HomeMy WebLinkAboutLARKBOROUGH - Filed OA-OTHER AGREEMENTS - 2004-08-27AGREEMENT
THIS AGREEMENT is made and entered into this
L
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 MARGARET M. PEXTON, FRPNCIS 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 20 foot right of way for a maintenance road along one
side of the relocated ditch. Such right of way shall he
sufficient to accommodate the ditch and the maintenance road
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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
installed 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 of 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
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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 (18). 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
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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
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
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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 est=ablished (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
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:
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'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:
L
William C. Stover, Secretary
THE NEW `MERCER DITCH COMPANY
BY t/Uj A Cltt, Ralph W. Hansen, Vice President
THE TY OF FORT COLLINS,
COT
O
A EST•
2—� By
t City lerk ty b7anage
By: Frank W. Collopyw6
APPROVED: Attorney in Fact for Margaret M. Pexton
/���BTHE NEW MERCER DITCH CON:PANY &Fr—an-&—ciASW,:
O'R!—O DIRECTORS: rl N��Collopy, r.1���`,,xecutor
�IC of the Estate of May Troutman
-- Ly U a M. Collopy //
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