HomeMy WebLinkAbout10006RESOLUTION NO. 10006
A RESOLUTION APPROVING AN EASEMENT AGREEMENT AND A SETTLEMENT AND
RELEASE AGREEMENT AMONG THE CITY OF PUEBLO AND MARVIN N. STEIN, SANDRA M.
STEIN, FOURTH & MAIN CO., DAVID R. ROTH, LUClLLE N. ROTH, GEORGE H. DONLEY AND
THOMAS V. HEALY RELATING TO THE NORTHSlDE LANDFILL AND ADJACENT LAND, AND
AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Easement Agreement and the Settlement and Release Agreement (herein collectively
the "Agreements") among the City of Pueblo and Marvin H. Stein, Sandra M. Stein, Foudh & Main
Co., David R. Roth, Lucille N. Roth, George H. Donley and Thomas V. Healy relating to the
Northside Landfill and adjacent land, copies of which are attached hereto, having been approved
as to form by the City Attorney, are hereby approved subject to the attachment of appropriate legal
descriptions of the land as Exhibits thereto in form and content approved by the City Attorney.
SECTION 2.
The quitclaim of Parcel "A" to the City described in Article VI of the Settlement and Release
Agreement is hereby approved and accepted by the City.
SECTION 3.
The President of the City Council is authorized to execute the Agreements with appropriate
Exhibits attached thereto in the name of the City and the City Clerk is directed to affix the seal of
the City thereto and attest same.
INTRODUCED November 24, 2003
BY Al Gurule\Councilperson
APPROVED: Bill Sova\President of City Council
ATTEST: Gina Dutcher\City Clerk
Background Paper for Proposed
RESOLUTION
DATE: November 24, 2003
DEPARTMENT: Law Department
TITLE
A RESOLUTION APPROVING AN EASEMENT AGREEMENT AND A SETTLEMENT AND
RELEASE AGREEMENT AMONG THE CITY OF PUEBLO AND MARVIN N. STEIN,
SANDRA M. STEIN, FOURTH & MAIN CO., DAVID R. ROTH, LUCILLE N. ROTH,
GEORGE H. DONLEY AND THOMAS V. HEALY RELATING TO THE NORTHSIDE
LANDFILL AND ADJACENT LAND, AND AUTHORIZING THE PRESIDENT OF THE CITY
COUNCIL TO EXECUTE SAME
ISSUE
Should the City Council approve the Easement Agreement and Settlement and Release
Agreement?
RECOMMENDATION
Approve the Agreements
BACKGROUND
The owners of property located at the southeast corner of the intersection of Dillon Drive
and Eagleridge Boulevard described as Lots 1, 2 and 3 North Pueblo Commercial Park
Filing No. 1 ("Property") based upon an engineering study indicating that the northside
landfill ("Landfill") encroached on the easterly edge of their Property served on the City a
demand and notice to file suit to require the City to remove waste material from the
Property and asserted claims for damages including damages arising out of a loss of sale
of the Property valued at $1 million.
In order to resolve the Owners' claims City offered to accept title to the easterly edge of the
Property upon which the landfill allegedly encroached and grant an easement for parking
purposes over that portion of the Property as well as over a portion of City's property
adjacent thereto ("Easement Property") for the benefit of their Property.
The Owners accepted City's offer and have agreed to cause the Property and the
Easement Property to be combined into a new subdivision, to vent the Easement Property
in order to mitigate the collection and migration of methane gas, to improve and landscape
the Easement Property in accordance with City's specifications and standards, and, to the
extent practicable, prevent surface water and other water from entering the subsurface of
the Easement Property or draining easterly onto the Landfill.
City reserved the right to maintain, repair and replace the sanitary sewer crossing the
Easement Property and to install other utilities over, under and across the Easement
Property.
Pursuant to the Settlement And Release Agreement, the Owners and City have mutually
released and discharged each other from all claims, damages, costs, expenses and losses
from or arising from or related to the existence of the Landfill or migration of landfill
constituents at, on, under, to or from the Property or Easement Property, or the City's past
possession, use, operation or maintenance of the Landfill.
FINANCIAL IMPACT
This matter has been resolved without any cost to the City except the use of the surface
of a portion of City's landfill property for parking purposes.
SETTLEMENT AND RELEASE AGREEMENT
I. PARTIES
The parties to this Settlement and Release Agreement ("Agreement") are:
A. Marvin N. Stein; Sandra M. Stein; Fourth & Main Co., a Colorado corporation; David R.
Roth; Lucille N. Roth; George H. Donley; and Thomas V. Healy (collectively the "Stein Parties");
and
B. The City of Pueblo, Colorado ("City").
II. EFFECTIVE DATE
This Agreement is effective as of October 27, 2003.
IlL DEFINITIONS
A. The "Property" that is the subject of this Agreement is certain real property, currently owned
by the Stein Parties, located at and known as Lots 1, 2 and 3, Block 2, North Pueblo Commercial
Park Filing Number 1, in Pueblo County, Colorado.
B. Parcel "A", as used in this Agreement, shall mean that parcel of land designated as such and
described on Exhibit "A".
C. Parcel "B", as used in this Agreement, shall mean that parcel of land designated as such and
described on Exhibit "B".
D. "Landfill", as used in this Agreement, shall mean the former Northside Pueblo Landfill,
located at T20S R65W Section 12, Pueblo County, Colorado, adjacent to and east of the Property.
IV. CONSIDERATION
The parties enter into this Agreement for good and valuable consideration, including property, access
and easement rights, the receipt and sufficiency of which is hereby acknowledged.
V. RELEASE AND WAIVER
In consideration of the mutual covenants set forth herein, and in fin'ther consideration of the grant of
easement by City to the Stein Parties in accordance with Section VII of this Agreement, the Stein
Parties, and each of them individually, for themselves and their assigns, heirs, devisees, personal
representatives, grantees and successors in interest, hereby release and forever discharge City, its
agents, officers, employees, representatives, attomeys, consultants, contractors, enterprises and
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appointed or elected officials from all costs, expenses, losses, claims and demands of every kind and
nature whether known or unknown, whether liquidated or contingent, for or arising from or related to
the existence of the Landfill or migration of landfill constituents at, on, under, to or from the
Property or Parcels A and B, or the City's past possession, use, operation, or maintenance of the
Landfill.
In consideration of the mutual covenants set forth herein, City, for itself and its assigns, devisees,
grantees and successors in interest, hereby release and forever discharge the Stein Parties, their
assigns, heirs, devisees, personal representatives, attorneys, consultants, contractors, grantees and
successors in interest, from all costs, expenses, losses, claims and demands of every kind and nature
whether known or unknown, whether liquidated or contingent, for or arising from or related to the
existence of the Landfill or the migration of landfill constituents at, on, under, to or from the
Property or Parcels A and B.
Notwithstanding the provisions of this release and waiver, the parties expressly preserve all of their
rights to enfome the terms of this Agreement and the Easement referred to herein.
VI. QUITCLAIM BY THE STEIN PARTIES
The Stein Parties agree to quitclaim Parcel "A" to City, and record such transfer of title, in
accordance with all terms and conditions set forth herein.
VII. EASEMENT BY CITY
City agrees to grant to the Stein Parties, and their successors in title to the Property, an easement for
surface use of Parcels "A" and "B" in substantially the form of the Easement Agreement attached
hereto as Exhibit "C."
VIII. APPLICABLE LAW
This Agreement shall be construed according to the laws of the State of Colorado, regardless of any
conflict of law provisions which may apply. Any and all actions at law or in equity which may be
brought by any of the parties to enforce or interpret this Agreement shall be brought only in the State
of Colorado.
IX. SEVERABILITY
In the event that any portion of this Agreement is determined by a court to be invalid, the remainder
of this Agreement shall not be affected thereby and shall remain in force.
X. SURVIVAL
This Agreement and the terms and conditions herein shall survive any sale, lease or other transfer of
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title to or possession of the Property by the Stein Parties, their successors, and assigns.
XI. SALE OR RELEASING OF THE PROPERTY
Nothing in this Agreement shall be construed as limiting in any way the right of the Stein Parties to
lease the Property, or any portion thereof, or to sell the Property, and to convey their interests in the
easement over Parcels "A" and "B" as a part of such lease or sale.
XII. NOTICES
All notices under this Agreement shall be given in writing and sent by certified mail, return receipt
requested, postage prepaid, or by overnight courier. Such notices shall be deemed given three
business days after being sent by certified mail, return receipt requested, postage prepaid, or one
business day after being sent by overnight courier. Notices shall be sent to the parties at the
addresses set forth below:
The Stein Parties:
Marvin Stein
109 Comell Circle
Pueblo, Colorado 81005
Copy to:
Nmman W. Higley, Esq.
Bums, Figa & Will, P.C.
6400 S. Fiddlers Green Circle, Suite 1030
Englewood, Colorado 80111
Pueblo City Manager
I City Hall Place
Pueblo, Colorado 81003
Copy to:
Pueblo City Attorney
c/o Thomas Jagger
Law Office of Thomas E. Jagger
127 Thatcher Building
Pueblo, Colorado 81003
XIII. AUTHORITY
The signatories to this Agreement represent and warrant that they are duly authorized to sign this
Agreement.
XIV. ASSIGNMENT
This Agreement may be assigned by the Stein Parties without the prior written consent of City. This
Agreement shall inure to the benefit of and be binding upon the parties, their respective officers,
directors, members, agents, successors, assigns, tenants and Grantees, and the lenders of any of them.
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XV. MODIFICATION
The terms of this Agreement may only be modified, changed, waived or terminated by written
consent of all parties hereto.
XVL HEADINGS AND CAPTIONS
The headings and captions contained in this Agreement are for convenience only and shall not be
considered in interpreting the provisions of this Agreement.
XVII. COUNTERPARTS
This Agreement may be executed simultaneously in two or more counterparts each of which shall be
deemed an original, and all of which, when taken together, constitute one and the same document.
The signature of any party to any counterpart shall be deemed a signature to, and may be appended
to, any other counterpart.
XIII. NO ADMISSIONS
Nothing contained in this Agreement shall be construed as an admission of any fact or liability of
any party to this Agreement.
XIX. ENTIRE AGREEMENT
This Agreement, combined with the Easement Agreement of even date and concurrent execution,
contains the entire agreement between the parties concerning the subject matter contained herein and
supersedes any previous agreements, negotiations, or understandings with respect thereto. In the
event of conflict between or among the terms and provisions of this Agreement and the Easement
Agreement, the terms and provisions of the Easement Agreement shall prevail.
[Remainder of Page Left Intentionally Blank]
DATED as of the day and year indicated in Section II, above.
a Colorado Corporation
Date:
By: Alan D. Laff
Its:
Vice President
~_~ Marvin N. Stein
Date:
Sandra M. Stein
George H. Donley ~'
David R. Roth
Thomas V. Heal}*
c~' ~57 Lucille 11~. Roth
Date:
Date:
Date:
Date:
Date:
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By (~ Attest: City ''rk
President of the City Council
Approved as to form:
Thomas E. JgggorTUity Attorney
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121.32
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT ("Easement") is made and entered into as of October 27,
2003, by and between the City of Pueblo, Colorado, a municipal corporation (herein "Grantor")
whose address is 1 City Hall Place, Pueblo, Colorado, 81003, and Marvin N. Stein; Sandra M. Stein;
Fourth & Main Co., a Colorado corporation; David R2 Roth; Lucille N. Roth; George H. Donley; and
Thomas V. Healy (collectively herein "Grantee") whose addresses are indicated with their individual
signatures below.
WITNESSETH, that Grantor for and in consideration of Ten Dollars and other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does grant and
convey to the Grantee, subject to compliance with the covenants and conditions set forth below, a
perpetual easement and fight-of-way (the "Easement") as further described below, for access and
vehicular parking on, over and across the surface of the property of Grantor (the "Easement
Property") which is located in Pueblo County, State of Colorado, and described in Exhibit A attached
hereto and incorporated herein.
1. Easement Purpose. The Easement hereby granted shall be used for vehicular parking
and vehicular and pedestrian access to and fi:om, and, solely in conjunction with, the lawful use of
Grantee's adjacent property described as Lots 1, 2 and 3, Block 2, North Pueblo Commercial Park
Filing No. 1, Pueblo County, Colorado, State of Colorado (the "Grantee's Property"), and for such
other purposes as may be necessary to implement the terms and conditions herein. The Easement
hereby granted is appurtenant to and may be used only'for the benefit of Grantee's Property and may
not be separated or severed fi:om Grantee's Property or assigned or conveyed, voluntarily or
involuntarily, independently. Grantee shall not allow the Easement to be used for any purpose
whatsoever other than the purposes specified in this paragraph.
2. Construction, Installation, Maintenance. All construction and maintenance (including
but not limited to initial construction, paving, reconstruction, repair, replacement and removal) of the
parking areas and vehicular and pedestrian access ways (the "Easement Improvements") shall be the
sole responsibility and expense of Grantee. All Easement Improvements shall be designed,
constructed and installed in good and workmanlike manner in compliance with all applicable laws
and ordinances of the Grantor and in accordance with plans and specifications therefore approved by
Grantor, which approval shall not be unreasonably withheld. The Easement Improvements shall be
designed, constructed and installed, to the extent practicable, to prevent surface water from entering
the subsurface of the Easement Property and to prevent surface water fi:om draining easterly off the
Easement Property onto any of Grantor's adjacent property, except through the 40' drainage and
utility easement shown on the subdivision plat for North Pueblo Commercial Park Filing No. 1 (the
"Subdivision Plat"), unless otherwise authorized in writing by Grantor, which authorization may be
given or refused at the absolute discretion of the Grantor. Grantee shall provide adequate venting of
the Easement Property for release of methane gas fi:om the Easement Property in order to mitigate
the collection of methane gas on or under the Easement Property and/or migration of methane gas
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fwm the Easement Property, unless C~'antee demonstrates to Grantor's reasonable sat!sfaction that
no hazard from methane gas is present.
3. Restrictions and Reservations.
(a) The Easement granted herein and the Easement Property are subject to all
easements, covenants, conditions, restrictions and reservations of record, including, without
limitation, drainage and utility easements shown on the Subdivision Plat ("Dedicated Easements")
and the 20' sanitary sewer easement recorded in Book 1799, Pages 867 and 869 of the records of the
Pueblo County Clerk and Recorder (the "Sanitary Sewer Easement").
(b) Grantor shall have the right to enter upon the Easement Property and
Grantee's Property for purposes of installing, maintaining, repairing and replacing the sanitary sewer
main and other facilities located or to be located in the Sanitary Sewer Easement. If, at any time
after the Easement Improvements are installed, City desires to install, maintain, repair or replace any
sanitary sewer main or facilities located in the Sanitary Sewer Easement, Grantor may do so without
liability to Grantee for any repair or replacement of the Easement Improvements overlying the
Sanitary Sewer Easement or damage or injury thereto.
(c) Grantor and public utilities having the right under law to use Dedicated
Easements shall have the right to enter upon the Easement Property for the purposes of installing,
maintaining, repairing and replacing drainage and utility facilities located or to be located in the
existing Dedicated Easements, provided however, that the party entering upon the Easement Property
for such purposes shall use reasonable efforts to insure that its activities, and those conducted by its
agents, employees and contractors, are performed in a manner that will minimize disruption of the
quiet enjoyment of the Easement Property and Cu'antee's Property by Grantee or its tenants; and the
party entering upon the Easement Property for such purposes shall restore the Easement Property and
Grantee's Property to the conditions which existed thereon prior to the entry.
(d) Grantor reserves the fight to grant additional utility easements in, over,
through and under the Easement Property, provided that the usc or uses of such additional utility
easements are' not inconsistent with the Grantee's rights and privileges granted herein, and provided
further that the party entering upon thc Easement Property for such purposes shall usc reasonable
efforts to insure that its activities, and those conducted by its agents, employees and contractors, are
performed in a manner that will minimize disruption of thc quiet enjoyment of thc Easement
Property and Grantee's Property by Grantee or itstenants; and the party entering upon the Easement
Property for such purposes shall restore the Easement Property and Grantee's Property to the
conditions which existed thereon prior to the entry.
4. ~. Grantee shall landscape the Easement Property in accel_anco with
Grantor's standards and specifications and in compliance with landscaping plans and specifications
approved by Grantor (the "Standards"), except that Grantor and Grantee agree and acknowledge that
the presence of a portion of the former Pueblo North Landfill beneath the Easement Property
constitutes a "hardship" for purposes of complying with Grantor's standards and specifications
regarding the type of landscaping material used and its maintenance. Grantor and Grantee further
agree and acknowledge that they have a mutual interest in minimizing the amount of water seeping,
entering or being discharged into the subsurface of the Easement Property or Grantor's adjacent
property.
5. Waste Material Generated By Grantee. Grantee shall, at its sole expense, properly
dispose of any waste or contaminated material relocated or generated in the process of Grantee's
construction, installation or maintenance of the Easement Improvements.
6. Subdiv/sion. Grantee shall cause Grantee's Property and Easement Property to be
combined in a new subdivision to be approved by Orantor prior to installation of any Easement
Improvements. If Grantor, as owner of the Easement Proper~y, is required to execute documents
with respect to the subdivision, Grantor will execute such documents but shall not be or become
liable or responsible, in any manner, for the pcrfo*~t~ance of any obligation imposed on the
subdivider thereby, or associated with the subdivision, including, but not limited to, on-site and off*
site improvements.
7. Exercise of Police Power. Nothing in this Agreement shall be construed to constitute
a contractual abrogation of the City's police powers under subdivision, zoning and other land use
ordinances and regulations.
8. ~lllJ_~g~. Grantee shall indemnify, defend, and hold Grantor, its officers,
agents and employees, harmless from and against any and all claims, damages, liability, cost and
expense, including reasonable attorney fees, ("Claims") incurred, directly or indirectly, as a result of
any act or omission of Grantee, its officers, agents, employees and contractors, or arising out of, or in
any way connected with this Easement and/or Grantee's occupancy or use of the Basement Property.
Grantee's obligations under this paragraph are expressly limited to Claims asserted against Grantor
by third parties. Additionally, such obligations do not pertain to Claims that arise in relation to thc
existence of thc fo,'liner Pucblo North Landfill or the migration of landfill constituents at, on, under
or from the Easement Property.
9. ~. The Easement herein granted shall be a burden upon and shall remain
with the Easement Property in perpetuity, subject to Grantor's reserved right to enter, and shall be
binding upon and inure to the benefit of Grantee and Grantor and their respective grantees, heirs,
personal representatives, successors and assigns.
10. Notices. Any notice required or pemfitted herein shall be in writing and delivered
personally, or by certified mail, return receipt requested, to the addresses and persons set forth below,
provided that the parties by notice given as set forth herein may change the addresses and persons to
whom notice is to be given
(a) If to Grantor: City of Pueblo, Attention: City Manager, 1 City Hall Place,
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Pueblo, Colorado, 81003, with a copy to Thomas E. Jagger, 503 North Main Street, Suite 127,
Pueblo, Colorado, 81003.
(b) If to Grantee: Marvin Stein, P.O. Box 1466, Pueblo, Colorado 81002, with
copies to:
Nonuan W. Higley
Bums, Figa & Will, P.C.
6400 South Fiddler's Green Circle, Suite 1030
Englowood, Colorado 80111
and to:
Alan Laff
Laff Stein Campbell Tucker Delaney & Gordon LLP
7730 East Bellevue Avenue, Suite 204
Greenwood Village, Colorado 80111
11. ~. Time is of the essence hereof. Bach party shall have thc fight to
enforce the terms, provisions, covenants and conditions hereof by specific performance, injunction or
other proceedings and to recover damages, costs, and expenses, including reasonable attorney fees,
resulting from any default or violation thereof by the other party. Any action arising from or related
to this Easement shall be filed in the District Court, Pueblo County, Colorado, and the parties submit
to the jurisdietion of that cout~,
12. e~y..~_.b, iJJ~. If any provision of the Easement is determined to be invalid or
unenforceable, such determination shall not affect the other provisions of this Easement which shall
remain in full force and effect.
13. NO Third-Party Beneficiaries. This Easement and fights and remedies hereunder are
for the sole benefit of Grantee and Grantor, and their respective grantees, heirs, personal
representatives, successors and assigns, and no third-party shall have any right or remedy under this
Easement or the right to enforce same.
14. ~. This Easement shall be interpreted and construed in accordance with
the laws of the State of Colorado without regard to conflict of law principles.
15. Condition of Easement Proge~_. The Easement Property and thc Basement hereby
granted are made by Grantor and accepted by Cu'antec in their present condition "AS IS", "WHERE
IS" and "WITH ALL 1TS FAULTS." Grantee acknowledges and agrees that Grantor has not made
any representation or warranty with respect to the Easement Property or its condition, environmental
or otherwise, or its fitness for any particular use.
16. Tax~.s. If and to the extent that any ad valorem or other ~axes are levied upon the
Easement or the Easement Property arising from the Easement Improvements or the use thereof by
Grantee, Grantee and not Grantor shall be responsible for payment of same.
Executed at Pueblo, Colorado, as of the day and year first written above.
[SEAL]
Attest:
City C~
GRANTOR:
By (
President of the City Council
STATE OF COLORADO )
) SS.
COUNTY OF PUEBLO )
The foregoing instrument was acknowledged before methis ~/~/hdayof [~e~cer~b~, 2003
by Bill Soya, as president of the Pueblo City Council and Gina Dutcher as the City Clerk of the City
of Pueblo.
Wimess my hand and official seal.
My commission expires: ~r-? ]-~J~
[SEA
lie
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GRANTEE:
FOURTH ~i~I/IN'CO.,
a Colorado Corporation
By: Alan D. Laff
Its: Vice President
STATE OF COLORADO )
) SS.
COUNTY OF ARAPAHOE )
The foregoinginstrument was acknowledged before me by Alan D. Laff as this
21Stdayof October, 2003 ,lng90. Vice President of Fourth & Main
Co., a Colorado corporation
My commission expires 2/23/06
Wimess my hand and official seal.
[SEAL]
,,,-...z,.. ........
Notary
7730 E. Belleview Ale., Ste 204
Address
Greenwood V±llage, CO 80111
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GRANTEE:
Date:
STATE OF COLORADO )
~Z~z///d3: ) ss.
COUNTY 0 )
The forl~gojng instrument was acknowledged before me
/_~_ day of ff't~i~--~.,; , 1~)9~.~/--~'fi-
My comm~ss,on exptres ~;~/~ ~5~
· and official seal.
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GRANTEE:
Sandra M. Stein
STATE OF COLORADO )
) SS.
COUNTY OF ~f.~-/Z/V )
/~2~_ The fo~goi~Ki.nstrument was ac~owled~ed before me ~.~~~his
day o~g ~~ ~~
My commission expires ~~-~ ~ ,./. /~
~~d and official seal. ~~~ ~ ....
-8-
GRANTEE:
STATE OF CGLGRADO~[¢~O Ipok~tco )
) SS.
CO~TY o~ ~,~,kl~
~,, ~e forgoing ins~ment was ac~owledged before me by~ 0 ~flf0~ ~- ~0~ this
~ay of ~o~ ,~~ .
My co~ission expires ~PI~
Wimessmyh~d~dofficiJl}~l. ~ ' ~
[SEALI
Ad&ess
OFFICIAL SEAL
NOTARY PUBLIC-NEW
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GRANTEE:
David R. Roth
STATE OF COLORADO )
,~ ) ss.
COUNTY OF ~dO )
/~_~ The fox, going instrument was acknowledged before me b~/__~~/.~~his
day of~/~ ~~ ......
ssionexpires ~/~ ~ .
?. ~d and official seal. ~~
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GRANTEE:
Thomas V. Healy f
STATE OF COLORADO
~o~¥ o~ ~/~/_~
The fg~goi!~g instrument was acknowledged before me by~/f}~
day o~ .~;/.t/~/~_.~jZ~t~,~
My commission expires ~7~JL'~,/'L
[~and
official seal.
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GRANTEE:
Lucllle ~ Roth
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