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HomeMy WebLinkAbout07996Reception 1803116 04/24/2009 ORDINANCE NO. 7996 AN ORDINANCE ANNEXING THE AREA COMMONLY KNOWN AS THE NORTH VISTA ANNEXATION AND DESCRIBED AS LAND NORTH OF 47 STREET AND WEST OF TROY AVENUE AND APPROVING AN ANNEXATION AGREEMENT RELATING THERETO 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; 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: AREA TO BE ANNEXED: All of Fountain Lake Subdivision. Pueblo Col. _►e Section 5: SW '/4 of the NE %, W % of the SE %, NW % of the SW '/4 Section 6: NE / of the SE % Section 7: NW 1 /4 Section 8: NE' /4 all being in Township 20 South, Range 64 West of the 6` P.M. Total boundary 1188.46 acres, more or less 1803116 ORD 04/24/2009 02:26:02 PM Page: 2 of 3 R 16.00 D 0.00 T 16.00 Gilbert Ortiz Clerk /Recorder. Puebla County, Cc EXCEPTING THEREFROM: mill kAYV I 1¢t`*1'10114149" tih °1 ®1111 All of Lots 23 to 27 both inclusive, Block 55 and all of New York Avenue and all of the alley adjacent thereto; WIN All of Lots 14 to 17 both inclusive, Block 55 and all of Delaware Avenue and Schuler Avenue and all of the alley adjacent thereto; •LLai All of Lots 1 to 28 both inclusive, Block 86 and all of Madison Avenue, Oriental Avenue, Columbia Avenue, Lafayette Avenue and all of the alley adjacent thereto; AND All of Lots 15 and 16, Block 110 and all of Prospect Avenue and Lake Avenue and all of the alley adjacent thereto; M All of Block 181 and all of Santa Fe Avenue, Best Place and Utah Place and all of the alley adjacent thereto; AND All of Block 185 and all of Santa Fe Avenue, Euclid Place and Oak Place and all of the alley adjacent thereto all being a portion of Fountain Lake Subdivision. Pueblo Co Total exceptions 16.37 acres, more or less Total less exceptions 1172.09 acres, more or less 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. 1803116 ORD 04/24/2009 02:26:02 PM Pa ge: 3 of 3 R 16.00 D 0.00 T 16.00 Gilbe Ortiz C ■■ B I erk /Re Pueblo , Co.1uuln Cc I W II ®11I�II PITA 1011 IM I, . I-I�I AdA 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). SECTION 6. 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, 2010. INTRODUCED March 23, 2009 BY: .ludo Weaver COUNCIL PERSON APPROVED: J�Lu— PR SIDENT OF CITY COUNCIL ATTESTED BY: 7Y CLERK PASSED AND APPROVED: April 13, 2009 ED I] D v Background Paper for Proposed ORDINANCE AGENDA ITEM # - ?) I DATE: MARCH 23, 2009 DEPARTMENT: PLANNING AND COMMUNITY DEVELOPMENT JERRY M. PACHECO, DIRECTOR TITLE AN ORDINANCE ANNEXING THE AREA COMMONLY KNOWN AS THE NORTH VISTA ANNEXATION AND DESCRIBED AS LAND NORTH OF 47 STREET AND WEST OF TROY AVENUE AND APPROVING AN ANNEXATION AGREEMENT RELATING THERETO ISSUE Shall the City Council approve the proposed annexation of property that is located north of 47 Street and West of Troy Avenue? RECOMMENDATION Approval of the Ordinance. BACKGROUND The North Vista Annexation comprises 1172.09 acres north of 47` Street and west of Troy Avenue extended. A 15.6 -acre parcel owned by the City of Pueblo within the floodplain of Fountain Creek is included within the proposed annexation area. The property is currently zoned in an (A -1) Agricultural Zone District within Pueblo County. The applicant has concurrently submitted a zoning application to zone the property to a PUD Planned Unit Development District and is required to subdivide the property prior to the issuance of building permits. The Pueblo Regional Development Plan identifies the future land use as "Special Development Area ". These areas are lands with significant development, redevelopment and /or open space potential in strategic locations that suggest the need for careful, location specific plans for infrastructure and private development. Master plans should be prepared prior to development or redevelopment occurring. 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 1803118 04/24/2009 ANNEXATION AGREEMENT This Annexation Agreement entered into as of April 13 , 2009, by and between the City of Pueblo, a Municipal Corporation, (the "City ") and Mary Lou Urenda, Betty Lou Harvey and Home Town Finance Co., a/k/a The Hometown Finance Co., a Colorado corporation (the "Petitioners "), WITNESSETH WHEREAS, the Petitioners are the owners of the real property located in Pueblo County, Colorado, and described in Exhibit "A" attached hereto and incorporated herein (the "Property "); WHEREAS, the Petitioners have entered into contracts for the sale of the Property to Encore Communities, USA, LLP; WHEREAS, the Petitioners have submitted a petition for the annexation of the Property to the City; and WHEREAS, as a condition precedent to the annexation of the Property, Petitioners have agreed to enter into an annexation agreement with the City setting forth certain terms and conditions with respect to such annexation. NOW THERFORE, in consideration of the foregoing, and the covenants and conditions set forth herein, the City and Petitioners agree follows: 1. REPRESENTATIONS AND WARRANTIES OF PETITIONERS Petitioners hereby represent and warrant to, and covenant with, the City as follows: 1) Petitioners Mary Lou Urenda and Betty Lou Harvey are individual residents of the State of Colorado. 2) Petitioner Home Town Finance Co., a/k/a The Home Town Finance Co., is a corporation duly organized and validly existing under the laws of the State of Colorado. 3) Petitioners have good and marketable fee simple title to the Property subject only to permitted encumbrances attached hereto as Exhibits `B -1" and `B -2 ". 4) Petitioners are authorized to, and have taken all actions required to: (a) annex the Property to the City; (b) execute, deliver and perform its obligations under this Annexation Agreement; and (c) carry out and consummate all of its transactions contemplated by this Annexation Agreement. S) This Annexation Agreement when executed and delivered constitutes a valid and legally binding obligation of the Petitioners enforceable against Petitioners according to its terms. 1803118 RNNX PG 04/24/2009 02:26:02 PM Pagge: 2 of 23 R 116.00 D 0.00 T 116.00 Gilbert Ortiz Clerk /Reoortler, Pueblo County, Co ®III MV , FY4 AIA 1VIAWN1 B III 6) 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 Petitioners are bound, or constitutes a default under any of the foregoing. 7) There is no litigation pending, or to the knowledge of Petitioners threatened, against the Petitioners or any person making the right of the Petitioners to execute this Annexation Agreement or to comply with the provisions hereof. 8) The representations and warranties of Petitioners contained herein will be true and correct in all material respects as of the date of recording the annexation plan 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 Petitioners 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 contemporaneously with Petitioners' application to zone the Property as Planned Unit Development (PUD) as provided in Article III hereof. The Master Development Plan shall be prepared in consultation with the City's Subdivision Review Committee and Department of Planning and Development and submitted in its entirety to the Planning and Zoning Commission. The Master Development Plan will comply with the policies of the Pueblo Regional Comprehensive Development Plan existing as of the date the Master Development Plan is approved, and will be designed to address, identify and resolve all development, drainage, utilities, traffic and other infrastructure needs and requirements and the wide range of planning and development issues involved in and with respect to the development of the Property. The Master Development Plan as submitted and approved by the Planning and Zoning Commission will have the flexibility to adapt to changing conditions over the estimated time period for the development of the Property and shall consist of the following: (a) Development Plan, (b) Drainage Plan, (c) Sanitary Sewer Plan, (d) Transportation Plan, and (e) Environmental Study: 1) Development Plan, The Development Plan shall be prepared in accordance with the requirements of Sections 12- 4- 5(a)(2) and 12- 4 -6(a) of the Pueblo Municipal Code. A development plan establishing the anticipated phasing of the development of the Property shall be prepared as part of the Development Plan. 2) Drainage Plan. The Drainage Plan shall be prepared in accordance with the Storm Drainage Design Criteria and Drainage Policies for the City of Pueblo, Colorado, published June 9, 1997, or as same may hereafter be amended (MANUAL) and be certified by a Professional Engineer competent in the field of surface water drainage engineering and registered in the State of Colorado. Stormwater flows from subdivisions within the Property must be detained and /or retained as determined by the Director of Public Works. The Petitioners shall construct, at their sole expense, such detention and retention facilities, along with the complete stormwater conveyance system (collectively the "Drainage Facilities ") in full compliance with the 2 1803118 ANNX_RG 04/24/2009 02:26:02 PM Page: 3 of 23 R 116.00 D 0.00 T 116.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Co MANUAL and the City's Standard Construction Specifications and Standard Details, published March 28, 2005, or as either may be hereafter amended and as shown on the construction plans approved by the Director of Public Works. The Petitioners, at their sole expense, shall be responsible for the acquisition and dedication of all on -site and off -site easements to facilitate the installation of the Drainage Facilities on and off the Property and to provide conveyance for site stormwater run -off to downstream receiving waters. The Drainage Plan shall address surface water drainage within the Property, upstream drainage tributary to the Property, as well as effects of the development of the Property upon downstream properties and drainage facilities. Negative impacts on the surrounding properties, as determined by the City's Director of Public Works, which are reasonably attributable to the development shall be mitigated through stormwater drainage improvements installed by and at the expense of the Petitioners. Additionally, if off -site downstream storm drainage facilities are determined to be inadequate, supplemental detention and retention facilities must be constructed by the Petitioners. The Drainage Plan shall include a phasing plan or schedule addressing proposed drainage improvements for the Property. Stormwater releases, water quality management, and erosion control measures shall be incorporated into the Drainage Plan to meet current and future NPDES requirements. The Petitioners must reduce peak flows and run -off volumes from the Property, to the maximum extent practicable, to levels that existed prior to any development within the Property, or to levels that are capable of being handled by the downstream drainage facilities, whichever is less, as determined by the Director of Public Works. Prior to the approval of any subdivision of land within the Property, a subdivision drainage report must be submitted to the City's Director of Public Works for approval. 3) Sanitary Sewer Plan. The Sanitary Sewer Plan shall be prepared in accordance with the Sanitary Sewer Design Criteria and Policies for the City of Pueblo published May 12, 1999, or as same may hereafter be amended, and be certified by Professional Engineers competent in the field of sanitary sewer engineering and registered in the State of Colorado. The Sanitary Sewer Plan shall address the needs of the entire gravity -fed sanitary sewer drainage basin of which the property is a part. The sewer drainage basin shall be approved by the Director of Public Works. Associated impacts on City's existing non - backbone system (less than 15 -inch diameter) and proposed sanitary sewer system shall be identified in the Sanitary Sewer Plan, and those impacts which are reasonably attributable to the development of the Property as determined by the City, in its sole discretion, shall be mitigated through the installation of sanitary sewer improvements installed by and at the expense of the Petitioners. The Sanitary Sewer Plan shall include a phasing plan or schedule for such sanitary sewer improvements. If sanitary sewers within the Property are oversized to serve future development outside the Property but within the sewer drainage basin, an Agreement to partially recover costs of constructing oversized or off -site sewer collection system improvements ( "Agreement ") will be entered into between the Petitioners and the City in accordance with Chapter 5, Title XVI of the Pueblo Municipal Code or as same may hereafter be amended. F 1803118 ANNX AG 04/24/2009 02:26:02 PM Page: 4 of 23 R 116.00 D 0.00 T 116.00 Gilbert Ortiz ClerkfRecorder, Pueblo County, Co ®III KH1VARN U1bLAWN 111 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 Petitioners 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 Petitioners (such as, but not limited to, traffic signals, signal interconnect, conduit and flyer, deceleration/acceleration lanes, and median islands). The Transportation Plan shall include a phasing plan or schedule of such traffic improvements. If street improvements through or adjacent to property outside the Property are required to be constructed, the Petitioners 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 Petitioners at their 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. Petitioners may submit the Master Development Plan to the Planning and 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 portion or all of the Property until after a Master Development Plan is approved. 4 1803118 fN q 02:26:02 e: 5 of 23 R R 116 116.0000 D 0 T 116,00 00 Gi Gilbert Ortiz Clerk /Recorder, Pu County, Co III. ZONING AND SUBDIVISION ®Illa � l � l ��'' ����� "� ®1 111 (1) The Property shall be zoned as Planned Unit Development (PUD) which constitutes the land use classification most nearly corresponding to the land use classification into which the Property has been classified or will in the reasonable future be classified under the Pueblo Regional Comprehensive Development Plan. Petitioners further consent and agree that the annexation of the Property is contingent on City's approval of a final ordinance zoning the Property PUD and approving a PUD Development Plan therefore (the "Zoning Ordinance ") contemporaneously with the approval of an ordinance annexing the Property to the City (the "Annexation Ordinance "). If the City Council for the City (i) does not for any reason, or no reason, adopt the Annexation Ordinance, or (ii) adopts the Annexation Ordinance but does not contemporaneously adopt the Zoning Ordinance, the Annexation Ordinance, if adopted, shall be deemed repealed, and the petition for annexation will be deemed withdrawn, and the annexation process will be terminated. (2) Petitioners shall submit to the Planning and Zoning Commission for review and recommendation a complete PUD zoning application accompanied by the PUD Development Plan, Development Guide and Project Narrative required by Section 17 -8 -6 of the Pueblo Municipal Code (collectively the "PUD Zoning Application "). The Petitioners shall consent in writing to the inclusion of the Property in the PUD. The PUD Zoning Application shall be submitted immediately after the City Council of City has preliminarily determined the petition for annexation to be valid in accordance with the provisions of Section 31 -12 -107, C.R.S., tabled final action on the petition for a period of not more than one hundred eighty (180) days, and referred the petition to the Planning and Zoning Commission for review and recommendation. Petitioners shall diligently pursue the approval of the PUD Zoning Application. (3) After the Property is zoned PUD, or contemporaneously with the filing of the PUD Zoning Application, Petitioner shall submit to the Planning and Zoning Commission for approval a PUD Site Plan for all or a portion of the Property in conformity with the provisions and requirements of Section 17 -8 -7 of the Pueblo Municipal Code. (4) No application for subdivision of all or any portion of the Property shall be submitted or considered by the City until after the Planning and Zoning Commission approves the PUD Site Plan for the portion of the Property sought to be subdivided. No building permit or occupancy permit shall be approved for any portion of the Property unless located within an approved subdivision for which a PUD Site Plan has been approved by the Planning and Zoning Commission. (5) The zoning provisions of this Article III relate to the initial zoning of the Property as PUD 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 as PUD after annexation. s 1803118 ANNX AG 04/24/2009 02:26:02 PM Page: 6 of 23 R 116.00 0 0.00 T 116.00 Gilbert Ortiz ClerklRecorder, Pueblo County, Co IV. PUBLIC FACILITIES 1111 Mtf49j#k'h 1¢O&J 11111 The Petitioners shall dedicate land and right -of -way for public uses and facilities necessary to serve the Property or required as a result of the development of the Property as determined by the City, in its sole discretion, including, but not limited to, sanitary and storm sewers, drainage ways and facilities, utilities, streets, roadways, trails, travel systems and parks. The Petitioners at their expense shall construct and install all on -site improvements, and all off - site improvements as set forth in this Agreement (as well as those where an essential nexus exists between the off -site improvement and a legitimate government interest, and the cost of the improvement is roughly proportionate both in nature and extent to the impact of the proposed development of the Property), that are necessary to serve the Property or required as a result of the development of the property as determined by the City, in its sole discretion, including, but not limited to, streets, street lights, curbs and gutters, sidewalks, trails, bridges, traffic control devices, sanitary sewers, storm sewers, drainage and channel improvements and facilities. All such improvements shall meet and comply with applicable City Ordinances in effect at the time of installation of such improvements. V. UTILITIES The Petitioners shall comply with all applicable City of Pueblo (sanitary and storm sewers), Xcel (natural gas), Black Hills (electric), Comcast (cablevision), Pueblo Board of Water Works (water), and Qwest (telephone /data transmission) requirements for the installation of mains, lines, stations, and any other pertinent utility facilities in effect at the time of such installation. VI. COMPLIANCE WITH ORDINANCES The development, subdivision and zoning of the Property shall meet and comply with all applicable ordinances, resolutions, regulations, and standards of the City now existing or hereafter enacted or amended. VIL 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 Petitioners and their legal representatives, successors, assigns and transferees. The Petitioners expressly accept and agree to the covenants, restrictions and agreements set forth herein by execution of this Annexation Agreement and by the filing of their petition for annexation. If Petitioners default in any of their obligations under this Annexation Agreement, including, without limitation, land dedication obligations, City, upon notice given to Petitioners 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. C 1803118 ANNX_PC 04/24/2009 02:26:02 PM Page: 7 of 23 R 116.00 0 0.00 T 116.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc VIII. AMENDMENTS ®III MMWAWAY.1W 0TH 14 11111 Amendments to this Annexation Agreement may only be made through formal petition to and approval by Resolution of the City Council after such amendment has been submitted to and reviewed by the appropriate City Departments and such departments have submitted their findings and recommendations to the City Council. All amendments to the Master Development Plan must be approved by the Planning and Zoning Commission after review and recommendation by the appropriate City Departments. IX. SEVERABILITY If any section, clause, or other provision of this Annexation Agreement is for any reason determined to be invalid or unenforceable by any court of competent jurisdiction, such determination shall not affect any of the remaining portions of this Annexation Agreement. X. VESTED RIGHTS As a condition of any consideration of the City annexing the Property, the Petitioners, for themselves and their successors and assigns waive and release all previously acquired or existing vested property rights attached to or established with respect to the Property. The Petitioners acknowledge and agree 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 for subdivision, either separately or jointly: (a) creates or establishes as a property right in or for the benefit of the Petitioners or their 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 meanings as set forth in Section 17 -12 -2 of the Pueblo Municipal Code and Section 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 Authority 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 Petitioners. Petitioners acknowledge and agree 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 the useful services to the property. Petitioners may, three (3) or more years after annexation, petition under Section 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. 7 1803118 ANN%_RG 04/24/2009 02:26:02 PM Page: 8 of 23 R 116.00 D 0.00 T 116.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Co ®III �ri'� Y'�dl��lk�4'I1�1L' ih�l,�Rhl�l�h;l+4h.11����� ®III I 2) Disconnection by City. If, for any reason, the Master Development Plan is not approved and adopted by the Planning and Zoning Commission within ten (10) years from the date of this Annexation Agreement, proceedings may be instituted by the City to disconnect the Property from the City, and for such purpose, the Petitioners irrevocably consent to such disconnection proceedings and waive any and all rights to contest such disconnection. XIII. CONTRACTUAL NATURE OF ANNEXATION AGREEMENT The terms, conditions and obligations of this Annexation Agreement are and shall be construed to be purely contractual in nature, as terms, conditions and obligations voluntarily agreed to by the City and Petitioners prior to Annexation of the Property to the City. The terms, conditions and obligations imposed on Petitioners 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 SYSTEM DEVELOPMENT FEES In addition to the on -site and off -site improvements and land dedications required to be made by the provisions of this Annexation Agreement, Petitioners will construct and install improvements, dedicate the land, and pay or cause to be paid the system development fees described in Exhibit "C -1" attached hereto and incorporated herein. The improvements, dedication, and system development fees described as Exhibit "C -1" are in addition to and not in substitution for any improvements or dedications otherwise required by this Annexation Agreement. XV. MISCELLANEOUS 1) Notice. All notices or other communications hereunder shall be sufficiently given and shall be deemed given when personally delivered, or mailed by registered or certified mail postage prepaid, addressed as follows: (a) if to the City: Department of Public Works — City of Pueblo 211 East "D" Street, Pueblo, Colorado Attention: Director of Public Works (b) if to the Petitioners: Home Town Finance Co. Attention: Mr. Jack Hunter 8511 Pine Drive Beulah, CO 81023 Mary Lou Urenda 240;� Lowell 6 0 S L C1Go r LL VL Pueblo, CO 8100' to such other address as either party by written notice given hereunder may designate. 1803118 ANNX_RG 04/24/2009 02:26:02 PM Page: 9 of 23 R 116.00 D 0.00 T 116.00 Gilbert Ortiz Clerk /Recorder, Puebla County, Cc ®III riPYh1FAh4NAq,kMIh� {��h�� lti��'K�'� III I I 2) Governing Law. This Annexation Agreement shall be governed and construed in accordance with the laws of the State of Colorado, without regard to conflict of law principles. 3) No Third Party Beneficiaries. Nothing in this Annexation Agreement expressed or implied is intended to or shall be construed to confer upon, or to give to, any person other than the City and the Petitioners 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 Petitioners shall be for the exclusive benefit of the City and the Petitioners. 4) Sinaular, 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. Pueblo, Colorado as of the day and year first above written. PUEBLO, a Municipal Corporation 1° l By President of City Council City QArk APPROVED AS TO FORM: City Attorne t PETITIONERS: L 0, Mary L u renda r► //) C Home Town S i10�d' Hunter, 0 -- - - - - -- - -- - - STATE OF COLORADO 1803118 RNNX AG 04/24/2009 02:2fi:02 PM Page: 10 of 23 R 116.00 D 0.00 T 116.00 ss. Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc COUNTY OF PUEBLO ) ®III Sri' +Pl�J Pu�l'h>;h� Ih9+LIe�J NeU.�41 IW4 MIN 11111 The foregoing instrulnent was acknowledged before me this f k day of f 2009, by V ✓c aAe c o r, as President of City Council and __ Ac, 11, c k e r— as City Cler c of Pueblo, a Municipal Corporation. Witness .... m y 'hand and official seal. My commission expires: g? 11112 01 / -[SEAL) .- . Natftry Public STATE OF COLORADO ) ss. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this V day of AWI ' 2009, by Mary Lou Urenda a . Witness my hand and official seal. My commission expires: to / /0 R Notary Public STATE OF'C6)GQ DO ) ss. COUNTY OF PUEBLO ) The foregoing instrument was acknowledged before me this 23� day of 2009, by Jack Hunter as President of Homp Town Finance. Witness my hand'afd 6fliicial seal. My commission expires: 4 b % Notary Public STATE OF COLORADO ) ) COUNTY OF PUEBLO ) FOREGOILJG IIJSTRUMEfJT WAS ACKPJOWLEDGED BEFORE ME THIS APRIL, 2009, BY BETTY LOU HARVEY. WITNESS MY , AL SEAL, MY COMMISSIOIJ EXPIRES: la— IS -I() �1 N OT PUBff1C 10 /800331181 ANN23QGR01164/2009002:26:026P00 Gilbert Ortiz Clerk /Reoorder, Pueblo County. co K asp N,% I'fill iV ,iAWI MMAN 11111 CONSENT AND APPROVAL Encore Communities USA, LLP ( "Encore ") consents to and approves the foregoing Annexation Agreement. Encore agrees that if title to the Property therein described is acquired by Encore from or through the Petitioners, the Annexation Agreement and all its provisions shall become binding upon Encore and its right, title and interest in and to the Property, and shall be enforceable by and against Encore, to the same extent and effect as if Encore was the original Petitioner. Executed at Pueblo, Colorado �' 2009 Encore Communities USA, LLP By f�f �_— Name: Title: STATE OF — C jolr(4 ) ss. COUNTY OF "' n T e foregoing instrument was acknowledged before me this 27 day of f� t 2009, by L t r ' J as PA +& C of Encore Communities USA, LLP. [SEAL] -- - - - - -- -- - - - - - -- - -- 18gg0331182 ANN23QGR01164/20090 2:26:026PM00 - —� - Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc Mill Milli EXHIBIT "A" NORTH VISTA LAND DESCRIPTION 1. AREA TO BE ANNEXED All of Fountain Lake Subdivision. Pueblo Col. AND Section 5: SW %4 of the NE 1 /4, W '/z of the SE Y4, NW ' /4 of the SW '/4 Section 6: NE ' /4 of the SE ' /4 Section 7: NW Section 8: NE' /4 all being in Township 20 South, Range 64 West of the 6 P.M. Total Annexation boundary 1188.46 acres, more or less EXCEPTING THEREFROM: All of Lots 23 to 27 both inclusive, Block 55 and all of New York Avenue and all of the alley adjacent thereto; I_V1�7 All of Lots 14 to 17 both inclusive, Block 55 and all of Delaware Avenue and Schuler Avenue and all of the alley adjacent thereto; F. 1101 All of Lots 1 to 28 both inclusive, Block 86 and all of Madison Avenue, Oriental Avenue, Columbia Avenue, Lafayette Avenue and all of the alley adjacent thereto; AND All of Lots 15 and 16, Block 110 and all of Prospect Avenue and Lake Avenue and all of the alley adjacent thereto; URIA All of Block 181 and all of Santa Fe Avenue, Best Place and Utah Place and all of the alley adjacent thereto; 1803118 RNNX AG 04/24/2009 02:26:02 PM Page: 13 of 23 R 116.00 D 0.00 T 116.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc AND h1 1 1 141 *110101114 rAWMIJ 11111 All of Block 185 and all of Santa Fe Avenue, Euclid Place and Oak Place and all of the alley adjacent thereto all being a portion of Fountain Lake Subdivision. Pueblo Col. Total exceptions 16.37 acres, more or less Total Annexation 1172.09 acres, more or less 2. PROPOSED NEW CITY LIMITS LINE: Beginning at the Northwest corner of the NW '/4 of Section 7, Township 20 South, Range 64 West of the 6 th P.M. being a point on the Present City Limits line; thence Easterly along the North line of the NW 1 /4 of said Section 7 to a point on the Southwest corner of the SW '/4 of the SE '/4 of Section 6; thence Northerly along the West line of the SW '/4 of the SE '/4 of said Section 6 to the Northwest corner of the SW '/4 of the SE '/4 of said Section 6; thence Easterly along the Northerly line of the SW '/4 of the SE V4 of said Section 6 to the Southwest comer of the NE '/4 of the SE '/4 of said Section 6; thence Northerly along the Westerly line of the NE '/4 of the SE '/4 of said Section 6 to a point on the Northerly line of the NE '/4 of the SE `/4 of said Section 6; thence Easterly along the Northerly line of the NE 1 /4 of the SE 1 /4 of said Section 6 to the Southwest corner of the NW '/4 of Section 5; thence Northerly along the Westerly line of the NW '/4 of said Section 5 to the Northwest corner of the NW '/4 of said Section 5; thence Easterly along the Northerly line of the NW '/4 of said Section 5 to the Northeast corner of the NW '/4 of said Section 5; thence Southerly along the Easterly line of the NW '/4 of said Section 5 to the Northwest corner of the SW 1 /4 of the NE ' / 4 of said Section 5; thence Easterly along the Northerly line of the SW '/4 of the NE '/4 of said Section 5 to the Northeast corner of the SW ' / 4 of the NE '/4 of said Section 5; thence Southerly along the Easterly line of the SW '/4 of the NE '/4 and the East line of the W 1 /2 of the SE '/4 of said Section 5 to a point on the Northerly line of the NE '/4 of Section 8; thence Easterly along the Northerly line of the NE '/4 of said Section 8 to the Northeast corner of the NE '/4 of said Section 8; thence Southerly along the Easterly line of the NE '/4 of said Section 8 to the Southeast corner of the NE 1 /4 of said Section 8 and the Present City Limits line and the Point of Terminus. EXHIBIT "B -1" Harvey /Urenda ALTA COMMITMENT Schedule B I (Exceptions) Our Order No. PBC35O17691 -4 The policy or Pekin to be issued will contain exceptions to the following unless the same are disposed of to the sadsfactioo of the Company: 1. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not sbown by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts winch a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien, or right to alien, for services, labor or materiel theretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. Taxes and assessments not yet due or payable and special assessments not yet certified to the Treasurer's office. 7. Any unpaid taxes or assessments against said land. 8. Liens for unpaid water and sewer charges, if any. 9. EXISTING LEASES AND TENANCIES, IF ANY 10. (ITEM INTENTIONALLY DELETED) 11. 1ffEM INTENTIONAL DELETED) 12. ANY RIGHTS, INTEREST, OR EASEMENTS IN FAVOR OF THE UNITED STATES, THE STATE OF COLORADO OR THE PUBLIC, WHICH EXIST OR ARE CLAIMED TO EXIST IN AND OVER THE PRESENT AND PAST BED, BANKS, OR WATERS OF FOUNTAIN CREEK. 1803118 RNNX AG 04/24/2009 02:26:02 PM Page: 14 of 23 R 116.00 D 0.00 T 116.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Co Ill ktr�P1�P�J'h',hlhft� I��,II ,t�6G�SI O N9h mli 11111 EXHIBIT "B -2" Home Town Finance ALTA COMMITMENT Schedule B -2 (Exceptions) Our Order No. PB35017680 -3 The policy or policies to be issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 1. Rights or claims of parties in possession not shown by the public records. 2. Easements, or claims of easements, not shown by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any facts which a correct survey and inspection of the premises would disclose and which are not shown by the public records. 4. Any lien, or right to a lien, for services, labor or material theretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Defects, liens, encumbrances, adverse claims cur other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. Taxes and assessments not yet due or payable and special assessments not yet certified to the Treasurer's office. 7. Any unpaid taxes or assessments against said land. 8. Liens for unpaid water and sewer charges, if any. 9. EXISTING LEASES AND TENANCIES, IF ANY • • • 1 • 1 �ig 7:V�i TrldLtiY�iel;i , ; • 1803118 ANNX AG 04/24/2009 02:26:02 P11 Page: 15 of 23 R 116.00 D 0.00 T 116.00 Gilbert Ortiz Clerk /Recorder, Pueblo county, Cc mill �w W aU 11116Ik+llylk w4d 1 1 1•' i 1 : 1/ ''• 1 1 me 'Is • • • 1 • 1 �ig 7:V�i TrldLtiY�iel;i , ; • 1803118 ANNX AG 04/24/2009 02:26:02 P11 Page: 15 of 23 R 116.00 D 0.00 T 116.00 Gilbert Ortiz Clerk /Recorder, Pueblo county, Cc mill �w W aU 11116Ik+llylk w4d 1803118 ANNX AG 04/24/2009 02:26:02 PM Page: 16 of 23 R 116.00 D 0.00 T 116.00 Gilbert Ortiz ClerklReoorder, Puebla County: Co 1IIIKPI96 4141111141 WANIVIA "i III II ALTA COMMITMENT Schedule B -2 (Exceptions) Our Order No. PB35017680 -3 The policy or policies to be Issued will contain exceptions to the following unless the same are disposed of to the satisfaction of the Company: 11. GRANT OF RIGHT OF WAY GRANTED TO SOUTHERN COLORADO POWER COMPANY BY SWEENY REALTY AND INVESTMENT COMPANY, RECORDED JANUARY 30, 19561N BOOK 1280 AT PAGE 50, IF FOUND TO INTERSECT. 12. GRANT OF RIGHT OF WAY GRANTED TO SOUTHERN COLORADO POWER COMPANY BY SWEENTY REALTY AND INVESTMENT COMPANY, RECORDED JANUARY 30, 1956 IN BOOK 1280 AT PAGE 51. 13. RIGHT OF WAY EASEMENT GRANTED TO THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY BY PAUL B. BOYLE AND VIRGINIA B. LOTT, RECORDED JULY 15, 1968 IN BOOK 1637 AT PAGE 671. 14. RIGHT OF WAY EASEMENT GRANTED TO THE PUEBLO GAS & FUEL COMPANY BY GEORGE A. MARSH, RUTH S. MARSH, GEORGE A. MARSH, III, JOY S. MARSH, MARY S. ALLEN, VAN S. ALLEN JAMES K. MARSH, JR., HAYDON NEWTON, ATLANTA NEWTON, ESTHER S. JACKSON, ROSE C. POLATTY, HOWARD C. HAYDEN, VIRGINIA B. HAYDEN, HAROLD H. SUMMERS AND RUTH C. SUMMERS, RECORDED AUGUST 1, 1968 IN BOOK 1638 AT PAGE 710. 15. RIGHT OF WAY EASEMENT GRANTED TO THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY BY PAULINE HAYDEN AS PERSONAL REPRESENTATIVE OF THE ESTATE OF HOWARD C. HAYDEN, RECORDED JANUARY 17, 1986 IN BOOK 2274 AT PAGE 779. 16. RIGHT OF WAY EASEMENT GRANTED TO THE MOUNTAIN STATES TELEPHONE AND TELEGRAPH COMPANY BY SARHUNT INVESTMENT CO., RECORDED FEBRUARY 13, 1986 IN BOOK 2278 AT PAGE 281. 17. ANY TAX, LIEN OR FEE RESULTING FROM INCLUSION IN PUEBLO CONSERVANCY DISTRICT IN INSTRUMENT RECORDED AUGUST 1, 2007 UNDER RECEPTION NO. 1736292. 1803118 RNNX AG 04/24/2009 02:26:02 PM Page: 17 of 23 R 116.00 0 0.00 T 116.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc 1111)) M,F61 �l��WUA%W,W& +aNaMMIJ®uii EXHIBIT C -1 SPECIAL IMPROVEMENTS, DEDICATIONS AND FEES 1. Trails. The Petitioners shall design and construct, and cause to be maintained, by themselves or by means of a homeowners' association, trails throughout the Property connecting, in accordance with an approved final subdivision plat, to existing trails within the City of Pueblo, as described in the PUD Development Plan. Trails shall be located in general in accordance with the PUD Development Plan, provided that the final location and alignment within a subdivision shall be determined at the time of subdivision review. 2. Parks The Petitioners shall develop park sites on the Property. The minimum amount of developed park land required is seven and one -half (7.5) acres of developed park land per one thousand (1,000) population, as described in the PUD Development Plan (the "Developed Park Sites "). a. The Developed Park Sites shall be developed according to the standards contained in the PUD Development Guide and the Park Development Standards approved by the Planning and Zoning Commission, as amended. The Petitioners shall construct each park site according to the construction plans approved by the City, within one hundred eighty (180) days after the first building permit has been issued for the construction of a residential dwelling unit within a subdivision that contains or abuts a Developed Park Site, as described in the Development Plan. b. Developed Park Sites of ten (10) acres or more shall be conveyed by the Petitioners to the City by warranty deed, if the City, in the exercise of its sole discretion, determines that it will accept such Developed Park Site for maintenance and ownership, prior to the recording of any final subdivision plat for a development area or portion thereof which contains such Developed Park Site. If the City determines not to accept such Developed Park Site, as provided herein, then such Developed Park Site shall be owned and maintained by the Petitioners or homeowners' association. C. The Developed Park Sites that are less than ten (10) acres shall be owned and maintained by the Petitioners or a homeowners' association. 3. School Land Dedication The Petitioners shall convey to City, by warranty deed, a maximum of twenty (20) acres of real property within the Property as described in the PUD Development Plan with location(s) mutually identified by Petitioners and City in a final subdivision plat (the "School Property ") within ninety (90) days of written request by the City; provided, however, that, if the School Property has not been included within a final subdivision plat, the foregoing time frame shall be extended for whatever period is necessary to obtain the City's approval and recordation of a final subdivision plat establishing the School Property as a legally conveyable parcel, or to obtain the City's approval of a subdivision exemption. The Petitioners acknowledge and agree that the School Property may be conveyed by the City, in the exercise of its sole discretion, to a local school district or charter school as a school site. 1803118 PNNX AG 04/24/2009 02:26:02 PM Page: 18 of 23 R 116.00 0 0.00 T 116.00 Gilbert Ortiz Clark /Recorder, Pueblo County, Co ®iii �� +air a�,�w, ��+ wr�i¢ Nil Qg �+h hY Mill ®III I 4. Fire Station Land Dedication and Construction The Petitioners shall convey to the City, by warranty deed within ninety (90) days of the City's written request, a parcel of land totaling two (2) acres within the Property as described in the PUD Development Plan with a location identified by appropriate studies (the "Fire Station Property "); provided, however, that the foregoing time frame shall be extended for whatever period is necessary to obtain the City's approval and recordation of a final subdivision plat establishing the Fire Station Property as a legally conveyable parcel, or to obtain the City's approval of a subdivision exemption. The Petitioners acknowledge and agree that prior to the issuance of the building permit for the two thousandth (2,000th) residential dwelling unit within the Property or any additional building permits, they, or the North Vista Metropolitan District on their behalf, shall construct and install a facility and related improvements adequate for the City to operate as a fire station. 5. Construction of Offsite Sanitary Sewer The Petitioners shall design and construct, at no cost to the City, within one hundred eighty (180) days after the issuance of the first building permit for the construction of any building in Phase I as shown on the PUD Development Plan, an eighteen (18) inch sanitary sewer main and related facilities in Jerry Murphy Boulevard from Candytuft Boulevard to the south boundary of the Property. Petitioners must complete construction of the sanitary sewer improvement according to design and construction standards determined by the City. Petitioner may apply for cost recovery for the offsite sanitary sewer improvements described above pursuant to Section 16 -5 -5 of the Pueblo Municipal Code. 6. Construction of Offsite Water Distribution Mains. The Petitioners shall design and construct, at no cost to the Board of Water Works of Pueblo, within one hundred eighty (I80) days after the issuance of the first building permit for the construction of any building in Phase I as shown on the PUD Development Plan, a sixteen (16) inch water distribution main and related facilities in Jerry Murphy Boulevard from the termination point of the existing main north of Candytuft Boulevard to the southern boundary of the property. Petitioners must complete construction of the water main improvements according to the rules, regulations and the design and construction standards of the Board of Water Works of Pueblo. Any pro -rata reimbursements will be in accordance with Section 10 of the Rules and Regulations of the Board of Water Works of Pueblo. 7. Construction of Road Improvements The Petitioners shall design and construct, at no cost to the City, the following road improvements according to design and construction standards determined by the City. a. Design and Construction of Jerry Murphy Boulevard Jerry Murphy Boulevard shall be designed and constructed as a four -lane, median divided, principal arterial roadway section, including acceleration and deceleration lanes, from Candytuft Boulevard to the Home of Heroes Parkway as shown on Exhibit C -2. The Petitioners shall construct Jerry Murphy Boulevard, and associated roadways tributary, as described in this Paragraph, according to the following schedule: I) Within one hundred eight (180) days after the issuance of the first building permit for the construction of any building in Phase 1 as shown on the PUD Development Plan, Petitioners must complete construction of Jerry Murphy 2 1803118 ANN)( AG 04/24/2009 02:26:02 PM Pagge: 19 of 23 R 116.00 D 0.00 T 116.00 Gi lberl Ortiz Clerk /Recorder, Pueblo County, Co mill KP1%,1101W1101AKH M4GALWill ®1111 Boulevard as stated above between the intersections of Candytuft Boulevard and 47 Street as shown on Exhibit C -2. If any portion of the Phase 1 improvements are tributary to the drainage crossing located approximately five hundred (500') feet south of the south boundary line of the Property (the "Culvert"), then the Petitioners shall be responsible for increasing the size and capacity of the Culvert as determined by the final storm drainage study. 2) Within one hundred eight (180) days after the issuance of the first building permit for the construction of any building in Phase 2 as shown on the PUD Development Plan, Petitioners must complete construction of Jerry Murphy Boulevard as stated above between the intersection of 47 Street and future Home of Heroes Parkway as shown on Exhibit C -2. If not already constructed as part of the Phase 1 improvements, the Petitioners shall be responsible for increasing the size and capacity of the Culvert as determined by the final storm drainage study. In addition to the extension of Jerry Murphy Boulevard, the Petitioners shall construct one -half (1/2) of the major arterial roadway, including drainage crossing structures, in the alignment of Home of Heroes Parkway to the intersection of Jerry Murphy Boulevard and Home of Heroes Parkway providing connectivity from Phases 1 and 2 of the development. 3) Petitioners may apply for cost recovery for the Jerry Murphy Boulevard improvements identified above pursuant to Section 12 -4 -12 of the Pueblo Municipal Code. b. Design and Construction of Home of Heroes Parkway West of Property Home of Heroes Parkway shall be designed and constructed as described in this Paragraph as a major arterial roadway section, at no cost to the City, including any utilities, acceleration lanes, deceleration lanes, bridges and intersection improvements, from Jerry Murphy Boulevard across Fountain Creek to Dillon Drive (collectively "Home of Heroes Expansion "), according to the following schedule: 1) The Petitioners shall, at no cost to the City, not later than the date of the issuance of the building permit for the eight hundred and fiftieth (850 residential dwelling unit upon the Property, acquire and deed to the City by warranty deed fee simple title to the right -of -way necessary for the construction of the Home of Heroes Expansion as shown on Exhibit C -2. 2) The Petitioners shall, at no cost to the City, not later than the date of the issuance of the building permit for the one thousandth (1,000 residential dwelling unit upon the Property (a) commence construction of Home of Heroes Expansion including a two -lane bridge structure across Fountain Creek in accordance with City approved plans and specifications therefor (the "Fountain Creek Bridge ") as shown on Exhibit C -2 and (b) construct Home of Heroes Expansion as one -half (' /Z) of an arterial roadway section between the western boundary of the Property and Dillon Drive, including any utilities, acceleration and deceleration lanes, and intersection improvements in accordance with the duly- adopted standards of the City. The Petitioners shall grade Home of Heroes 3 1803118 ANNX AG 04!24!2009 02:26:02 PM Page: 20 of 23 R 116.00 D 0.00 T 116.00 Gilbert Ortiz Clerk/Recorder. Pueblo County, Cc ®111 x�� WhIIIIIAT!"141 MIM Nit i ME Mill 11111 Parkway as a full arterial roadway section at the time the Petitioners constructs the one -half (' /z) arterial roadway section of Home of Heroes Expansion. 3) The Home of the Heroes Expansion shall be completed no later than eighteen (18) months after the date of issuance of the building permit for the one - thousandth (1000th) residential dwelling unit upon the Property. 4) If Petitioners, after good faith efforts as determined by City, are unable to acquire from third - parties the necessary right -of -way for the construction of the Home of Heroes Expansion, the City will, to the extent legally permissible, exercise its power of eminent domain to acquire the right -of -way, provided, that Petitioners first deposit with the City an amount to be determined by the City Attorney for all compensation, damages, costs and expenses, including appraisal, expert witness and attorney fees associated therewith. 5) The Petitioners shall, at no cost to the City or the Board of Water Works of Pueblo, not later than the date of the issuance of the building permit for the one thousandth (1000th) residential dwelling unit upon the Property, commence the construction of and thereafter diligently pursue the completion of a water distribution main, size to be determined, in Home of Heroes Parkway from the western boundary of the Property to the eastern edge of Fountain Creek Bridge as described in this paragraph. Construction of the water main improvements shall be in compliance with the rules, regulations and the design and construction standards of the Board of Water Works of Pueblo. Any pro -rata reimbursement will be in accordance with Section 10 of the Rules and Regulations of the Board of Water Works of Pueblo. C. Design and Construction of 47' Street South of Property: 47` Street shall be constructed by Petitioners, at not cost to the City, according to construction plans on file with the Engineering Department as follows: 1) Within one hundred eighty (180) days after the issuance of the first building permit for the construction of any building in Phase 1 as shown on the PUD Development Plan, Petitioners must complete construction of 47' Street as stated above between the intersections of Walkingstick Boulevard to .Terry Murphy Boulevard as shown on Exhibit C -2. 2) Petitioners may apply for cost recovery for the 47' Street improvements identified above pursuant to Section 12 -4 -12 of the Pueblo Municipal Code. d. Schedule for Construction of Jerry Murphy Traffic Signals The Petitioners shall construct at no cost to the City two (2) offsite traffic signals as described in this Paragraph, according to the following schedule: 1) Jerry Murphy Boulevard and Bluestein Boulevard: Within one hundred eight (180) days after the issuance of the first building permit for the 4 1803118 RNNX AG 04/24/2009 02:26:02 PM Page: 21 of 23 R 116.00 0 0.00 T 116.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc construction of any building in Phase 2 as shown on the PUD Development Plan, Petitioners must complete the design and construction of traffic signals at the intersection of Jerry Murphy Boulevard and Bluestein Boulevard as shown on Exhibit C -2. 2) Jerry Murphy Boulevard and 47' Street: Within one hundred eight (180) days after the issuance of the first building permit for the construction of any building in Phase 3 as shown on the PUD Development Plan, Petitioners must complete the design and construction of traffic signals or roundabout at the intersection of Jerry Murphy Boulevard and Bluestein Boulevard as shown on Exhibit C -2. 3) The design and construction plans for the traffic signals and /or roundabout must be approved by City before Petitioner starts construction thereof. e. In addition to the foregoing road improvements, Petitioners shall construct all road improvements within the Property as described in the PUD Development Plan. 8. Withholding of Building Permits If any of the above requirements are not timely met and complied with for any reason, the City may, in its absolute discretion (a) refuse to issue additional permits for construction within the Property and/or (b) cancel all then existing and outstanding building permits for which construction has not commenced. 9. System Development Fees For Adjacent Properties a. The Home of Heroes Expansion described in paragraph 7.b. above, will materially benefit real property located in the unincorporated area of Pueblo County, Colorado that abuts the Property, including, but not limited to, the two (2) abutting parcels consisting of approximately 640 acres, as set forth in attached Exhibit C -2 (hereinafter collectively referred to as "Adjacent Properties "). In the event that all or a portion of the Adjacent Properties are annexed to the City, City, to the extent legally permissible, will, by provisions inserted in annexation agreements for the Adjacent Properties, require the owners of Adjacent Properties to pay a system development fee (the "SDF") to the North Vista Metropolitan District (the 'District ") as reimbursement for a portion of the actual cost of construction including land acquisition and financing for the Home of Heroes Expansion reduced to the extent of any financial assistance provided by governmental funding including, but not limited to, grants and tax increment financing (collectively the "Net Construction Costs "). b. The SDF shall be based on the Net Construction Costs and the benefit of the Home of Heroes Expansion to the Adjacent Properties as determined by the District and approved by the City. C. As a condition precedent to the issuance of a building permit for construction upon any of the Adjacent Properties annexed to the City, the owner thereof shall pay to the District the SDF. 5 d. All SDF's payable to the District shall be applied to the Net Construction Costs and upon payment in full of the Net Construction Costs, the balance of the SDF's paid to the District shall be retained by District and used solely for the repair, maintenance and replacement of the Home of Heroes Expansion or any part thereof. e. In lieu of the payment of the SDF, Adjacent Properties annexed to the City may with the consent and approval of the owners of the Adjacent Properties, the District and the City be included within the District. f. Prior to the imposition of the SDF, City and District shall enter into an agreement incorporating the foregoing in form and content approved by the City Attorney. 1803118 RNNX AG 04/24/2009 02:26:02 PM Pagge: 22 of 23 R 116.00 D 0.00 T 116.00 Gi lberl Ortiz Clerk /Recorder, Pueblo County, Co 6 �� J M y * 1 O� a 0U N mmn� mu� ] a� NIOo B XNU� Q Or S MN�� .eau® A''.9 iq HOME OF THE HEROES PARKWAY EXTENSION s y Ail } ,5 Y )c } � t S a 17 `; CMNDYTUFT BLVD. BLUESTEM BLVD. " I � 4 f p f a p ti