HomeMy WebLinkAboutNEW MERCER DITCH AT CITY PARK NINE - Filed OA-OTHER AGREEMENTS - 2002-11-26RCP` N # 5Gu2ivo7 G5i 9ii 1C j2:12 # PAVES
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AGREEMENT
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THIS AGREEMENT is made and entered into this '� day of G L�(�,
1990, by and between THE CITY OF FORT COLLINS, COLORADO, a municipa col rporation,
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
along the northerly right of way line of Mulberry Street where the ditch exits
City Park Golf Course. The location of the bridge is as shown on Exhibit "A"
attached hereto. Exhibit "A" consists of three separate pages .
The construction will require the removal by the City of an existing willow
tree and the existing 2"-4" Caliper trees located along the ditch banks and
the removal of the silt in the box culvert under Mulberry Street will be cleaned
out prior to April 15, 1990 by the City.
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 pedestrian bridge
which will cross the Ditch Company's right-of-way, with all construction items
as detailed in the Exhibit "A" attached hereto and made a part hereof by ref-
erence.
WHEREAS, Exhibit "A" sets forth all the plans, 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;
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, in-
stall 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.
2. Applicant has previously paid to Ditch Company an application fee
in the amount of Four Hundred Fifty Dollars ($450.00). This is determined
to be a minimum initial payment to cover preliminary expenses, cush 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, Ap-
CITY OF FORT COLLINS
15
8. If at any time during the life of this Easement Agreement, construction, repairs,
maintenance, or other activities of the Ditch Company under this Agreement substantially impair
the ability of golf play to occur on all or any portion of the City Park Nine Golf Course, the Ditch
Company shall, within fifteen (15) days of notice thereof, pay to the City the estimated loss in
golf fee revenue per day, which shall be determined by the City based on the average daily
revenue of the Course in the relevent time of the year.
9. All costs associated with the Improvements shall be borne by the Ditch Company.
The Ditch Company agrees to complete construction of the Improvements and additional related
work in the manner and time period described in Exhibit "C", attached hereto and incorporated
herein by this reference.
10. The Ditch Company agrees, to the extent provided by law, to indemnify the City,
its officers, agents, employees, representatives, successors and assigns from all claims and
liability, including the City's reasonable attorneys' fees and costs, for claims made by third
persons resulting from or arising out of the Ditch Company's use of the New Right of Way,
including the construction, installation, operation, repair, maintenance or removal of
Improvements within the New Right of Way or, until all existing improvements are removed and
such property fully and finally restored by the Ditch Company in accordance with this Easement
Agreement, within the Existing Right of Way.
11. Should the Ditch Company permanently discontinue maintaining and using the
improvements within the New Right of Way, such Improvements shall be abandoned, and the
Ditch Company shall, at its own expense, remove the surface improvements from the New Right
of Way unless the City agrees, in writing, to allow the abandonment of such Improvements in
place. In the event the Improvements are removed from the New Right of Way, the Ditch
Company shall restore the New Right of Way, at its sole cost, to a condition equal to its condition
just prior to the Ditch Company's activities under this Easement Agreement.
12. This Agreement, and all the terms and conditions thereof, shall extend to and be
binding upon the successors and assigns of the parties. The Ditch Company shall not assign its
rights under this Agreement without the prior written consent of the City.
13. The Ditch Company agrees to record this Agreement, at its own expense, with the
Clerk and Recorder of Larimer County, Colorado, and to furnish evidence of such recording to
the City. This Agreement shall be recorded before any work is commenced by the Ditch
Company pursuant to this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first
above written.
M
GRANTOR:
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
THE CITY OF FORT COLLINS, COLORADO,
a municipal corporation
By: l ,9 a.
John LP. Fischbach
City Manager
�t%✓e.� br �
The foregoing instrument was acknowledged before me this day of Oekiber, 1998,
by John F. Fischbach, City Manager of the City of Fort Collins.
Nptary 'Pub ' v
My Commission Expires: My Commission Expires Dec. 30.2000
ATTEST
City Clerk
GRANTEE:
ARROVED AS TO FORM:
y
Assistant City Attorney
THE NEW MERCER DITCH COMPANY
L. Swift
Fresiaent
STATE OF COLORADO )
ss.
COUNTY OF LARIMER )
The foregoing instrument pwas acknowledged before me this o26 day of e-'
1998, by L 6 u i S Scv, t r President o the New Mercer Ditch Company.
Notary Public
My Commission Expires: !
ATTY,(Z _ --) APP,RZVED AS
Company Attorney
STATE OF COLORADO
) ss.
COUNTY OF LARIMER )
TIN � E 1Pforegoing m, srument was acknowledged before me this � day of K
1998, by eo se.h e r, Secretary of the New M rcer Ditch Company.
NotaryPublic
My Commission Expires: `� !/
Exhibit "A"
Existing Right -of -Way
DESCRIPTION OF
THAT PORTION OF THE NEW MERCER CANAL TO BE ABANDONED
An existing canal located in the Southwest 1/4 of Section 10, Township 7 North, Range
69 West, of the Sixth P.M., City of Fort Collins, County ofLarimer, State of Colorado, which,
considering the West lute of said Southwest 1/4 as bearing N 00' 00' 00" W, and with all bearings
contained herein relative thereto, the approximate centerline of said canal begins at a point which
bears N 66' 38' 28" E 1692.68 feet from the Southwest comer of said Section 10 and runs thence
along said approximate centerline, S 08' 15' 00" W 50.00 feet; thence S 02' 50' 00" E 36.00 feet;
thence S 21' 50' 00" E 42.00 feet; thence S 26' 40' 00" E 100.00 feet; thence S 30' 10' 00" E
118.00 feet; thence S 17' 46' 00" E 50.00 feet; thence S 09' 15' 00" W 40.00 feet; thence S 30'
15' 00" W 50.00 feet; thence S 65' 55' 00" W 40.00 feet; thence S 79' 33' 00" W 60.00 feet;
thence S 840 50' 00" W 100.00 feet; thence N 820 26' 00" W 50.00 feet; thence N 69' 30' 00" W
140.00 feet; thence N 77' 45' 00" W 39,71 feet; thence S 85° 00' 00" W 41.33 feet.
Exhibit "B"
New Right -of -Way
DESCRE[I'iON OF PROPOSED RELOCATED NEW MERCER CANAL
A forty (40.00) foot wide strip of land located in the Southwest 1/4 of Section 10,
Township 7 North, Range 69 West, of the Sixth P.M., City of Port Collins, County of Larimcr,
State of Colorado, which, considering the West lute of said Southwest 1/4 as bearing N 00' 00'
00" W, and with all bearings contained herein relative thereto, is twenty (20.00) feet in width on
each side of the centerline which begins at a point in the center of the existing canal, which bears
N 660 38' 28" E 1692.68 feet from the Southwest corner of said Section 10, and runs thence
along the arc of a 159.18 foot radius curve to the right a distance of 105.02 feet, the long chord
of which bears S 34' 54' 00" W 103.12 feet; thence S 53' 48' 00" W 83,00 feet; thence along the
are of a 123.83 foot radius curve to the left a distance of 40.63 feet, the long chord of which bears
S 440 24' 00" W 40.45 feet; thence S 35' 00' 00" W 245.00 feet; thence along the arc of a 206.71
foot radius curve to the right a distance of 86.71 feet, the long chord of which bears S 470 01' 00"
W 86.07 feet, to a point in the approximate center of the existing canal
Exhibit "C"
New Mercer Ditch Relocation Project Expectations
The City of Fort Collins will allow the New Mercer Ditch Company to relocate the New Mercer Canal
through the City Park Nine Golf Course. In order for this to take place, the City will not absorb any
of the expenses for this relocation, except for some in -kind labor where in the opinion of the City that
outside contractors or others would not be satisfactory or in the best interests of the City. This mainly
refers to certain parts of the existing computerized irrigation system that should be handled by the
City.
The purpose of this document is for the City to explain to the Ditch Company the extent of the
necessary repairs for returning the Golf Course to playing condition. It is not intended to be an all
inclusive list or of incidental projects needed to return the course to full play. All expenses whether
mentioned here or not mentioned here are the responsibility of the Ditch Company, as this Project is
conceived of and for the purpose of benefiting the Ditch Company.
Section A: Golf Course concerns where the City will do repairs and the Ditch Company will pay for
parts.
The City will require a new Network 8000 communication cable run from the satellite controller
for #9 Fairway to the satellite for #7 Tee Boxes and #6 Green. There will also be new cable from
the #6 Green clock to the #6 Fairway clock. The City will require that the Ditch Company
purchases 1,200 feet of Toro Network 8000 satellite communication cable, and will require that
the Ditch Company rents a Ditch Witch trencher for the purpose of laying this cable.
2. The City will also replace the120-volt power supply between these irrigation satellites. There will
be 1,200 feet of 120-volt 12-2 of direct bury wire needed, to be purchased by the Ditch Company.
The City will install this wire at the same time as the communication cable, using the same trench.
Section B: Golf Course concerns where the Ditch Company will have to do the work or contract for
the work to be done.
One old bridge between # 6 Green and the # 7 Tee Boxes will have to be relocated. The steel I -
beams from this old bridge will be able to be reused, however, new railroad ties will need to be
purchased by the Ditch Company. There will need to be concrete footers for each I-beam and all
labor and concrete costs will be the responsibility of the Ditch Company. The City has bridge
plans which were previously approved by the Ditch Company that are available for the Ditch
Company's reference for this purpose.
2. Three additional new bridges will be required. Each bridge will have two 30 feet I -beams
(WI 003) placed on concrete footers and are spanned by railroad relay ties eight feet long. Each
bridge will require 50 railroad relay ties. The Ditch Company will assume all costs for
construction of these bridges and materials.
The Ditch Company will be responsible for repairing all irrigation lines in all places where they
are cut, including the 24-volt wires, which go to each sprinkler. The City has been advised that
the PVC pipe and 24-volt wires will be cut in at least three locations. Each PVC break will require
30 feet of 2 %2" pipe and two PVC compression couplers, and 30 feet of 3" galvanized pipe to be
used as a sleeve. Galvanized pipe comes in 20 foot sections, threaded at one end with a coupler
at the other end. The City will require a 2 Y2" gate valve and a V quick coupler for each crossing
Section C:
The Ditch Company will be responsible for contracting labor to grade the banks of the new ditch, the
areas damaged by construction vehicles, and for the costs of seeding and sodding. Areas where the
old ditch has been filled -in will need to be graded to match the surrounding area and seeded. Areas
that come into play on the Golf Course will have to be sodded. This will include the Fairway area and
the adjacent Rough area. These are areas that cannot be seeded since we will not have enough time
to grow -in and mature seed prior to the 1999 golf season. The Ditch Company will prepare the areas
for seed and sod, and will be responsible for the purchase and installation of the sod and the purchase
of the seed needed for the non -sod areas. The City will select the blend of seed to be used as well as
the sod used in this project. The Ditch Company will also assume all costs for the moving of any
existing trees that are in the way, as well as cutting -out the trees in the old ditch between #6 Green and
the #7 Tee Forward Box, prior to filling -in the ditch and re-establishing the turf.
Section D:
All elements of this Project may have additional miscellaneous costs. The Ditch Company will be
responsible for all costs incurred in returning the Golf Course to full and complete operating
condition, including the loss of revenues except as otherwise provided.
Section E:
All of above -referenced work shall be completed between November 1, 1998, and December 18,
1998 (the "Construction Period"), except for seeding, sodding, planting, and other landscaping
work not suitably completed for seasonal reasons. The Ditch Company shall not be required to
make payment to the City as set forth in Paragraph 8 of the Easement Agreement for any
impairment of golf play during the Construction Period. If the City determines in its reasonable
discretion that inclement weather during the Construction Period precluded completion of the
work during the Construction Period, in such event the City may extend the Construction Period to
reflect the delay resulting directly from such inclement weather. All seeding, sodding, planting
and other landscaping work not suitably completed during the Construction Period shall be frilly
and successfully completed no later than April 1, 1999. The Ditch Company shall be required to
pay to the City any amounts required in Paragraph 8 of the Easement Agreement for any
impairment of golf play from such landscaping work, and for each day after April 1, 1999, during
which such landscaping work remains uncompleted. If the City determines in its reasonable
discretion that inclement weather has precluded completion of any landscaping work in the time
required, in such event the City may extend the time for completion of such work to reflect the
delay resulting directly from such inclement weather.
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plicant agrees to pay for such additional, reasonable and necessary expenses
of the Ditch Company for legal services and inspection of the work by the Ditch
Company's President, engineers and/or superintendent.
3. The construction herein contemplated shall be in strict accordance
with the final set of plans with modifications set forth in the attached Ex-
hibits. Any excavations or changes in the present ditch shall be backfilled,
compacted and stabilized to the entire satisfaction of the Ditch Company.
The only disturbance to the ditch bank will be the described notch to install
the beams. All compaction shall be done to ninety-five percent (95%) standard
Proctor density. Said work shall further be done under the supervision of
the superintendent or other designated agents of the Ditch Company.
4. The City agrees to remove the existing willow tree and existing 2"-4"
Capiler trees along the ditch banks and also to excavate the ditch bottom as
provided in the plans and specifications while cleaning the silt in the box
culvert under Mulberry Street.
5. The construction shall be promptly commenced and the tree removal,
silt cleaning, excavation of the bottom of the canal and the drilling of the
pier foundation shall be completed before April 15, 1990. All construction
shall be completed on or before May 4, 1990. These periods are mandatory,
except as may be extended by the President of Ditch Company or other duly auth-
orized representative of the Ditch Company, and said construction shall in
no way interrupt, impede or interfere with the flow of the 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.
6. Upon completion of the project, the Applicant shall promptly notify
the Ditch Company and City, 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 attached Ex-
hibit, the Applicant shall forthwith remedy the same, in so doing, the Applicant
shall meet all reasonable requirements of the Ditch Company and City for the
protection of the ditch and surrounding property.
7. It is the intent of this Agreement that Applicant shall exercise
due care in the construction as herein contemplated. 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 or structure.
8. 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, including attorney fees and costs, caused or incurred
because of the project.
9. The Ditch Company shall have full power to operate, maintain, alter,
enlarge or relocate its ditch as if this Agreement had not been made, and any
expense caused thereby to the Applicant shall not be chargeable to the Ditch
Company.
-2-
10. The City agrees that, because of increased maintenance 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 and to the
street directly over the bridge as are necessary to facilitate the customary
carriage of irrigation water in said section of the ditch. The City also agrees
in perpetuity to maintain the area of the ditch affected by the bridge and
to keep the area free of all trash and debris and that the flow of irrigation
water will be unimpeded.
11. 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 liti-
gation incurred by the enforcing party, including but not limited to docket
fees, depositions and reasonable attorneys' fees.
12. Prior to the commencement of construction, Applicant agrees to re-
cord, 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.
13. This Agreement shall extend to and be binding upon the heirs, succes-
sors 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.
ATTEST:
1 \. -1 1.
�' No
t4 41
ATTEST:
THE CITY OF FORT COLLINS, a MU-
NICIPALL CORPORATION
Title
THE NEW MERCER DITCH COMPANY, A colorado
MUTUAL IRRIGATION COMPANY
JnqE. Fischer, Secretary Lou F. Swift, President
I SIS
:iw:Uti}/ Gk_y
(SEAL)
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
STATE OF COLORADO )
) ss.
COUNTY OF LARIMER )
The above,and foregoing Agreement was acknowled
day of n,i;( 1990, by �e��n C. ij�,/i
and at e'sted to by -, nJ, (- /A as C .
City of Fort Collin , a municipal orporation.
Witness my hand and official seal.
My commission expires:��i�`+�
o?
Notary Public
as (
this �\
,
The a ve and foregoing Agreement was acknowledged before me this 511/-
day of , 1990, by Louis F. Swift as President and Gene E. Fischer
as Secret y of New Mercer Ditch Company, a Colorado mutual irrigation company.
Witness ray hand and official seal.
My commission expires: December 30, 1991.
(, SEA I) /
k0t4ry Pub c
- 4-
5
PEDESTRIAN BRIDGE OVER
NEW MERCER CANAL
101
SIDEVIALK
BE INSTALLED
EXISTING FL
16-1f DRILLED PIERS TO
BE DRIIIED PRIOR TO APRIL 15TH
W
C
7
EXISTING PIPE "UNO
TO BE REMOVED ONCE
HEW BRIDGE IS PLACED
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CITY PARK NINE
GOLF COURSE
EXISTING TREE TO REI R
RELOCATE EXISTING TREE
AND FENCE
7 9DEWAU( TO BE INSTALLED
EXISTING WILLOW TO BE REMOVED BY CITY
FORESTRY DEPT. DITCH BANG Y LL ECALIPER
REMO
TREES ALONG IN BANKS WILL BE REMOVED
AND THE SILT E THE BOX CULVERT UNDER
MULBERRY STREET CLEANED OUT PRIOR TO
APRIL ISTH BY CRY CREWS.
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[NEWMERC.WPD 10/20/98]
EASEMENT AGREEMENT
A%u�v mbe c
THIS EASEMENT AGREEMENT is made and entered into this � day of 9Gteber,
1998, by and between THE CITY OF FORT COLLINS, COLORADO, a municipal corporation
(the "City" or "Grantor"), 300 LaPorte Avenue, Fort Collins, CO 80521, and NEW MERCER
DITCH COMPANY, a Colorado mutual ditch company (the "Ditch Company" or "Grantee").
WITNESSETH:
WHEREAS, the City is the owner of that certain parcel of real property located in Fort
Collins, Larimer County, Colorado, known as City Park Nine Golf Course; and
WHEREAS, a portion of City Park Nine Golf Course is currently the site of a portion of the
New Mercer Canal, as more particularly described on Exhibit "A', attached hereto and incorporated
herein by this reference (the "Existing Right -of -Way"), and
WHEREAS, the Ditch Company has proposed to abandon and relinquish the Existing Right -
of -Way in exchange for the grant of an easement over that certain property in City Park Nine Golf
Course described on Exhibit "B", attached hereto and incorporated herein by this reference (the "New
Right -of -Way"), to which it intends to relocate the abandoned portion of the New Mercer Canal, and
WHEREAS, the City Golf Board considered the proposed relocation of the New Mercer
Canal at its regular meeting of August 19, 1998, and unanimously recommended the approval of the
same, and
WHEREAS, the relocation of the New Mercer Canal will be paid for entirely by the New
Mercer Ditch Company, and will present a unique opportunityto change the character ofthe 7th, 8th
and 9th fairways at City Park Nine Golf Course for the first time in 58 years, and
WHEREAS, said relocation is expected to improve safety along the New Mercer Canal, and
is not expected to result in any detrimental impacts to City Park Nine Golf Course, and
WHEREAS, by its adoption of Ordinance No. 162, 1998, the City Council of the City of Fort
Collins has determined that the relocation of the New Mercer Ditch as described herein, and the
associated grant of easement in exchange for the abandonment of the New Mercer Ditch right of way
in the indicated location is in the best interest of the City of Fort Collins, and has authorized the
execution of an easement agreement for said purpose.
by and in consideration of the above premises and of the mutual covenants contained herein and
other good and valuable consideration, receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
1. The Ditch Company hereby abandons and relinquishes, now and forever after, any
and all rights it may have in the Existing Right of Way property more particularly described on
Exhibit "A" hereto.
2. The City hereby bargains, conveys, delivers, transfers, and sells unto the Grantee
and its successors and assigns a nonexclusive, perpetual easement for an irrigation ditch under and
across the New Right of Way property more particularly described on Exhibit "B" hereto.
3. The Ditch Company shall have the right to construct, operate, repair, replace,
inspect, remove and maintain an irrigation canal ("the Improvements") within the New Right of
Way. The Grantee shall construct and install the Improvements within the easement in strict
compliance with the plans and specifications developed by the Ditch Company, which shall be
subject to City review and approval, provided that such approval shall not be unreasonably
withheld. The Ditch Company shall notify the City of Fort Collins ten (10) days prior to
performing any maintenance, repair, replacements, removal or otherwise work on or within the
easement, except in the event emergency circumstances require the Ditch Company to make
repairs on an emergency basis. In all cases of emergency repair, the Ditch Company shall notify
the City as soon as reasonably practicable of any repair work to be or already undertaken and of
the nature of the underlying emergency.
4. As a condition of the grant of this easement, the Ditch Company covenants and
agrees to restore all City property impacted by the construction of the Improvements to a condition
equal to its condition just prior to the Ditch Company's work under this Agreement, unless
otherwise agreed hereinafter.
5. The Grantee shall have the right of ingress and egress to and from the New Right
of Way by means of existing roads whether public or private) located on the City's property, if
any, or in the absence of such roads, by such other routes as the City and the Ditch Company shall
agree, taking into consideration the minimization of damage to the City's property and impacts
upon activities of the City and the general public on City Park Nine Golf Course and surrounding
City property.
6. The City reserves the right to use the New Right of Way for purposes that will not
unreasonably interfere with the Ditch Company's full enjoyment of the rights granted herein.
7. The Ditch Company shall maintain its Improvements within the New Right of Way
in an entirely secure, safe and sanitary condition. The Ditch Company shall repair the
Improvements within the New Right of Way to ensure the Improvements do not cause damage or
injury to persons or property.
2