RESOLUTION NO. 104-07
A RESOLUTION CONCERNING THE GRANTING OF A
NON-EXCLUSIVE UTILITIES EASEMENT
TO UNION PACIFIC RAILROAD COMPANY, A DELAWARE CORPORATION
WHEREAS, the City of Grand Junction is the owner of certain real property situate in the Southwest Quarter of the Southwest Quarter (SW 1/4 SW 1/4) Section 10, Township 1 South, Range 1 West of the Ute Meridian, City of Grand Junction, Mesa County
WHEREAS, Union Pacific Railroad Company, a Delaware corporation, (“UPRR”), has requested a non-exclusive utility easement across said City property located on the City’s property adjacent to West Independent Avenue and 25 Road for the purposes of installing, operating, maintaining, repairing and replacing utilities and facilities appurtenant thereto.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF GRAND JUNCTION, COLORADO:
That the City Manager is hereby authorized, on behalf of the City and as an act of the City, to execute the attached Easement Agreement conveying to UPRR a non-exclusive easement over and across the limits of the City property described therein.
PASSED and ADOPTED this 18th day of July 2007.
/s/: Bonnie Beckstein
Attest: President of the Council Pro Tem
/s/: Stephanie Tuin
City Clerk
EASEMENT AGREEMENT
This Easement Agreement (“Agreement”) is made and entered into as of the 5th day of November, 2007, by and between The City of Grand Junction, a Colorado home rule municipality (“City”), whose address is 250 North 5th Street, Grand Junction, Colorado 81501, and Union Pacific Railroad Company, a Delaware corporation (“UPRR”), whose address is 1400 Douglas Street, Stop 1690, Omaha, Nebraska 68179-1690.
RECITALS
A. The City is the owner of certain real property described as
Lot 1, West Independent Minor Subdivision at Book 3828, Page 12, as recorded in the office of Mesa County Clerk and Recorder, City of Grand Junction, Mesa County, State of Colorado; and
B. The parties desire to provide for the conveyance of a non-exclusive easement pursuant to the terms and conditions stated in this Agreement.
NOW, THEREFORE, in consideration of the recitals above and the terms, covenants, conditions, restrictions, duties and obligations contained herein, the parties agree as follows:
1. Consideration, Grant. For and in consideration of the sum of Ten and 00/100 Dollars ($10.00) and other good and valuable consideration, the City hereby grants and conveys to UPRR, a non-exclusive easement on, along, over, under, through and across the limits of the City Property described in Exhibit “A” attached hereto and incorporated herein by reference (“Easement”), and UPRR accepts such grant and conveyance subject to the terms and conditions of this Agreement.
2. Term. The initial term of this grant shall be twenty-five (25) years, beginning on the day and year first above written.
3. Option to Extend. Subject to the provisions of paragraph 5 below, UPRR shall be entitled to exercise successive extensions of this grant and conveyance, and the City hereby grants such right, for additional twenty-five (25) year periods (“later terms”). If the grant is extended for later terms, each such later term shall be upon the same terms and conditions of this Agreement or upon such other terms as may hereafter be negotiated between the City and UPRR.
4. Express Limitations. UPRR’s utilization of the Easement shall be specifically limited to the installation, operation, maintenance and repair of underground electric service lines and facilities directly related or appurtenant thereto. The easement rights herein granted do not include the right to expand utilization of the Easement for any other purposes unless such uses are authorized by subsequent conveyance instrument(s).
5. General Indemnification. UPRR hereby releases, covenants not to bring suit and agrees to indemnify, defend and hold the City, its officers, employees, agents and assets harmless from any and all claims, costs, judgments, awards or liability, including reasonable attorneys’ fees and costs (except those caused by the City’s negligence or its willful or wanton acts) to any person or with regard to any property, including claims arising from injury or death, resulting from UPRR’s gross negligence or willful act or failure to act pursuant to this Agreement. The foregoing indemnification obligations shall extend to claims which are not reduced to a suit and any claim which may be compromised by UPRR prior to the culmination of any litigation or the institution of any litigation.
6. Default. Should UPRR (a) default in the performance of this Agreement and any such default continue for a period of ninety (90) days after written notice thereof is given by the City to UPRR, or (b) be declared bankrupt, insolvent, make an assignment for the benefit of creditors, or if a receiver is appointed, or (c) fail to timely cure such default, the City, at its option, may file an action to cancel and annul this Agreement and obtain an order from a court of competent jurisdiction to enter and take possession of the Easement. This Agreement shall then terminate upon such occupation. Nothing herein shall prejudice or be to the exclusion of any other rights or remedies which the City may have against UPRR, including, but not limited to, the right of the City to obtain injunctive relief. If the City succeeds in such effort, UPRR shall pay the City’s reasonable attorneys’ fees.
7. UPRR Acceptance Subject to Existing Conditions.
7.1 UPRR has inspected the Easement and accepts the same in its present condition and location. UPRR agrees that the condition of the Easement is sufficient for the purposes of UPRR. The City makes no warranties, promises or representations, expressed or implied, that the Easement is sufficient for the purposes of UPRR. If the Easement is damaged due to fire, flood or other casualty, or if the Easement is damaged or deteriorates to the extent that it is no longer functional for the purposes of UPRR, the City shall have no obligation to repair the Easement nor to otherwise make the Easement usable or occupiable, since such damages shall be at UPRR’s own risk.
7.2 The City makes no representations or warranties regarding the presence or existence of any toxic, hazardous or regulated substances on, under or about the Easement, except to the extent that the City states it has not deposited or caused to be deposited any toxic, hazardous or regulated substances on, under or about the Easement.
8. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Colorado.
9. Total Agreement, Applicable to Successors. This Agreement contains the entire agreement between the parties and, except for automatic termination or expiration, cannot be changed or modified except by a written instrument subsequently executed by both parties. This Agreement and the terms and conditions hereof apply to and are binding upon the successors and authorized assigns of both parties.
IN WITNESS WHEREOF, the parties hereto have each executed and entered into this Easement Agreement as of the day and year first above written.
The City of Grand Junction,
Attest: a Colorado home rule municipality
/s/: Stephanie Tuin /s/: Laurie M. Kadrich
Stephanie Tuin, City Clerk Laurie Kadrich, City Manager
State of Colorado )
)ss.
County of Mesa )
The foregoing instrument was acknowledged before me this 30th day of July, 2007, by Laurie Kadrich as City Manager and attested to by Stephanie Tuin as City Clerk of the City of Grand Junction, a Colorado home rule municipality.
My commission expires: 3/13/09
Witness my hand and official seal
/s/ Debra M. Kemp
Notary Public
SEAL
Union Pacific Railroad Company,
a Delaware corporation
By /s/ Steve Sand
As Asst. Director – Acquisitions
Union Pacific Railroad
State of Nebraska )
)ss.
County of Douglas )
The foregoing instrument was acknowledged before me this 5th day of November, 2007, by Steve Sand, as Asst. Director – Acquisitions for Union Pacific Railroad Company, a Delaware corporation.
My commission expires: 12/20/09
Witness my hand and official seal
/s/ Paul G. Farrell
Notary Public
SEAL
Exhibit “A”
Legal Description of Easement
A certain parcel of land for a utility easement located in the Southwest Quarter of the Southwest Quarter (SW 1/4 SW 1/4) Section 10, Township 1 South, Range 1 West of the Ute Meridian, City of Grand Junction, Mesa County, State of Colorado, being more particularly described as follows:
Beginning at the Southeast corner of Lot 1, West Independent Minor Subdivision, as same is recorded in Plat Book 16, Page 349 in the office of the Mesa County Clerk, and considering the Southerly line of said Lot 1 to bear N40°43’37”W, with all bearings herein relative thereto; thence N40°43’37”W along said Southerly line a distance of 15.33 feet; thence N00°00’37”W along a line being 10.00 feet West of and parallel with the East line of said Lot 1 a distance of 291.14 feet to a point on a multi-purpose easement line being 14.00 feet South of and parallel with the North line of said Lot 1; thence N89°59’23”E along said multi-purpose easement line a distance of 10.00 feet to a point on the East line of said Lot 1; thence S00°00’37”E along said East line, a distance of 288.76 feet, more or less, to the point of beginning,
Containing 2,829.46 square feet, more or less, as described.
END OF EXHIBIT “A”
