HomeMy WebLinkAboutSHERWOOD DITCH SOUTH COLLEGE AVENUE - Filed OA-OTHER AGREEMENTS - 2004-11-19A G R E E M E N T
THIS AGREEMENT is made and entered into this day of
September, 1987, by and between THE CITY OF FORT COLLINS, a muni-
cipal corporation, hereinafter referred to as "applicant", and
THE SHERWOOD IRRIGATION COMPANY
a Colorado mutual irrigation company,
hereinafter referred to as "ditch company."
PROJECT
Construction of a city street by a developer for the City of
Fort Collins along, and encroaching on, the north side of
company's ditch West of College Avenue, South of Spring Creek,
in the City of Fort Collins, County of Larimer, State of Colorado.
WITNESSETH:
WHEREAS, the ditch company is the owner of an irrigation ditch
and the right-of-way therefor through land located West, under
and East of College Avenue in the 2000 block of South College
Avenue, in the City of Fort Collins, County of Larimer, State of
Colorado; and
WHEREAS, applicant desires to have constructed for it a
street which encroaches upon the bank of the company's ditch at
the location above described and further detailed in the exhibit
attached hereto and made a part hereof by reference; and
WHEREAS, attached hereto as Exhibit A-1 and A-2 (hereinafter
called Exhibit "A") are detailed plans of such construction
showing the location of said street as same will abut and
encroach upon the ditch of ditch company and the manner in which
such street will be constructed.
WHEREAS, said Exhibit "A" sets forth all of the plans and
specifications, and the terms of this grant 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
encroach upon the bank of the ditch of ditch company, and further
grants unto the applicant the right for 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 will, upon the completion of the project, furnish
to ditch company an "as built" exhibit further supplementing in
final form the work described in Exhibit "A".
3. Applicant shall pay to ditch company an application fee
in the amount of Two Hundred Dollars ($250.00) This shall be
determined a minimum initial payment to cover preliminary expen-
ses, such as legal work, time and car use of superintendent
and/or directors; review of the application; and other prelimi-
nary matters. In addition thereto, applicant agrees to pay such
additional reasonable and necessary expenses of the ditch company
for legal services and inspection of the works by the ditch
company's President, engineers and/or superintendent until final
approval of the project.
4. The construction herein contemplated shall be in strict
accordance with the final set of plans with modifications set forth
in Exhibit "A". Any excavations or changes in the present ditch
shall be backfi.11ed, compacted and stabilized to the entire
satisfaction of the ditch company. All compaction for dikes
shall be done to ninety-five (95°%) percent standard Proctor den-
sity. The banks shall be in conformance with the plans for
construction of the street. Said work shall further be done
under the supervision of the superintendent or other designated
agents of the ditch company.
5. All construction shall be commenced and completed prior to
April 15, 1983 and applicant agrees said construction shall in
no way interupt or impede the flow of water.
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6. 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 Exhibit "A", the applicant shall forthwith
remedy the same and in so doing, the applicant shall meet all
reasonable requirements of the ditch company for the protection
of the ditch and surrounding property.
7. The street referred to herein encroaches on the bank of
company's ditch particularly at the Eastern extremity of the
street and it is understood and agreed that applicant will do
certain cleaning, bank leveling and other work shown on the exhi-
bit. Further, applicant understands and agrees that ditch com-
pany, after completion of the project, will maintain its ditch
from the bank where possible, but otherwise will maintain the
ditch directly from this street.
8. It is the intent of this agreement that applicant exercise
Cc �
care in the construction, - - A^cordingly, 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.
9. The parties hereto recognize that because of the construc-
tion of the City's project upon ditch company right-of-way there
is increased opportunity for claims to be made by third parties
against the City and the ditch company. To the extent that the
company's risks or obligations are increased because of the
City's location of its project upon ditch company right-of-way,
the City shall defend, indemnify and hold the ditch company
harmless therefrom.
10. The ditch company shall have full power to operate, main-
tian, alter, enlarge or relocate its 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.
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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
litigation incurred by the enforcing party, including but not
limited to docket fees, depositions and reasonable attorney's fees.
12. Applicant agrees to record this agreement or an executed
copy thereof, at its own expense, with the Clerk and Recorder of
Larimer County, Colorado, and furnish evidence of such recording 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 WHEREOF, the parties hereto have caused this
agreement to be executed the day and year first hereinabove written.
(SEAL)
ATTEST:
ty Clerk
(SEAL)
ATTEST:
THE CITY OF FORT COLLINS, COLORADO,
a muni ipal corporation,
By: C`
Title: —4), Maha,5er
APPROVED:
Assi's�a.4 City Attorney
THE SHERWOOD IRRIGATION COMPANY,
a Colorado mutual irrigation company,
Judith W. Ewegen, A.(�st. Secretary
STATE OF COLORADO )
ss.
County of Larimer )
Calvin C. Johnson, President
The above and foregoing agreement was acknowledged before me
this , -''day of September, i987, by -
-4-
as / , and attested to by /
as , of TiiE CITY OF FORT COLLINS, COLORADO, a
municipal corporation.
Witness my hand and official seal.
My Commission Expires:
(SEAL)
STATE OF COLORADO )
ss.
County of Larimer )
Notary Public
The above and foregoing agreement was acknowledged before me
this -day of September, 1987, by Calvin C. Johnson, as President,
and attested to by Judith W. Ewegen, as Asst. Secretary, of THE
SHERWOOD IRRIGATION COMPANY, a Colorado mutual irrigation company.
Witness my hand and official, s/eaal.
My Commission Expires:
(SEAL) Notary Pu is
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