HomeMy WebLinkAboutNEW MERCER DITCH WEST DRAKE RD - Filed OA-OTHER AGREEMENTS - 2004-11-23AGREEMENT
THIS AGREEMENT is made and entered into this 1 day of
�`-- 1988, by and between THE CITY OF FORT COLLINS,
COLORADO, a municipal corporation, hereinafter referred to as
"Applicant," and NEW MERCER DITCH COMPANY, a Colorado mutual
irrigation company, hereinafter referred to as "Ditch Company."
PROJECT
The construction of a pedestrian bridge over the New Mercer
Ditch located at 725 West Drake Road. The location of the bridge
is as shown on Exhibit "A" attached hereto.
WITNESSETH:
WHEREAS, the Ditch Company is the owner of an irrigation
ditch and the right-of-way therefor through land located as shown
on Exhibit "A."
WHEREAS, Applicant desires to construct and install a ped-
estrian bridge which will cross the Ditch Company's right-of-way,
with all construction items as detailed in the Exhibit "B" at-
tached hereto and made a part hereof by reference.
WHEREAS, Exhibit "B" sets forth all the plans and specifi-
cations and terms of this grant, and shall be in no way modified
or cbanged by any subsequent or related plans or materials not
include,.! therein; and
WHEREAS, the Ditch Company is willing to grant to Applicant
this right upon the terms and conditions hereinafter expressed;
NOW, THEREFORE, in consideration of the premises and the
terms of the within Agreement, it is agreed as follows:
1. The Ditch Company grants unto Applicant the right to
construct, install and maintain the above described bridge across
the existing ditch of Ditch Company, and further grants unto
the Applicant the right of ingress and egress to a part of its
ditch as shall be reasonable and necessary for the exercise of
the rights granted herein, except that the access gate of Ditch
Company shall not be obstructed and Ditch Company's access gate
shall be replaced in its same and present condition.
2. Applicant has previously paid to Ditch Company an ap-
plication fee in the amount of Four Hundred Fifty Dollars ($450.00).
This is determined to be a minimum initial payment to cover pre-
liminary expenses, such as legal work, time and motor vehicles
for use by superintendent and/or directors; review of the appli-
cation; and other preliminary matters. In addition thereto,
Applicant agrees to pay for such additional, reasonable and nec-
essary expenses of the Ditch Company for legal services and in-
spection of the works by the Ditch Company's President, engineers
and superintendent.
3. The construction herein contemplated shall be in strict
accordance with the final set of plans with modifications set
forth in Exhibit "B." Any excavations or changes in the present
ditch shall be backfilled, compacted and stabilized to the entire
satisfaction of the Ditch Company. All compaction for dikes
shall be done to ninety-five percent (95o) standard Proctor den-
sity. The dikes shall be in conformance with the plans for con-
struction as furnished. Said work shall further be done under
the supervision of the superintendent or other designated agents
of the Ditch Company.
4. All construction shall be commenced after October 15,
1988 and completed before April 15, 1989. These periods are
mandatory, except as may be extended by the President of Ditch
Company or other duly authorized representative of the Ditch
Company, and said construction shall in no way interrupt, impede
or interfere with the flow of irrigation water, nor shall such
construction adversely affect the quality of the water. All
construction shall proceed with due care to make certain that
no contamination of the irrigation water occurs.
5. Upon the completion of the project, the Applicant shall
promptly notify the Ditch Company, and the parties shall jointly
inspect the ditch at the place of construction. If there are
any deficiencies in the work of the Applicant or any variations
from the plans set forth in the Exhibits, the Applicant shall
forthwith remedy the same, in so doing, the Applicant shall meet
all reasonable requirements of the Ditch Company for the protection
of the ditch and surrounding property.
6. It is the intent of this Agreement that Applicant shall
exercise due care in the construction of said crossing. Accord-
ingly, it is hereby recognized by and between the parties hereto
that the Ditch Company is in no way responsible for any damages
caused by such construction or structure.
7. The projects shall be without cost to the Ditch Company,
and the Applicant shall hereby indemnify and forever hold the
Ditch Company harmless for liability for damages caused by the
project.
8. The Ditch Company shall have full power to operate,
maintain, alter, enlarge or relocate its ditch as if this Agree-
-2-
ment had not been made, and any expenses caused thereby to the
Applicant shall not be chargeable to the Ditch Company.
9. The Applicant agrees that, because of increased main-
tenance expenses and difficulties occasioned by the location
of the bridge within the ditch right-of-way, it shall conduct
such maintenance activities to the bridge as are necessary to
facilitate the customary carriage of irrigation water in said
section of the ditch.
10. In the event either the Applicant or the Ditch Company
shall be in default in any of their covenants herein, so as to
require the party not in default to retain counsel. to attempt
to enforce the covenants by negotiations or otherwise, or to
commence legal or equitable action against the defaulting party,
the defaulting party agrees to pay all reasonable expenses of
said litigation incurred by the enforcing party, including but
not limited to docket fees, depositions and reasonable attorneys'
fees.
11. Prior to the commencement of construction, Applicant
agrees to record, at its expense, a fully executed copy of this
Agreement with the Clerk and Recorder of Larimer County, Colorado
and furnish such recorded Agreement to the Ditch Company.
THIS AGREEMENT shall extend to and be binding upon the heirs,
successors and assigns of the respective parties hereto.
IN WITNESS WfIEREOF, the parties hereto have caused this
Agreement to be executed the day and year first hereinabove writ-
ten.
THE CITY OF FORT COLLINS, COLORADO,
a municipal corporation
ATTEST:
By:
Title Title
ATT
Ger(e K."FischeT, Secretary
NEW MERCER DITCH COMPANY, a Colorado
mutual irrigation company
By: -
Louis F. Swift, President
(S E A L)
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The above and fore pin Agreement was acknowledged before
me this '�(>t day of -� �tl)e-' , 1988, by - , ' :� %f,4r .r
as and attested to by t t. . a %I1
as of The City of Fort Collins, Colorado,
a municipal corporation.
Witness my hand and official seal.
My commission expires: My Commission expirm Septembb j E,?,
Notary Public
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The above and foregoing Agreement was acknowledged before
me this // day of rr' /- , 1988, by Louis F. Swift
as President and attested to by Gene E. Fischer as Secretary
of New Mercer Ditch Company, a Colorado mutual irrigation company.
Witness my hand and official seal.
My commission expires: December~30, 1991.
r
Notary Public/
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EXHIBIT "A"
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