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HomeMy WebLinkAbout11603RESOLUTION NO. 11603 A RESOLUTION APPROVING BURLINGTON NORTHERN SANTA FE (BNSF) RAILWAY COMPANY REAL ESTATE CONVEYANCE CONTRACT AND QUITCLAIM DEED RELATING TO STORMWATER FACILITIES, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that: SECTION 1. The BNSF Railway company Real Estate Conveyance Contract ( "Contract') between the City of Pueblo and BNSF Railway Company and Quitclaim Deed, copies of which are attached hereto, having been approved as to form by the City Attorney, are hereby approved. SECTION 2. The President of City Council is authorized to execute the Contract and Quitclaim Deed in the name of the City and the City Clerk is directed to affix the seal of the City to the Quitclaim Deed and attest same. SECTION 3. This Resolution shall become effective upon final approval and passage. A77TSTDD SY: CITY CLERK INTRODUCED: April 27, 2009 BY: Judy Weaver } Councilperson APPR D' } �- PRESIDENTaf Cfty Council L) 4 Background Paper for Proposed RESOLUTION DATE: APRIL 27, 2009 AGENDA ITEM # 12 DEPARTMENT: STORMWATER UTILITY DEPARTMENT DENNIS A. MARONEY, P.E., CFM TITLE A RESOLUTION APPROVING BURLINGTON NORTHERN SANTA FE (BNSF) RAILWAY COMPANY REAL ESTATE CONVEYANCE CONTRACT AND QUITCLAIM DEED RELATING TO STORMWATER FACILITIES, AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE SAME ISSUE Should the City approve BNSF Railroad Conveyance Contract and Quitclaim Deed for the purpose of constructing detention facilities and infiltration ponds. RECOMMENDATION Approval of Resolution BACKGROUND Pursuant to the BNSF Railway company ( "BNSF') Real Estate Conveyance Contract ( "Contract'), BNSF will convey to the City approximately 11 acres for storm water facilities "AS IS" with all its faults by quitclaim deed, without warranty or representation as to title or the condition of the property, environmental or otherwise. City waives and releases BNSF from all claims relating to the condition of the property including environmental conditions, and covenants not to sue BNSF for the condition of the property, environmental or otherwise. City also indemnifies BNSF from all claims and damages arising out of the negligent acts or omissions of the City, its officers, agents, employees, contractors or subcontractors in connection with the use and occupancy of the property. City staff has negotiated with BNSF since August 2007 and does not believe BNSF will make any additional changes to the documents. City has not (i) surveyed the property or obtained a title insurance commitment for the property, or (ii) obtained an environmental site assessment for the property. Subject to the foregoing, the City Attorney has approved the Contract and Quitclaim Deed as to form. However, it is the policy decision of the City Council whether or not the City should approve and accept the Contract and Quitclaim Deed under such terms and conditions. The properties have been identified in the City's Master Basin Planning Study as detention sites in the Wildhorse /Dry Creek drainage basin. The detention facilities would serve to improve water quality, collect debris and regulate flows discharging to the BNSF Railroad bridges. The detention sites are located adjacent to the east side of BNSF Railroad between W. 24 St., Bancroft Ave. and W. 19 St. The City of Pueblo Stormwater Department would maintain these detention facilities and remove debris from the Alabama drainage channel, 22 St. and 19 St. before impacting railroad facilities. Regulated storm water discharges from the detention facilities would not exceed the capacity of existing railroad bridges. These detention facilities would serve to mitigate flooding potentials in residential areas adjacent to railroad facilities and the Peppersauce Bottoms residential neighborhood. Storm water would be discharged to Wildhorse /Dry Creek as part of the existing historic drainage system. Additional infiltration ponds and detentions facilities at 8 th and Blake would moderate flows impacting Peppersauce Bottoms. The Phase 1 Environmental Analysis (EA) for all the railroad sites was completed in October of 2008. Those documents recommended that we pursue further analysis (a Phase 2 EA) on 5 of the 10 initial parcels. One of those 5 was eliminated due to its inability to function well as a detention site: The remaining four sites were identified for further testing by the EPA to determine if soil contamination exists. We applied for and received a grant to conduct that work. The Phase 1 EA identified a potential for subsurface petroleum, pesticides, herbicides, and construction debris. The reference to the pesticides and herbicides relate to a spill that occurred in Peppersauce Bottoms in the late 1990's. This was later determined to have been cleaned up by the EPA previously and should not present a problem to us. The treatment for subsurface petroleum contamination (if found) is to turn the soil and expose it to the air at which point it dissipates. The potential environmental risk to the City of accepting the Quitclaim Deeds to these properties would seem very low given these results from the Phase 1 EA. Transfer of the property by Quitclaim Deed presents minimal risk since no structures will be constructed on properties transferred to the City FINANCIAL IMPACT $400,000 was appropriated in the 2007 budget for land acquisition and detention basin construction, $287,000 was appropriated in the 2008 budget for land acquisition and detention basin construction; and $50,000 was appropriated in 2009 for the construction of infiltration ponds. v BNSF RAILWAY COMPANY REAL ESTATE CONVEYANCE CONTRACT dig hi Rep1 Estate Conveyance Contract (the "Contract ") is entered into this /� day of e 2009, by and between BNSF Railway Company (hereafter, "Railroad"), a e aware corporation, and the City of Pueblo (hereafter, "City"), a municipal corporation organized and existing under the laws of the state of Colorado. WITNESSETH: WHEREAS, Railroad is willing to convey to City on the terms and conditions contained herein the real property (hereafter, the "Property") shown as shaded in Drawings No. 3- 41129A through E dated April 18, 2007 and revised August 23, 2007, attached hereto as Exhibit A and by this reference made a part hereof; WHEREAS, the City is willing to accept the conveyance of the Property on the terms and conditions set forth herein; WHEREAS, City is wiling to construct on the Property and other lands in the general location of the Property, at its expense in the estimated amount of $500,000.00, storm water drainage facilities including, without limitation, retention ponds and related appurtenances, in accordance with the City's plans and specifications therefor ( "Storm Water Facilities "); WHEREAS, the purpose of the Storm Water Facilities is to control storm water which, in part, flows through or originates on BNSF's property, thereby reducing the potential flooding burden to property affected by the storm water. NOW, THEREFORE, in consideration of the foregoing and covenants and conditions set forth herein, the parties hereby agree as follows: City will in a timely manner construct the Storm Water Facilities. 2, Railroad will convey the Property to City by quitclaim deed (the "Deed "), such Deed to be in the form attached hereto as Exhibit B, in accordance with the terms, conditions and reservations contained herein. No monetary consideration shall be paid by City to Railroad for the Property. City shall accept title to the Property and shall assume responsibility for the Property and shall comply with the terms and conditions of this Contract. 3. As part of the consideration for Railroad's conveyance of the Property, City will accept the Property on an "as -is, where -is" basis and with all faults, subject to the terms and conditions contained herein. Railroad expressly disclaims any warranties for the Property or appurtenances thereto, including, without limitation, warranties as to title to the Property, its physical condition, availability of utilities, its zoning classification, the design or condition of the Y Property, its merchantability or its fitness for any particular purpose, or conformity of the Property to its intended use. 4. The Property shall be used for Storm Water Facilities. 5. a. CITY HAS BEEN ALLOWED TO MAKE AN INSPECTION OF THE PROPERTY AND HAS KNOWLEDGE AS TO THE PAST USE OF THE PROPERTY. BASED UPON THIS INSPECTION AND KNOWLEDGE, CITY IS AWARE OF THE CONDITION OF THE PROPERTY AND CITY IS AWARE THAT CITY IS ACCEPTING THE PROPERTY ON AN "AS -IS WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY, AND THAT CITY IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER FROM RAILROAD AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING THE PHYSICAL CONDITION OF THE PROPERTY AND ANY DEFECTS THEREOF, THE PRESENCE OF ANY HAZARDOUS SUBSTANCES, WASTES OR CONTAMINANTS IN, ON OR UNDER THE PROPERTY, THE CONDITION OR EXISTENCE OF ANY OF THE ABOVE GROUND OR UNDERGROUND STRUCTURES OR IMPROVEMENTS IN, ON OR UNDER THE PROPERTY, THE CONDITION OF TITLE TO THE PROPERTY, AND THE LEASES, EASEMENTS OR OTHER AGREEMENTS AFFECTING THE PROPERTY. CITY IS AWARE OF THE RISK THAT HAZARDOUS SUBSTANCES AND CONTAMINANTS MAY BE PRESENT ON THE PROPERTY. b. CITY HEREBY WAIVES, RELEASES AND DISCHARGES FOREVER, RAILROAD FROM ANY AND ALL CLAIMS OR DEMANDS ARISING FROM OR IN ANY WAY RELATED TO THE CONDITION OF THE PROPERTY OR ALLEGED PRESENCE, USE, STORAGE, GENERATION, MANUFACTURE, TRANSPORT, RELEASE, LEAK, SPILL, DISPOSAL OR OTHER HANDLING OF ANY HAZARDOUS SUBSTANCES OR CONTAMINANTS IN, ON OR UNDER THE PROPERTY, (THE "ENVIRONMENTAL CONDITION ") WHETHER SUCH ENVIRONMENTAL CONDITION OR SUCH EVENTS GIVING RISE TO BE ENVIRONMENTAL CONDITION WAS DUE TO THE SOLE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF RAILROAD OR CITY. THE RIGHTS OF RAILROAD UNDER THIS SECTION SHALL BE IN ADDITION TO AND NOT IN LIEU OF ANY OTHER RIGHTS OR REMEDIES TO WHICH IT MAY BE ENTITLED UNDER THIS DOCUMENT OR OTHERWISE. C. CITY COVENANTS NOT TO SUE OR PROSECUTE ANY CLAIMS AGAINST THE RAILROAD FOR THE CONDITION OR ENVIRONMENTAL CONDITION OF THE PROPERTY OR ANY SUCH EVENT GIVING RISE TO THE CONDITION OR ENVIRONMENTAL CONDITION OF THE PROPERTY. d. The term 'Environmental Law" means any federal, state or local statute, 2 regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law. e. The term "Hazardous Substance" means any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and includes without limitation, petroleum oil and any of its fractions. 6. City acknowledges and affirms that Railroad may not hold fee simple title to the Property, that Railroad's interest in all or part of the Property, if any, may rise only to the level of an easement for railroad purposes. City is willing to accept Railroad's interest in the Property, if any, on this basis and expressly releases Railroad, its successors and assigns from any claims that City or its successors may have as a result of an abandonment of the line of rail running over or adjacent to any portion of the Property. In light of Railroad's disclosure that it may not hold a fee interest in all or part of the Property, City agrees to waive and release and discharge Railroad from any and all present or future claims or demands arising from or in any way related to claims or assertions that Railroad did not have the right to transfer all or part of the Property to City. 7. City acknowledges and affirms that it has not relied on any representation of Railroad as to the quality of the title that Railroad may hold or otherwise, and that City has had sufficient time to consult with its legal counsel and other experts before entering into this Contract. 8. Liens — Any judgment against Railroad which may appear of record as a lien against the Property shall be settled and satisfied by Railroad if and when it is judicially determined to be valid, and Railroad hereby indemnifies the City for all loss arising out of Railroad's failure to have a judgment lien so settled and satisfied. All outstanding assessments levied or due in the year the Deed is delivered shall be paid by City. 9. Any and all remaining personal property owned by Railroad and located on the property will be removed by Railroad prior to Closing Date. 10. City warrants and affirms that it has the necessary authority to enter into this Contract and that all of the obligations hereunder are enforceable and legally binding on the City and its successors. The person executing this Contract on behalf of the City warrants and affirms that he or she is fully authorized to do so for and on behalf of the City. 11. Closing shall be conducted by mail. Railroad shall forward the Deed to City. 12. Property taxes assessed against the Property shall be prorated to Closing Date with Railroad paying that portion of the taxes accruing to Closing Date and City paying that portion accruing after Closing Date. Any tax parcel proration that may be required by the Pueblo 3 County Assessor shall be completed by the City at the City's expense within ninety (90) days of conveyance. Railroad will cooperate with City in obtaining such tax parcel proration. 13. This Contract and the rights and obligations thereunder shall survive closing or acceptance and be continuing in nature. 14. Any future transfers of the Property shall only be allowed to another political subdivision of the state of Colorado or other not for profit entity or organization. All covenants of City in this Contract shall be covenants running with the land and shall be binding upon any successors of City. 15. City acknowledges and affnrns that City's assumption of ownership of the Property in no way entitles City to use any Railroad trademark or service' mark in any commercial application without Railroad's express written percussion. 16. CITY, IN ITS ACCEPTANCE HEREOF, HEREBY AGREES TO INDEMNIFY AND SAVE HARMLESS SAID RAILROAD, FROM AND AGAINST ALL LAWFUL CLAIMS, DEMANDS, JUDGMENTS, LOSSES, COSTS AND EXPENSES, FOR INJURY TO OR DEATH OF THE PERSON OR LOSS OR DAMAGE TO THE PROPERTY OF ANY PERSON OR PERSONS WHOMEVER, INCLUDING THE PARTIES HERETO, IN ANY MANNER ARISING FROM OR GROWING OUT OF THE NEGLIGENT ACTS OR OMISSIONS OF CITY, ITS OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS AND SUBCONTRACTORS IN CONNECTION WITH THE ENTRY UPON, OCCUPATION OR USE OF THE SAID PROPERTY HEREIN DESCRIBED. 17. Transfer Taxes — City agrees to purchase, affix and cancel any and all documentary stamps in the amount prescribed by statute, and to pay any and all required transfer taxes, excise taxes and any and all fees incidental to recordation of the conveyance instrument. In the event of City's failure to do so, if the Railroad shall be obligated so to do, the City shall be liable for all costs, expenses and judgments to or against the Railroad, including all of Railroad's legal fees and expenses and same shall constitute a lien against the Property to be conveyed until paid by the City. 18. City shall not be entitled to object to the lien of any of Railroad's mortgages. Railroad shall deliver to City, who shall place of record, good and sufficient releases of the liens of any mortgages on the Property securing indebtedness to which Railroad is obligated to pay within one hundred eighty (180) days after the fast meeting of Railroad's Board of Directors held after the Closing. Railroad hereby indemnifies the City for all losses to the extent such losses arise directly out of Railroad's failure to obtain and deliver to City good and sufficient releases of such liens affecting the Property. This provision shall survive Closing, shall be binding on the parties' successors and assigns and shall not merge into the Deed or any closing documents. 19. Railroad may incorporate the provisions of this Contract into the Deed to ensure that such provisions run with the land and are enforceable against any parties taking any interest in the Property by, through or under City. At 2 Notwithstanding anything herein, this conveyance shall close on or before 2009. Upon execution pf this letter agreement, a copy will be returned for your file. The formal Deed will be prepar n accordance with the terms and onditions herein set forth and delivered to City on or befor DrG 2009. Accepted and agreed to the � day of 2009. CITY OF PUEBLO By: Name: Vera Ortegon Title: President of the City Council Executed the 4 11k day of 2009. BNSF RAILWAY COMPANY, a Delaware Corporation By: Name: P. Pi r Title: General Dirertnr - I and Revenue Manageme EXHIBIT A Description of Property [see attached] a�'A33 dVW a e, / � zl r I I J J T / J 6 t q 16/ 4 1 ? p . Y o Yr b m ay I I I S N e � n / t t �2 / / V ( 2 � J 8 (• .' V � A p f4 0 4, Y var ls•Nd rvd ' W sl 4 f /1; �— , a / Y 4 p a Z 9 o w 4 J F � J 9 F4 a o� DO m \ $ v n a O Q0 N s i � PVq NoP •+>pB+/ �P�1dwnN agapn.ry p D r wz P `L J Q U o � ! Sly3' 4 ® O ti a Ly 0 6 w \ a X a Y ? p . Y o Yr b m ay I I I S N e � n / t t �2 / / V ( 2 � J 8 (• .' V � A p f4 0 4, Y var ls•Nd rvd ' W sl 4 f /1; �— , a / Y 4 p a Z 9 o w 4 J F � J 9 F4 a o� DO m \ $ v n a O Q0 irvs • Jaa aDW m y♦r M' ' / # °. / SDt qN 9NMt Y � � f f '_'�� / /fi0l /NP'R� N'• rrM,nl /Y /P'g / ! 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Wn F 3 IYHGI iY / 9 0 � O m ryU �2 a \ � r ,� ✓9pvn 8MJ � F ~ 4 N LLI L 4 0 Y m w r z z `a EXHIBIT B Form of Deed [see attached] Reception 1824853 11/17/2009 WHEN RECORDED MAIL TO: City of Pueblo c/o Thomas E. Jagger, Esq. 503 N. Main St., Suite 127 _ Pueblo, CO 81003 -3145 QUITCLAIM DEED THIS DEED, made this � � G' day of tlt/Crnbv, 2009, between BNSF RAILWAY COMPANY, a Delaware corporation, (formerly known as The Burlington Northern and Santa Fe Railway Company and successor by merger to The Atchison, Topeka and Santa Fe Railway Company), of 2500 Lou Menk Drive, Fort Worth, Texas 76131 -2830, hereinafter called "Grantor ", and the CITY OF PUEBLO, a municipal corporation organized and existing under the laws of the state of Colorado, of 1 City Hall Place, Pueblo, CO 81003, hereinafter called "Grantee ". WITNESSETH: That the said Grantor, for Ten and No /100 Dollars ($10.00) and other good and valuable consideration, to the said Grantor in hand paid by the said Grantee, the receipt whereof is hereby confessed and acknowledged, hath remised, released, sold, conveyed and quitclaimed, and by these presents doth remise, release, sell, convey and quitclaim, without any covenants of warranty whatsoever and without recourse to the Grantor, its successors and assigns, unto the said Grantee, its successors and assigns, forever, all the right, title, interest, claim and demand, if any, which the said Grantor hath in and to the following described property, subject, however, to all existing interests, including but not limited to all reservations, rights -of- way and easements of record or otherwise, located in Pueblo County, Colorado, hereinafter called "Property ", more particularly described as follows: See Exhibit A attached hereto and made a part hereof by this reference. 6 Dew - h e rJu'awsi fa7 The obligations in this Deed shall be binding upon Grantee and its heirs, successors and assigns, and shall be covenants running with the land benefiting Grantor and Grantor's successors and assigns. 1. As part of the consideration for Grantor's conveyance of the Property, Grantee accepts the Property on an "as -is, where -is" basis and with all faults, subject to the terms and conditions contained herein. Grantor expressly disclaims any warranties for the Property or appurtenances thereto, including, without limitation, warranties as to title to the Property, its physical condition, availability of utilities, its zoning classification, the design or condition of the Property, its merchantability or its fitness for any particular purpose, or conformity of the Property to its intended use. 182 QUIT 11/17/2009 03:38:59 PM Gilbert Clerki Reaorder0 4 Pueblo ounn0 lber Y: Co ®III r MiI 1� rW1 ll�l�� "1 ®I III 2. The Property shall be used for the construction, repair and maintenance of storm water drainage facilities including, without limitation, retention ponds and related appurtenances. 3. a. GRANTEE HAS BEEN ALLOWED TO MAKE AN INSPECTION OF THE PROPERTY AND HAS KNOWLEDGE AS TO THE PAST USE OF THE PROPERTY. BASED UPON THIS INSPECTION AND KNOWLEDGE, GRANTEE IS AWARE OF THE CONDITION OF THE PROPERTY AND GRANTEE IS AWARE THAT GRANTEE ACCEPTS THE PROPERTY ON AN "AS -IS WITH ALL FAULTS" BASIS WITH ANY AND ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE ENVIRONMENTAL CONDITION OF THE PROPERTY, AND THAT GRANTEE IS NOT RELYING ON ANY REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WHATSOEVER FROM GRANTOR AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING THE PHYSICAL CONDITION OF THE PROPERTY AND ANY DEFECTS THEREOF, THE PRESENCE OF ANY HAZARDOUS SUBSTANCES, WASTES OR CONTAMINANTS IN, ON OR UNDER THE PROPERTY, THE CONDITION OR EXISTENCE OF ANY OF THE ABOVE GROUND OR UNDERGROUND STRUCTURES OR IMPROVEMENTS IN, ON OR UNDER THE PROPERTY, THE CONDITION OF TITLE TO THE PROPERTY, AND THE LEASES, EASEMENTS OR OTHER AGREEMENTS AFFECTING THE PROPERTY. GRANTEE IS AWARE OF THE RISK THAT HAZARDOUS SUBSTANCES AND CONTAMINANTS MAY BE PRESENT ON THE PROPERTY. b. GRANTEE HEREBY WAIVES, RELEASES AND DISCHARGES FOREVER, GRANTOR FROM ANY AND ALL CLAIMS OR DEMANDS ARISING FROM OR IN ANY WAY RELATED TO THE CONDITION OF THE PROPERTY OR ALLEGED PRESENCE, USE, STORAGE, GENERATION, MANUFACTURE, TRANSPORT, RELEASE, LEAK, SPILL, DISPOSAL OR OTHER HANDLING OF ANY HAZARDOUS SUBSTANCES OR CONTAMINANTS IN, ON OR UNDER THE PROPERTY, (THE "ENVIRONMENTAL CONDITION ") WHETHER SUCH ENVIRONMENTAL CONDITION OR SUCH EVENTS GIVING RISE TO BE ENVIRONMENTAL CONDITION WAS DUE TO THE SOLE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF GRANTOR OR GRANTEE. THE RIGHTS OF GRANTOR UNDER THIS SECTION SHALL BE IN ADDITION TO AND NOT IN LIEU OF ANY OTHER RIGHTS OR REMEDIES TO WHICH IT MAY BE ENTITLED UNDER THIS DOCUMENT OR OTHERWISE. Quitclaim Deed 2 BNSF to City of Pueblo, CO 1824853 QUIT 11/17/2009 03:38:59 PM Pa e: 3 of 9 R 46.00 D 0.00 T 46.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Co ®III K W P41WHAIALWINUR W 44.114 11111 c. GRANTEE COVENANTS NOT TO SUE OR PROSECUTE ANY CLAIMS AGAINST THE GRANTOR FOR THE CONDITION OR ENVIRONMENTAL CONDITION OF THE PROPERTY OR ANY SUCH EVENT GIVING RISE TO THE CONDITION OR ENVIRONMENTAL CONDITION OF THE PROPERTY. d. The term "Environmental Law" means any federal, state or local statute, regulation, code, rule, ordinance, order, judgment, decree, injunction or common law pertaining in any way to the protection of human health or the environment, including without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Toxic Substances Control Act, and any similar or comparable state or local law. e. The term "Hazardous Substance" means any hazardous, toxic, radioactive or infectious substance, material or waste as defined, listed or regulated under any Environmental Law, and includes without limitation, petroleum oil and any of its fractions. 4. GRANTEE, IN ITS ACCEPTANCE HEREOF, HEREBY AGREES TO INDEMNIFY AND SAVE HARMLESS SAID GRANTOR, FROM AND AGAINST ALL LAWFUL CLAIMS, DEMANDS, JUDGMENTS, LOSSES, COSTS AND EXPENSES, FOR INJURY TO OR DEATH OF THE PERSON OR LOSS OR DAMAGE TO THE PROPERTY OF ANY PERSON OR PERSONS WHOMEVER, INCLUDING THE PARTIES HERETO, IN ANY MANNER ARISING FROM OR GROWING OUT OF THE NEGLIGENT ACTS OR OMISSIONS OF GRANTEE, ITS OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS AND SUBCONTRACTORS IN CONNECTION WITH THE ENTRY UPON, OCCUPATION OR USE OF THE SAID PROPERTY HEREIN DESCRIBED. 5. Grantee acknowledges and affirms that Grantor may not hold fee simple title to the Property, that Grantor's interest in all or part of the Property, if any, may rise only to the level of an easement for Grantor purposes. Grantee is willing to accept Grantor's interest in the Property, if any, on this basis and expressly releases Grantor, its successors and assigns from any claims that Grantee or its successors may have as a result of an abandonment of the line of rail running over or adjacent to any portion of the Property. In light of Grantor's disclosure that it may not hold a fee interest in all or part of the Property, Grantee agrees to waive and release and discharge Grantor from any and all present or future claims or demands arising from or in any way related to claims or assertions that Grantor did not have the right to transfer all or part of the Property to Grantee. 6. Any future transfers of the Property shall only be allowed to another political subdivision of the state of Colorado or other not for profit entity or organization. Quitclaim Deed 3 BNSF to City of Pueblo, CO 1824853 QUIT 11/17/2009 03:38:59 PM Pa 4 of 9 R 46.00 D 0.00 T 46.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Co TO HAVE AND TO HOLD the Property unto the said Grantee, its successors and assigns, forever. IN WITNESS WHEREOF, the said Grantor has caused this instrument to be signed by its authorized representative, attested by its Assistant Secretary, and its corporate seal to be affixed hereto on the day and year first above written. BNSF RAILWAY COMPANY m`( S STATE OF TEXAS § § ss. COUNTY OF TARRANT § By: ,x bavia P. Schneider General Director — Land Revenue Management ATTEST: Bye a LL Patricia Zbichorski Assistant Secretary / rThe ' foregoing instrument was acknowledged before me this ��day of ," , 2009, by David P. Schneider as General Director — Land Revenue M anagement, and Patricia Zbichorski as Assistant Secretary of BNSF RAILWAY COMPANY, a Delaware corporation. WITNESS my hand and official seal. RNONOA BURTON My Commisslon Expires September 21.2012 My Public Expires: A Quitclaim Deed 4 BNSF to City of Pueblo, CO 1824853 QUIT 11/17/2009 03:38:59 PM Pa l: 1 5 of 9 46 Q 0 .0 0 { 0 1 T 4600 L I1,! W ®Ill a rt Ortiz � I l r . P lr}� t� o . �I�� 1 ITl.la�� ®I III M Name ACCEPTED: CITY OF PUEBLO Z Vera OrteRon President of City Council ATTEST: f- Title: City Clerk STATE OF COLORADO § § ss. COUNTY OF PUEBLO § The foregoing instrument was acknowledged before me p this a27�A day of 2009, by ���.�'� O��c� �� as lrPSi�PId L trf C j , / 0 , l , and as e, of CITY OF PU BE LO, a municipal corporation organized and existing under the laws of the state of Colorado. WITNESS my hand and official seal. Nbtaqj� llublic My Commission Expires: �111Z O//O// Quitclaim Deed 5 BNSF to City of Pueblo, CO 1824853 QUIT 11/17/2009 03'.38:59 PM Page: 6 of 9 R 46.00 D 0.00 T 46.00 Gilbert Ortiz Clerk /Recorder, Pueblo County. Cc ®iii K6 w� IIJ M lKiAl Wt M N IK0 4 milli That portion of BNSF Railway Company's (formerly The Atchison, Topeka and Santa Fe Railway Company) property in the City of Pueblo, County of Pueblo, State of Colorado, described as follows: That portion of Block 20 of Irving Park Addition, lying Southerly of a line perpendicular to said Railway Company's Main Track centerline, which passes through a point on the Easterly line of said Block 20, distant 235.0 feet Northerly of the Southeast corner of said Block 20, as measured along said Easterly line, and lying Northeasterly of a line parallel with and distant 34.0 feet Northeasterly from, measured at right angles to the centerline of said Railway Company's most Northeasterly Yard Track, as now located and constructed (said parallel line hereinafter referred to as Line "A "); also, That portion of Block 10 of Irving Place Second Filing, lying Northeasterly of said hereinabove described Line "A "; also, Those portions of Lots 17 through 24, inclusive, in Block 9 of Irving Place Second Filing, lying Northeasterly of said hereinabove described Line "A"; also, That portion of Block 12 of Irving Place Second Filing, lying Northeasterly of said hereinabove described Line "A'; also, Those portions of Lots 1, 2, 3, 4 and 5 in Block 17 of Irving Place Second Filing, lying Northeasterly of said hereinabove described Line "A'; also, Those portions of Lots 14 through 18, inclusive, and those portions of Lots 30 through 35, inclusive, in Block 23 of Irving Place Second Filing, lying Northeasterly of the following described line: Beginning at the intersection of a line parallel with and distant 50.0 feet Northeasterly from, measured at right angles to the centerline of said Railway Company's most Northeasterly Yard Track with the East line of Block 26 of said Irving Place Second Filing; thence Northwesterly to the intersection of a line parallel with and distant 40.0 feet Northeasterly from, measured at right angles to the centerline of said Railway Company's most Northeasterly Yard Track with the North line of said Block 23, being the terminus of said herein described line (said line hereinafter referred to as Line `B "); also, Those portions of Lots 20 through 28, inclusive, in Block 26 of Irving Place Second Filing, lying Northeasterly of said hereinabove described "Line B"; also, 6 BNSF 08063 Puebla, CO 1824853 QUIT 11/17/2009 03:38:59 PM Page: 7 of 9 R 46.00 D 0.00 T 46.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc ®III I ,6ffl1lj 11U1111 0AAKdhW IW OM Mill Those portions of Lots 1, 2, 3, 7, 8, 9, 10 and 11 in Block 28 of Irving Place Second Filing, lying Northeasterly of a line parallel with and distant 50.0 feet Northeasterly from, measured at right angles to the centerline of said Railway Company's most Northeasterly Yard Track, as now located and constructed; also, Those portions of Lots 7, 8, 9 and 10 in Block 23 of Irving Place Addition, lying Northeasterly of a line parallel and/or concentric with and distant 40.0 feet Northeasterly from, measured at right angles and/or radially to the centerline of said Railway Company's most Northeasterly Yard Track, as now located and constructed; also, Those portions of Lots 31, 32, 33 and 34 in Block 23 of Irving Place Addition, lying Northeasterly of a line parallel and/or concentric with and distant 34.0 feet Northeasterly from, measured at right angles and/or radially to the centerline of said Railway Company's most Northeasterly Yard Track, as now located and constructed; also, Those portions of Lots 1, 2, 3, 4 and 5, Block 5 and that portion of Lot 6, Block 3 of The Bronx Subdivision, lying Northwesterly of a line concentric with and distant 18.0 feet Northwesterly from, measured radially to the centerline of that certain track which passes through said lots in a generally Southwesterly direction and is designated in the records of said Railway Company as track number 213; also, That portion of Lot 5, Block 3 of The Bronx Subdivision, lying Northwesterly of a line concentric with and distant 18.0 feet Northwesterly from, measured radially to the centerline of that certain track which passes through said lot in a generally Southwesterly direction and is designated in the records of said Railway Company as track number 213, and Northerly of a line parallel with and distant 90.0 feet Northerly from, measured at right angles to the South line of Section 25, Township 20 South, Range 65 West, 6 th P.M.; also, Lots 9 and 10, Block 14 of the Thatcher and Thomas Addition; also, That portion of Block 13 of the Thatcher and Thomas Addition, lying Northeasterly of the Northeasterly boundary of that certain parcel of land described in Exhibit "A" in deed dated November 8, 1994 from The Atchison, Topeka and Santa Fe Railway Company to Belton Associates; LLC.; also That certain property described in deed dated May 20, 1981 from Hershey Ouye and Nobuo Ouye to The Atchison, Topeka and Santa Fe Railway Company, recorded June 9, 1981 as Document No. 666314 in Book 2075, Page 784, records of Pueblo County, Colorado, said property being described in said deed for reference as follows: 7 BNSF 08063 Pueblo, CO 182 QUIT 11/17/2009 03:38:59 PM Gi l6ert ClerklReoorder0 Pueblo r Co 1IIII'�1 1��1M�'Lh�'I �KyrW1141I4BiI I 11111 "Lots 1 to 6, Block 1, Thatcher and Thomas Addition to the City of Pueblo; together with vacated 8th Street adjoining said Lots, the vacated alley in Block 1, and the South 1/2 of vacated 9th Street adjoining said Lots. "; also, That portion of that certain tract of land described in deed dated October 20, 1948 from Elbert D. Greene to The Atchison, Topeka and Santa Fe Railway Company recorded November 26, 1948, in Book 1081, Page 391, records of said Pueblo County, situate in the SWl /4SW1 /4 of Section 25, Township 20 South, Range 65 West, 6 th P.M., described as follows: Commencing at the Southwest corner of said Section 25; thence South 89 °58' East (bearings based on said deed), along the South line of said Section 25, a distance of 625 feet to the Southwest corner of Block 3 of The Bronx Addition; thence North 0 °33' West, along the Westerly boundary of said Block 3, a distance of 90 feet, more or less to a point in a line parallel with and distant 90.0 feet Northerly from, measured at right angles to said South line of Section 25, said point being the True Point of Beginning for the tract herein described; thence North 89 °58' West, along said parallel line, 170 feet, more or less, to a line parallel with and distant 20.0 feet Northeasterly from, measured at right angles to the centerline of that certain 30 -foot wide strip of land described in Easement dated August 30, 1963 from The Atchison, Topeka and Santa Fe Railway Company to Southern Colorado Power Company Division, Western Power & Gas Company; thence Northwesterly, along said parallel line, to the South line of vacated West 8th Street extended Westerly; Thence Easterly, along said South line, to said Westerly boundary of Block 3; thence South 0 °33' East, along said Westerly Boundary of Block 3, a distance of 270 feet, more or less to the Point of Beginning. Together with all right, title and interest, if any, in and to the following streets and alleys: That portion of Albany Avenue lying Northeasterly of said hereinabove described Line "A" and Southerly of the Westerly prolongation of the North line of Lot 24, Block 9 of Irving Place Second Filing. That portion of West 23rd Avenue (formerly Hawthorne Avenue) lying Northeasterly of said hereinabove described Line "A" and Westerly of the Southerly prolongation of the East line of Lot 17, Block 9 of Irving Place Second Filing. That portion of the alley in Block 12 of Irving Place Second Filing lying Northeasterly of said hereinabove described Line "A ". That portion of the alley in Block 23 of Irving Place Second Filing lying Northeasterly of said hereinabove described Line `B" and Westerly of the Southerly prolongation of the East line of Lot 18 of said Block 23. 8 BNSF 08063 Pueblo, CO 1824853 QUIT 11/17/2009 03:38:59 PM Page: 9 of 9 R 45.00 D 0.00 T 46.00 Gilbert Ortiz Clerk /Recorder, Pueblo County, Cc s That portion of West 20th Street lying Northeasterly of said hereinabove described Line `B" and Westerly of the Southerly prolongation of the Easterly line of Lot 30, Block 23 of Irving Place Second Filing. That portion of the alley in Block 26 of Irving Place Second Filing lying Northeasterly of said hereinabove described Line `B ". That portion of the alley in Block 28 of Irving Place Second Filing lying Northeasterly of a line parallel with and distant 50.0 feet Northeasterly from, measured at right angles to the centerline of said Railway Company's most Northeasterly Yard Track, as now located and constructed and Westerly of the Southerly prolongation of the East line of Lot 3 of said Block 28. That portion of Cheyenne Avenue lying Northeasterly of a line parallel with and distant 50.0 feet Northeasterly from, measured at right angles to the centerline of said Railway Company's most Northeasterly Yard Track, as now located and constructed and Southerly of the Westerly prolongation of the Northerly line of Block 28 of Irving Place Second Filing. That portion of West 9th Street lying Easterly of the Northeasterly boundary of that certain parcel of land described in Exhibit "A" in deed dated November 8, 1994 from The Atchison, Topeka and Santa Fe Railway Company to Belton Associates, LLC. and Westerly of the Southerly prolongation of the East line of Lot 10, Block 14 of Thatcher and Thomas Addition. That portion of the alley in Block 13 of Thatcher and Thomas Addition lying Easterly of the Northeasterly boundary of that certain parcel of land described in Exhibit "A" in deed dated November 8, 1994 from The Atchison, Topeka and Santa Fe Railway Company to Belton Associates, LLC. That portion of vacated West 8th Street lying Westerly of the Westerly boundary of Block 3 of The Bronx Addition and Easterly of that portion of vacated 8th Street adjoining Block 1 of the Thatcher and Thomas Addition. APPROVED KKI�- LEGAL APPROVED Mellina & FORM Larson APPROVED 9 BNSF 08063 Pueblo, CO