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HomeMy WebLinkAboutBOXELDER DITCH NORTH POUDRE CROSSING - Filed OA-OTHER AGREEMENTS - 2002-12-13RCPTN # 83010127 03/04/ 88 09:00:31 # OF PAGES - 8 FEE - $24.00 A. RODEPIBERSER, RLCORL - LARIMER COUNTY CO STAT' )OC FEE- $ . 00 AGREEMENT THIS AGREEMENT, made and entered into this I day of January, 1988, by and between The Box Elder Ditch Company, a Colorado mutual irrigation corporation, hereinafter referred to as "Ditch Company," and The City of Fort Collins, a municipal corporation, hereinafter referred to as "the City." PROJECT The construction of a culvert to serve as a pedestrian bridge crossing as same crosses Ditch Company's ditch and headgate located in I.arimer County, Colorado. 11 I T N E S S E T H: WHEREAS, Ditch Company is the owner of an irrigation ditch and right -of way therefor through land located in Larimer County, Colorado and substantially in the location shown on Exhibit "A," attached hereto and made a part hereof as though fully set out herein, and WHEREAS, the City desires to construct a culvert across said ditch and its diversion facility to serve as a pedestrian bridge crossing, and WHEREAS, the details therefor have been discussed in full between John E. Weitzel, President of Box Elder, and represen- tatives of the City, and said proposed construction has been fully detailed on the attached plans, which plans and specifi- cations are incorporated herein as though fully repeated herein as Exhibit "A." 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 the City the right to construct, install and maintain the above described pedestrian bridge across the existing ditch and headgate of Ditch Company, and further grants unto the City 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 and to permit passage over the ditch by pedestrians upon the following terms and condi- tions. 2. The City will, upon the completion of the project, furnish to Ditch Company an "as built" exhibit further supple- menting in final form the work described in Exhibit "A." 3. Applicant has paid to Ditch Company an application fee in the amount of Five Hundred Dollars ($500.00). 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. In addition thereto, the City agrees to pay such addi- tional reasonable and necessary expenses of the Ditch Company for legal services and inspection of the works by the Ditch Com- pany's President, engineers and/or superintendent until final approval of the project, such additional expense not to exceed $1,000.00. 4. The construction herein contemplated shall be in strict accordance with the final set of plans with modifications. Any excavations or changes in the present ditch or the diversion structure shall be promptly restored, backfilled, compacted and stabilized to the entire satisfaction of the Ditch Company. The dikes shall be in conformance with the plans for construc- tion of the bridge. 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, 1988 and the City agrees said construction shall in no way interupt or impede the flow of water, or affect the quality of said water. 6. Upon the completion of the project, the City 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 City or any variations from the plans set forth in Exhibit "A," the City shall forthwith remedy the same and in so doing, the City shall meet all reason- able requirements of the Ditch Company for the protection of the ditch and surrounding property. 7. It is the intent of this agreement that the City exer- cise due care in the construction of said crossing. 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 City expressly holds Ditch Company harmless from any damage to the path and pedestrian crossing in the event clean- ing and repairs are needed to be made to the ditch and headgate by Ditch Company. The Ditch Company shall, however, use all due care in performing such work and shall give notice to the City in advance if such work will interfere with the public's use of said path and crossing. -2- 9. The parties hereto recognize that because of the con- struction 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 Ditch Company's risks or obligations are increased be- cause of the City's location of its project upon Ditch Company's right-of-way, the City shall defend, indemnify and hold the Ditch Company harmless therefrom. 10. The City will be responsible for placing a locking system on the headgate as a result of increased traffic. 11. The Ditch Company shall have full power to operate, maintain, alter, enlarge or relocate its ditch and headgate as if this agreement had not been made, and any expenses caused thereby to the City shall not be chargeable to the Ditch Company. 12. In the event either the Ditch Company or the City 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 enforcement incurred by the enforcing party, including but not limited to docket fees, depositions and reasonable attorneys' fees. 13. The City agrees to record this agreement or an executed copy thereof, at its own expense, with the Clerk and Recorder of I,arimer 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 agreement to be ten. TTEST: WHEREOF, the parties hereto have caused this executed the day and year first hereinabove writ- Gene E. Fischer, Secretary THE CITY OF FORT pal corporation By COLLINS, A munici- THE BOX ELDER DITCH COMPANY, a Colorado mutual irrigation corpora- tion By: JoV E. Weitzel, Presi t -3- STATE OF COLORADO ) ss. COUNTY OF LARIMER ) The abovp and for o'ng agreement was ack owledged before me t s a day of 1988, by r a — as and atte led to by a �e as �i of The ity of Fort Collins, a municipal cor ora ion. mess my hand and official seal. a l�yXont$:on expires h,„ti+� �;;c�iEr:� _ �����r29,i989 1rJ ., � ` l V l- 1 STTEf�r "a.L# RADO ) s s . " N COUNT' `0 ARIMER ) Notary Public The above and foregoing instrument was acknowledged before me this A'9't� day of January, 1988, by John E. Weitzel as President and Gene..E. Fischer as Secretary of The Box Elder Ditch Company, a Col""; 46'ANmutual irrigation corporation. pit 3�nd and official seal. �1J �lp�`vtmi55'�a expires: December 30, 1991. 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