan shall be consistent with the terms of Article IV of this Annexation Agreement. 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 therefore 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 wire, deceleration /acceleration lanes, and median islands). The Transportation Plan shall include a phasing plan or schedule of such traffic improvements, which plan shall be consistent with the terms of Article IV of this Annexation Agreement. Subject to the terms of this Annexation Agreement, if -3- 17 RNNX_AG 11/12/2008 03:41:11 P11 Pa 4 lher[Crt zClerkk /Recorderr, Puebla Co Co 1111 ��ar���c+�a O WOw��li,Ya�I�ar���L�i� 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 final presentation. (2) The Agricultural Parcel will be zoned Agricultural One (A -1). Prior to commencing any development of Phase 2, for any use not permitted in an A -1 zone district, Petitioner shall cause the Agricultural Parcel to be zoned under a land use classification most nearly corresponding to the land use classification into which the Agricultural Parcel has been classified or will in the reasonable future be classified under the City's comprehensive plan. No building or occupancy permit shall be approved by the City or issued by the Pueblo Regional Building Department for any building or structure within any portion of the Agricultural Parcel until after the Agricultural Parcel has been so zoned. (3) No later than ninety (90) days after the effective date of the ordinance annexing the Property, Petitioner shall cause the Industrial Parcel to be zoned Heavy Industrial District (1 -3), which constitutes the land use classification most nearly corresponding to the land use classification into which the Industrial Parcel has been classified or will in the reasonable future be classified under the City's comprehensive plan. Until the Industrial Parcel is either so zoned or zoned another -4- 1787990 ANN% AG 11/12/2008 03:41:11 PM Page: 5 of 19 R 96.00 D 0.00 T 96.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc millNFac+��� �Y classification that the City has approved by ordinance prior to such classification, no building or occupancy permit shall be approved by the City or issued by the Pueblo Regional Building Department for any building or structure within any part of the Industrial Parcel. (4) A petition to zone the Property may be filed at any time after the petition for annexation has been found to be valid in accordance with the provisions of Section 31 -12 -107, C.R.S. The Planning and Zoning Commission may hear the petition for zoning and make its recommendations thereon prior to annexing the Property, but the proposed zoning ordinance shall not be passed on final presentation prior to the date the ordinance annexing the Property is approved on final presentation. (5) The zoning provisions of this Article III relate to the initial zoning of the Property after annexation. Such zoning is not guaranteed and the City Council of City retains its full discretion with respect to such zoning. Nothing contained in this Article III shall be construed to limit the power of the City Council of City to rezone the Property or any part thereof after approval of the initial zoning of the Property after annexation. IV. PUBLIC FACILITIES (1) Subjecttothe termsand provisions of this Annexation Agreement, 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 reasonable discretion, including, but not limited to, sanitary and storm sewers, drainage ways and facilities, utilities, streets, roadways, trail systems, parks and open space. Except as otherwise expressly set forth in this Annexation Agreement, 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 reasonable discretion, including, but not limited to, trail systems, parks, streets, street lights, curbs and gutters, sidewalks, bridges, traffic control devices, sanitary sewers, storm sewers, drainage and channel improvements and facilities, but excluding public buildings such as fire stations. All such improvements shall meet and comply with applicable City Ordinances in effect at the time of installation of such improvements. (2) Notwithstanding Paragraph (1) of this Article IV, above, Petitioner's provision to the City of engineering plans and specifications in accordance with subparagraph (1)(c) of Article XIV below, or any other provision herein to the contrary: (a) Petitioner shall not be required to extend any main sanitary sewer lines on or to the Property, except as specifically set forth herein. Without limiting the generality of the forgoing, Petitioner shall have no obligation to construct sanitary sewer improvements in or along the right -of -way for Lime Road located at the southern boundary of the Property or to, except in accordance with subparagraph (1)(d) of Article XIV below, construct the Phase 2 Offsite Sanitary Sewer (as defined below). (b) Unless and until Petitioner elects to (and Petitioner shall have no obligation to make such election) and does commence development of Phase 2 for any use not permitted in an A- 1 zone district: (i) Petitioner has no obligation to construct the contemplated public roadway known as "Greenhorn Drive ", which is legally described on Exhibit "E" attached hereto; and (ii) Petitioner -5- 1787990 ANNX AG 11/12/2008 03:41:11 PM Page: 6 of 19 R 96,00 D 0.00 T 96.00 G ert Ortiz Clerk /Recorder, Pueblo County, Cc ®III1 �11L 7�CIM1Jh4��Fh�CkPt�Itr 'ldl�Il FIII shall have no obligation to provide street lighting improvements in any form for the lighting of Lime Road or Greenhorn Drive, which lighting shall be addressed if necessary by subsequent agreement between Petitioner and the City, made in connection with Petitioner's development of Phase 2 for any use not permitted in an A -1 zone district. If and when Petitioner develops Phase 2 for any use not permitted in an A -1 zone district, Petitioner shall construct Greenhorn Drive within or adjacent to the Agricultural Parcel and, in lieu of six (6) foot wide sidewalks on both sides of Greenhorn Drive, Petitioner may construct a ten (10) foot wide pedestrian trail on either the east or west side of Greenhorn Drive. V. UTILITIES The Petitioner shall comply with all applicable City of Pueblo (sanitary and storm sewers), Public Service Company (natural gas), Aquila (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. All existing and new power lines less than 30,000 volts and all other overhead utilities (1) within the Property, (2) within the public rights -of -way adjoining the Property, and (3) within the areas adjacent to the Property which serves the Property shall be placed underground. 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 and agrees to the covenants, restrictions, and agreements set forth herein by execution of this Annexation Agreement and by the filing of its petition for annexation. If Petitioner defaults in any of its obligations under this Annexation Agreement, including, without limitation, land dedication obligations, City, upon notice given to Petitioner specifying the default, may withhold all subdivision, special area plan, and other development approvals as well as building and occupancy permits for any building or structure within the Property until such default has been corrected to the satisfaction of the City. 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. 178 RNNX_RG 11/12/2008 03:41:11 Pn Galber rti 91erRklRecorder � Puebla County, Cc 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 ofcompetent 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 occupancy permit shall be approved by the City or issued by the Pueblo Regional Building Department to occupy, construct or install any building, structure or other improvement on the Property except within a subdivision approved by the City after adoption of the ordinance annexing the Property which meets and complies with this Annexation Agreement and 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 -7- 1787990 RNNX_RG 11/12/2008 03:41:11 P11 Pa e: 8 of 19 R 96.00 D 0.00 T 96.00 Gilbert Ortiz Clerk /Recorder, Pueblo County. Co 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 (1) 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, at Petitioner's expense: (a) Extend a sanitary sewer main from what is currently the southern terminus of City's sanitary sewer system within Minnequa Park Subdivision to the northern end of the Property, generally in the location labeled on the drawing attached hereto as Exhibit "F" as "Off -Site Sanitary Phase V (the "Phase 1 Offsite Sanitary Sewer "), and through the general area labeled on Exhibit "F" as "On Site Sanitary"; (b) To the extent practical and provided that it does not affect the zoning classification of the Agricultural Parcel, and as part of the Phase I development, provide landscaping and screening approved by the City, screening that portion Property located adjacent to the Interstate 25 right -of- way from the Interstate; (c) Prior to the recordation of the subdivision plat for the Property, provide to the City engineering plans and specifications for the extension of sanitary sewer facilities to the southern boundary of the Agricultural Parcel, as generally shown in the area labeled on Exhibit "F" as "Off Site Sanitary Phase 2" (the "Phase 2 Offsite Sanitary Sewer "), and for the construction of Greenhorn Drive within or adjacent to the Agricultural Parcel; and (d) Upon the commencement of any development of Phase 2 on the Agricultural Parcel for any use not permitted in an A -1 zone district, commence and complete construction of the Phase 2 Offsite Sanitary Sewer and (subject to the terms and conditions of this Agreement) Greenhorn Drive within or adjacent to the Agricultural Parcel. The City represents and agrees that it has obtained and will provide to Petitioner all access, right -of- ways, or easements necessary to construct Greenhorn Drive (if and when Petitioner becomes obligated to complete such construction) and any off -site sanitary sewer lines to be built in accordance with this Paragraph. The improvements described in subparagraph (b), above, are in addition to and not in substitution for any improvements or dedications otherwise required by this Annexation Agreement. (2) Petitioner shall be entitled to, at any given time, erect on the Industrial Parcel and operate up to four wind turbines for the purposes of testing towers produced by Petitioner in the manufacturing facility located on the Industrial Parcel and the operation of such test turbines shall not constitute a nuisance of any kind. The height of each such turbine shall not exceed 985 feet. Petitioner shall be entitled to, from time to time, maintain, repair, rebuild and replace such turbines, including the towers and blades, provided that no more than four such turbines are operating on the Industrial Parcel at any given time. 10 1787990 RNNX AG 11/12/2008 03:41:11 PM Page: 9 of 19 R 96.00 D 0.00 T 96.00 Gilbert Ortiz Clerk /Recorder, Puebla County, Co XV. MISCELLANEOUS ® ill I��dAY�GC�a4k'rG 'PW:Wl M11CM10 1411111 (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: Vestas Towers America, Inc. Engdraget 20 6800 Varde Denmark Attention: Erik Iversen, Vice President with a copy to: Senn Visciano Kirschenbaum P.C. 1801 California Street, Suite 4300 Denver, Colorado 80202 Attention: Mark A. Senn, Esq. or to such other address as either party by written notice given hereunder may designate. (2) Governing Law and Venue This Annexation Agreement shall be governed and construed in accordance with the laws of the State of Colorado, without regard to conflict of law principles. Venue for any action arising out of this Annexation Agreement shall be Pueblo County, Colorado. (3) No Third Party Beneficiaries Nothing in this Annexation Agreement expressed or implied is intended to or shall be construed to confer upon, or to give to, any person other than 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. ME 1787990 RNNX AG 11/12/2008 03:41:11 PM Page: 10 of 19 R 96.00 D 0.00 T 96.00 Gi ert Ortiz Clerk /Recorder, Pueblo County, Cc 1111 NFA YtMkAi�'a«4�� Y 1 7f�1il�rh 11111 Athe day and year first above written. City Att orne - [SEAL] By_ Title STATE OF COLORADO ) ss. COUNTY OF PUEBLO ) PUEBLO, a�Municipal Corporation By Name: Barbara Vidmar Title: President of the City Council PETITIONER: VESTAS TOWERS AMERICA, INC., a Delaware c porati By: Name: e Pn Title: G y The foregoing instrument was acknowledged before me this 20tlgay of October, 2008, by Barbara Vidmar as President of City Council and Gina Dutcher as City Clerk of Pueblo, a Municipal Corporation. Witness my hand and official seal. My commission expires: // 2011 G�^ AQtag —Public -to- APPROVED AS TO FORM: STATE OF C p t n 2A1t � ) COUNTY OF LJ2 =r_h ) ss. instrument was acknowledged before me this V day of October, 2008, by Witness my hand and official seal e .G . • - _,,;; , mission expires: I Oa cL N 1787990 RNNX AG 11/12/2008 03:41:11 PM Page: 11 of 19 R 96.00 0 0.00 T 96.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc ®III NFdun{ w& "HIN NII1,W YN'MM 11111 1787990 RNNX AG 11112/2008 03:41:11 PM Page: 12 of 19 R 96.00 D 0.00 T 96.00 Gilbert Ortiz Clerk /Recorder, Puebla County, Co ®III gill I EXHIBIT A LEGAL DESCRIPTION CONSIDERING THE SOUTH LINE OF THE SE 1/4 OF SECTION 1, TOWNSHIP 22 SOUTH, RANGE 65 WEST OF THE 6TH PRINCIPAL MERIDIAN TO BEAR N 88°38'07" W., AND ALL BEARINGS CONTAINED HEREIN ARE RELATIVE THERETO. ALL OF THE S 1/2 OF SECTION 35 LYING EAST OF THE INTERSTATE 25 RIGHT -OF- WAY LINE AS PRESENTLY LOCATED AND ALL OF THE S 1/2 OF SECTION 36 LYING WEST OF THE BURLINGTON NORTHERN & SANTA FE RAILROAD RIGHT -OF -WAY LINE AS PRESENTLY LOCATED IN TOWNSHIP 21 SOUTH, RANGE 65 WEST OF THE 6TH PRINCIPAL MERIDIAN ALL OF SECTION I LYING WEST OF THE BURLINGTON NORTHERN & SANTA FE RAILROAD RIGHT -OF -WAY LINE AS PRESENTLY LOCATED AND LYING NORTH OF THE LIME ROAD RIGHT -OF -WAY LINE AS PRESENTLY LOCATED AND ALL OF SECTION 2 LYING EAST OF INTERSTATE 25 RIGHT -OF -WAY LINE AS PRESENTLY LOCATED AND LYING NORTH OF THE LIME ROAD RIGHT -OF -WAY LINE AS PRESENTLY LOCATED IN TOWNSHIP 22 SOUTH, RANGE 65 WEST OF THE 6TH PRINCIPAL MERIDIAN EXCEPTING THEREFROM: A PARCEL OF LAND LOCATED IN A PORTION OF SECTION 2, TOWNSHIP 22 SOUTH, RANGE 65 WEST OF THE 6TH PRINCIPAL MERIDIAN BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE EASTERLY RIGHT -OF -WAY LINE OF INTERSTATE 25 AS PRESENTLY LOCATED AND THE NORTHERLY LINE OF SECTION 2, TOWNSHIP 22 SOUTH, RANGE 65 WEST; THENCE S 89°13'25 "E., ALONG THE NORTHERLY LINE OF SAID SECTION 2, A DISTANCE OF 179.38 FEET; THENCE S 00°46'35" W., A DISTANCE OF 3870.47 FEET TO A POINT ON THE NORTHERLY RIGHT -OF -WAY LINE OF LIME ROAD AS PRESENTLY LOCATED; THENCE ALONG THE NORTHERLY RIGHT -OF -WAY LINE OF LIME ROAD AND THE EASTERLY RIGHT -OF -WAY OF INTERSTATE 25 THE FOLLOWING SEVEN (7) COURSES: S 85 W., A DISTANCE OF 841.59 FEET; WESTERLY ALONG THE ARC OF A CURVE TO THE RIGHT WHOSE RADIUS IS 795.00 FEET, A DISTANCE OF 658.09 FEET; N. 50°15'34" W., A DISTANCE OF 152.46 FEET; NORTHWESTERLY ALONG THE ARC OF A CURVE TO THE LEFT WHOSE A -1 RADIUS IS 2915.00 FEET AND WHOSE CENTER BEARS S 43 W., A DISTANCE OF 60.01 FEET; N. 33 °51'06" W., A DISTANCE OF 380.20 FEET; N. 24 °46'13" E., A DISTANCE OF 1061.33 FEET; N. 28 °24'24" E., A DISTANCE OF 2613.00 FEET TO THE POINT OF BEGINNING. ALL IN THE COUNTY OF PUEBLO, STATE OF COLORADO 1787990 ANNX AG 11/12/2008 03:41:11 PM Page: 13 of 10 R 96.00 D 0.00 T 96.00 Gilbert Ortiz Clerk /Recorder Pueblo County. Cc ®III ��P. rIL' IRt �' �hyfl�ti'�4�i�1tiMN�LYa�164:�Yk+� ®I III MW 1787990 ANNX AG 11/12/2008 03:41:11 PM Page: 14 of 19 R 96.00 D 0.00 T 96.00 Gilbert Ortiz Clerk /Recorder, Pueblo County., Co ®III �J�aW'R3hN�kWh�hR�� I��kN�t�N+�tifi�ti�ll#� 01111 EXHIBIT B PERMITTED ENCUMBRANCES 1. TAXES AND ASSESSMENTS FOR THE YEAR 2008 AND SUBSEQUENT YEAR, A LIEN NOT YET DUE AND PAYABLE. 2. ANY TAX, LIEN OR FEE RESULTING FROM INCLUSION IN SOUTHEASTERN COLORADO WATER CONSERVANCY DISTRICT. (AFFECTING SECTIONS 1 AND 2 TOWNSHIP 22 SOUTH, RANGE 65 WEST OF RAILROAD) 3. RESERVATIONS AS CONTAINED IN PATENT OF THE UNITED STATES RECORDED APRIL 19, 1875 IN BOOK 10 AT PAGE 310. (AFFECTING ALL OF SECTIONS 35 AND 36 TOWNSHIP 21 SOUTH, RANGE 65 AND ALL OF SECTION 2, TOWNSHIP 22 SOUTH, RANGE 65 AND THE N 1/2 AND THE SW 1/4 SECTION 1, TOWNSHIP 22 SOUTH, RANGE 65) 4. OVERHEAD WIRES AS SHOWN ON ALTA/SCAM LAND TITLE SURVEY PLAT BY PROFESSIONAL SURVEYOR, DAVID M. STRAVIA AT NORTHSTAR ENGINEERING AND SURVEYING, JOB NO. 0802100 DATED JULY 11, 2008. 5. TERMS AND CONDITIONS OF RESOLUTION AND ORDER VACATING ROADWAYS RECORDED OCTOBER 24, 1957 IN BOOK 1340 AT PAGE 428. (AFFECTING ALL SECTIONS) 6. LICENSE AGREEMENTS CONTAINED IN WARRANTY DEED RECORDED SEPTEMBER 24, 1984 IN BOOK 2214 AT PAGE 239. (AFFECTING SECTIONS 35 & 36 TOWNSHIP 21 SOUTH, RANGE 65) 7. TITLE TO ALL MINERALS WITHIN AND UNDERLYING THE PREMISES, TOGETHER WITH ALL MINING AND DRILLING RIGHTS AND OTHER RIGHTS, PRIVILEGES AND OTHER IMMUNITIES RELATING THERETO, INCLUDING BUT NOT LIMITED TO MINERALS DEEDS RECORDED IN BOOK 2401 AT PAGE 599 (AFFECTS SECTIONS 35 7 36), BOOK 2407 AT PAGE 107 (AFFECTS ALL SECTIONS), BOOK 2701 AT PAGE 262 (AFFECTS ALL SECTIONS), PAGE 276 (AFFECTS ALL SECTIONS). 8. MAP OF ST. CHARLES SEEPAGE DITCH FILED FOR RECORD AUGUST 30, 1911 IN BOOK 1B AT PAGE 125. C 178 ANNX AG 11/12/2008 03:41:11 PM Gal Bert lOrtiz C 5 of Pu b0lo Cou Co ®III �4�aR« �nJIeWMV� l4�'rha'WU�lll�t @�mYiil l milli EXHIBIT C AGRICULTURAL PARCEL A parcel of land located is a portion of the S 'f of Section 35 and the SW '/. of Section 36, Township 21 South, Range 65 West and the W Yr of Section I and Section 2, Township 22 South, Range 65 West of the 6" P-M, in the County of Pueblo and State of Colorado and being more particularly described as follows: Considering a portion of the North line of SW SS of Section 36, Township 21, South, Range 65 West of the 6 P.M. to bear & 89 0 46'47" E., and all bearings contained herein being relative thereto. Beginning at the W W: comer of Section X thence S. 89'46'47" E., along the East -West centerline of said Section 36, a distance of 824.40 feet; thence S. 02'28'44" W., a distance of 629830 feet to a point on the Northerly right-of-way of Lime Road as presently located; thence S. 85'27'36" W., along the Northerly right -of -way of said Lime Road, a distance of 3014.46 feet; thence N. 00'15' 11" E., a distance of 443.71 feet; thence N. 89 0 44'44" W., a distance of 470.00 feet; thence N. 00°15'11" E., a distance of 3605.83 feet; thence Northerly along the arc of a curie to the right whose radius is 460.D0 feet, a distance of 200.23 feet; thence Northerly along the are of a curer to the left whose radios is 5972.00 feet and whose center bears N. 64'48'27" W., a distance of 2276.68 feet; thence N. 03'2I `00" E., a distance of 107.85 feet to a point on the East -West centerline of Section 35; thence S. 89 E., along the East -West centerline of said Section 35, a distance of 2297.28 feet to the Point of Beginning. Containing 504.97 acres, more or less C -1 1787990 ANNX AG 11/12/2008 03:41:11 PM Page: 16 of 19 R 95.00 D 0.00 T 96.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc ®1ur��lit�au�l���iw�K�I��wLy�ra MMAk�®1111 EXHIBIT D INDUSTRIAL PARCEL A parcel of land located in a portion of the S 55 of Section 36, Township 21 South. Range 65 West and Section 1, Township 22 Sonde, Range 65 West of the a P.M. in the County of Pueblo and State of Colorado and being more particularly described as follows: Considering a�nortion of the North line of SW V4 of Section 36, Township 21, South, Range 65 West of the 6 PM_ to bear S. 89 0 46'47" E_, and all bearings contained herein bring relative thereto. Commencing at the W 'l4 corner of Section 36; thence S. 89°46'47" E., along the East -West centerline of said Section 36, a distance of 823.40 feet to the Point of Beginning; thence S. 89 0 46'47" E, continuing along the East -West centerline of said Section 36, a distance of 2154.23 Let to a point on the Westerly sight -of -way line of the Burlington Northern & Santa Fe Railroad as presently located. thence S. 02 ° 28'44" W., along the Westerly right -of -way line of the said Burlington Northern & Santa Fe Railroad, a distance of 6118.17 feet to a point on the Northerly right -of- -way line of Lime Road as presently located; thence 'Westerly along the Northerly right - of-way line of said Lime Road the following five (5) courses: 1. & 85 W, a distance of 730.32 feet 2. N. 04 °32 W., a distance of 15.00 feet; 3. & 85x27'36" W., a distance of 700.00 feet 4_ S_ 04 E., a distance of 15.00 fret; 5. S. 85 °27'36' W., a distance of 738.49 feet thence N. 0j°28'44" E„ a distance of 6298.30 feet to the Point of Beginaina. Containing 306.54 acres, more or less D -1 1787990 RNNX AG 11112/2008 03:41:11 PM Page: 17 of 19 R 96.00 0 0.00 T 96.00 Gilbert Ortiz Clerk /Recorder., Pueblo County, Cc mill EXHIBIT E GREENHORN DRIVE DESCRIPTION A parcel of land located in a portion of the E Yz of Section 26 and the NE 1h of Section 35, Township 22 South, Range 65 West of the 6` P.M. in the County of Pueblo and State of Colorado being 80 feet in width, 40 feet on each side of the following described centerline: Considering a portion of the South line of NE 1 /4 of Section 35, Township 22, South, Range 65 West of the 6 P.M. to bear N. 89 W., and all bearings contained herein being relative thereto. Commencing at the most Southerly corner of Minneqna Industrial Park, Second Filing according to the recorded plat thereof as Sled for record at Reception No. 1481756 in the Pueblo County records said point also being on the East right -of -way line of Colorado Interstate No. 25 as presently located; thence N. 24 E., along the Easterly line of said Miunequa Industrial Park. Second Filing a distance of 110.91 feet to the Point of Beginning; thence S. 03 0 21 1 00" W., a distance of 2403.28 feet; thence Southeasterly along the arc of a curve to the left whose radius is 500.00 feet, a distance of 520.95 feet: thence S. 56 0 20'46" E., a distance of 599.31 feet; thence Southerly along the arc of a curve to the right whose radius is 500.00 feet, a distance of 969.63 feet; thence S. 54 045'53" W., a distance of 814.28 feet: thence Southerly along the arc of a curve to the left whose radius is 500.00 feet, a distance of 448.68 feet; thence S. 03 0 21'00" W., a distance of 987.62 feet to a point on the East -West centerline of Section 35 and the Point of Terminus. All external right -of -way lines are to increase or decrease in length to join existing right -of -way and or Section line. Containing 12.38 acres, more or less I, David M. Stravia. being a licensed Land Surveyor in the State of Colorado, do hereby state that this land description and exhibit being trade a part hereof. were prepared under my responsible charge and are accurate to the best of my knowledge, information and belief. E -1 t 1787990 RNNX AG 11/12/2008 03:41:11 PM Pa gge: 18 of 19 R 96.00 D 0.00 T 96.00 Gi lberl Ortiz C1erklRecorder, Pueblo County, Co EAST u O L " "A ML LP ` (R£'r,E.+'TiL7iJ iJi:l. 9997 ?I.% ti tiT f r h; 2 1 R =500.00' D -51 ?4'54' L.44868' 599.J1' PIYEB 6 S'l)BUR.BAN :IF j rlr LLl; w %rS 54*45'5J*W 814.28' \ Pic O371'00'W \ 98Z62' BASIS OF BEARMW �C�ND x8970 '171K._........• ?J77.J9'.••.. R =, FOuA0 NO. 6 REBAR wTH J 114' DAME ALUMINUM CAP I iLOT GREENHORN ORMYF �� � E D �! ��AIJPhV + - Riin itJ PARK P . O. B I "OJJ FIi Nc m + �� J'[ 4 M f S FOUND NO. 4 REBAR WIN 1' DIAMETER RNITE PLASTIC CAP, ILLEGIBLE SCALE: 1 = 1000 x2479'1 YE A (1091' 0 500 1000 2000 P.O.C. P.OB. POINT OF BECINN'N0 EAST u O L " "A ML LP ` (R£'r,E.+'TiL7iJ iJi:l. 9997 ?I.% ti tiT f r h; 2 1 R =500.00' D -51 ?4'54' L.44868' 599.J1' PIYEB 6 S'l)BUR.BAN :IF j rlr LLl; w %rS 54*45'5J*W 814.28' \ Pic O371'00'W \ 98Z62' BASIS OF BEARMW E -2 �C�ND x8970 '171K._........• ?J77.J9'.••.. R 0 FOuA0 NO. 6 REBAR wTH J 114' DAME ALUMINUM CAP E (APPRO°RIA IELY STAMPED) n M p S FOUND NO. 4 REBAR WIN 1' DIAMETER RNITE PLASTIC CAP, ILLEGIBLE SCALE: 1 = 1000 A (INSIDE 8 DIAMETER STEEL PIPE) 0 500 1000 2000 R P.OB. POINT OF BECINN'N0 E P.00 POINT OF COMMENCEMENT D NOTPM THIS EMIRR WAS NOT PREPARED AS A MONU4ENTED UWD SURVEY. AND WAS ONLY B PREPARED TO DEPICT THE ATTACHED IAND YT Nommrm wopmmo AND summQ iNc DESCRIPTION. E -2 I 1787990 ANNX AG 11/12/2008 03:41:11 PM Page: 19 of 19 R 96.00 D 0.00 T 96.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc ■III 1 Ili VhFI M w IVAI.4' N Y4rI tl II I EXHIBIT F 9 r C p r 3 O 9 � � 1 I I 1 I I I I i Ja. r ' i SANITARY SEWER LOCATIONS F -1