| PREANNEXATION AGREEMENT FOR OLSON ADDITION ANNEXATION THIS AGREEMENT is made and entered into this ______ day of _____________, 2008, by and between the SANDRA S. OLSON TRUST, the JENNIFER C. OLSON TRUST, and the JULIA D. OLSON TRUST (hereinafter collectively referred to as “the Owners”), and the CITY OF LOVELAND, COLORADO, a home rule municipality (hereinafter referred to as “the City”). The Owners and the City shall hereinafter be referred to collectively as “the Parties.” WITNESSETH: WHEREAS, the Owners own that certain real property located in Larimer County, Colorado, legally described in Exhibit “A” attached hereto and incorporated herein by referenced, which real property shall hereinafter be referred to as “the North Parcel”; and WHEREAS, the Owners also own that certain other real property located in Larimer County, Colorado, legally described in Exhibit “B” attached hereto and incorporated herein by reference, which real property shall hereinafter be referred to as “the South Parcel”; and WHEREAS, the North Parcel and the South Parcel shall hereinafter be referred to jointly as “the Property”; and WHEREAS, the Owners have proposed to the City that the Property be annexed into the City of Loveland; and WHEREAS, the Property is located within the City’s Growth Management Area as defined in the City’s Comprehensive Master Plan and, therefore, the City desires for the Property to be annexed into the City; and WHEREAS, the Parties therefore desire to set forth in this Agreement the terms and conditions pursuant to which the Owners will file a petition for annexation of the Property with the City subject to the terms and conditions of this Agreement, which terms and conditions the Parties also intend to include in a future annexation agreement to be considered in connection with the City Council’s annexation of the Property. NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES AND COVENANTS CONTAINED HEREIN, AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH THE PARTIES HERETO ACKNOWLEDGE, THE PARTIES AGREE AS FOLLOWS: 1. Petition for Annexation. The Owners agree to execute and file with the City Clerk the Petition for Annexation of the Property attached hereto as Exhibit “C” and incorporated herein by reference (hereinafter referred to as “the Petition”). The Owners agree to execute and file the Petition with the City Clerk contemporaneously with their execution of this Agreement. The Owners also agree to execute upon the request of the City any and all of their surveys, maps and other documents necessary to accomplish the annexation of the Property under City Code Article 17, under the Colorado Municipal Annexation Act of 1965, and as are otherwise reasonably needed for the performance of the other provisions of this Agreement. The Owners agree not to execute, or to direct their agents, representatives or attorneys to execute on their behalf, any other petition for the annexation of any or all of the Property to any other municipality or to file any other such petition for annexation of any or all of the Property with any other municipality during the term of this Agreement. 2. Effective Date and Term. This Agreement shall become effective as of the date that this Agreement has been signed by all of the Parties. If on or before , 2008, the Property has not been annexed and zoned by the City Council in accordance with the terms of this Agreement and in accordance with the terms of any future annexation agreement negotiated by the Parties, this Agreement shall terminate and all Parties shall be released from all further obligations under the Agreement except for the City’s obligation to pay the Owners’ costs as provided in Section 8. below. 3. Annexation Agreement. The Parties agree that after the execution of this Agreement that they will proceed in good faith and with due diligence to negotiate and enter into an annexation agreement for the annexation of the Property, the terms and conditions of which shall be in general accord with the terms and conditions of this Agreement, which annexation agreement shall be hereinafter referred to as “the Annexation Agreement.” If the Annexation Agreement is entered into by the Parties in connection with the annexation of the Property, the terms and conditions of the Annexation Agreement, unless expressly provided otherwise in the Annexation Agreement, shall supersede in all respects the terms and conditions of this Agreement. 4. Zoning and Vesting. A. North Parcel. It is the intention and desire of the Parties that after the North Parcel is annexed by the City that it shall be zoned MAC-Mixed-Use Activity Center (“MAC”) pursuant to City Code Chapter 18.29 of the Loveland Municipal Code. A conceptual master plan, including the information required pursuant to City Code Section 18.20.050.B and in compliance with the development standards in City Code Section 18.29.040, shall be prepared for the entire North Parcel. To be in substantial compliance with the Loveland Comprehensive Plan Land Use Map, said master plan shall designate the general type, intensity, and location of land uses as follows: (1) Approximately 10-15 acres at the southwest corner of the North Parcel shall be designated for uses consistent with the description of the Corridor Commercial land use category, as defined in the Loveland Comprehensive Plan. Said uses shall include retail, low-rise office, public/quasi-public uses, entertainment (e.g. restaurants, theaters), medical facilities, places of worship and other non-residential uses listed as uses permitted by right or permitted by special review under the MAC zoning district. (2) Approximately 30-35 acres located generally adjacent to the commercial land use designation shall be designated for uses consistent with the description of the Medium Density Residential land use category, as defined in the Loveland Comprehensive Plan. Said uses shall include single family detached, single family attached, duplex, and multi-family dwelling units and other complimentary uses listed as uses permitted by right or permitted by special review under the MAC zoning district. The permitted gross density range shall be 4-10 dwelling units per acre. (3) The remainder of the North Parcel shall be designated for uses consistent with the description of the Low Density Residential land use category, as defined in the Loveland Comprehensive Plan. Said uses shall include single family detached, single family attached, duplex and multi-family dwelling units and other complimentary uses listed as uses permitted by right or permitted by special review under the MAC zoning district. The permitted gross density range shall be 2-4 dwelling units per acre. B. South Parcel. It is also the intention and desire of the Parties that after the South Parcel is annexed by the City that it shall be zoned MAC-Mixed-Use Activity Center (“MAC”) pursuant to City Code Chapter 18.29 of the Loveland Municipal Code. A conceptual master plan, including the information required pursuant to City Code Section 18.20.050.B and in compliance with the development standards in City Code Section 18.29.040, shall be prepared for the entire South Parcel. To be in substantial compliance with the Loveland Comprehensive Plan Land Use Map, said master plan shall designate the general type, intensity, and location of land uses as follows: (1) Approximately 50-80 acres located along the entire frontage of Highway 402 shall be designated for uses consistent with the description of the Employment land use category, as defined in the Loveland Comprehensive Plan. Said uses shall include a mix of low-to medium-rise office, light- industrial, retail, lodging, and other non-residential uses listed as uses permitted by right or permitted by special review under the MAC zoning district. (2) The remainder of the South Parcel shall be designated for uses consistent with the description of the Low Density Residential land use category, as defined in the Loveland Comprehensive Plan. Said uses shall include single family detached, single family attached, duplex and multi-family dwelling units and other complimentary uses listed as uses permitted by right or permitted by special review under the MAC zoning district. The permitted gross density range shall be 2-4 dwelling units per acre. C. The Annexation Agreement. The Parties agree that the zoning for the North Parcel and the South Parcel, as set forth in this Section, shall be agreed to in the Annexation Agreement. The Annexation Agreement shall also provide that this zoning for the North Parcel and the South Parcel shall be vested for twenty-five (25) years from the effective date of the annexation of the Property as provided in City Code Chapter 18.72. 5. Purchase of Water Shares. Provided that the Property is annexed into the City, the City agrees to purchase from the Owners twenty-seven (27) shares of Consolidated Home Supply Ditch and Reservoir Company stock, bearing stock Certificate Nos. (“the Water Shares”). The City shall purchase the Water Shares from the Owners within days after the effective date of the annexation of the Property at a per share price of $70,000.00 for a total purchase price of $1,890,000.00. The Owners shall convey the Water Shares to the City by general warranty deed, a written bill of sale and assignment with general warranties of title, and through the execution of any and all other documents required for such transfer by the Consolidated Home Supply Ditch and Reservoir Company. The City also agrees to include in the Annexation Agreement a provision obligating the City to lease back to the Owners the Water Shares for raw water irrigation of the Property on terms and conditions acceptable to the Parties. 6. Extension of Sewer Main to the Property. The City agrees to extend, or pay for the extension of, a inch Sewer Main from to the intersection of Highway 402 and County Road 7 (hereinafter referred to as “the Sewer Main”) in order for the City to provide future wastewater service to the Property when the Property develops. The City agrees to meet this obligation by either paying directly for the cost to install the Sewer Main or to reimburse the Owners for their costs if they install the Sewer Main. It is estimated that the current cost of extending the Sewer Main is approximately $ . The Parties agree that the City’s obligation to pay for the costs to so extend the Sewer Main to the Property shall also include all costs for any needed lift stations for the effective operation of the Sewer Main pursuant to the City’s engineering standards. The City agrees that language will be included in the Annexation Agreement to ensure that the City’s financial obligation to pay for the costs of the extension of the Sewer Main will not be considered a multiple-fiscal year financial obligation subject to Section 20 of Article X of the Colorado Constitution. 7. Sales and Use Tax Credit. The City agrees for a period of twenty-five (25) years from the effective date of the City’s annexation of the Property that the City will grant to the Owners, and their assigns, as authorized in City Code Section 3.16.590, a one percent sales and use tax credit for all sales and use taxes required by the City’s Code to be collected by businesses located on the Property, by allowing such businesses to collect a one percent public improvement fee in lieu of collection of such sales and use taxes (hereinafter referred to as “the PIF”). The PIF shall be paid to the Owners, or their assigns, to reimburse the Owners, or their assigns, for the costs of construction, installation, maintenance, repair, replacement, and improvement of any public improvements installed by the Owners, or their assigns, on the Property. The Parties agree that this obligation shall be set forth in the Annexation Agreement and shall be written in a manner that the Parties agree will not result in a multiple-fiscal year financial obligation subject to Section 20 of Article X of the Colorado Constitution. 8. Reimbursement of Owners’ Costs. The City agrees that within days after the effective date of the annexation of the Property into the City, that the City shall pay to the Owners a total sum of $ representing the Owners’ past costs in attempting to annex the Property into Loveland and other costs related to the current annexation of the Property into Loveland. Notwithstanding the foregoing, the City agrees, regardless of whether the Property is so annexed into the City, to reimburse the Owners for any additional reasonable engineering and legal fees incurred by the Owners which are documented and directly related to the negotiation and drafting of this Agreement, to the negotiation and drafting of the Annexation Agreement, and to the annexation itself. 9. Council Approval. Notwithstanding any of the provisions of this Agreement, nothing herein shall be construed to require the City Council to approve the proposed annexation of the Property, to approve the proposed zoning of the Property, or in any way obligate the City Council to grant such approvals. The Owners further acknowledge and agree that the annexation and zoning of the Property, as proposed in this Agreement, are subject to the legislative discretion of the Loveland City Council and that no assurances of annexation or zoning have been made or relied upon by the Owners. However, in the event that the City Council does not approve on or before , 2008, the annexation of the Property or approve the zoning of the Property as provided in Section 4. above, or as otherwise provided in the Annexation Agreement, the City agrees that the Owners may withdraw their Petition attached hereto as Exhibit “C” and that the Owners shall no longer be bound by the provisions of Section 1 above to not file a petition for annexation for the Property with any other municipality. 10. Severability. The Parties agree that if any part, term, portion, section or provision of this Agreement is held by a court of competent jurisdiction to be illegal or in conflict with any law or regulation, the validity of the remaining parts, terms, portions, sections 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, section or provision held to be invalid. 11. Rules of Construction. This Agreement shall be construed according to its fair meaning and as if prepared by all of the Parties and shall be deemed to be and contain the entire understanding and agreement between the Parties. There shall be deemed to be no other terms, conditions, promises, understandings, statements or representations, expressed or implied, concerning this Agreement unless set forth in writing and signed by all of the Parties. 12. Future Cooperation. The Parties agree that they will cooperate with one another in accomplishing the terms, conditions, and provisions of this Agreement and will execute such additional documents as are reasonably necessary to effectuate the same. 13. Remedies on Default. Each and every term and condition of this Agreement shall be deemed to be a material term and condition under this Agreement. In the event that any of the Parties should fail or refuse to perform according to the terms of this Agreement, such party may be declared in default. The Parties acknowledged and agree that the subject of this Agreement concerns unique real property and performance by the Parties; therefore, the Parties agree that in case of default by any of the Parties hereto, the other Parties shall be entitled to specific performance from the defaulting party of its obligations hereunder together with any and all other remedies available at law or in equity. In the event of such default, if the party that is not in default commences legal or equitable action against the defaulting party, the defaulting party shall be liable for the non-defaulting party’s reasonable attorney’s fees and costs incurred because of the default. 14. Notices. All notices under this Agreement shall be in writing and shall be hand delivered, sent by facsimile transmission, or sent by certified mail, return receipt requested, postage pre-paid to the addresses of the Parties hereinafter set forth. All notice by hand delivery shall be effective upon receipt. All facsimile transmissions shall be effective upon transmission received, provided a hard copy is mailed by first class mail on the same date. All notices by mail shall be considered effective 72 hours after deposit in the United States mail with the proper address as set forth below. Any party, by notice so given, may change the address to which future notice shall be sent. Notice to City: Don Williams, City Manager City of Loveland 500 E. Third Street, Suite 330 Loveland, CO 80537 Fax No.: (970) 962-2900 With copy to: John Duval, City Attorney City of Loveland 500 E. Third Street, Suite 330 Loveland, CO 80537 Fax No.: (970) 962-2900 Notice to Owners: Sandra S. Olson Trust Jennifer C. Olson Trust Julia D. Olson Trust With copy to: James A. Martell Liley, Rogers & Martell, LLC 300 South Howes Fort Collins, CO 80521 Fax No.: (970) 221-4242 15. No Third-Party Beneficiaries. This Agreement is made solely for the benefit of the Parties hereto and is not intended to nor shall be deemed to confer rights on any other person or entity not named as one of the Parties to this Agreement. 16. Governing Law and Venue. This Agreement shall be governed by, and construed in accordance with the laws of the State of Colorado. In addition, the Parties hereto recognize that there are legal constraints imposed upon the City by the constitutions, statutes and rules and regulations of the State of Colorado and of the United States and imposed upon the City by its Charter and Code, and that, subject to such constraints, the Parties intend to carry out the terms and conditions of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, in no event shall any of the Parties exercise any power or take any action that would be prohibited by applicable law. Whenever possible, each provision of this Agreement shall be interpreted in such manner so as to be effective and valid under applicable law. Should any of the Parties institute legal suit or action for enforcement of any obligation contained herein, it is agreed that venue of such suit or action shall be in the District Court of Larimer County, Colorado. 17. Binding Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and of their respective personal representatives, successors, heirs, trustees and assigns, and shall constitute covenants and equitable servitudes running with the Property. This Agreement shall be recorded at the City’s expense with the Clerk and Recorder of Larimer County, Colorado. 18. Headings. The headings of this Agreement are for convenience of reference only and shall not be considered in construing or interpreting any section of this Agreement. 19. Time of the Essence. Time is of the essence of each and every term, covenant, condition and provision of this Agreement. 20. Applicability of other City Requirements, Rates, Fees and Charges. The Parties agree that except as otherwise provided in this Agreement and in the Annexation Agreement, that all other applicable City Code provisions, regulations, standards, rates, fees and charges shall apply to any future development of the Property. 21. Assignment. This Agreement shall not be assigned by any of the Parties hereto without the prior written consent of all of the other Parties. IN WITNESS WHEREOF, each of the Parties hereto have caused this Agreement to be executed as of the date set forth below. CITY OF LOVELAND, COLORADO, A HOME RULE MUNICIPALITY By: Date: Mayor ATTEST: _____________________________ City Clerk APPROVED AS TO FORM: City Attorney STATE OF COLORADO ) ) ss. COUNTY OF ____________ ) The foregoing was acknowledged before me this ____ day of ______________, 2008 by __________________________. Witness my hand and official seal. My Commission Expires: ______________________. __________________________________ Notary Public SANDRA S. OLSON TRUST By: Date: STATE OF COLORADO ) ) ss. COUNTY OF ____________ ) The foregoing was acknowledged before me this ____ day of ______________, 2008 by __________________________. Witness my hand and official seal. My Commission Expires: ______________________. __________________________________ Notary Public JENNIFER C. OLSON TRUST By: Date: STATE OF COLORADO ) ) ss. COUNTY OF ____________ ) The foregoing was acknowledged before me this ____ day of ______________, 2008 by __________________________. Witness my hand and official seal. My Commission Expires: ______________________. __________________________________ Notary Public JULIA D. OLSON TRUST By: Date: STATE OF COLORADO ) ) ss. COUNTY OF ____________ ) The foregoing was acknowledged before me this ____ day of ______________, 2008 by __________________________. Witness my hand and official seal. My Commission Expires: ______________________. EXHIBIT “A” [INSERT LEGAL DESCRIPTION OF NORTH PARCEL] EXHIBIT “B” [INSERT LEGAL DESCRIPTION OF SOUTH PARCEL] EXHIBIT “C” [ATTACH PETITION FOR ANNEXATION] |