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Home My WebLink About20072508.tiff WELD C0UNT1SHIGURO FARMS ANNEXATION C0MMISS'0NERS IMPACT REPORT 1EE1 AUG -2 A 10: 45 July 27, 2007 RECEIVED The City of Evans has received a request from Tetsel & Ishiguro Development One, LLC,property owner,to annex approximately 244.84 acres to the City of Evans.The proposed annexation is located south of and adjacent 49th Street east of the Hill N Park Wastewater Treatment Plant. Please refer to the attached vicinity map, Exhibit A. This report is provided as required by Colorado Revised Statutes Section 31-12-108.5, as amended, and contains information on the impact the proposed development may have on the current infrastructure and financial condition to the City of Evans. Section 1 -Maps and Utilities Enclosed as Exhibit B is an annexation map showing the existing Evans city limits and the proposed annexation. The area is a mix of agricultural and urban land uses. The proposed land uses are mixed- use residential/commercial with limited agricultural. The City of Evans is a full-service community offering typical municipal services including water and wastewater utilities. Evans' current utility infrastructure is limited to areas north of the South Platte River. Due to the nature of current development plans, it is not anticipated these utilities will be required to be extended south of the South Platte River in the near term. If the provision of utility services will become necessary prior to the City's planned extension of those services the City will pursue intergovernmental agreements with other service providers. The City's transportation plan identifies 49th Street as a major arterial. Section 2 - Pre-Annexation Agreement A pre-annexation agreement for this annexation has been approved at the applicant's request.A copy of the draft agreement is attached as Exhibit C. Section 3 - Providing Municipal Services/Infrastructure Improvements Infrastructure extended to the property must be constructed and financed by the developer.Municipal services shall be provided as to any other property within the City. Section 4 - Financing Extension of Municipal Services All of the services provided by the City will be financed through existing sources of revenue, and include revenues from property, sales, and franchise taxes. Section 5 - Existing Taxing Districts )1A Ga t G 9ry«u/ 1 l� CM 2007-2508 The following districts/agencies are being notified of this annexation as per C.R.S. §31-12-108: Weld County—Board of County Commissioners, Attorney, and Planning School District RE-1 (Gilcrest) School District 6 (Greeley-Evans) Northern Colorado Water Conservancy District, Central Colorado Sub-District Central Weld County Water District, Well Augmentation Sub-District West Greeley Soil Conservancy District North Weld County Water District LaSalle Fire District Weld County Library District Aims Community College Section 6- Local Public School District Impact No new residential development is proposed in the portion within School District RE-1. Within the School District 6 portion, the letter of intent states 188 single-family homes are planned, along with 21.3 of multi-family housing. It is anticipated that future students living on the property will attend existing school district facilities, financed with typical means of primarily property taxes. As stated in Section 5,School District RE-1 and School District 6 have been notified of the annexation petitions. 2 Exhibits Exhibit A—Vicinity Map Exhibit B—Annexation Maps/Legal Descriptions Exhibit C—Pre-Annexation Agreement 3 I Z'8 IISI HX3 L00z'LzAinr leuoeoPiseiecewwsoueJeeeee.s ,rye eeuaPNe a�nNpeum Hale euopeoeleee,o aBUWap y H ' .0 Wye.Pee=pn%/\'0NI'df10N0 NS13141 �U3SIA32!) deyy sa�n;eaj 6ul;slx3/s;uie�;suo� ,o)uu auom,Aw.o m e,PI„wtiee.Jdxeel 5 ` - PedopmP pa Pe/edad uceg ena4(et14o14M+W pb `A}uno3 PPM uuoppip Op.*Nes'esnJ'uoronfoJeleu ue STI.I.IL'3 o.�n�IusI Poe 0Rl4 Poe WeiMe�P3auPa'BuM*veePeaAWe 41 Hnokuoriold ow 422m eluewuw0suen3PR110 BNN ERN AB LOB: L 6 uM dWee0 �4o Re ee0 oN SN0ISI/G8 0, it . iii -- ZF_ 6I ' 3 P e= b G w %.'�Jgg ry5^ W6 / I 1 r W t -�-$ \\ t - -as-..- 4 1 p ,-,- s ~Y y ≥ K w < woi d oz Ill 1 \ 15 w a 1\ r------ '2 Y z z 3 W ' E U O 0.. 'o°o o $o d G B 'N ,et rT, W Z, �j o�° $ orig k m nY«P- L7PL -_ / ;_` o E ry O •Ir. 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' 1 1 J1 a_AmyI I 49th St .a.� ......-.. ---. 1 .. -,I I II I _..._.. l �L.,'..... / I 1 1, J oa Gog0H-R j 1 is://d; , psfq; rL ,,c-i• -523-:,,z.:,6-/ / //5:7)��bK" 5� I � 1 J Sunset Dr ❑_ El Exhibit A - Vicinity Map s e J= EXHIBIT C CITY OF EVANS, COLORADO RESOLUTION NO. 35-2007 RESOLUTION APPROVING ISHIGURO FARMS ANNEXATION AGREEMENT WHEREAS,the intent of the annexation agreement is to comprehensively address the effects of the proposed Ishiguro Farms Annexation,and to provide for the allocation of costs and obligations for improvements; and WHEREAS,the property owners and Evans have agreed to mutually acceptable terms and conditions; and WHEREAS, it is in the best interest of the City of Evans and the property owners to enter into this agreement; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EVANS, COLORADO: 1. The City Council hereby accepts the terms and conditions contained in the Ishiguro Farms Annexation Agreement,attached hereto and by said reference incorporated herein and hereby approved, subject to minor modifications that do not change the spirit and intent of the Agreement as approved by the City Attorney and City Manager. 2. The Mayor is hereby authorized and directed to execute said Agreement on behalf of the City. PASSED,APPROVED AND ADOPTED at a regular meeting of the Council of the City of Evans on this 17th day of July, 2007. so,..b f�+ I�yy `•• •••••••.1:4 %yam CITY OF EVANS, COLORADO aC&!! 2,) By: M or '2/ Al irK UelL City Clerk ANNEXATION AGREEMENT ISHIGURO FARMS ANNEXATION This agreement is made and entered into this 17`h day of July, 2007, by and between TETSEL & ISHIGURO DEVELOPMENT ONE., LLC, and/or assigns, hereinafter referred to as "Owner," also referred to as "Seller," and the CITY OF EVANS, a municipal corporation of the State of Colorado, hereinafter referred to as "Evans"or"City." WITNESSETH: WHEREAS, Owner desires to annex to Evans the property more particularly described on Exhibit A, which is attached hereto, incorporated herein, and made a part hereof(such property is hereafter referred to as "the Property"); and WHEREAS, Exhibit A reflects property to be annexed at the request of the City that is in addition to properties within Owner possession; and WHEREAS,Owner has executed petition to annex the Property,dated June 18,2007,copies of which are on file with the City Clerk; and WHEREAS,Owner has prepared Conceptual Development Plans identifying and illustrating requested zoning, proposed land use and intended development of the property more particularly described on Exhibit B which are attached hereto, incorporated herein and made a part hereof; and WHEREAS, it is to the mutual benefit of the parties hereto to enter into this Agreement regarding annexation of the Property to the City and other matters as set forth herein; and WHEREAS, Except as otherwise set forth in Exhibit C, Owner acknowledges that, upon annexation, the Property will be subject to all ordinances,resolutions, and other regulations of the City of Evans, as they may be amended from time to time; and WHEREAS, Owner acknowledges that the need for conveyances and dedication of certain property, including but not limited to property for rights-of-way and easements, to Evans as contemplated in this Agreement are directly related to and generated by development intended to occur within the Property. NOW, THEREFORE, IN CONSIDERATION OF THE ABOVE PREMISES AND THE COVENANTS AS HEREINAFTER SET FORTH,IT IS AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS: 1. Information of Recitals. The parties confirm and incorporate the foregoing recitals into this Agreement. 2. Purpose. The purpose of this Agreement is to set forth the terms and conditions of the annexation of the Property to the City. Except as expressly provided for herein to the contrary, all terms and conditions herein are in addition to all requirements concerning annexation contained 1 in the Evans Municipal Code, Development Regulations and Comprehensive Plan, and the Municipal Annexation Act of 1965, as amended, C.R.S. §31-12-101 et seq. 3. Further Acts. Owner agrees to execute promptly upon request of Evans any and all surveys and other documents necessary to effect the annexation of the Property and the other provisions of this Agreement. Owner agrees not to sign any other petition for annexation of the Property or any petition for annexation election relating to the Property, except upon request of Evans. 4. Annexation Documents. Owner agrees to provide legal documents, surveys, engineering work,newspaper publications,maps,and reports determined by Evans to be necessary to accomplish the annexation. 5. Zoning and Land Use. The parties recognize that it is the intent and desire of Owner to develop the Property in a manner generally consistent with the zoning and land uses presented in paragraph 15 below, and that the granting of such zoning by the City of Evans is a material consideration of the Owner's agreement to annex the Property to the City. Owner shall take all action necessary to permit zoning by Evans of the annexed Property within the time prescribed by state statute. In the event the City does not zone the land in accordance with the uses further described in paragraph 15, then the City agrees not to oppose any disconnection by the Owner, subject to the requirements of state law. 6. Public Use Land Dedication. Owner agrees to dedicate,by General Warranty Deed or other appropriate instrument of conveyance acceptable to the City, or, at the request of the City, for a homeowner's association to be created, all of Owner's right, title and interest (subject to exceptions of record permitted by the City),in and to the applicable property a portion of the territory to be annexed for public open space or other public purposes as directed by the City and agreed to by the parties in accordance with Exhibit B, in addition to easements and rights-of-way for streets and other public ways and of other public purposes, all as required by City ordinances and resolutions,as amended. Owner shall have no obligation to dedicate any land for development of public improvements for the following: public school, sewer/water treatment facilities or related facility, power generation plant, library, police station or fire station. 7. Water and Waste Water Utilities. On-site and required off-site water and wastewater mains and appurtenances shall be constructed to City standards by Owner at Owner's expense. Owner shall be entitled to reimbursement for oversizing of any additional mains in accordance with the ordinances and policies of the City. The water and sewer mains to be oversized shall be set forth in the Public Improvement Developers Agreement. 8. Purchase and Sale of Water and Water Storage. In accordance with Title 13, Chapter 13.08 of the City of Evans Municipal Code, as amended and existing City policy, the City will purchase historical surface water rights from the land at fair market value. Transfer of water rights shall occur during City of Evans PUD approval process. 9. Non potable irrigation. In accordance with the City's specifications and requirements, Owner may install a non-potable water system to provide irrigation water to all areas 2 described within Exhibit A. The non-potable water system will be an independent utility system owned,operated, and maintained by the City. In consideration of the reduced potable water demand that will be realized by the installation of a non-potable irrigation system,the amount of raw water to be dedicated to the City shall be reduced by an amount as determined by an engineering analysis performed by the City at the expense of owner. 10. Municipal Services. Evans agrees to make available to the Property all of the usual municipal services provided by the City,in accordance with the ordinances and policies of the City. The services provided by the City include, but are not limited to, police protection, fire protection, water, wastewater, and stormwater services after the development connects to Evans' system. Owner acknowledges that City services do not include, as of the date of the execution of this Agreement, emergency medical services. 11. Public Improvements. Required public improvements shall be designed and constructed to City standards by Owner at Owner's expense. Owner further agrees to provide financial guarantees for construction of all required improvements as set forth in each phase of the development, and to dedicate to the City any or all of the improvements as required by City ordinances. The public improvements and financial guarantee shall be set forth in the Development Agreement between the City and Owner. 12 Streets and Arterial Roads. On-site and required off-site streets shall be dedicated, designed and constructed to City standards by Owner at Owner's expense. Upon approval of the City, Owner shall dedicate all public right-of-way improvements under warranty with at least a two- year guarantee for maintenance to the City of Evans. A traffic study for the proposed development shall be completed by the Owner in accordance with City requirements. The Traffic Engineer shall consider future signalization and a signal progression analysis. Owner shall be responsible for payment of a portion of the cost related to the design and construction of such future signalization when it is determined that such infrastructure is warranted. 13. Drainage. A drainage study of the entire annexation territory will be provided by the Owner. Improvements recommended by such study shall be completed at the time of completion of each phase of development. Facilities necessary to address drainage from outside the Property will be designed for quantities in excess of those amounts historically discharged from the site, these facilities will be developed in conformance with the Comprehensive Drainage Study and other City regulations and ordinances. 14. Reimbursements. To the extent water,sewer,storm drainage facilities or other public utilities are oversized or extended on to property by Owner or to the extent public improvements are built off-site of the Property by Owner, by any District or by the City, for benefit accruing to other parties,said improvements may be eligible for reimbursement. Per Chapter 13.28,City agrees to use its best efforts to maximize the opportunity for,and amounts of reimbursement payable to Owner in connection with the development of any other property tapping onto or otherwise making use of any such improvements. The City agrees to coordinate the execution and delivery of necessary reimbursement agreements among the City, the Owner and the Owner developer of any other such property in order to obtain such reimbursements for Owner. 3 15. Zoning and Land Use. (A) Conceptual Plan. Owner and City shall mutually agree upon a conceptual land use plan, which is in accordance with the City's Comprehensive Plan. It is Owner's intent to develop and zone the Property in accordance with the conceptual land use plans as shown in Exhibit B. Exhibit B represents the creation of a mixed-use residential and commercial development (planned unit development—PUD). In connection with the conceptual plan, the City shall, provided any application complies with all applicable laws, regulations and ordinances, approve a permit to construct a mixed use of residential and commercial units, in accordance with state and local regulations. Owner agrees the design, improvement, construction, and development of the Property described herein shall be in conformance with the City of Evans Design Guidelines, as amended from time to time. The owner also ensures that development shall be constructed in accordance with the required natural preservation corridor plan, as approved by the state. No development and/or mineral extraction or processing shall occur within those identified corridors. (B) Rezoning Process. Upon submittal of required materials, Owner's rezoning request shall be processed concurrently with the petition for annexation. This provision does not waive the authority of the Owner or the City of Evans to initiate rezoning of the land in accordance with the Charter and Ordinances of the City of Evans. Land use is subject to the police power and legislative authority of the City of Evans. 16. Limitation on Fee Impositions by the City. The City agrees that the Property shall be subject to typical development fees similar to those that are imposed on other developments in the City pursuant to the City's regulations and ordinances. 17. Developer's Agreement. In a form provided by the City, Owner and the City shall enter into a public improvements developer's agreement. Owner shall submit a proposed public improvements developer's agreement concurrently with the submittal of the preliminary plan for development of the Property. The final form of the developer's agreement shall be subject to mutual agreement of the parties on the terms and conditions of the same. The developer's agreement shall be signed upon final plat approval. 18. Conformity with Laws. Owner agrees that the design, improvement, construction, development, and use of the Property shall be in conformance with all applicable laws and ordinances and that Owner shall comply with all City ordinances, resolutions and regulations including without limitation, ordinances, resolutions, and regulations pertaining to annexation, subdivision, zoning, storm drainage, utilities, access to City streets, and flood control. 19. No Repeal of Laws. Nothing contained in this Agreement shall constitute or be interpreted as a repeal of the City's ordinances or resolutions,or as a waiver of the City's legislative, governmental,or police powers to promote and protect the health,safety,and welfare of the City and its inhabitants; nor shall this Agreement prohibit the enactment or increase by the City of any tax or fee. 4 20. Disconnection. No right or remedy of disconnection of the Property from the City shall accrue from this Agreement,other than that provided by applicable state laws. In the event the property or any portion thereof is disconnected at Owner's request,Evans shall have no obligation to serve the disconnected Property or portion thereof and this Agreement shall be void and of no further force and effect as to such Property or portion thereof. In the event the City does not approve the zoning and development plan as set forth in Paragraph 15 within ninety(90)days of the completion of the annexation, then the Owner may initiate disconnection pursuant to state law and the City agrees not to oppose disconnection unless delays are caused by Owner. 21. Severability. The parties agree that if any part, term, portion, or provision of this Agreement is held by a court of competent jurisdiction to be illegal or in conflict with any law of the State of Colorado, the validity of the remaining parts, terms, portions, or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular part, term, portion, or provision held to be invalid. 22. Owners Association. Owner shall organize a unit owners association or associations, if appropriate as determined by the City,for given parcels and/or unit types with the development of the Property. Owner shall form the association(s) pursuant to the Colorado Common Interest Ownership Act ("Act"). C.R.S. §38-33.3-101 et seq. The Owner shall also execute and record covenants and instruments of conveyance which comply with the Act and which adequately provide for continuous ownership,operation,maintenance,repair,and replacement of common elements of the development, including but not limited to any private roads,private common areas, and private facilities. At least thirty(30)days prior to recording any covenants or instruments of conveyance to the association(s), Owner shall provide such documents to the City Attorney for review and comment. 23. Special District Inclusion. Within thirty(30)days after written request by the City, Owner shall apply for inclusion of the Property with one or more special districts serving the City. Owner agrees to petition out of the LaSalle Fire District and does hereby irrevocably appoint the Fire Chief of the City of Evans its true and lawful agent and attorney for the Owner and in the Owner's name and stead to sign and execute any and all petitions, documents and writing pertaining to the lands herein described,which shall be necessary and appropriate to petition out of such LaSalle Fire Protection District. 24. Future Cooperation. The parties agree they will cooperate with one another in accomplishing the terms, conditions, and provisions of the Agreement, and will execute such additional documents as necessary to effectuate the same. 25. No Joint Venture or Partnership/No Assumption of Liability. Nothing contained in this Agreement is intended to create a partnership or joint venture between the City and Owner or between the City and any one or more of the individual owners listed above, and any implication to the contrary is hereby expressly disavowed. It is understood and agreed that this Agreement does not provide for the joint exercise by the parties of any activity, function, or service,nor does it create a joint enterprise, nor does it constitute any party hereto as any agent of another party hereto for any purpose whatsoever. Except as specifically otherwise provided in this agreement,no party shall in any way assume any of the liability of any other party for any act or obligations of the other party. 5 26. Amendment. This Agreement maybe amended only by mutual agreement of the City and Owner. Such amendments shall be in writing, shall be recorded with the County Clerk and Recorder of Weld County, Colorado, shall be covenants running with the land, and shall be binding upon all persons or entities having an interest in the Property and/or Water Rights subject to the amendment unless otherwise specified in the amendment. 27. Entire Agreement This Agreement embodies the entire agreement of the parties. There are no promises, terms,conditions, or obligations other than those contained herein; and this Agreement supersedes all previous communications,representations,or agreements,either verbal or written between the parties. 28. Owner. As used in the Agreement,the term"Owner"shall include any of the heirs, transferees, successors,or assigns of Owner, and all such parties shall have the right to enforce this Agreement, and shall be subject to the terms of this Agreement, as if they were the original parties thereto. In the event of a transfer of all or any portion of the Property, the transferring Owner shall be relieved of any and all obligations under this Agreement that arise after the date of such transfer with respect to the transferred Property. 29. Amendments to Law. As used in this Agreement, unless otherwise specifically provided herein, any reference to any provision of any City ordinance, resolution, regulation, or policy is intended to refer to any subsequent amendments or revisions to such ordinance,resolution, regulation, or policy, and the parties agree such amendments or revisions shall be binding upon Owner. 30. Binding Effect. This Agreement shall be binding upon and inure to the benefit of all the heirs,transferees,successors,and assigns hereof,and shall constitute covenants running with the land. This Agreement shall be recorded with the County Clerk and Recorder of Weld County, Colorado, at Owner's expense. Subject to the conditions precedent herein,this Agreement may be enforced in any court of competent jurisdiction. 31. Failure to Anna. This Agreement shall be null and void if the City fails to approve the annexation of the Property. 32. Breach by Owner; City's Remedies. (A) In the event of a default or breach by the Owner of any term,condition,covenant, or obligation under this Agreement, the City may take action as it deems necessary to protect the public health,safety,and welfare;to protect lot buyers and builders,and to protect the citizens of the City from hardship. The City's remedies include: (i) The refusal to issue to the Owner any development permit,building permit,or certificate of occupancy. This remedy shall not affect sales to bona fide purchasers nor be applied to bona fide purchasers; (ii) A demand that the security given for the completion of the public improvements be paid or honored; 6 (iii) The refusal to consider further development plans within the Property; and/or (iv) Any other remedy available at law. Unless necessary to protect the immediate health, safety, and welfare of the City or City residents,the City shall provide the Owner ten(10)days written notice of its intent to take any action under this Paragraph during which ten-day period the Owner may cure the breach described in said notice and prevent further action the City. (B) Breach by City. Parties agree that in the event of a breach by the City,Owner will have the right to seek all remedies provided by law. (C) Attorney's Fees. If any party breaches this Agreement, the breaching party shall pay the non-breaching parties reasonable costs and attorney fees incurred in the enforcement of the terms and conditions of this Agreement. 33. General Provisions. City shall: (A) Cause its staff to timely and promptly approve or disapprove written submittal by Owner of any plans, specifications, drawings, details or other pertinent data required in connection with any water line, sanitary sewer line, storm drainage or other utility serving the Property or any improvements within any dedicated right-of-way on the Property. Any disapproval shall set forth the items disapproved together with the reasons for such disapproval. (B) Use its best efforts securing, at Owner's expense, construction, and maintenance agreements from governmental or private entities in order to allow Owner to fulfill its obligations under this Agreement and to proceed with development of the property. (C) Cooperate with Owner with any filing, applications, approvals, or other administrative procedures with governmental entities other than the City,which is necessary to allow Owner to fulfill its obligations under this Agreement and to develop the Property in a timely manner. (D) Provide police and other municipal services to the Property to the same extent as those services are provided by City throughout the balance of the City, pursuant to the City's uniform applied policies. (E) Not unreasonably withhold its consent or approval when any consent or approval is required. Owner shall notify the City of assignments and the name of the assignee(s)upon the sale or other transfer of any portion of the Property. The transfer of such portion shall be released from all liability and obligation under this Agreement relating to such portion and all such liabilities and obligations shall be assumed by the transferee (unless transferee is a member of the home buying public or governmental entity). Nothing contained in the Agreement shall constitute or be interpreted as a repeal of existing codes,ordinances or as a waiver of the City's legislative,governmental or police powers to promote and protect the health, safety, and general welfare of the City or its inhabitants; nor shall this agreement prohibit the enactment by the City of any fee which i s of uniform or general application. 7 It is understood and agreed by the parties hereto, that if any part, term or provision of this Agreement is by a court determined to be illegal or in conflict with any law of the State of Colorado, the validity of the remaining portions or provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the agreement did not contain that particular part, term, or provision held to be invalid. This Agreement may be enforced in any court of competent jurisdiction. 34. Notice. All notices required under this Agreement shall be in writing and shall be hand delivered or sent by facsimile transmission or registered or certified mail, return receipt requested, postage prepaid, to the addresses of the parties herein set forth. All notices by hand delivery shall be effective upon receipt. All facsimile transmissions shall be effective upon transmission receipt, provided a hard copy is mailed the same date. All notices by mail shall be considered effective seventy-two (72)hours after deposit in the United States mail with the proper address as set forth below. Either Party by notice so given may change the address to which future notices shall be sent. Notice to City: City of Evans Notice to Owner: Ann: City Manager Tetsel&Ishiguro Development One,LLC. 1100 37th Street 5251 DTC Parkway, Suite 290 Evans,CO 80620 Greenwood Village,CO 80111 With copy to: R. Russell Anson,City Attorney 820 13`°Street Greeley, CO 80631 36. Election. Owner agrees that it is voluntarily entering into this Agreement. Owner represents and submits that to the extent an election would be required pursuant to C.R.S. §31-12- 112, as amended,to approve the annexation or to impose terms and conditions upon the Property to be annexed,Owner owns 100 percent of the Property,excluding public streets and alleys,and would vote to approve the annexation and all terms and conditions as set forth herein. Thus, any election would necessarily result in a majority of the electors' approval to the annexation and the terms and conditions. 37. Legislative Discretion. The Owner acknowledges that the annexation and zoning of the Property are subject to the legislative discretion of the City Council of the City of Evans. No assurances of annexation,zoning,or special use permit approval have been made or relied upon by the Owner. In the event that, in the exercise of its legislative discretion, any action with respect to the annexation, zoning or special use approval for the Property, as contemplated herein and in the proposed Conceptual Development Plan for the Property,is not taken or if once taken and Owner is in full compliance with such annexation,zoning or special use approvals,is not maintained then the Owner may withdraw the petition for annexation and seek disconnection from the City in accordance with state law, as may be appropriate and City agrees not to oppose. 38. No Third Party Rights. This Agreement is made solely for the benefit of the parties hereto, and is not intended to nor shall it be deemed to confer rights to any persons or entities not named as parties hereto. 8 39. Governing Law. The laws of the State of Colorado shall govern the validity, performance, and enforcement of this Agreement. Should either party institute legal suit or action for enforcement of any obligation contained herein,it is agreed that the venue of such suit or action shall be in Weld County, Colorado. 40. Headings. The paragraph headings in this Agreement shall not be used in the construction or interpretation hereof as they have no substantive effect and are for convenience only. 41. No Warranties by the City. The City is entering into this Agreement in good faith and with the present intention, on the part of the present City Council, that this Agreement will be complied with. However, because some of the provisions of this Agreement may involve areas of legal uncertainty, the City makes no representation as to the validity or enforceability of this Agreement that no such warranty is made on the part of the City. 42. Non-conforming Use. In the event Owner's zoning and development plan is not advanced with reasonable diligence, City agrees to allow the existing non-conforming agricultural use to continue until such time as the property is rezoned but not at a greater level than at its current level of activity and use. 43. Attorney's Fees. If any Party breaches this Agreement,the breaching party shall pay the non-breaching party's reasonable costs and attorney's fees incurred in the enforcement of the terms and conditions of this Agreement. In the event that any person, corporation, special district, municipal or county government,or any other entity asserts any claim against the City,its officials, or employees pursuant to the provisions of the Colorado Municipal Annexation Act,C.R.S.,Section 31-12-101, et seq., the Owner agrees to reimburse the City for all reasonable costs and attorney's fees incurred by the City in defense of such claims whether or not such defense is successful. The City shall, at all times,have control over the defense of the City in such matters and nothing herein shall be construed to require the City to assert any position which is inappropriate, in the sole judgment of the City. The City and Owner shall confer with each other concerning the defense and/or settlement of any such action. 44. Cost Reimbursement to City. Owner shall reimburse City for outside professional consultants such as engineers, testing companies, and attorneys necessitated by processing and completion of this development. 45. Oil and Gas Access Roads. All oil and gas access roads located on the Property in either their current or relocated locations will be considered a current obligation between the owner and oil and gas company(s). The City will not be responsible for any maintenance of any oil and gas access road. 9 ATTEST: CITY OF EVANS, COLORADO, A MUNICIPAL CORPORATION By: By: City Clerk Mayor ACKNOWLEDGMENT STATE OF COLORADO ) )ss. COUNTY OF WELD ) The above and foregoing signature of Sherry Melby , on behalf of City of Evans, Colorado , was subscribed under oath before me on this 17th day of July , 2007. WITNESS my hand and official seal My commission expires: Notary Public LANDOWNER TETSEL & ISHIGURO DEVELOPMENT ONE,LLC. By: ACKNOWLEDGMENT STATE OF COLORADO ) )ss. COUNTY OF ) The above and foregoing signature of , on behalf of , was subscribed under oath before me on this day of , 2007. WITNESS my hand and official seal My commission expires: Notary Public 10 EXHIBIT A LEGAL DESCRIPTION Legal Description —Annexation Parcel No. 1 The Northwest One-Quarter Northwest of the One-Quarter(NW 1/4 NW 1/4)of Section Thirty-One (31), Township Five (5) North, Range Sixty-Five (65)West of the 6th Principal Meridian AND The Northeast One-Quarter(NE 1/4)and the Northeast One-Quarter of the Northwest One-Quarter(NE 1/4 NW 1/4)of Section Thirty-Six(36),Township Five (5) North, Range Sixty-Six(66)West the 6th Principal Meridian, EXCEPT a strip of land conveyed to The County of Weld in Quit Claim Deed recorded April 13, 1903 in Book 163 at Page 378, County of Weld, State of Colorado, containing 244.84 acres, more or less; AND Proposed Legal Description —Annexation Parcel No. 2 A Tract of land located in the South Half of Section 25,Township 5 North, Range 66 West of the 6th P.M., County of Weld, State of Colorado, being more particularly described as follows; Beginning at the West 1/16th corner on the south line of said section 25,thence along the south line of the southeast quarter of the southwest quarter of said section 25, South 89°02'55"East, 1339.56 feet to the southeast corner of said southwest quarter of said section 25; Thence along the south line of the southeast quarter of said section 25, South 89°01'16" East,2649.83 feet;Thence leaving said south line of said section 25, North 00°25'45"West, 30.01 feet;Thence parallel to said south line of the southeast quarter of said section 25, North 89°01'16"West,2649.10 feet to the southeast corner of said southwest quarter of said section 25; Thence parallel to said south line of said southwest quarter of said section 25, North 89°02'55"West, 1340.64 feet;Thence South 01°07'21" East, 30.02 feet to the True Point of Beginning. Said tract contains 2.75 acres, more or less. AND Proposed Legal Description —Annexation Parcel No. 3 A Tract of land located in the Northwest Quarter of Section 31 and the Southwest Quarter of Section 30, Township 5 North, Range 65 West of the 6th P.M., County of Weld, State of Colorado, being more particularly described as follows; Beginning at the West 1/16th corner of said sections 30 and 31, thence along the north line of the northwest quarter of said section 31, North 89°17'27"West, 1264.07 feet; Thence leaving said north line of said northwest quarter, North 00°25'45"West, 30.01 feet; Thence parallel to said north line of said northwest quarter of said section 31,South 89°17'27"East, 1641.33 feet; Thence South 03°31'46"West, 60.07 feet; Thence parallel to said north line of said northwest quarter of said section 31, North 89°17'27" West, 372.92 feet to the east line of the northwest quarter of the northwest quarter of said section 31; Thence along said east line, North 00°48'54"West, 30.01 feet to the True Point of Beginning. Said tract contains 1.39 acres, more or less. 12 EXHIBITS TABLE OF CONTENTS EXHIBIT A: Legal Description EXHIBIT B: Conceptual Mixed-Use Residential Development Plan EXHIBIT C: Conditional Right to Withdraw 11 EXHIBIT B CONCEPTUAL MIXED-USE RESIDENTIAL DEVELOPMENT PLAN 13 EXHIBIT C CONDITIONAL RIGHT TO WITHDRAW Evans hereby grants the Owner of the real property more particularly described on Exhibit A to the Annexation Agreement the right to withdraw said property from this Agreement on or before August 21, 2007. Further, the parties understand and agree that Evans shall not provide any municipal services to said property until the sooner of(i) Owner's written waiver of any right to withdraw said property from Evans; or(ii) August 21, 2007. No tax shall be due Evans from the Owner as a result of annexation until and unless the conditional right to withdraw said property from Evans has been unconditionally waived or expired. 14 NOTICE OF PUBLIC HEARING ANNEXATION REQUEST NOTICE is hereby given, pursuant to the Colorado State Statutes, the City Council of the City of Evans will hold a Public Hearing on the 21st day of August,2007,at 7:30 p.m.,held at the City Hall Council Chambers, 1100 37th Street,Evans, Colorado, at which time and place it will consider and act upon a petition for annexation to the City of Evans for the property on the south side of 49th Street beginning approximately one-quarter mile east of 35th Avenue and referred to as the Ishiguro Farms Annexation and described as: The Northwest One-Quarter of the Northwest One-Quarter(NW 1/4 NW 1/4)of Section Thirty-One (31), Township Five (5)North, Range Sixty-Five (65) West of the 6th Principal Meridian and the Northeast One-Quarter(NE 1/4)and the Northeast One-Quarter of the Northwest One-Quarter(NE 1/4 NW 1/4)of Section Thirty-Six(36),Township Five(5)North,Range Sixty-Six(66)West the 6th Principal Meridian, except a strip of land conveyed to the County of Weld in Quit Claim Deed recorded April 13, 1903 in Book 163 at Page 378, County of Weld, State of Colorado, containing 244.84 acres, more or less. All persons being interested in this matter may be present and heard. For more information please contact the Planning Department at(970) 475-1118. Kim Betz City Clerk City of Evans [Please publish in the Greeley Tribune on July 21, 28, and August 4, and 11, 2007.] CITY OF EVANS, COLORADO RESOLUTION NO. 36-2007 A RESOLUTION FINDING SUBSTANTIAL COMPLIANCE FOR INITIATING ANNEXATION PROCEEDINGS FOR ISHIGURO FARMS ANNEXATION WHEREAS, a written petition, together with four prints of an annexation map, was hereto filed with the City Clerk requesting the annexation of certain property to be known as Ishiguro Farms Annexation,County of Weld,State of Colorado,more particularly described on the attached Exhibit A, and WHEREAS,the City Council desires to initiate annexation proceedings in accordance with the law. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF EVANS, COLORADO: Section 1. That the City Council hereby accepts said annexation petition, finds and determines that the annexation petition and accompanying map are in substantial compliance with CRS 31-12-107, and desires to initiate annexation proceedings in accordance with the law. Section 2. The City Council shall hold a hearing to determine if the proposed annexation complies with CRS 31-12-104 and 31-12-105,or such parts thereof as may be required to establish eligibility for annexation under the terms of Part 1,Article 12,Title 31, CRS. The hearing shall be held on the 215'day of August,2007, in the City Council Chambers of the City of Evans, 1100 37th Street, Evans, Colorado, at 7:30 p.m. Section 3. The City Clerk shall publish notice of such hearing once per week for four successive weeks in the Greeley Tribune,with the first publication at least 30 days prior to the date of the hearing.The City Clerk shall also send a copy of the resolution and the petition for annexation to the Clerk of the Board of County Commissioners,the County Attorney,and to any Special District or School District within the area proposed to be annexed. Section 4. This resolution shall be in full force and effect upon its passage and adoption. PASSED,APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Evans on this 17th day of July,2007 oo ttrrf ny�y 1 •••.......ff�� f AI LEST: =V := y CITY OF EVANS, COLORADO SEAL, IE ti• ?� �. By: , City Clerk ' o R •,O r or * EXHIBIT A The Northwest One-Quarter Northwest of the One-Quarter(NW 1/4 NW 1/4)of Section Thirty-One (31),Township Five(5)North,Range Sixty-Five(65)West of the 6th Principal Meridian AND The Northeast One-Quarter(NE 1/4)and the Northeast One-Quarter of the Northwest One-Quarter(NE 1/4 NW 1/4)of Section Thirty-Six(36),Township Five(5)North,Range Sixty-Six(66)West the 6th Principal Meridian,EXCEPT a strip of land conveyed to The County of Weld in Quit Claim Deed recorded April 13, 1903 in Book 163 at Page 378, County of Weld, State of Colorado, containing 244.84 acres, more or less. 2 Exhibit A—Reso.36-2007 Hello