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HomeMy WebLinkAboutFOSSIL CREEK COMMERCIAL PLAZA - Filed OA-OTHER AGREEMENTS - 2003-11-04AGREEMENT J THIS AGREEMENT is made and entered into this ao day of. February, 1979, between THE NEW MERCER DITCH COMPANY, party of the first part (herein sometimes referred to as the "Ditch Company"), THE CITY OF FORT COLLINS, COLORADO, party of the second part (herein sometimes referred to as the "City", and I4ARGARET M. PEXTON, FRANCIS W. COLLOPY, the Executor of the Estate of May Troutman, and LYDIA M. COLLOPY, parties of the third part (herein sometimes referred to as "Owners"). W I T N E S S E T H: ARTICLE I. PREAMBLE. , 1. Owners are owners of certain real property located in the City of Fort Collins, County of Larimer, State of Colorado, described on Exhibit A attached hereto. Owners are developing said property as a commercial subdivision in the City known as Fossil Creek Commercial Plaza Subdivision. 2. The Ditch Company is a mutual irrigation company and owns a ditch (The New Mercer Canal) which presently crosses through the property of the Owners. Although there is no dispute over the location of The New Mercer Canal or the right of the Ditch Company to maintain the canal in its present location, there is no written instrument of record establishing the right of way for the canal. 3. In connection with the development of their property as Fossil Creek Commercial Plaza Subdivision, the Owners desire and the City has required that The New Mercer Canal be relocated. Such relocation is necessary in order to efficiently utilize the lands in the commercial development and to allow installation of necessary utility lines, streets and similar subdivision improvements and the maintenance of such improvements economically. 4. The right of way of the Colorado and Southern Railroad adjoins Fossil Creek Commercial Plaza Subdivision on the West. The Owners and the City propose to relocate the New Mercer Canal West of and adjoining the right of way of the Colorado and Southern Railroad Company within an 80 foot right of way to be provided to the Ditch Company. The owners :have employed engineers ( M. & I. Consulting Engineers of Fort Collins, Colorado) to prepare plans and specifications for the relocation of the Canal. Such plans and specifica- tions have been prepared and have been submitted to the Ditch Company. Such plans and specifications bearing date of are incorporated herein by reference and made a part of this Agreement. Copies of the same have been initialed on behalf of all parties and each party has an initialed copy of the plans and specifications. In connection with the preparation of the plans and specifications, Empire Laboratories, Inc. of Fort Collins has performed soil tests and investigations in order to determine the proper materials to be used to line the new ditch in order to minimize seepage losses in the ditch. The recommendation of Empire Laboratories, Inc. have been incorporated in the proposed ditch designs. 5. The Ditch Company has agreed to permit the relocation of its Canal in accordance with the terms and conditions of this Agreement. NOW, THEREFORE, in consideration of the premises and the terms of this Agreement, it is agreed as follows: ARTICLE II. TERMS OF AGREEMENT. 6. The Owners and the City agree to provide for the Ditch Company a right of way for the relocated New Mercer Canal sufficient in width to accommodate the ditch and a 2',0 foot right of way for a maintenance road along one side of the relocated ditch. Such right of way shall be sufficient to accommodate the ditch and the maintenance road -2- as more particularly shown and described in the plans and specifications. It is agreed that the owners will pay all costs incurred in acquiring such right of way and will indemnify and save the City harmless from any costs, expense or claim on account of the acquisition of such right of way, including attorney's fees and any other expense incurred on account of any claim by any third party connected with such right of way acquisition. 7. The Owners agree to construct the relocated ditch in strict accordance with the plans and specifications including all structures shown on the plans and specifications, the roadway along the ditch and all other details shown on the plans and specifications. Such plans are subject to final approval by engineers to be specified by the Ditch Company, and the work shall conform to the finally approved plans. The work on construction of the relocated ditch shall commence immediately and the Owners agree to have such work completed and the ditch and all appurtenant structures instal:Led in complete conformance with the plans and specifi- cations no later than April 15, 1979. All such work shall be done at the sole cost of the Owners and no other party to this Agreement shall bear any portion of the cost of such work (it is understood that the Owners may obtain contributions from other interested land Owners to assist in paying the cost off the ditch relocation). During the progress of the work, the City and the Ditch Company, or their representatives, may inspect the project at any time and Owners agree to immediately correct any deficiencies in the work called to their attention by either of said parties. Upon the completion of the relocated ditch the Owners will notify the City and the Ditch Company and the City and the Ditch Company may then inspect the completed work. In the event there are any defects in the work, the Owners shall promptly correct -3- the same at their sole cost and expense. It is acknowledged that the Ditch Company intends to have inspection work done for it by the Soil Conservation Service and the completed ditch shall meet the standards of the Soil Conservation Service:. If for any reason the Soil Conservation Service is unable to perform such inspection work, then the Ditch Company, may employ engineers to perform such inspection services, and the expense incurred by the Ditch Company shall be reimbursed to the Ditch Company by the Owners. 8. In accordance with the plans and specifica- tions, Owners will install at each end of the new ditch water measuring gauges reasonably acceptable to the Ditch Company which will measure the volume of water flowing into and out: of the new ditch. The Ditch Company has expressed concern that the new ditch as designed will permit excessive seepage of water, thereby diminishing the amount of water available for the Ditch Company to deliver to its stock- holders who receive water below the location of the new ditch. The parties assume that there is seepage loss from the ditch in its present location. The amount of seepage presently varies depending upon the ground water table at different times of the year and other factors. It is agreed that a reasonable loss through seepage in the new portion of the ditch corresponding to the estimated loss from seepage in the old ditch on the average in any irrigation year should not exceed one percent (1%). In the event seepage losses in the new ditch exceed such amount in any year, the City agrees to make up the excess loss through water sources available to the City. The City may designate the source of water to be used to make up any such loss provided the water shall be delivered to the Ditch Company through The New Mercer Canal. If excess seepage losses as defined herein occur, the City shall make replacement water available to the -4- Ditch Company as soon as possible and at the times requested by the Ditch Company in order to allow the Ditch Company to make up water to the shareholders whose deliveries were reduced because of excess seepage. The Ditch Company shall work with the City in scheduling delivery of make up water, and both parties shall recognize the scheduling needs of the other party. The Owners agree to reimburse the City for any water which the City furnishes pursuant to this provision. Such reimbursement shall be at the rate established by the City for that year for water rented by the City for agricultural use. The parties further agree that after the -1 ditch has been in operation for a period of three consecutive years without seepage losses exceeding those provided for and contemplated above, then this provision shall terminate. The provisions of this paragraph are intended to insure that seepage losses in the relocated ditch do not exceed seepage which might be anticipated in the former ditch and all parties agree to reasonably construe the provisions of this paragraph to that effect. 9. The Owners shall provide to the Ditch Company an engineer's certificate from their engineers certifying that the relocated ditch as depicted in the plans and specifi- cations has been properly designed and will convey at least the same volume of water as the previous ditch with no greater seepage loss than the previous ditch. Upon completion of the work the Owners shall further provide to the Ditch Company an engineer's certificate certifying that the relocated ditch has been completed in complete accordance with the plans and specifications. 10. The City agrees to assume the obligation to maintain the trash collection screen to be installed in the ditch and shown on sheet 7 of the plans and specifications. This maintenance will consist of removal of all trash and -5- debris from such screen as required to prevent obstruction to the ditch and to permit free delivery of water through the ditch at all times in accordance with the needs of the Ditch Company. The City agrees to perform this maintenance responsibility so long as the ditch continues in operation. 11. Two headgates for delivery of water from The New Mercer Canal to irrigation laterals now exist along the portion of the ditch to be relocated. The Owners have deter- mined that one of such headgates and laterals is no longer used; the land formerly irrigated from such lateral having been converted from farmland to urban uses. Owners shall provide the Ditch Company with such evidence of the abandon- ment of this lateral and headgate as Ditch Company may require. Upon satisfaction of the Ditch Company that this lateral and headgate is no longer in use, Owners will not be required to replace this headgate and lateral. The other headgate and lateral is still in use and the plans and specifications provide for installation of a new headgate to connect to this lateral so as to permit the continued delivery of water for the lands served through this headgate. All of the work provided for in the plans and specifications to deliver water to this lateral shall be performed by the Owners, and any right of way required shall also be provided by the Owners. 12. As a part of the work to install the new ditch the Owners will seed the banks of the ditch with crested wheat grass and maintain the newly seeded area until it is established (at least through one growing season). In addition, the Owners and the City, by this agreement, agree to assume any maintenance responsibilities for the ditch involving the need to maintain the clay lining. The Owners agree to pay all costs involved in such maintenance and to indemnify the City against any loss or claim on account of wig this maintenance responsibility. The Owners and the City shall have the responsibility for such maintenance until they have achieved five continuous years of operation with the relocated ditch free of substantial maintenance problems. At the end of such five-year period the relocated ditch shall be inspected by engineers approved by the Ditch Company for the purpose of determining the condition of the clay lining installed in the ditch. If such clay lining is still in place and has not deteriorated, then the Ditch Company shall reassume responsibility for maintenance of the ditch. It is the intent of this provision to insure to the Ditch Company that the requirements pertaining to maintenance of the relocated ditch are not increased or more expensive than the cost of maintaining the previous ditch and the provisions herein shall be reasonably construed to this end. 13. Upon the completion of the work to install the new relocated canal, and conveyance of the right of way for the new canal to the Ditch Company, the Ditch Company agrees to abandon the right of way for the former canal and to execute any instrument reasonably requested by the Owners to evidence such abandonment. Until the new ditch is completed the former ditch shall remain in workable condition or in such condition that it can be made workable in a short time (48 hours) and the Owners shall have the responsibility of placing the ditch in workable condition upon request of the Ditch Company at any time after April 15, 1979. ARTICLE III. MISCELLANEOUS. 14. Any notice required to be given under this agreement or which any party desires to give to another party shall be deemed delivered if mailed to the other party registered or certified mail, return receipt requested, addressed as follows: -7- THE NEW MERCER DITCH COMPANY c/o William C. Stover P. O. Box 523 Fort Collins, Colorado 80522 THE CITY OF FORT COLLINS c/o Roy Bingman Director of Engineering Services P. O. Box 580 Fort Collins, Colorado 80522 MILO BUNKER c/o University Realty P. O. Box 471 Fort Collins, Colorado 80522 Any such notice shall be effective on date of deposit in the United States mail, postage prepaid. 15. This agreement shall be construed in accordance with the :Laws of the State of Colorado. 16. This agreement shall be binding upon the parties hereto, their heirs, personal representatives, successors and assigns. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be signed the day and year first hereinabove written. (SEAL) ATTEST: William C. Stover, Secretary A EST- :C ����� City lerk THE NEW MERCER DITCH COMPANY By� Ralph V. Hansen, Vice President OF FORT COLLINS, By: Frank W. Collopy �� jjj (vt1("//At/' APPROVED: Attorney in Fact for Margaret M. Pexton� THE NEW MERCER DITCH COMPANY , / 0, Francis W. Collopy, xecutor of the Estate of May Troutman Lyd'a M. Collopy