HomeMy WebLinkAboutSUMMERHILL PUD - Filed OA-OTHER AGREEMENTS - 2005-07-15A G R E E M E N T
THIS AGREEMENT is made and entered into this 3 W day of
March, 1982, by and between
ROBERT T. SMITH and CATHERINE S. SMITH,
hereinafter designated as "applicants", and
THE CITY OF FORT COhLIN`, COLORADO,
a municipal corporation,
hereinafter designated as "City", and
THE NEW MERCER DITCH COMPANY,
a Colorado mutual irrigation corporation,
hereinafter designated as "ditch company".
PROJECT
The development of a Planned Unit Development comprised of
Phases I, near or on Westbrook Drive, entitled "The Underhill
P. U. D.". The details of the project will consist of a
forty (40) foot auto bridge over and across the New Mercer Ditch;
an eight (8) inch sanitary sewer line under the ditch, and a
twelve (12) inch water line under the ditch.
WITNESSETH:
WHEREAS, the ditch company is the owner of an irrigation
ditch and the right-of-way therefor through land being developed
as "The Underhill P.U.D." south of Prospect Street and west of
Shields Street, in the City of Fort Collins, County of Larimer,
and State of Colorado; and
WHEREAS, applicant desires to construct and install a forty
(40) foot auto bridge, an eight (8) inch sanitary sewer line,
and a twelve (12) inch water line over and under ditch company's
ditch at the location above described and further detailed in
the Exhibits attached hereto and made a part hereof by reference;
and
WHEREAS, attached hereto is Exhibit "A" dated 3-31-82
sheets 3,5,6, and 6a
(consisting of/ xs:hceractza) prepared by Engineering
Professionals Inc., dated 3-31-82 detailing
plans of such construction and
WHEREAS, Exhibit "A" sets forth all of the plans and
specifications for the work, and the terms of this grant shall
in no way be modified or changed by any subsequent or related
plans or material not included herein, 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 auto bridge,
sanitary sewer line and water line across and under the existing
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 the ditch company an "as built" exhibit further
supplementing in final form the work done.
3. Applicant has paid to ditch company an application
fee in the amount of One Thousand Fifty and No/100 ($1050.00)
Dollars for the grant of this right-of-way. This shall be
determined a minimum initial payment to cover preliminary expenses,
such as legal work, time and car use of superintendent and/or
Directors; review of the application; and other preliminary
matters, and does not include the costs of any Director meetings
required to consider this matter. In addition thereto applicant
agrees to pay such additional, reasonable and necessary
expenses of the ditch company for legal services, Board meetings,
inspection of the works by the ditch company's President,
engineers and/or superintendent when billed.
4. The construction herein contemplated shall be in strict
accordance with the final set of plans set forth in Exhibit "A".
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 (95%) percent standard Proctor. density. The
dikes shall he in conformance with the plans for construction
of the several lines. Said work shall 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, 1982, and applicant agrees that said construction
shall in no way interefer or impede the flow of water.
6. The applicant and the City agree to maintain the ditch
so long as :said ditch shall exist underneath the bridge.
7. Upon the completion of the project, the applicant
shall promptly notify the ditch company and all parties shall
jointly inspect the ditch at the place of the several constructions.
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 forwith remedy the same and in so doing the
applicant shall meet all reasonable requirements of the ditch
company and the City for the protection of the ditch and surrounding
property.
BO. It is the intent of this Agreement that applicant shall
exercise care in the construction of said bridge and crossings,
and accordingly it is thereby recognized by and between the parties
hereto that the ditch company is in no way responsible for any
damages caused by such construction or the structure now or
thereafter, and this convenant shall be binding upon applicant
and the City.
9. The project shall be without cost to the ditch company
and the applicant shall hereby indemnify and forever hold the
ditch company harmless from liability for damages caused by
the project.
The parties hereto agree that the ditch company right-of-way
referred to above exists "by right of prescription" and is the
dominant estate for the bed of the ditch and so much of the land
upon each side as shall be necessary for the proper maintenance
of the ditch, except as may be previously modified by usage or
or recorded agreement; and since this right-of-way by
prescription is not clearly defined because the land has previously
not been developed, the parties desire'to define this right-of-way
by instrument of record. Applicant, or the land owner whom applicant
represents, agrees to furnish ditch company a survey of the
existing right-of-way or as same shall have been mutually agreed to,
and applicant, or landowner whom applicant represents, agrees to
execute his or its quit claim deed to such right-of-way in favor
of the ditch company but subject to all of the rights over and
across said ditch right-of-way herein or heretofore granted to
applicant or others.
10. Applicant shall make provisions for accessable right-
of-way and access around south end by temporary turn around as
shown on Sheet 3
11. 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 expenses caused thereby
to the applicant shall not be chargeable to the ditch company.
12. 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
fees.
13. Applicant agrees to record this Agreement or an executed
copy thereof with attachments 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 he executed the day and year first hereinabove
written.
ROBERT T. SMITH
Approved and accepted :
MONROE INDUSTRIAL BANK
By: !.1�
res en
Y
(SEAL)
1N " �
,+
(SEAL)
ATTEST:
Assi�s tant Secretary
STATE OF COLORADO )
ss.
County of Larimer )
CATHERINE S. SMITH
THE CITY OF FORT COLLINS, COLORADO,
a mun. ip/a�l corporation,
By; 7dJ.l
T±Te C;ty Manager
Approved As To Foim:
Assistant City Attorney
THE N, MERCER DITCH COMPANY,
a olora mutual rri do corporation,
Pr ident
Acknowledged before me this 31-&-f day of March, 1982,
by ROBERT T. SMITH and CATHERINE S. SMITH,
Witness my hand and official seal.
My Commission Expires: �971
(SEAL) i p��J
Ntak-y Public
Address
STATE OF COLORADO
ss
County of Larimer )
�,,yyrr
Acknowledged before me this ')01h day of i4 rrh , 1982, by
Sohn Arnold , as Ci-{ Manoc�er and attested to by
WandA �1• cek[ek r as 0 1 } C (CrK_, of THE CITY OF
FORT COLLINS, COLORADO, a municipa corporation.
Witness my hand and official seal.
My p M ^ _:SI 14, 1984
i Commission Expires: y Cor�r::�ssion C:�s;�;, r,,
(SEAL) 1 1 In 471 a�< 1
No ry Public
Address
-1,, C,-.
STATE OF COLORADO )
ss.
County of Larimer )
AcknoNrledged before m this3l-f day of March, 1982 by
u,� as�� and attested to by
as , of THE NEW
MERCER DITCF COMPANY, a Colora o mutual it igation corporation.
Witness my hand and official seal.
My Commission expires:
(SEAL) ()QM
Nosy Public —
Address //Q �, 64XV.
STATE OF COLORADO )
ss.
County of Larimer )
Acknowledged before me this day of March, 1982, by
as
as ,-Q�� . ���--- , and attested to by
as of THE MONROE
1NDUSTRTAL ]SANK.
Witness my hand and official seal.
My Commission Expires:
(SEAL) -j-11G<,ti S1(Y
Notary Public
Address