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HomeMy Public PortalAboutholiday inn expressc�- «o AMENDMENT TO PRE -ANNEXATION AGREEMENT Holiday Inn Express City of Moab, Utah THIS AMENDMENT is made and entered into this 8th day of April, 2008, by and between the CITY OF MOAB, a Utah munnicipaI corporation ("the City"), acting through its City Council, and HOLIDAY INN EXPRESS AND SUITES, and JAMES P. KOEHLER INDIVIDUALLY ("Holiday Inn Express"): A. James P. Koehler owns a parcel of real property situated in Grand County, Utah. The parcel is more particularly described in Exhibit A hereto. The parcel is referred to herein as "the Property". B. The Property is subject to a Pre -annexation Agreement, executed on August 28, 2002, by and between the City of Moab and the City and Holiday Inn Express, hereinafter "the Agreement". C. The parties wish to amend the Agreement to clarify that the Property is subject to the rights and privileges of other properties in the North Corridor that are subject to pre -annexation agreements with respect to connection to the City sanitary sewer system. NOW, THEREFORE, in consideration of the mutual promises and covenants herein, and for other good and valuable consideration, Holiday Inn Express and the City of Moab agree that Section 1.4 of the Agreement shall be amended to read as follows: 1.4 The parties acknowledge that the existing Holiday Inn Express Hotel is served by a septic system located on the Property. The parties hereby agree that the Property may continue to use the existing septic system or a newly constructed septic system in lieu of connection to the City sanitary sewer system, provided that the septic system used for the hotel has received and continues to receive the approval of the State of Utah for the contemplated use. The parties agree at such time that the City of Moab sanitary sewer system is established within 200 feet of the Property boundary, that any new development on the Property that is not currently connected to the existing septic system shall be connected to the City sanitary sewer system. Holiday Inn Express agrees to grant to the City the easements necessary for the extension of the main sewer line through the Property. 1.4.1 The parties acknowledge that the City does not currently have sanitary sewer mains adjacent to the Property. The parties understand that Holiday Inn Express may elect to connect the Property to the City sewer system at such time as sewer is extended to the Property, subject to the payment of all applicable connection and impact fees assigned to Property 1 1.4.2 Holiday Inn Express hereby agrees to pay any and all costs associated with constructing and extending necessary sewer service lines to the Property, including construction, engineering and testing, should Holiday Inn Express elect to extend City sanitary sewer services to the Property prior to the City's extending sanitary sewer services to the Property. Holiday Inn Express further agrees that the design and construction of any sewer lines shall be subject to the approval and inspection of the City Public Works Director. All sewer service lines within the property shall remain under the ownership of Holiday Inn Express. 1.4.3 The City agrees that upon connection to the City sanitary sewer system, the Property will be able to discharge into that system, waste water currently generated by the existing hotel as well as any future development defined and approved by the City Planning Commission. 1.4.4 The parties agree that Holiday Inn Express shall pay all applicable impact fees upon connection to the city sewer system, provided that Holiday Inn Express may elect to pay said fee over 20 years at an interest rate of 4.5% interest per year. Any payment arrangement must be executed through the City Treasurer's Office. IN WITNESS WHEREOF, this Amendment to Agreement has been executed by the City of Moab, acting by and through the Moab City Council, which has duly authorized execution, and by a duly authorized representative of Holiday Inn Express, as of the date(s) specified below. CITY OF MOAB 64444 --os Mayor David L. Sakrison Date ATTEST: t ri� ta Rachel Ellison City Recorder 2 HOLIDAY INN EXPRESS State of Utah County of Grand } Date On the day of , personally appeared before me , who duly acknowledged to me that they executed the same. My Commission Expires: State of South Dakota County of Brown } Notary Public Residing in: Grand County On the of Pilp 1 ,personally appeared before me 70-,-+,-'s K6M-•-1-Qif the same. My Commission Expires: , who duly acknowledged to me that they executed Notary Publk Residing in: Brown County 3 Ent 486210 Bk 728 P 115 •� /� Date: 12-MAY-2008 10":42AM Fee: None Filed By: MMD MERLENE MOSHER DALTON Recorder GRAND COUNTY CORPORATION For: MOAD CITY AMENDMENT TO PRE -ANNEXATION AGREEMENT Holiday Inn Express City of Moab, Utah THIS AMENDMENT is made and entered into this 8th day of April, 2008, by and between the CITY OF MOAB, a Utah municipal corporation ("the City"), acting through its City Council, and HOLIDAY INN EXPRESS AND SUITES, and JAMES P. KOEHLER INDIVIDUALLY ("Holiday Inn Express"): A. James P. Koehler owns a parcel of real property situated in Grand County, Utah. The parcel is more particularly described in Exhibit A hereto. The parcel is referred to herein as "the Property". B. The Property is subject to a Pre -annexation Agreement, executed on August . 28, 2002, by and between the City of Moab and the City and Holiday Inn Express, hereinafter "the Agreement". C. The parties wish to amend the Agreement to clarify that the Property is subject to the rights and privileges of other properties in the North Corridor that are subject to pre -annexation agreements with respect to connection to the City sanitary sewer system. NOW, THEREFORE, in consideration of the mutual promises and covenants herein, and for other good and valuable consideration, Holiday Inn Express and the City of Moab agree that Section 1.4 of the Agreement shall be amended to read as follows: 1.4 The parties acknowledge that the existing Holiday Inn Express Hotel is served by a septic system located on the Property. The parties hereby agree that the Property may continue to use the existing septic system or a newly constructed septic system in lieu of connection to the City sanitary sewer system, provided that the septic system used for the hotel has received and continues to receive the approval of the State of Utah for the contemplated use. The parties agree at such time that the City of Moab sanitary sewer system is established within 200 feet of the Property boundary, that any new development on the Property that is not currently connected to the existing septic system shall be connected to the City sanitary sewer system. Holiday Inn Express agrees to grant to the City the easements necessary for the extension of the main sewer line through the Property. 1.4.1 The parties acknowledge that the City does not currently have sanitary sewer mains adjacent to the Property. The parties understand that Holiday Inn Express may elect to connect the Property to the City sewer system at such time as sewer is extended to the Property, subject to the payment of all applicable connection and impact fees assigned to Property 1 1.4.2 Holiday Inn Express hereby agrees to pay any and all costs associated with constructing and extending necessary sewer service lines to the Property, including construction, engineering and testing, should Holiday Inn Express elect to extend City sanitary sewer services to the Property prior to the City's extending sanitary sewer services to the Property. Holiday Inn Express further agrees that the design and construction of any sewer lines shall be subject to the approval and inspection of the City Public Works Director. All sewer service lines within the property shall remain under the ownership of Holiday Inn Express. 1.4.3 The City agrees that upon connection to the City sanitary sewer system, the Property will be able to discharge into that system, waste water currently generated by the existing hotel as well as any future development defined and approved by the City Planning Commission. 1.4.4 The parties agree that Holiday Inn Express shall pay all applicable impact fees upon connection to the city sewer system, provided that Holiday Inn Express may elect to pay said fee over 20 years at an interest rate of 4.5% interest per year. Any payment arrangement must be executed through the City Treasurer's Office. IN WITNESS WHEREOF, this Amendment to Agreement has been executed by the City of Moab, acting by and through the Moab City Council, which has duly authorized execution, and by a duly authorized representative of Holiday Inn Express, as of the date(s) specified below. Mayor David L. Sakrison U� Rachel Ell;,sori- City Recorder Date 2 Ent-486210 Bk 0728 Pg 0116 HOLIDAY INN EXPRESS By State of Utah . a RACHEL E. ELUSON ��1(^ Notary Pubile n` State of Utoh 4"111 My Comm. Empires Jun 30, 2010 217 E Center St, Moab UT 32 ►�— —_ My Commission Expires: State of South Dakota County of Brown On the a 5 d y of Date } County of Grand ) On the day of Aril cacog , personally appeared before me atv L• �IE►v�Gg✓1.►,,ocs,,boCr'i-jrNes,r, who duly acknowledged to me that they executed I t the same. My Commission Expires: Notary Public Residing in: Grand County , personally appeared before me 75c+-w-c5 e. ko-'z1.1-tu" , who duly acknowledged to me that they executed Notary Public Residing in: Brown County 3 Ent 486210 Big 0728 Pg 0117 EXHIBIT A The property description of the parcel owned by Tames P. Koehler which is referred to as the Holiday Inn Express site, is as follows: Parcel No_ 02-126-0142 Beginning at a point which bears North 49°3 S" West 1011.8 feet from the South quarter corner of Section 26, Township 25 South, Range 21 East, Salt Lake Base and Meridian; thence North 53°35' East 700.9 feet, along the Westerly right of way of Highway 191; thence South 47°40' East 439.7 feet; thence South. 72°55' West 847.9 feet; thence North 31 °20' West 151.3 feet to the point of beginning_ County of Grand, State of Utah. Ent 486210 Bic 0728 Pg 0118 E 4 Si 8 1 4 �"� i:t 0 'Eli 43 P Date 3-SCA-2002 16:13pm Fee: No Fee Cash 1 Lib MERL_ENE MOSHER, Recorder Filed By MM For MOAB CITY GRAND COUNTY CORPORATION PRE -ANNEXATION AGREEMENT Holiday Inn Express City of Moab, Utah sCa�.v-E. a For valuable consideration, the sufficiency of which is hereby acknowledged, this agreement is entered into this;. 7 day of l 8,y , 2002, between the CITY OF MOAB, a Utah municipal corporation ("the City"), acting thiough its City Council, and JAMES P. KOEHLER, d/b/a Holiday Inn Express and Suites ("Koehler"), as follows: 1.1 RECITALS: A. James P. Koehler owns a parcel of real property situated in Grand County, Utah and more particularly described in Exhibit A, attached (the "Property"). Koehler proposes to develop the site as a 79 room hotel in accordance with the site plan attached as Exhibit B ("Site Plan"). B. The Property is located in an unincorporated area of Grand County, Utah. Koehler intends to develop its property according to Grand County or City of Moab regulations, whichever is more restrictive. C. Koehler intends to connect to the City Water System and pay all construction costs associated with upgrading and extending the City water line to the Property. D. Koehler agrees to the annexation of the Property into City limits according to the terms and conditions of this agreement and Utah law. F. The City of Moab Planning Commission and the Moab City Council, being fully advised and having considered the matters at duly noticed public meetings, have concluded that it is in the best interests of the City of Moab to enter into this Agreement and have made all necessary findings of fact and conclusions of law in support thereof. AGREEMENT: Water and Sewer Service. The City hereby agrees to provide culinary and fire flow water service to the Property at Koehler's request and in accordance with standard municipal rates and charges. Koehler shall complete an application for water service and shall pay all applicable connection and impact fees. Upon completion of construction Koehler shall pay charges for services outside of City limits for service to the Property, until such time as the Property is lawfully annexed into City limits. Upon payment of all applicable connection and impact fees Koehler shall be permitted to connect the Project to the City culinary water system. The City agrees to make application to the Utah Department of Transportation for a right-of-way for the water line extension to the Koehler Property. 1.2 Koehler hereby agrees to pay all costs associated with upgrading and extending the City water line to the Property, including construction, engineering, testing and sterilization. Koehler agrees that the design and construction of the water line shall be subject to the approval and inspection of the City Public Works Director, and shall be conducted in accordance with the design specifications and plans shown in Exhibit C, attached. Upon completion and acceptance of the construction, Koehler hereby 1 �U-Zr4 agrees to dedicate and transfer title to the water line to the City, together with any necessary water line or access easements, subject only to the warranty as stated in this agreement. 1.3 Koehler warrants that all improvements constructed pursuant to this agreement and dedicated to the City shall be constructed in a workmanlike manner, in accordance with approved plans and specification, and that all such improvements shall be free of all defects in materials and workmanship for a period of one (1) year from the date of acceptance of same. Koehler, or his designee, shall promptly repair or replace any defective work following receipt of written notice under this warranty from the City. 1.4 The parties acknowledge that the City of Moab Sanitary Sewer System does not currently extend far enough to serve the Property. At such time that City of Moab sewer service is established within two hundred (200) feet of the Property boundary, Koehler shall connect to the City sewer system,'' s currently provided for in the Moab City Municipal Code, and be subject to the applicable connection and sewer impact fees. Koehler shall be solely responsible for all costs associated with design and construction of Project Improvements necessary to connect to the sewer system. All other provisions of this Section applicable to culinary water line construction shall be applicable to sewer line construction at such time as Koehler shall be required to connect to the sewer system. *AdA vide. rlecesseA+�pp sewer ease acre57� I1+c-�'perij ,,, accordan0z +�u Gtv �� Sisfew p(ainS, 1.5 Koehler hereby agrees to develop the Project in accordance with City of Moab o Grand County development standards, whichever is more restrictive, and i accordance with the Site Plan attached as Exhibit B. The Site Plan shall be recorded with this Agreement and shall contain a dedication whereby Koehler dedicates to public use certain pedestrian and bicycle paths, as well as the frontage road specified therein. 2.1 Cost Reimbursement and Construction. The parties shall execute a Cost Reimbursement Agreement, shown in Exhibit D, contemporaneous with the execution of this Agreement. The Cost Reimbursement Agreement shall govern the conditions under which Koehler may be entitled to recover from third parties the costs incurred for construction of water improvements in excess of Project Improvements necessary to serve the Property. 2.2. Koehler shall deliver to the City an irrevocable letter of credit from a regional bank in an amount equal to the mutually approved costs of all culinary water improvements required by this agreement. The letter of credit shall be in a form acceptable to the City's counsel, shall name the City as beneficiary, and shall be held to secure performance and payment for all improvements required by this Agreement. The letter of credit shall be delivered to the City prior to the commencement of construction of the water line improvements. Koehler shall be solely responsible for payment to all general contractors, subcontractors, laborers and material suppliers for all costs of construction required herein. 2.3 Construction of the water improvements specified in Exhibit C shall be complete no later than one calendar year from the effective date of this Agreement. 2 3.1 Annexation. Koehler, his successors, grantees, and assigns irrevocably consents to and petitions for the annexation of the Property and releases any right of protest or opposition to any future annexation of the Property, or any portion thereof, pursuant to the terms of this Agreement. 3.2 The City agrees to initiate annexation proceedings at such time as the Property meets all legal requirements for annexation. At such time, Koehler agrees to execute any supplemental documents necessary to give effect to this agreement and facilitate the lawful annexation of the Property. The parties agree that the ultimate decision to annex shall rest in the sound discretion of the City Council. At such time as an annexation ordinance is adopted the owner shall be entitled to all rights, and shall be subject to all other responsibilities, applicable generally to other persons and properties within the City municipal limits, e.g. sales taxation, police protection, code enforcement, and the like. 3.3. Contemporaneous with the execution of this Agreement Koehler agrees to execute a restrictive covenant in the form contained in Exhibit E, which covenant shall bind the property and inform all successors and assigns that the property is subject to annexation when legally feasible. The covenant shall be recorded in the Grand County land records. 4.1 General Provisions. This Agreement shall be binding on and inure to the benefit of the successors and assigns of Koehler in the ownership or development of all or any portion of the Property. Prior to assigning any or all of his rights and duties under this Agreement, including all related attachments, Koehler shall obtain from any transferee a written assumption acknowledging and agreeing to be bound by this Agreement, the Restrictive Covenant, the Cost Reimbursement Agreement, and any related obligations. 4.2 This Agreement is the product of mutual bargaining. All terms shall be construed in accordance with their plain meaning, regardless of the extent to which either party participated in the drafting. 4.3 Failure of a party to exercise any right under this Agreement shall not be deemed a waiver of any such right, nor shall any course of dealing or previous action or inaction be deemed a waiver of any rights or claims arising with respect to later or subsequent breaches, acts or omissions. 4.4 The term "Agreement" includes this Pre -Annexation Agreement and all exhibits and attachments, which shall constitute the sole and complete agreement between the parties. The Agreement shall supersede all prior agreements or representations, however evidenced. No modifications to any of the terms of this Agreement shall be binding, unless reduced to writing and lawfully executed by both parties. 4.5 The place of performance of this Agreement is Grand County, Utah. In the event of any legal dispute concerning the subjects of this Agreement, including all attachments, the parties stipulate to venue in the Seventh Judicial District Court, Grand County, Utah. In any such proceeding the parties waive trial to a jury on all claims and agree that the action shall be tried to the court. 3 4.6 In any legal proceeding concerning the terms of this Agreement the substantially prevailing party shall be entitled to recover its reasonable attorney fees and court costs in addition to any other relief authorized herein. 4.7 This Agreement shall be governed by Utah law. 4.8 This Agreement does not create any third party beneficiary rights. It is specifically understood by the parties that; (a) the Project is a private development; (b) the City of Moab has no interest in, responsibilities for, or duty to third parties concerning any improvements to the Property, unless the City accepts the improvements pursuant to this Agreement; and (c) Koehler shall have full power and exclusive control of the Property, subject to the conditions of this Agreement. 4.9 In the event of any dispute concerning this Agreement the parties agree to deliver written notice to the other party describing the act, omission, or breach, which notice shall allow the party in default a period of not more than thirty (30) days in which to cure or abate the breach or violation. In addition, prior to filing suit concerning any breach of this Agreement the parties agree to attempt resolution through mediation or an informal settlement conference. 4.10 The provisions of this Agreement are severable, and if any portion should be held to be void or unenforceable, then the remainder of this Agreement shall be construed to be in full force without reference to the invalid provision. 4.11 In any legal action under this Agreement any party may seek declaratory and/or injunctive relief, including specific performance, as well as recovery of compensatory damages resulting. In no instance shall either parry be liable for consequential damages, lost profits, or delay related damages of any kind. 4.12 All notices under this Agreement be given in writing by first class or certified mail, postage prepaid, and delivered to the following addresses: To the City of Moab: City of Moab 115 West 200 South Moab, Utah 84532 Attn: City Manager To Koehler: James P. Koehler 415 N. 4`" Street Aberdeen, SD 57401 Notice may be delivered to such other parties or addresses as the parties may designate in writing from time to time. 4 �...i. ..I _ v.__. a:.:' .. .a:.�. ..i1 �`.:.� !I. "''III. --u � '�..R� L».P �:�= d":y I:' 1.. ,.'1; ��_�• 4.13 This Pre -Annexation Agreement, including Exhibits A, B, and E, shall be recorded in the Grand County land records. The remaining provisions of the Agreement shall be held by the City of Moab Recorder. IN WITNESS WHEREOF, this Agreement has been executed by the City of Moab, acting by and through the Moab City Council, which has duly authorized execution, and by James P. Koehler, as of the date(s) specified below. Mayor"Da .V d I . akrison �, ".. ehe�Elliso Qi4 eOtTei r KOEHLER j ATA- STATE OF S-OUTH 6TA 6 r cw-�i COUNTY OF BROWN )s.s. 2 7 .) Date Date Date Subscribed to and executed before me by James P. Koehler this Zit-�ay of 2002. Witness my hand and official seal. My commission expires: (s) a - .. _as,_ -ow M as. itACHEL E. ELLISON Notary Public State & Utah !ff Ntj Comm. Expires Jun 2,2008 e 115West2SASoinfkabU 845:2 5 Notary Public, State of,tttuttr Addr ss: 1 i t±) v‘i . „ t) (Tr a Resolution 28-2002 A RESOLUTION APPROVING A PRE -ANNEXATION AGREEIVIENT BETWEEN THE CITY OF MOAB AND HOLIDAY INN EXPRESS WHEREAS, Holiday Inn Express owns property in the area north of Moab City Limits; and WHEREAS, Holiday Inn Express desires to receive culinary water and sanitary sewer services for the Holiday Inn Express property; and WHEREAS, the City of Moab currently owns, operates and maintains a culinary water and sanitary sewer system; and WHEREAS, Holiday Inn Express desires to receive culinary water and sanitary sewer services from the City of Moab; and WHEREAS, Holiday Inn Express and the City of Moab desire that the Holiday Inn Express property will eventually be annexed into the City; and WHEREAS, the Pre -annexation Agreement, Cost Reimbursement Agreement and Restrictive Covenant, along with their exhibits, have been presented to this meeting of the Moab City Council. NOW THEREFORE, we, the Governing Body of the City of Moab do hereby resolve to approve the Pre -annexation Agreement, Cost Reimbursement Agreement, Restrictive Covenant and all exhibits in substantially the form presented at the meeting of the Moab City Council, and direct the appropriate parties to execute and deliver said documents. This resolution shall take effect immediately upon passage. Passed and adopted by action of the Governing Body of the City of Moab in open session this 27th day of August, 2002. CITY OFpOAB David L. Sakrison Mayor Rachel Ellison City Recorder Holiday Inn Express Pre -annexation Resolution Resolution #23-2002 SCHEDULE OF EXHIBITS Exhibit A - Legal Description of Koehler Property Exhibit B - Site Plan of the Holiday Inn Express Exhibit C - Water Line Design Specifications Exhibit D - Cost Reimbursement Agreement Exhibit E- Restrictive Covenant for Annexation E.: -4. 5.1; 49 3_ AF B E'_h Er F.' 3_ or) EXHIBIT A The property description of the parcel owned by Iaraes P, Koehler which is referred to as the Holiday Inn Express site, is as follows: Parcel No.02-126-0142 Beginning at a point which bears North 49°38" West 1011.8 feet from the South quarter comer of Section 26, Township 25 South, Range 21 East, Salt Lane Base.an.d Meridian; thence North 53°35' East 700.9 feet, along the Westerly right of way of Highway 191; thence South 4740' East 439.7 feet; thence South 72°55' West 847.9 feet, thence North 31°20' West 151.3 feet to the point of beginning. County of Grand, State of Utah. r Exhibit "E" `"3GGN.Iry Ib--2f+-+ 4 Cr WHEN RECORDED MAIL TO: City of Moab 115 West 200 South Moab, Utah 84532 RESTRICTIVE COVENANT FOR ANNEXATION AND MUNICIPAL WATER AND SEWER SERVICE CONNECTIONS WHEREAS, Jaines P. Koehler ("Declarant") is the owner of certain lands, more particularly described in Exhibit "A", which property is located in the unincorporated area of Grand County, Utah; WHEREAS, Declarant and the City of Moab, a Utah municipality (the "City"), have entered into a Pre -Annexation Agreement providing for the provision of municipal culinary water service and sewer service, when technically feasible, and, in consideration of same, the Declarant has agreed to annex his property into the municipal limits at such time as the property is legally eligible for annexation; NOW THEREFORE, the Declarant, stipulates and agrees as follows: 1. All of the property described in Exhibit "A" is subject to a Pre -Annexation Agreement with the City of Moab. 2. Declarant, his successors, and assigns, irrevocably consents to and petitions for annexation as provided under Utah law. Declarant, his successors, and assigns hereby waives any protest of annexation. Declarant shall execute any supplementary documents, including an annexation petition as provided in the Pre -Annexation Agreement. 3. Subject to the terms of the Pre -Annexation Agreement, the City shall provide municipal services to the Property. 4. Annexation shall be committed to the discretion of the City and may only occur in conformity with the provisions of Utah law. 5. This covenant shall not be construed to obligate the City to appropriate funds or otherwise engage in capital facilities construction. The decision to extend, replace, enlarge, or otherwise construct capital facilities shall be committed to the sole discretion of the City. 6. In the event that Declarant should fail or refuse to execute necessary documents, or otherwise cooperate in annexation as provided herein, the City may specifically enforce this covenant in a court of competent jurisdiction. In any legal proceeding to enforce this covenant the City shall be entitled to recover its reasonable attorney fees and court costs. 7. This covenant shall attach to, and run with the lands described, and shall bind any grantees or successors in interest. This covenant shall terminate automatically upon the completion of annexation for all of the lands described herein. 1 RESTRICTIVE COVENANT FOR ANNEXATION AND MUNICIPAL WATER AND SEWER SERVICE CONNECTIONS Signature Page APPROVED AND ACCEPTED ON THE DATE SET FORTH BELOW. Declarant: By: Jamie P. Koehler d/b/a Holi ay Inn Express Gatal STATE OF - } } ss. COUNTY OF BROWN Co ,rctiv\ } Subscribed to and acknowledged before me by AU-T4/>+ , 2002. Witness my hand and 2 RACHEL E. ELLISON Notary Public State of Utah My Comm. Expires Jun 2,2008 115V1iast20:1Scull McobUTEN632 James P. Koehler this 2!- day of official seal. My commission expires: CAP ` Notary Public, State of nth-Daketa Address: t l r, W• a U o AA rs ct.o t [mil ram, Qj yl 5 3 EXHIBIT A The property description of the parcel owned by 7anaes P. Koehler which is referred to as the Holiday Inn Express site, is as follows: Parcel No.02-126-0142 Beginning at a point which bears North 49°38" West 10I 1.8 feet from the South quarter coiner of Section 26, Township 25 South, Range 21 East, Salt Lake Base and Meridian; thence North 53°35' East 700.9 feet, along the Westerly right of way of Highway 191; thence South 47°40' East 439.7 feet; thence South 72°55' West 847.9 feet; thence North 31 °20' Nest 151.3 feet to the point of beginning_ County of Grand, State of Utah. Exhibit "D" SCat.,we a 1C� -Zw -4 4 GS COST REIMBURSEMENT AGREEMENT 12 INCH WATER MAIN EXTENSION AND UPGRADE This Agreement is entered into by James P. Koehler ("Koehler") and the City of Moab, a Utah municipality ("City") as follows: RECITALS: A. Koehler owns a parcel of real property in Grand County, Utah which he intends to develop as a hotel. Koehler has requested that the City provide culinary water service that will meet expected demand and requirements for fire flow needed by the development. B. The City has agreed to provide culinary water service outside of municipal limits, subject to the terms of a Pre -annexation Agreement and with the understanding that the property will annex into the City when legally feasible. C. It will be necessary to extend and enlarge existing culinary water service lines in order to provide service to the Koehler property. The area to be served is within the City's "North Corridor" and is planned for long term capital facilities expansion. D. Koehler is willing to initially bear the cost of extending and enlarging water service lines to his property, with the understanding that he may be reimbursed for the increment of costs in excess of those necessary to provide minimum water service to his development. Reimbursement will occur over time as new development connects to the extension. 1.1 AGREEMENT: Project Construction. Koehler agrees to construct a twelve inch diameter water main extension in accordance with the plans and specifications attached to the Pre - annexation Agreement (the "Extension"). Koehler shall pay for all costs of construction, including costs for engineering, material, labor, testing, and sterilization of the line. 1.2 Koehler shall solicit bids for the water line extension from licensed and reputable contractors, and shall submit to the City for approval a total cost of the project based upon the bid of the lowest mutually acceptable and responsible bidder. Koehler shall certify, under penalty of perjury, that the bid is true and correct and represents the actual cost to be expended on the project. The written approval of that bid by the City shall be the basis of reimbursement herein ("Project Cost"). The City, in its sole discretion, may 1 obtain confirmation from Koehler or the contractor that all sums bid are actually expended on the Extension. 1.3 Any change to the scope of the work or the Project Cost shall not be subject to reimbursement under this Cost Reimbursement Agreement unless a written change order is approved in advance by the City and Koehler. Change orders will only be approved for changes in the scope of the work resulting from unforseen and/or unanticipated conditions. 1.4 A record of the Project Cost shall be maintained by the City for a period of not to exceed ten (10) years from the date of acceptance by the City of the improvements. 1.5 The reimbursement obligations herein shall terminate upon the occurrence of the following conditions, whichever first occurs: 1) payment in full of the Reimbursable Cost, as defined below; 2) abandonment or non-use of the improvements to be installed under this Agreement; or 3) ten (10) years from the date of acceptance of the improvements by the City. 2.1 Reimbursement Calculation. The increment of the Project Cost which is subject to reimbursement (the "Reimbursable Cost") shall be calculated by multiplying the Project Cost by a fraction, the numerator of which is the available total of peak instantaneous demand capable of being served by the Extension and not consumed by the Koehler development or required fire flow capacity, measured in gallons per minute ("GPM"), and the denominator of which is the total of peak instantaneous demand capable of being served by the Extension, exclusive of required fire flow capacity, measured in GPM. For purposes of this calculation, the parties agree that peak instantaneous demand for fire flow is 1,500 GPM; peak instantaneous demand for the Holiday Inn Express (indoor plus irrigation) is 147 GPM; and total peak instantaneous demand capacity for the Extension is 4,458 GPM. 2.2 As new customers request service from the Extension they shall be assessed at the time of connection a proportionate share of the Reimbursable Cost based upon the percentage of available peak instantaneous demand to be consumed by that customer, plus interest on that sum at the rate of five percent (5%) per annum from the date of acceptance of the Extension by the City. The City agrees to administer and collect these funds from new customers as a condition precedent to connecting to the Extension. 2.3 Reimbursement shall be made by the City to Koehler no later than thirty (30) days from receipt of the funds from the customer. 2 3.1 General Provisions. Nothing in this Cost Reimbursement Agreement shall be construed to be a payment guarantee or promise on the part of the City that Koehler will be repaid the total Reimbursable Cost or accrued interest. The obligation to pay shall be determined solely by demand for service from the Extension. 3.2 Koehler may assign his rights under this Cost Reimbursement Agreement, in whole or in part, to any successor in title to the Property, as defined in Exhibit A of the Pre -Annexation Agreement. Prior to assigning Koehler shall first deliver written notice of same to the City. 3.3 This Cost Reimbursement Agreement shall not apply to collection by the City of any Connection Fees, as defined in Municipal Code § 13.25.010, or any other Impact Fees otherwise applicable to new connections and not related to the Extension. Reimbursement as provided herein shall only apply to culinary water Project Improvements for new development in the form of connections to the Extension. Nothing in this agreement shall be construed to require the City to seek reimbursement from water customers in the north corridor existing and connected to the City water system as of the effective date of this agreement, except to the extent that such customers increase their water demands as a result of new connections to the Extension or capacity upgrades to existing water taps. The parties agree that all such existing and connected customers who do not seek service or capacity upgrades shall be entitled to connect to the Extension upon abandonment of old service lines without paying a portion of the Reimbursable Cost. 3.4 Hall or any portion of this Cost Reimbursement Agreement shall be declared void or unenforceable by any court of competent jurisdiction the parties shall be released of their obligations herein to that extent. 3.5 The City agrees to provide advance notice of the terms of this Cost Reimbursement Agreement to property owners likely to be affected by the reimbursement obligation. A condition precedent to the enforcement of the reimbursement obligation under this agreement is the adoption by the City of amendments to the impact fee ordinance as provided under § 13.25.010, et seq., of the Moab Municipal Code. Those amendments will implement the provisions of this agreement and should be adopted contemporaneous with the approval of the Project Cost, as specified in § 1.2, herein. If an implementing impact fee ordinance is not approved as provided by this section either party may withdraw from this agreement, which will then terminate. 3.6 It is expressly agreed that the withdrawal by either or both parties from this Cost Reimbursement Agreement as provided under § 3.5, supra, will not 3 COST REIMBURSEMENT AGREEMENT 12 INCH WATER MAIN EXTENSION AND UPGRADE Signature Page impair or abrogate the terms of the Pre -Annexation Agreement or the Restrictive Covenant for Annexation executed contemporaneous with this document. All such agreements shall remain in full force and effect. In the event of withdrawal, it is the intent of the parties to renegotiate in good faith an agreement regarding construction costs for the Extension. 3.7 There are no third party beneficiaries intended to have rights enforceable under this Cost Reimbursement Agreement. Title to the Extension shall vest solely in the City upon acceptance of same, free of any liens or encumbrances. 3.8 Except as otherwise expressly agreed in writing, nothing herein shall be construed to obligate the City to provide culinary water service to persons outside of the City limits. The decision to provide such service shall rest solely in the sound discretion of the City Council. 3.9 This agreement shall be construed in accordance with the laws of the state of Utah. APPROVED AND ACCEPTED ON THE DATE SET FORTH BELOW. CITY OF MOAB by: Mayor D ,:vid L . Salcrison Rachel Ellison City Recorder KOEHLER State of Utah j County of Brand I Subscribed and awanyafflrmed to before re on this day of .--`�..a—,by 17. nab 4 7 2cse)v Date Date Date RAGHEL E, ELLISON Notary Public State of Utah My Comm. Expires Jun 2,2006 115Wsat?i SashWeb U 64532 1 1 D [rotary Public: DUFFORD, WALDECK, MILBURN & KROHN, L.L.P. BETTY C_BECHTEL WILLIAM H.T. FREY NATHAN A. KEEVER RICHARD H. KROHN CHRISTOPHER G. McANANY` LAIRD T. MILBURN MICHAEL C. SANTO MICHAEL A KHZMINSKI' JOHN R. PIERCE SAM D. STARRITT} 'ALSO ADMITTED IN LTAB TALSO ADMITTED IN WYOMING HAND DELIVERY Bill Balaz Balaz & Associates, Inc. 1005 N. 12`h Street, Suite 211 Grand Junction, CO 81501 ATTORNEYS AT LAW 744 HORIZON COURT, SUITE 300 GRAND JUNCTION, COLORADO 81506 TELEPHONE: (970) 241-5500 FAX: (970) 243-7733 MOAB,UTAH TELEPHONE: (435) 259-2225 July 16, 2002 Re: Holiday Inn Express Dear Bill: I enclose for your review the following documents: WILLIAM G. WALDECK FLINT B_ OGLE OF COUNSEL D.J. DUFFORD 0919-199E) 400 SOUTH rn STREET NIONTROSE. COLORADO 81401 TELEPHONE' (970) 249-4500 1. Pre -Annexation Agreement; 2. Cost Reimbursement Agreement; and, 3. Restrictive Covenant for Annexation and Municipal Water and Sewer Service Connections. These documents have all been reviewed and approved for content by the Moab City Manager. Please review them carefully with your client and advise us if everything meets with his acceptance. Please note that omitted from the Pre -Annexation Agreement are Exhibits A, B and C, which constitute the legal description of the Koehler property, the site plan for the Holiday Inn Express, and the water line extension design specifications, respectively. We will need to get those documents incorporated into the final agreement. Please let us know if your client has any questions or concerns about this draft. We have tried to stay within the intent of the original Cost Reimbursement Agreement tendered to our office as much as possible given the impact fee legislation applicable in the State of Utah. Please note that to avoid future problems down the line, it would be wise for the City to adopt this agreement as part COSY FOR COUNCIL �I�10Z C- D to In1 Bill Balaz Balaz & Associates, Inc. July 16, 2002 Page 2 of an impact fee specific to the area that will be served by the water line extension. We should be able to do that concurrently with the adoption of the agreement. I appreciate your patience in waiting for these documents to be assembled. As you can imagine, the City wants to make sure that this development goes forward in a way that works well for everybody. Let us know if you have any additional questions. I look forward to bearing from you soon. CGM/saj Enclosures xc: Mayor David L. Sakrison (wlencls.) Moab City Council (w/ends.) Donna Metzler (w/encls.) F-1Wp197951660-Holiday Inn Express5Balaz-LTR.wpd PRE -ANNEXATION AGREEMENT Holiday Inn Express City of Moab, Utah THIS AGREEMENT is made and entered into this day of July, 2002, between the CITY OF MOAB, a Utah municipal corporation ("the City"), acting through its City Council, and JAMES P. KOEHLER, d/b/a Holiday Inn Express and Suites ("Koehler"), as follows: RECITALS: A. James P. Koehler owns a parcel of real property situated in Grand County, Utah and more particularly described in Exhibit A, attached (the "Property"). Koehler proposes to develop the site as a 79 room hotel in accordance with the site plan attached as Exhibit B ("Site Plan"). B. The Property is located in an unincorporated area of Grand County, Utah. Koehler intends to develop its property according to Grand County or City of Moab regulations, whichever is more restrictive. C. Koehler intends to connect to the City Water System and pay all construction costs associated with upgrading and extending the City water line to the Property. D. Koehler agrees to the annexation of the Property into City limits according- to the tenets and conditions of this agreement and Utah law. F. The City of Moab Planning Commission and the Moab City Council, being fully advised and having considered the matters at duly noticed public meetings, have concluded that it is in the best interests of the City of Moab to enter into this Agreement and have made all necessary findings of fact and conclusions of law in support thereof. AGREEMENT: 1.1 Water and Sewer Service. The City hereby agrees to provide culinary and fire flow water service to the Property at Koehler's request and in accordance with standard municipal rates and charges. Koehler shall complete an application for water service and shall pay all applicable connection and impact fees. Upon completion of construction Koehler shall pay charges for services outside of City limits for service to the Property, until such time as the Property is lawfully annexed into City limits. Upon payment of all applicable connection and impact fees Koehler shall be permitted to connect the Project to the City culinary water system. The City agrees to make application to the Utah Department of Transportation for a right-of-way for the water line extension to the Koehler Property. 1.2 Koehler hereby agrees to pay all costs associated with upgrading and extending the City line to the Property, including construction, engineering, testing and sterilization. Koehler agrees that the design and construction of the water line shall be subj ect to the approval and inspection of the City Public Works Director, and shall be conducted in accordance with the design specifications and plans shown in Exhibit C, attached. Upon completion and acceptance of the construction, Koehler hereby agrees to dedicate and transfer title to the water line to the City, together with any necessary water line or access easements, subj ect only to the warranty as stated in this agreement. 1 1.3 Koehler warrants that all improvements constructed pursuant to this agreement and dedicated to the City shall be constructed in a workmanlike manner, in accordance with approved plans and specification, and that all such improvements shall be free of all defects in materials and workmanship for a period of one (1) year from the date of acceptance of same. Koehler, or his designee, shall promptly repair or replace any defective work following receipt of written notice under this warranty from the City. 1.4 The parties acknowledge that the City of Moab Sanitary Sewer System does not currently extend far enough to serve the Property. At such time that City of Moab sewer service is established within two hundred (200) feet of the Property boundary, Koehler shall connect to the City sewer system, as currently provided for in the Moab City Municipal Code, and be subject to the applicable connection and sewer impact fees. Koehler shall be solely responsible for all costs associated with design and construction of Project Improvements necessary to connect to the sewer system. All other provisions of this Section applicable to culinary water line construction shall be applicable to sewer line construction at such time as Koehler shall be required to connect to the sewer system. 1.5 Koehler hereby agrees to develop the Project in accordance with City of Moab or Grand County development standards, whichever is more restrictive, and in accordance with the Site Plan attached to this agreement. 2.1 Cost Reimbursement and Construction. The parties shall execute a Cost Reimbursement Agreement, shown in Exhibit D, contemporaneous with the execution of this Agreement. The Cost Reimbursement Agreement shall govern the conditions under which Koehler may be entitled to recover from third parties the costs incurred for construction of water improvements in excess of Project Improvements necessary to serve the Property. _ 2.2. Koehler shall deliver to the City performance and payment bonds from a surety authorized to transact business in Utah in amounts equal to the mutually approved costs of all culinary water improvements required by this agreement. The performance bond shall designate the City as beneficiary and the payment bond shall be for the use and benefit of all laborer, material suppliers and subcontractors installing water improvements on the Project. Koehler shall be solely responsible for payment to all general contractors, subcontractors, laborers and material suppliers for all costs of construction required herein. 2.3 Construction of the water improvements specified in Exhibit C shall be complete no later than one calendar year from the effective date of this Agreement. 3.1 Annexation. Koehler, his successors, grantees, and assigns irrevocably consents to and petitions for the annexation of the Property and releases any right of protest or opposition to any future annexation of the Property, or any portion thereof, pursuant to the terms of this Agreement. 3.2 The City agrees to initiate annexation proceedings at such time as the Property meets all legal requirements for annexation. At such time, Koehler agrees to execute any 2 supplemental documents necessary to give effect to this agreement and facilitate the lawful annexation of the Property. The parties agree that the ultimate decision to annex shall rest in the sound discretion of the City Council. At such time as an annexation ordinance is adopted the owner shall be entitled to all rights, and shall be subject to all other responsibilities, applicable generally to other persons and properties within the City municipal limits, e.g. sales taxation, police protection, code enforcement, and the like. 3.3. Contemporaneous with the execution of this Agreement Koehler agrees to execute a restrictive covenant in the form contained in Exhibit E, which covenant shall bind the property and inform all successors and assigns that the property is subject to annexation when legally feasible. The covenant shall be recorded in the Grand County land records. 4.1 General Provisions. This Agreement shall be binding on and inure to the benefit of the successors and assigns of Koehler in the ownership or development of all or any portion of the Property. Prior to assigning any or all of his rights and duties under this Agreement, including all related attachments, Koehler shall obtain from any transferee a written assumption acknowledging and agreeing to be bound by this Agreement, the Restrictive Covenant, the Cost Reimbursement Agreement, and any related obligations. 4.9 This Agreement is the product of mutual bargaining. All terms shall be construed in accordance with their plain meaning, regardless of the extent to which either parry participated in the drafting. 4.3 Failure of a party to exercise any right under this Agreement shall not be deemed a waiver of any such right, nor shall any course of dealing or previous action or inaction be deemed a waiver of any rights or claims arising with respect to later or subsequent breaches, acts or omissions. 4.4 The term "Agreement" includes this Pre -Annexation Agreement and all exhibits and attachments, which shallconstitutethe sole and complete agreement between the parties. The Agreement shall supercede all prior agreements or representations, however evidenced. No modifications to any of the terms of this Agreement shall be binding, unless reduced to writing and lawfully executed by both parties. 4.5 The place of performance of this Agreement is Grand County, Utah. In the event of any legal dispute concerning the subjects of this Agreement, including all attachments, the parties stipulate to venue in the Seventh Judicial District Court, Grand County, Utah. In any such proceeding the parties waive trial to a jury on all claims and agree that the action shall be tried to the court. 4.6 In any legal proceeding concerning the terms of this Agreement the substantially prevailing party shall be entitled to recover its reasonable attorney fees and court costs in addition to any other relief authorized herein. 4.7 This Agreement shall be governed by Utah law. 3 4.8 This Agreement does not create any third party beneficiary rights. It is specifically understood by the parties that; (a) the Project is a private development; (b) the City of Moab has no interest in, responsibilities for, or duty to third parties concerning any improvements to the Property, unless the City accepts the improvements pursuant to this Agreement; and (c) Koehler shall have full power and exclusive control of the Property, subject to the conditions of this Agreement. 49 In the event of any dispute concerning this Agreement the parties agree to deliver written notice to the other party describing the act, omission, or breach, which notice shall allow the party in default a period of not more than thirty (30) days in which to cure or abate the breach or violation. In addition, prior to filing suit concerning any breach of this Agreement the parties agree to attempt resolution through mediation or an informal settlement conference. 4.10 The provisions of this Agreement are severable, and if any portion should be held to be void or unenforceable, then the remainder of this Agreement shall be construed to be in full force without reference to the invalid provision. 4.11 In any legal action under this Agreement any parry may seek declaratory and/or injunctive relief, including specific performance, as well as recovery of compensatory damages resulting. In no instance shall either party be liable for consequential damages, .lost profits, or delay related damages of any kind. 4.12 All notices under this Agreement be given in writing by first class or certified mail, postage prepaid, and delivered to the following addresses: To the City of Moab: City of Moab 115 West 200 South Moab, Utah 84532 Attn: City Manager To Koehler: James P. Koehler 415 N. 4`h Street Aberdeen, SD 57401 Notice may be delivered to such other parties or addresses as the parties may designate in writing from time to time. 4 IN WITNESS WHEREOF, this Agreement has been executed by the City of Moab, acting by and through the Moab City Council, which has duly authorized execution, and by James P. Koehler, as of the date(s) specified below. CITY OF MOAB Mayor David L. Sakrison Date ATTEST: Rachel Ellison City Recorder KOEHLER Date By James P. Koehler Date 5 SCHEDULE OF EXHIBITS Exhibit A - Legal Description of Koehler Property Exhibit B - Site Plan of the Holiday Inn Express Exhibit C - Water Line Design Specifications Exhibit D - Cost Reimbursement Agreement Exhibit E- Restrictive Covenant for Annexation 6 COST REIMBURSEMENT AGREEMENT 12 INCH WATER MAIN EXTENSION AND UPGRADE This Agreement is entered into by James P. Koehler ("Koehler") and the City of Moab, a Utah municipality ("City") as follows: RECITALS: A. Koehler owns a parcel of real property in Grand County, Utah which he intends to develop as a hotel. Koehler has requested that the City provide culinary water service that will meet expected demand and requirements for fire flow needed by the development. B. The City has agreed to provide culinary water service outside of municipal limits, subject to the terms of a Pre -annexation Agreement and with the understanding that the property will annex into the City when legally feasible. C. It will be necessary to extend and enlarge existing culinary water service lines in order to provide service to the Koehler property. The area to be served is within the City's "North Corridor" and is planned for long team capital facilities expansion. D. Koehler is willing to initially bear the cost of extending and enlarging water service lines to his property, with the understanding that he may be reimbursed for the increment of costs in excess of those necessary to provide minimum water service to his development. Reimbursement will occur over time as new development connects to the extension. 1.1 AGREEMENT: Project Construction. Koehler agrees to construct a twelve inch diameter water main extension in accordance with the plans and specifications attached to the Pre -annexation Agreement (the "Extension"). Koehler shall pay for all costs of construction, including costs for engineering, material, labor, testing, and sterilization of the line. 1.2 Koehler shall solicit bids for the water line extension from licensed and reputable contractors, and shall submit to the City for approval a total cost of the project based upon the bid of the lowest responsible bidder. Koehler shall certify, under penalty of perjury, that the bid is true and correct and represents the actual cost to be expended on the project. The written approval of that bid by the City shall be the basis of reimbursement herein ("Project Cost"). The City, in its sole discretion, may obtain 1 confirmation from Koehler or the contractor that all sums bid are actually expended on the Extension. 1.3. A record of the Project Cost shall be maintained by the City for a period of not to exceed ten (10) years from the date of acceptance by the City of the improvements. 1.4 The reimbursement obligations herein shall terminate upon the occurrence of the following conditions, whichever first occurs: 1) payment in full of the Reimbursable Cost, as defined below; 2) abandonment or non-use of the improvements to be installed under this Agreement; or 3) ten (10) years from the date of acceptance of the improvements by the City. 2.1 Reimbursement Calculation. The increment of the Project Cost which is subject to reimbursement shall be calculated by multiplying the Project Cost by a fraction, the numerator of which is the available total of peak instantaneous demand capable of being served by the Extension and not consumed by the Koehler development, measured in gallons per minute (GPM), and the denominator of which is the total of peak instantaneous demand capable of being served by the Extension, measured in GPM (the "Reimbursable Cost"). 2.2 As new customers request service from the Extension they shall be assessed at the time of connection a proportionate share of the Reimbursable Cost based upon the percentage of available peak instantaneous demand to be consumed by that customer, plus interest on that sum at the rate of 5% per annum from the date of acceptance of the Extension by the City. The City agrees to administer and collect these funds from new customers as a condition precedent to connecting to the Extension. 2.3 Reimbursement shall be made by the City to Koehler no later than thirty (30) days from receipt of the funds from the customer. 3.1 General Provisions. Nothing in this Cost Reimbursement Agreement shall be construed to be a payment guarantee or promise on the part of the City that Koehler will be repaid the total Reimbursable Cost or accrued interest. The obligation to pay shall be determined solely by demand for service from the Extension. 3.2 Koehler may assign his rights under this Cost Reimbursement Agreement, in whole or in part, to any successor in tit le to the Property, as defined in Exhibit A of the Pre -Annexation Agreement. Prior to assigning Koehler shall first deliver written notice of same to the City. 2 3.3 This Cost Reimbursement Agreement shall not apply to collection by the City of any Connection Fees, as defined in Municipal Code Section 13.25.01, or any other Impact Fees otherwise applicable to new connections and not related to the Extension. Reimbursement as provided herein shall only apply to culinary water Project Improvements for new development in the form of connections to the Extension. 3.4 If all or any portion of this Cost Reimbursement Agreement shall be declared void or unenforceable by any court of competent jurisdiction the parties shall be released of their obligations herein to that extent. 3.5 The City agrees to provide advance notice of the terms of this Cost Reimbursement Agreement to property owners likely to be affected by its adoption. The Agreement will be adopted as an impact fee ordinance as provided under § 13-25-101, et seq., of the Moab Municipal Code. 3.6 There are no third party beneficiaries intended to have rights enforceable under this Cost Reimbursement Agreement. Title to the Extension shall vest solely in the City upon acceptance of same, free of any liens or encumbrances. 3.7 Except as otherwise expressly agreed in writing, nothing herein shall be construed to obligate the City to provide culinary water service to persons outside of the City limits. The decision to provide such service shall rest solely in the discretion of the City Council. APPROVED AND ACCEPTED ON THE DATE SET FORTH BELOW. CITY OF MOAB by: Mayor David L. Sakrison Date ATTEST: by: Rachel Ellison City Recorder 3 Date COST REIMBURSEMENT AGREEMENT 12 INCH WATER MAIN EXTENSION AND UPGRADE Signature Page KOEHLER James P. Koehler Date 4 WHEN RECORDED MAIL TO: City of Moab 115 West 200 South. Moab, Utah 84532 RESTRICTIVE COVENANT FOR ANNEXATION AND MUNICIPAL WATER AND SEWER SERVICE CONNECTIONS WHEREAS, James P. Koehler ("Declarant") is the owner of certain lands, more particularly described in Exhibit "A", which property is located in the unincorporated area of Grand County, Utah; WHEREAS, Declarant and the City of Moab, a Utah municipality (the "City"), have entered into a Pre -Annexation Agreement providing for the provision of municipal culinary water service and sewer service, when technically feasible, and, in consideration of same, the Declarant has agreed to annex his property into the municipal limits at such time as the property is legally eligible for annexation; NOW THEREFORE, the Declarant, stipulates and agrees as follows: 1. All of the property described in Exhibit "A" is subject to a Pre -Annexation Agreement with the City of Moab. 2. Declarant, his successors, and assigns, irrevocably consents to and petitions for annexation as provided under Utah law. Declarant, his successors, and assigns hereby waives any protest of annexation. Declarant shall execute any supplementary documents, including an annexation petition as provided in the Pre -Annexation Agreement. 3. Subject to the terms of the Pre -Annexation Agreement, the City shall provide municipal services to the Property. 4. Annexation shall be committed to the discretion of the City and may only occur in conformity with the provisions of Utah law. 5. This covenant shall not be construed to obligate the City to appropriate funds or otherwise engage in capital facilities construction. The decision to extend, replace, enlarge, or otherwise construct capital facilities shall be committed to the sole discretion of the City. &. In the event that Declarant should fail or refuse to execute necessary documents, or otherwise cooperate in annexation as provided herein, the City may specifically enforce this covenant in a court of competent jurisdiction. In any legal proceeding to enforce this covenant the City shall be entitled to recover its reasonable attorney fees and court costs. 7. This covenant shall attach to, and run with the lands described, and shall bind any grantees or successors in interest. This covenant shall terminate automatically upon the completion of annexation for all of the lands described herein. 1 RESTRICTIVE COVENANT FOR ANNEXATION AND MUNICIPAL WATER AND SEWER SERVICE CONNECTIONS Signature Page APPROVED AND ACCEPTED ON THE DATE SET FORTH BELOW. Declarant: By: James P. Koehler d/b/a Holiday Inn Express STATE OF SOUTH DAKOTA ) ) s.s. COUNTY OF BROWN ) Subscribed to and acknowledged before me by James P. Koehler this day of , 2002. Witness my hand and official seal. My commission expires: 2 Notary Public, State of South Dakota Address: