HomeMy WebLinkAboutVAIL VILLAGE FILING 1 BLOCK 5B LOT A GASTHOF GRAMSHAMMER STORM WATER SYSTEM AGREEMENT LEGAL,
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TOWN OF VAIL
Ofice of the Town Attorney
75 South Frontage Road
Vail, Colorado 81657
970-47 9 -2 I 07/ Fax 970-479-2 I 5 7
TO:
FROM:
DATE:
SUBJECT:
Thanks.
RTM/aw
Attachments
Robert W. McLaurin
George Ruther ,7
R. Thomas Moorhead
March 27, 1998
Storm Water System
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MEMOMNDUM
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Attached you will find a letter from David Tanzer as well as my response. I'm available to discuss
at your pleasure.
George, in the first easement that was provided by Steve Weinstein, did not that document provide
for nominal consideration such asgne dollar or ten dollars.
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TOWN OFVAIL
Ofice of the TbwnAttorney
75 South Frontage Road
Vail, Colorado 81657
970-479-2 I 07/F ax 970479-2 I 5 7
David A. Tanzer, Esquire
953 S. Frontage Road W., Suite 203
Vail, CO 81657
Dear David:
vrA TELECOPIER 476-6109
I am writing to acknowledge receipt of your letter of March26,1998. I agree with you that it is
in the interest of both the Town of Vail and Pepi Gramshammer to resolve the issue conceming
the storm water system amicably.
In our conversation I explained that the Town's position has been and continues to be that there
is an easement aoross the property in the Town's favor for the storm water system that is not
capable of termination as you have expressed to the Town. It is also the Town's position that in
conversations with Pepi during the approval process, there has never been any question that he
was going to take on the responsibility for the costs of removing and reinstalling the pipe.
I do believe you have raised issues which may take a considerable time to resolve. As you are
aware, whether or not there is an easement by prescription or a license by permission becomes a
factual question which will relate back many yeius to the establishment of this storm water
system. Additionally, the Town of Vail's consideration of moving the storm water system is one
that must be coordinated with our capital projects and has not been considered to date. However,
We remain available to discuss these issues at pepi's convenience.
Very truly yorus,
TOWN OF VAIL
R. Thomas Moorhead
Town Attorney
RWIWaw
xc: Robert W. Mclaurin (wiencl.)
George Ruther (w/encl.)
MNch27,1998
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LAw OFFrcEs
OF
Cmceco:
33 W. JrcKsoN Bou.Ev^ttD
sTfl FIooR
CHrcAco, lluNors 60604
312-236-698r
F^x-236-6998
Vrrrl PnorrssroNlt- B urtprNc
953 SourH Fnowmce Roeo Wesr
SunE 219
VnrL, Colon^cDo 81657
97o,-476-6100
Fex-475-6109
March 26. 1998
Fax 476-2157
R. Thomas Moorhead, Esq.
Town of Vail
75 South Frontage Road
Vail. CO 81657
Dear Tom.
As a result of your telephone call to me Wednesday morning, March 25, 1998, it
has become apparent that there is a misunderstanding about the cost associated with
moving the storm water drainage on Mr. Gramshammer's property. I hope that we can
resolve matters amicably without further ado.
First, it is important to understand that the storm water drainage located on Mr.
Gramshammer's property was placed on the property and existed over the years by virtue
of Mr. Gramshammer's permission. There was never an expressed easement granted to
the Town of Vail. And, as you attempted to argue in favor of the Town of vail, never has
a prescriptive easement arisen since the existence has been by permissive use, As I am
certain you are aware, it has long been established by the Colorado Supreme Court (in
1922)., that a right of way by adverse use or prescription cannot be based upon a
permissive use, Horne v. Hopper, 2l I P 665,72 Colo 434 (l9zz), and numerous other
cases that follow Horne.
Second, while Mr. Gramshammer agreed to remeve and replace the existing
storm water system with another, and further to grant an expressed easement to the Town
of Vail, all for its convenience for the new storm water system, never was it contemplated
that this would occur at Mr. Gramshammer's expense. This is clearlv reflected in the two
(2) drafts ofthe expressed easement that have been provided and aiproved by the Town
of Vail where the dollar amount is left blank until sudh time as the cost could be
determined
Finally, Mr. Gramshammer indicated this morning that the plat @xhibit ,.A,' to
the grant of easement) is now in his possession, and that he should have the total costs
available within the next day or two to provide to your office. In the interim, we would
very much like to clear up the misunderstanding of the Town of Vail's obligation to pay
the costs for the new storm water svstem.
DENven:
950 Solrm CHERRY STREET
Sum 710
DENVER, CoLoRADo t0222
9?H76{tm
FAx476-61@
lrcetvegHAR: : tgs
Davro A. TaNzER & AssocrarEs, p.c.
VAr. . CHtca<;o . Dpxvsn
R. Thomas Moorhead, Esq.
March 26, 1998
Page two oftwo
If, in the alternative, that the Town of Vail no longer desires to have a storm water
system within Mr. Gramshammer's property, this can simply be removed during
construction, and would be consistent with his now termination of the permissive use of
his property for same.
Please advise as soon as possible today so that this matter can be resolved.
DAT\tad
c.c. Mr. Gramshammer
#98-4127
gramshammer\hr-Tfu(
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Importanft This facslmilc tnnsmission is irrendcd only for rhc use of the individrral or entity to which it
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March 27. 1998
Farc 479-2157
R Thomrs Moorhead' Esq.
Toum ofVail
75 South Frontage Road
Vail, CO 81657
RE: Grqmshammcr nddition
DearTom:
consistont with earlier undorstrndings and my lctter m you of March 24 1998' I
am now pmviding to ],ou thc contlactof'S coC fOr pnoviding-a stonn wat€f,.systom <ri thc
Gtamshammer's
-proplrty. The propoul fiom th€ oontrador is approxitnetely $38,fi)0.00,
kecpi"g in nin<t tftat tfre"e aie other minor co$s for thc preparatiou of tbc unitteo
or"-it and the plat. Co6sist€nt with Mr. Crrem$ammcr's iat'errriong he wpuld
undertake to install a new stonrr water sySem and provide an expressed urinen qas€$Cnt
for the.bqnefit oftho Town of Vail.
In thst l\ii. Cnanshammcr is lewing to go out of tbc corurtry this week for
pwposes of moctiags rotsted !o future ski activities bcnefiting thc commutity, we would
vcry muoh like to rcsolvc this mettSr withoril furtber deley.
I look forwrrd to talking wilh you later in thc
finalized. Ttenk you again for your asslstancc,,
dry ou Monday
DAT\Iad
o.c- Mr. PcPi Gramshamrncr
Mr. George Rdher
Mr. Robert Mcl.aunn
EnoL
9&,4127
G.arvhfr,.,.taltr-lM
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150 sou CIHB||Y slrcf,r
Sumi 710
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33 W. JAcxsoN BouLEvARD
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CHrcAco, ILuNors 606(X
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F^x-23ff998
LAw OFFrcEs
D.rvrn A. Tl,NzER & AssocnrEs, r.C.
Vlrr-.Csrceco.Drxvpn
VAIL PRoFEssIopn r- BurlorNc
953 SourH Fnoxtace Roro Wpsr
SunE 219
VrtL, Cor-omDo 81657
970-476-6tW
Fex-476-61O9
March 19. 1998
DENVER!
950 SourH CHERRY SrrEEr
SurrE 710
DENVER, C-oLoRADo 80222
970476-6100
FAx-4?6-6 | 09
Mr. George Ruther
Senior Planner
Town of Vail
75 South Frontage Rd.
Vail, CO 81657 bts 6\f\6, H i
RE: Non-Exclusive Easement
Dear George:
In addition, Pepi Gramshammer is out
return I will obtain his signature on the easement
Please find enclosed revised Non-Exclusive Easement following revisions as
discussed with Tom Moorehead. The Exhibit "A" showing the location of the easement
on the plat is presently being prepared and will be forwarded to you.
rf BWI-$,
rl*il vittqp U:r
of town for
and forward the
DAT\tad
98-4127
Encl.
c.c. Mr, Gramshammer
Gramshanmer\ltr-GR
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In the interim, should you have any further questions,
call.
r{AR U S 1$
f0\.t0t\llhfi,ilE! 0ffi
and upon his
you.
OO
TOWN OFVAIL
Ofice of the TownAfiorney
75 South Frontage Road
Vail, Colorado 81657
970479-2 I 07/Fax 970-479-2 I Sz
March 19, 1998
David A. T anzer, Esquire
953 S. Frontage Road W., Suite 203
Vail, CO 81657
Dear David:
VIA TELECOPIER 476-6109 AND U.S. MAIL
I've had an opportunity to review the Non-Exclusive Easement which you have provided to meand would request several minor changes.
!-is rn1 understanding tft fepi will be relocating and installing the storm water drainage system.Therefore, I request that in the second line ofthe second paragraph after ,oGrantee,s,,
"installation" be removed. Also, please remove the words "or better" from the tenth line of that
same second paragraph.
As to paragraph three, line three, please change the paragraph to read ..for the purpose ofinstalling and relocating the same...."
As to the fourth and final paragraph on the frst page of the agreement, please include thefollowing language "The Grantee shall, to the extent permitted by law, and without waiving anyof its rights under the colorad.o Govemmental Immunity Act, inaemnify...', In that sameparagraph in the sixth line, please remove "installation, construction,"
With those changes the Non-Exclusive Easement agreement is acceptable to the Town. Thankyou for your assistance in this matter.
Very truly yours,
TOWN OF VAIL
..,6,Y1
R. Thomas Moorhead
Town Attomey
RWM/aw
xc: George Ruther
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1'1ar- 19 1998 1B:4?RM P1
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imrncdierely by telcphora rnd rcntro tbp oriSind mcssay usty mail. Thanlc you.
Date: tr'r'll
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FRof'l :Lru:OEFICES.Pt-[r{E t-I]. : 978 4?5 5{l l'lar. 19 1998 18:4mM P2
FORAND IN CoNSTDEMi[OFofthe sum of-.-- aDd no/l00ths
Dollars ($--00) pard to ito Cr13nt by the Grurtce, ard for o$er egod and valuablc
Lirm*"U"q tfrd io"ipt
--A *ft*i*oy 9f thich arc hereby ackno-wledged' the
*o""rigr"a brmrnor
-
cnlrvrsmnmrlrR, n{c. ('crramslrammo" l, " colorado
;;;i* wnose aaoress i, z1 n rt Gore Crcek Drive, vail, colorado 81657 (thc
;itrltn"rf ierrbv seuls)-afi **.y(s) to the TOWN OF VAtr{ COII)RADO' a
Cotorado home rule rnrmicipd cotpootioq whose address is ?5 South Frottage Road
W-rt,-Vrf, Colora.do 8165i (the 'Lfantcc';) a non-orclusivo perpeUal public easement
Iocated in the Couuty of Eagli, State of Coiorado, the location and thc below and above
;i;*d ;;;;;r; tulry aEr"rrUea on the plat markcd Exhibit "A' attachod hereto ald
Incorporarca nereln, shali be forthat usc alone and for none other'
+q
Thc aqn-exclusive eascyyrt hq+Y,erant{ is for the solc and [qnt'-qY3::t -{proviaine for tbe Grantoc's ffiSfig$.pcratiotr, mainteuance, Td try" :1,11
indergri"nd and above go*#pbYo Xoit'i"ro drarnage systetn not more tban 24' in
air-J". to be owned itO op"i"t"O by the Grantee, and for no other purpose. The
ooeration, maintenancc, repair, and replaccment of facilitii:i owned, oPefatid' 9r /
,6"l"ii"i ui ,r," G*y -yi* lo: *":*1T1":X"Wh1yfr'50,.1:r7*l\*.h_-lt: '.
Crantee sha[ k€cp zuch easemcnt -d -y damage system within srsh eag€flrent in good
ropair and tully funotional and all recponribility, liabilitn obligatioq and dgty for
inst"ttation, operaion, marntcnanoe" ana rcpair of any stormwater-drairyge system within
s'ch easem;r shall be sotely born by the Grantoe, i$ rucocssor(s) and assigo(s) When
Crrut€e undcrtaks "ny
t"p"it pr maintenance of the systenl Grufor's.pmperty shall be
left or ncctored to the samJ il{#g condition found by Grantee immediarcly prior to thc
t"prii "f maintenance ttretUJfllle non-orclusive easement hereby granted dull not
ii"ret" with or preclude the Grantor's full use and enjoyment of the Grantor's properry^ ol d
including but not limited to, the Grantor's Ownership, operatiott, and maintenance ?f ,^,/,,y'f Iparkinggarageabovetienon-exclusiveeas€ment. , /il51' .l, ,
The acceptance of this non-orclusive perpetual public easeme* bV /trutee - W" ,.1
further aclorowledges its authorizstion rnd directiofl to Gfantor to remove V:* .tg A 1M
stormwatcr drainFgc sy$em located on Glsntor's propcrty for tbe-purpoee.ot'lelocat{g , r,tlF
samc within this non-ixchsive perpeturl public eawment conveyed herein by Cvrantorto Y ,/Grantee , +":* Tli: rrti3,!i*9[-' ii,!*iil*:;!, t:^:4"",
Thc Grantcc shall^ indemnify the Grurtor, its officcrs, agents' contri|ctors,
attomeys, and ernployeet "i! rtt"tl hid each rnd all ofthern harrrless against any and all
clairns,'actioru, aenranas or liebilitiee, iacluding attorney fees and co.yrt gstsi for injury'
aeatfr'Aatnae'e or loss to pcrson(s) or ptoperty arising out of^or- a5eci,1 or iadirectly
**fii"g to]m tm Grantee's aptions or omissions. and of tleir officers, sgolr6',i
contrEctors, ana suUcontractors, io connection wiil ttre'ffi
olezt'
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,**, , ,-*rrorrtao Ff{ohE M]. , Sn azs a) Mar. 19 1998 1a:4gnm p3
This non-exclusive Easoment shall be governed by and enforced in accordanoc
with the laws of thc State of Colorado, utd jurisdiction sball bc limitcd to Eagle County,
Colorado.
In witness whcreof this docuncst has bcct e)tecutcd this-day of ' 1998'
GRAIffOR
GASTHOF GRAMSITAIVTIVIE& INC.
Pepi Crramshammer
STATEOFCOLORADO )
) s.s.couNTYoFEAGr-E )
The bregoing instrument was acknowlcdgcd beforo me tbig. dsy o4-'199t
By- .
Witness my band end official scal'
My comrnission expires:--
NotaryPublic
(sEAL)
Gzrlfrg'rltJi".@E'/'$
By:
FORAND IN CONSIDERATION of the sum of and no/100ths
Dollars ($_.OO) paid to the Grantor by the Grantee, and for other good and valuable
consideration, the receipt and suffrciency of which are hereby acknowledged, the
undersigned GASTHOF GRAMSIIAMMER, INC. ("Gramshammer"), a Colorado
corporation, whose address is 231 East Gore Creek Drive, Vail, Colorado 81657 (the
"Grantor") hereby sell(s) and convey(s) to the TOWN Of' VAIL, COLORADO, a
Colorado home rule municipal corporation, whose address is 75 South Frontage Road
West, Vail, Colorado 81657 (the "Grantee") a non-exclusive perpetual public easement
located in the County ofEagle, State ofColorado, the location and the below and above
ground use, as more fully described on the plat marked Exhibit "A" attached hereto and
incorporated herein, shall be forthat use alone and for none other.
The non-exclusive easement hereby granted is for the sole and limited purpose of
providing for the Grantee's operation, maintenance, and repair of an underground and
above ground public stormwater drainage system not more thar 24" in diameter to be
owned and operated by the Grantee, and for no other purpose. The Grantee shall keep
such easement and any damage system within such easement in good repair and fully
functional and all responsibility, liability, obligation, and duty for installation, operatiorq
maintenance, and repair of any stormwater drainage system within such easement shall
be solely born by the Grantee, its successor(s) and assign(s). When Grantee undertakes
any repair or maintenance of tle system, Grantor's property shall be left or restored to the
same condition found by Grantee immediately prior to the repair of maintenance thereof
The non-exclusive easement hereby granted shall not interfere with or preclude the
Grantor's full use and enjoyment of the Grantor's property including, but not limited to,
the Grantor's ownership, operation, and maintenance of parking garage above the non-
exclusive ea$ement.
The acceptance of this non-exclusive perpetual public easement by Grantee
further acknowledges its authorization and direction to Grantor to remove the existing
stormwater drainage system located on Grantor's property for the purpose of installing
and relocating the same within this non-exclusive perpetual public easement conveyed
herein by Grantor to Grantee.
The Grantee shall, to the extent permitted by law, and without waiving any of its
rights under the Colorado Government Immunity Act, indemnify the Grantor, its officers,
agents, contractors, attomeys, and employees and shall hold each and all of them
harmless against any and all claims, actions, demands or liabilities, including attorney
fees and court costs, for injury, death, damage or loss to person(s) or property arising out
of or directly or indirectly resulting from the Grantee's actions or omissions, and of their
officers, agents, contractors, and subcontractors, in connection with the operation,
maintenance, repair, and replacement of facilities owned, operated, or controlled by the
Grantee within the non-exclusive easement described in Exhibit A,
t' -t
This non-exclusive Easement shall be governed by and enforced in accordance
with the laws of the State of Colorado, and jurisdiction shall be limited to Eagle County,
Colorado.
In witness whereof, this document has been executed this day of , 1998.
GRAITTOR:
GASTHOF GRAMSHAMMER INC.
Pepi Gramshammer
STATEOFCOLORADO )
) S.S.
CoUNTYOFEAGLE )
The foregoing instrument was acknowledged before me this_day of ,1998
Bv.-
Witness mv hand and official seal.
My commission expires:
Notary Public
(sEAL)
Grmshmrwn-Excl-Esmt
By: