HomeMy WebLinkAboutROLLAND MOORE PARK - Filed OA-OTHER AGREEMENTS - 2002-10-25AGliSJKrLr1V*X /
THIS AGREEMENT is executed this day of ,
1992, by and between THE CITY 0 FORTfi� COLLIN , ICOLORADO, a
municipal corporation ("the City"), and THE LARI R OUNTY CANAL
NO. 2 IRRIGATING COMPANY ("the Company").
W I T N E S S E T H
WHEREAS, the Company is the
No. 2 ("the Canal"), a portion
intersection of the Canal with
Collins; and
owner of the Larimer County Canal
of which Canal is located at the
Spring Creek in the City of Fort
WHEREAS, the Canal has historically been operated under a
prescriptive easement including sufficient width to carry the water
as needed for irrigation purposes, together with necessary rights -
of -way adjacent to the Canal for maintenance thereof; and
WHEREAS, said Canal has in the past and will in the future
intercept storm drainage waters; and
WHEREAS, said Canal has been constructed to carry one hundred
fifty-five (155) cubic feet per second of water for irrigation
purposes; and
WHEREAS, the City is desirous of enlarging and improving the
Canal so that the Canal will be able to carry two hundred fifty
(250) cubic feet per second of water, the additional ninety-five
(95) cubic feet per second of water being in the Canal as storm
drainage water; and
WHEREAS, the City is desirous of obtaining the permission of
the Company to convey ninety-five (95) cubic feet per second of
storm drainage water in the Canal; and
WHEREAS, the City is desirous to improve the ditch at the
intersection of the Canal with Spring Creek as shown on the
attached drawings, dated December 27, 1991, as prepared by RBD,
Inc., more particularly described on Exhibit "A," attached hereto
and incorporated herein by this reference; and
WHEREAS, in consideration of the granting to the City of the
right to convey storm drainage water in the Canal, the City shall
be fully responsible for the maintenance of the improvements made
by the City to the Canal and to the irrigation ditch itself, to the
extent that such maintenance is made necessary by reason of the
increased flow contributed by the City.
NOW, THEREFORE, in consideration of the mutual promises and
covenants of the parties, and other good and valuable
RcPTN Ii 2002092459 08/30/2002 10:29:00 a PAGES - 6 FEE - $30.00
M HUDENHEHGEH HECURVER, LAHIMEH CUUN'lY W STATE DOC FEE - $.00
AGREEMENT
THIS AGREEMENT is made and entered into thisr�/may of 199�
by and between THE CITY OF FORT COLLINS, COLORADO, a municipal c rporation, hereinafter
referred to as "Applicant"; and THE NEW MERCER DITCH COMPANY, a Colorado mutual
irrigation company, hereinafter referred to as "Ditch Company".
PROJECT DESCRIPTION
The project will be part of the improvements made by contractors under Applicant's
authority to the path between the Ditch Company's ditch and a ditch owned by The Larimer
County Canal No. 2 Irrigating Company, at a location near the Senior Center and Rolland Moore
Park. There are two existing pedestrian bridges which provide access to the Park from the
Senior Center. A steep section of path exists near the bridge over the Larimer County Canal
No. 2 ditch. The improvements would eliminate the steep grade. The path would also be
converted to 5' wide concrete. The existing ditch access road will be slightly raised and
lowered in two areas to allow for the new path. A new western two -rail fence will be installed.
WITNESSETH:
WHEREAS, the Ditch Company is the owner of an irrigation ditch and the right-of-way
therefor through land as shown on the Exhibits attached hereto and made a part hereof by
reference; and
WHEREAS, Applicant desires to construct the above -described improvements, with all
construction items as detailed in the Exhibits attached hereto and made a part hereof by
reference: and
WHEREAS, the attached Exhibits set forth all the plans and specifications and terms of
this grant, and shall be in no way modified or changed by any subsequent or related plans or
materials not included therein; and
WHEREAS, the Ditch Company is willing to grant to Applicant this right upon the terms
and conditions hereinafter expressed;
WHEREAS, in consideration of the granting to the Applicant of the right to construct the
above -described improvements, the Applicant shall be fully responsible for the maintenance of
the improvements made by the Applicant to the Ditch;
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 improvements in perpetuity as described in the attached Exhibits; and
further grants unto the Applicant the right of ingress and egress to a part of the Ditch as shall
be reasonable and necessary for the exercise of the rights granted herein.
2. Applicant shall pay to Ditch Company, concurrent with the execution hereof, an
1 ITY CLERK
CITY OF FORT
d
application fee in the amount of Five Hundred Dollars ($500.001. This is determined to be a
minimum initial payment to cover preliminary expenses, such as legal work, time and motor
vehicles for use by superintendent and/or directors; review of the application; and other
preliminary matters. In addition thereto, Applicant agrees to pay for such additional, reasonable
and necessary expenses of the Ditch Company for legal services, review by the Company's
engineer, and inspection 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 any modifications set forth in the Exhibits attached and initialled by the parties
hereto. 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 promptly and completed prior to April 1,
1999. The period of time for construction shall be designated by the Ditch Company President.
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 contemplated herein. Accordingly, 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.
7. The project shall be without cost to the Ditch Company, and the Applicant shall
hereby indemnify and forever hold the Ditch Company harmless to the extent permitted by law
and the Charter of the City of Fort Collins for liability for damages caused by the project.
8. It is understood and agreed that if the Ditch is materially and functionally
damaged during the irrigation season, because of the failure of the facilities constructed by the
Applicant, the Applicant must promptly correct such damage. If the Applicant fails to promptly
correct such damage, the Ditch Company shall have the right to make such repairs as are
necessary and receive reimbursement from the Applicant of all of its reasonable costs in making
such repairs. The Applicant shall not be responsible for reimbursement to the Ditch Company
until the Ditch Company has first given written notice to the Applicant of the damage and made
reasonable demand upon the Applicant for prompt repair of such damage.
9. The Ditch Company shall have full power to operate, maintain, alter, enlarge or
relocate the Ditch as if this Agreement had not been made, and any expenses caused thereby
to the Applicant shall not be chargeable to the Ditch Company.
2
19
10. The Applicant agrees in perpetuity that, because of increased maintenance
expenses and difficulties occasioned by the location of the construction within the Ditch's right-
of-way, it shall conduct all maintenance activities to the facilities after construction as are
(/ necessary. The Applicant's obligations in future fiscal years are contingent
upon the annual appropriation of funds to carry out the same.
1 1 . In the event either the Applicant or the Ditch Company shall be in default in any
/ I 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.
THIS AGREEMENT shall extend to and be binding upon the successors and assigns of
the respective parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first hereinabove written.
THE CITY OF FORT COLLINS, COLORADO,
a municipal corporation
ATTEST:
i'John F. Fischbach, City Manager
Approved as to form:
;
Assistant City Attorney J
STATE OF COLORADO
ss.
COUNTY OF LARIMER
The above and foregog�JJ'yg Agreement was acknowledged before me this day of
19 7d by John F. Fischbach, as City Manager; and attested to by
NAM as City Clerk of The City of Fort Collins, Colorado, a
municipal cor ration.
WITNESS my hand and official seal.
MY commission expires: My CommissionFX01re0ec 30.
{SEAL}
Notary
3
THE NEW MERCER DITCH COMPANY,
A
Gene E. Fische'r Secretary
The above agreement is approved.
Jdhn� Ditch Superintendent
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The above and foregoing Agreement was acknowledged before me this 117- day of
19�, by Louis F. Swift as President and attested to by Gene E. Fischer
as Secretary of The New Mercer Ditch Company, a Colorado mutual irrigation company.
WITNESS my hand and official seal.
MY commission expires: Y///Zy! _
Notary Public
C!
ROLLAND MOORE / SENIOR CENTER ACCESS
NEW MERCER DITCH COMPANY
a
LOCATION MAP
N
6
ROLLAND MOORE PARK $
R011ond Moore Pork
x
W
PROJECT LOCATION G
North
Scale 1" = 20' s.nbr�
TOP OF DITCH
(D
4 Ft vide " OS Ft L-0 I LARIMER COUNTY NO.2 CANAL
on ftft HrkOe
Droke Rd
w� —_ To Shields St,
Trw ,.,,.. - —� 600 Ft,]
O owo
PROPOSED --
3 R. PA
DITCH ACCESS ROA➢ �J�I+30�
D+T0�0+80.— 0+90 I+00 N_ 1+40 1 /
1+1 1+20'1+30 / '�•./➢etenlbn Pond-rw ill I
3+70
OF DUCH HANK
NEW MERCER CANAL
I8' BRIDGE/
E.Wtft
V
To Senior Center
OLLAND MOORE / SENIOR CENTER A. _SS
NEW MERCER DITCH COMPANY
l.�
FJ�l
Ground
Concrete
TYPICAL SECTION
0 +00 TO 0 + 80
5' Wide Concrete, 4' thick
8' Wide base, 2:1 side slopes
Ditch access
road Concrete
TYPICAL SECTION
0 +80 TO 1 +63
5' Wide Concrete, 4' thick
16' Wide base, 2:1 side slopes
in cut; 3:1 side slopes in fill
1
Concrete i
\ Topsoil
TYPICAL SECTION -�
1+63 to 1+83
(Note, Ftare last 10'
of sidewalk to
bridge to 8' wide)
Topsoil
Topsoil
AGREEMENT
THIS AGREEMENT is made and entered into this 1744%, day of
March, 1987, by and between THE CITY OF FORT COLLINS, COLORADO, a
Municipal Corporation, hereinafter referred to as "the City" and
BRENKERT DEVELOPMENT CORPORATION, a Colorado Corporation,
hereinafter referred to as "the Developer."
WITNESSETH:
WHEREAS, the Developer is currently in the process of
developing a portion of the following described real property:
SPRING CREEK PROFESSIONAL PARK P.U.D. According to the
Plat thereof, recorded September 10, 1986 at Reception
No. 86051821 and Ratification thereto recorded
September 1.6, 1986 at Reception No. 86053058 in the
City of Fort Collins, County of Larimer, State of
Colorado
hereinafter referred to as "the Developer's Property"
WHEREAS, the City is the owner of that certain parcel of
real property commonly known as Rolland Moore Park and herein-
after referred to as "the Park Property"; and
WHEREAS, the Developer desires to construct a graduated
slope or berm (hereinafter the "Berm") on a portion of the most
northerly twenty (20) feet of the Park Property adjacent to the
Developer's Property; and
WHEREAS, the City desires that the Berm be constructed in
accordance with the plans, specifications and working drawings
described hereinafter; and
WHEREAS, the parties desire that the City grant a permanent
easement to the Developer over said twenty (20) foot portion of
the Park Property upon completion of the installation of the Berm
in accordance with the plans, specifications and working drawings
described hereinafter.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations of the parties as set forth herein, the receipt and
adequacy of which is hereby confessed and acknowledged, the
parties hereto agree as follows:
1. Permission to use City _Property. The City hereby
authorizes the Developer to enter upon that portion of the Park
Property owned by the City and described on Exhibit "A" attached
hereto and incorporated herein by reference, (hereinafter, the
Easement Area") for the purpose of constructing a Berm thereon.
The Berm shall be constructed and the Easement Area relandscaped
in accordance with the plans, specifications and working drawings
attached hereto as Exhibit "B" and incorporated herein by
reference (hereinafter, "the Plans and Drawings").
2. Completion Date. The Developer agrees, at its own
expense, to complete construction of the Berm and relandscaping
of the Easement Area in accordance with the Plans and Drawings on
or before May 15, 1987. Any extensions of the time limits set
forth above must be agree upon in writing by both parties hereto.
3. Compensation. The Developer shall pay to the City
FOUR THOUSAND FIVE HUNDRED ONE DOLLARS ($4,501.00) for the rights
herein granted, including the permanent easement to be granted to
the Developer by the City as more fully provided hereinafter.
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Said sum of money shall be paid to the City in full prior to the
commencement of any work under this Agreement. Said sum shall be
made payable to and deposited in the City of Fort Collins Park
Plan Fund. In addition, the Developer will pay all fees and
charges associated with the work to be done under this Agreement,
if any.
4. Maintenance of Property After Construction of Berm. The
parties hereby agree that the City shall be solely responsible
for the maintenance of the Easement Area after the satisfactory
completion of the Berm. After such completion, the City shall
maintain the Berm in the manner it deems appropriate.
5. Plans and Drawiras. Attached hereto as Exhibit "B" and
incorporated herein by reference are Plans and Drawings of the
work to be performed upon the Easement Area showing the
irrigation plan with the pipe and irrigation head details and
locations, a cross section of the Easement Area showing grade
modifications, edge of buildings, boundary lines, trail location
and fencing detail. The parties acknowledge that the Developer
has provided to the City adequate scale drawings (1:50) of the
Easement Area showing dimensions of the site and relationships to
surrounding features (i.e., City property line, trail location,
Shields Street right-of-way, etc.).
6. Adjacent Property. Ire addition to the permanent
easement to be granted by the City to the Developer in the
Easement Area, the City does hereby grant to the Developer the
right, during the installation and performance of the work, to
enter upon the following described parcel of property being ten
- 3 -
(10) feet in width, adjacent to and south of the Easement Area:
A tract of land located in the Southeast quarter of
Section 22, Township 7 North, Range 69 West, of the 6th
P.M. of Larimer County, Colorado, being more
particularly described as follows:
Considering the North line of the said Southeast
quarter of Section 22 as bearing North 89°44'00" West
and with all bearings contained herein relative
thereto:
Commencing at the East quarter corner of said Section
22; thence along the said North line, North 89044100"
West 50.00 feet to the Southeast corner of the Plat of
Spring Creek Professional Park, a. Plat of record with
the Clerk and Recorder of said Larimer County; thence
parallel with the East line of the said Southeast
quarter, South 00°15'00" East 20.00 feet to a line
which is 20.00 feet (measured at right angles) South of
and parallel with the said North line of the Southeast
quarter and to the TRUE POINT OF BEGINNING of this
description; thence along the said parallel line, North
89°44'00" West 450.18 feet; thence South 00°16'00" West
10.00 feet; thence South 89°44'00" East 450.27 feet;
thence parallel with the said East line of the
Southeast quarter, North 00°15'00" West 10.00 feet to
the Point of Beginning.
The above described tract contains 0.1034 and 4502
square feet and is subject to all easements and
rights -of -way now existing or of record.
Any damage, disruption, grade change or disturbance to
landscape materials, irrigation systems, turf, trail or other
site facilities outside of the Easement Area will be promptly
repaired to its original condition or better by the Developer at
the Developer's sole cost.
7. City Representative. The City shall designate a project
representative (hereinafter "the City Representative") who shall
make, within the scope of his authority, all necessary and proper
decisions with reference to the work to be done under this
Agreement. All requests for interpretations of conditions and
=M
consideration, the receipt and adequacy of which are hereby
acknowledged, the parties agree as follows:
1. The Company agrees to allow the City to expand and improve
the Canal, at City expense, so that the Canal is capable of
carrying two hundred fifty (250) cubic feet per second of water;
and the Company agrees to convey a maximum of ninety-five (95)
cubic feet per second of storm drainage water in the Canal upon the
completion of said improvements. The City warrants that the
improvements have been constructed as described in the plans,
drawings and specifications as shown on Exhibit "A."
2. Maintenance of the improvements made by the City to the
Canal shall be the responsibility of the City. The City shall also
maintain the irrigation ditch itself only to the extent that such
maintenance is made necessary by the reason of the increased flow
in the Canal contribu�_-ed by the City.
3. It is understood and agreed that, as a part of the
construction of improvements to and enlargements of the Canal,
certain sections of the Canal may require relocation, and the
Company agrees to any such relocation as may be necessary, provided
such relocated Canal be placed in lawfully dedicated easements or
rights -of -way useable for irrigation ditch and drainage purposes.
4. The City shall not perform construction work in the Canal
during times that the Canal is carrying irrigation water for the
shareholders of the Company except with the express written consent
of the Ditch Superintendent, which consent shall not be
unreasonably withheld.
5. It is understood and agreed that if the Canal is
materially and functionally damaged during the irrigation season,
and such damage has been caused because of the carriage of storm
drainage waters in the Canal or because of the failure of the
facilities constructed by the City, or otherwise caused because of
the City's enlargement and relocation of the Canal, the City must
promptly correct such damage. If the City fails to promptly
correct such damage, the Company shall have the right to make such
repairs as are necessary and receive reimbursement from the City of
all of its reasonable costs in making such repairs. The City shall
not be responsible for reimbursement of the Company until the
Company has first given written notice to the City of the damage
and made reasonable demand upon the City for prompt repair of such
damage.
6. In the event that the Canal or the newly installed
structures should fail because of the carriage of additional storm
drainage waters in the Canal or because of construction
deficiencies in those facilities constructed by the City, any
resulting proven damages to the property of other persons shall, to
the extent permitted by law, be the responsibility of the City.
2
specifications and other clarification or instruction shall be
directed to the City Representative.
8. Inspection and Warranty. The City's Representative and
other authorized representatives shall at all times have access
to the work whenever it is in preparation or progress and the
Developer shall provide proper facilities for such access and
inspection. Such representative shall have the right to reject
inadequate materials and workmanship or require their correction
in the event such work and materials are not in accordance with
the Plans and Drawings. Any rejected or faulty work shall be
repaired or replaced by the Developer at its sole expense. If,
within one (1) year after completion of the work covered by this
Agreement, any work is found to be defective or not in accordance
with the Plans and Drawings, the Developer shall promptly correct
the problem after receipt of notice from the City to do so. This
obligation shall survive the termination of this Agreement.
Notice of the defect will be given promptly after discovery of
the condition.
Upon proper completion of the work in accordance with the
Plans and Drawings, the City shall immediately execute a Grant of
Easement in substantially the form of the Grant of Easement
attached hereto as Exhibit "C" and incorporated herein by
reference, which Grant of Easement shall contain all of the terms
and provisions of said Exhibit "C". Said Grant of Easement
shall grant and convey unto the Developer, its successors and
assigns, in perpetuity, an easement allowing the continued
existence of the Berm in the Easement Area subject to the right
- 5 -
of the City to use the Easement Area for purposes not
inconsistent with the use thereof as a Berm.
9. Default. Each and every provision and term of this
Agreement shall be deemed a material element of this Agreement.
Time is of the essence. In the event that either party shall
fail or refuse to perform according to the terms of this Agree-
ment, it may be declared in default hereof.
10. Remedies Upon Default. In the event either party has
been declared in default hereof and performance is possible
within the completion time as established herein, such defaulting
party shall be allowed a period of fifteen (15) days within which
to cure said default. If the default remains uncorrected (or
timely performance is not possible), the party declaring default
may elect, at its option, to sue for specific performance to
enforce the obligations of the defaulting party under the terms
hereof and to recover any costs and expenses incurred by reason
of the defaulting party's breach, or to sue for damages alone,
and to recover any and all damages, including costs and expenses,
which shall be sustained by the non -defaulting party by reason of
such breach.
11. Attorney's Fees and Costs. In the event either of the
respective parties hereto shall default in any of their covenants
or obligations herein provided and the party not in default
commences legal or equitable action against the defaulting party,
the defaulting party expressly agrees to pay all reasonable
expenses of said litigation, including a reasonable sum for
attorney's fees.
- 6 -
12. Terms Survive Grant of Easement. To the extent
necessary to carry out all of the terms and provisions hereof,
the said terms, obligations and rights set forth herein shall not
be deemed terminated at the time of the execution and delivery of
the Grant of Easement, it being expressly understood that the
obligations of the Developer hereunder shall survive the
execution of such Grant of Easement.
13. Notice. Any notice or other communication given by
either party to the other relating to this Agreement shall be
personally delivered or shall be sent by registered or certified
mail, return receipt requested, addressed to the other party at
the respective addresses set forth below; and, if mailed, such
notice or other communication shall be deemed given when so
mailed:
If to the Developer, to:
Brenkert Development Corporation
721 Dartmouth Trail
Fort Collins, Colorado 80525
If to the City, to:
Park and Recreation Department
City of Fort Collins
Post Office Box 580
Fort Collins, Colorado 80522
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
ATTEST:
City Clerk
A: =S TO FORM:
Assistant City Attorney
ATTEST:
Becky A. 8renkert, Secretary
THE CITY OF FORT COLLINS,
COLORADO, a Municipal Corporation
By -
City Manager
"the City"
BRENKERT DEVELOPMENT CORPORATION,
a Colorado Corporation
P.. y �
De is R. Brenkert, President
- 8 -
"the Developer"
EXHIBIT A ATTACHED TO AND MADE A PART OF THE AGREEMENT BETWEEN
THE CITY OF FORT COLLINS, COLORADO, A MUNICIPAL CORPORATION ("THE
CITY") AND BRENKERT DEVELOPMENT CORPORATION, A COLORADO
CORPORATION ("THE DEVELOPER")
Legal Description
A tract of land located in the Southeast quarter of
Secticn 22, Township 7 North, Range 69 West, of the 6th
P.M. of Larimer County, Colorado, being more
particularly described as follows:
Considering the North line of the said Southeast
quarter of Section 22 as bearing North 89°44'00" West
aria with all bearings contained herein relative
thereto:
Commencing at the East quarter corner of said Section
22; thence along the said North line, North 89'44'00"
West 50.00 feet to the Southeast corner of the Plat of
Spring Creek Professional Park P.U.D., a plat of record
with the Clerk and Recorder of said Larimer County and
to the TRUE POINT OF BEGINNING of this description;
thence along the South boundary of the said plat and
continuing along the said North line of the Southeast
quarter, North 89°44'00" West 450.00 feet; thence South
00°16'00" West 20.00 feet; thence South 89°44'00" East
450.18 feet to a line which is 50.00 feet (measured at
right angles) West of and parallel with the East line
of the said Southeast quarter; thence along the said
parallel line, North 00°15'00" West 20.00 feet to the
Point of Beginning.
The above described tract contains 0.2067 acres of 9002
square feet and is subject to all easements and
rights -of -way now existing or of record.
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7. This Agreement constitutes the entire understanding of the
parties hereto with regard to the subject matter hereof and shall
inure to the benefit of the parties, their representatives,
successors and assigns. This Agreement may be amended only by
subsequent writing signed by both of the parties.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement the day and year first above written.
ATTEST:
City Clerk
APPRO AS TO FORM:
Deputy City Attorney
THE CITY OF FORT COLLINS, COLORADO
A Municipal Corporation
By:
City Manager
LARIMER COUNTY CANAL NO. 2
IRRIGATING COMPANY
BY: \�X rhA 'Siclbi�
Pirident
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HCPTN # 2002092460 u8%3u%2002 10:29:00 # PAGES - 6 FEE - $30.00
M XOUEN13ER(;ER Rt:CORDER, LARIMER COUNTY Cu STATE DOC FEE $.00
AGREEMENT
THIS AGREEMENT is made and entered into this( �Bay of 199�
by and between THE CITY OF FORT COLLINS, COLORADO, a municipal ,oration, hereinafter
referred to as "Applicant"; and THE LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY,
a Colorado mutual irrigation company, hereinafter referred to as "Ditch Company".
PROJECT DESCRIPTION
The project will be part of the improvements made by contractors under Applicant's
authority to the path between the Ditch Company's ditch and a ditch owned by The New
Mercer Ditch Company, at a location near the Senior Center and Rolland Moore Park. There are
two existing pedestrian bridges which provide access to the Park from the Senior Center. A
steep section of path exists near the bridge over the Ditch Company's ditch. The improvements
would eliminate the steep grade. The path would also be converted to 5' wide concrete. The
existing ditch access road will be slightly raised and lowered in two areas to allow for the new
path. A new western two -rail fence will be installed.
WITNESSETH:
WHEREAS, the Ditch Company is the owner of an irrigation ditch and the right-of-way
therefor through land as shown on the Exhibits attached hereto and made a part hereof by
reference; and
WHEREAS, Applicant desires to construct the above -described improvements, with all
construction items as detailed in the Exhibits attached hereto and made a part hereof by
reference; and
WHEREAS, the attached Exhibits set forth all the plans and specifications and terms of
this grant, and shall be in no way modified or changed by any subsequent or related plans or
materials not included therein; and
WHEREAS, the Ditch Company is willing to grant to Applicant this right upon the terms
and conditions hereinafter expressed;
WHEREAS, in consideration of the granting to the Applicant of the right to construct the
above -described improvements, the Applicant shall be fully responsible for the maintenance of
the improvements made by the Applicant to the Ditch;
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 improvements in perpetuity as described in the attached Exhibits; and
further grants unto the Applicant the right of ingress and egress to a part of the Ditch as shall
be reasonable and necessary for the exercise of the rights granted herein.
2. Applicant shall pay to Ditch Company, concurrent with the execution hereof, an
1 CITY CLERK
CITY OF FORT COLI.o,`
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application fee in the amount of Five Hundred Dollars ($500.00). This is determined to be a
minimum initial payment to cover preliminary expenses, such as legal work, time and motor
vehicles for use by superintendent and/or directors; review of the application; and other
preliminary matters. In addition thereto, Applicant agrees to pay for such additional, reasonable
and necessary expenses of the Ditch Company for legal services, review by the Company's
engineer, and inspection 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 any modifications set forth in the Exhibits attached and initialled by the parties
hereto. 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 promptly and completed prior to April 1,
1999. The period of time for construction shall be designated by the Ditch Company President.
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 contemplated herein. Accordingly, 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.
7. The project shall be without cost to the Ditch Company, and the Applicant shall
hereby indemnify and forever hold the Ditch Company harmless to the extent permitted by law
and the Charter of the City of Fort Collins for liability for damages caused by the project.
8. It is understood and agreed that if the Ditch is materially and functionally
damaged during the irrigation season, because of the failure of the facilities constructed by the
Applicant, the Applicant must promptly correct such damage. If the Applicant fails to promptly
correct such damage, the Ditch Company shall have the right to make such repairs as are
necessary and receive reimbursement from the Applicant of all of its reasonable costs in making
such repairs. The Applicant shall not be responsible for reimbursement to the Ditch Company
until the Ditch Company has first given written notice to the Applicant of the damage and made
reasonable demand upon the Applicant for prompt repair of such damage.
9. The Ditch Company shall have full power to operate, maintain, alter, enlarge or
relocate the Ditch as if this Agreement had not been made, and any expenses caused thereby
to the Applicant shall not be chargeable to the Ditch Company.
E
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10. The Applicant agrees in perpetuity that, because of increased maintenance
expenses and difficulties occasioned by the location of the construction within the Ditch's right-
of-way, it shall conduct all maintenance activities to the facilities after construction as are
necessary. The Applicant's obligations in future fiscal years are contingent
upon the annual appropriation of funds to carry out the same.
11. In the event either the Applicant or the Ditch Company shall be in de cult 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.
THIS AGREEMENT shall extend to and be binding upon the successors and assigns of
the respective parties hereto.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
the day and year first hereinabove written.
THE CITY OF FORT COLLINS, COLORADO,
a municipal corporation
ATTEST:
By: /l/o a t�, i'_ycic41�(cv
John F. Fischbach, City Managerk.j
Approved as to form:
Assistant City Attorney.' t,
THE LARIMER COUNTY CANAL NO. 2
IRRIGATING COMPANY,
a Colorado mutual irrigation company
ATTEST
'1/2 By.
G e . Fischer, Secre ary J n L. Strachan, President
3
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STATE OF COLORADO 1
ss.
COUNTY OF LARIMER )
���""Th above and foreg i g Agreement was acknowledged before me this ' day of
/iT,(r.Gt 19y , by John F. Fischbach, as City Manager; and attested to by
as City Clerk of The City of Fort Collins, Colorado, a
municipal corpdVation.
WITNESS my hand and official seal.
MY commission expires:
{SEAL}
STATE OF COLORADO
ss.
COUNTY OF LARIMER
The bove and foregoing Agreement was acknowledged before me this 41_ day of
Dee_! er E'Y , 19, by John L. Strachan as President and attested to by Gene E.
Fischer as Secretary of The Larimer County Canal No. 2 Irrigating Company, a Colorado mutual
irrigation company.
WITNESS my hand and official seal.
MY commission expires: 91A/I
Notary Public
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ROLLAND MOORE / SENIOR CENTER A, ASS
LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY
a
LOCATM MW
ROLLAND MOORE PARK a
D1 Rdlond Moor Pork
x
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PROJECT
North
Scale I" = 20'
TOP OF DITCH
1 Ft. Vk by 33 Ft Ld
Pedestrlon BrkiW —
- c \ \ I m��
LARIMER COUNTY NO.2 CANAL
DITCH fMFSS
TOP OF ➢ITCH B"
NEW MERCER CANAL
i8' HROIfiEI
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To Senior Center
To Shields St.
600 Ft.]
CDetention Pond-rro RE
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ROLLAND MOORE / SENIOR CENTER ACCESS
LARIMER COUNTY CANAL NO. 2 IRRIGATING COMPANY
Ground
Concrete
TYPICAL SECTION
0+00 T❑0+80
5' Wide Concrete, 4' thick
8' Wide base. 211 side slopes
Ditch access
C\ road 'Concrete
TYPICAL SECTION
0 +80 TO 1 +63
5' Wide Concrete, 4' thick
16' Wide base. 211 side slopes
in cut; 3:1 side slopes in fill
Concrete
Topsoil
TYPICAL SECTION�3f
1+63 to 1+83
(Notel Flare last 10'
of sidewalk to
bridge to 8' wide)
Topsoil
Topsoil