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HomeMy WebLinkAboutLARIMER COUNTY CANAL NUMBER 2 BRIDGE AT SOUTH BRYAN AVENUE - Filed OA-OTHER AGREEMENTS - 2013-11-26.— CROSSING AGREEMENT FOR BRIDGE AT BRYAN AVENUE (Larimer County Canal No. 2) THIS AGREEMENT ("Agreement"), between THE CITY OF FORT COLLINS, a THE LARIMER COUNTY CANAL NO. 2 irrigation company (hereinafter "Company"). the "Parties" or individually as a "Party". sue. made this 81 day of-44gaet, 2013, by and municipal corporation (hereinafter "City"), and IRRIGATING COMPANY, a Colorado mutual City and Company are hereinafter referred to as FACTUAL RECITALS A. The Company is the operator of a canal or ditch commonly known as the Larimer County Canal No. 2 (hereinafter called the "Ditch"). The Ditch transports water and a portion of the Ditch exists and travels through and across portions of the SW'/4 of Section 10, Township 7 North, Range 69 West of the 6th P.M., Larimer County, Colorado, as approximately shown on the plans attached hereto and incorporated herein as Exhibit A (the "Property"). B. The Company has a valid and existing right of way and easement for the Ditch and sufficient lands on each side of the Ditch to allow the Company to fully enjoy and utilize the easement and right of way (the "Ditch Easement"). A portion of the Ditch Easement is generally located within the Property, as approximately shown on Exhibit A. C. In connection with the use of Bryan Avenue, City intends to remove the Existing Bridge and replace it by constructing, installing and maintaining a new bridge and related appurtenances, structures and facilities ("New Bridge") on, over and across the Ditch at Bryan Avenue in the City of Fort Collins. The locations, cross sections and other specifics of the crossing locations and access to the Ditch, and the portions of the New Bridge that will be located within the Ditch Easement, are further described and shown on Exhibit A, attached hereto and incorporated herein by this reference (the "Crossing Area"). The New Bridge, the improvements to the ditch access, and other improvements related to the New Bridge are collectively referred to herein as the "Improvements". D. The Company desires to also grant to City a temporary construction easement within the Ditch Easement, to remove the Existing Bridge and to construct and/or install the Improvements pursuant to the final plans and specifications attached hereto as Exhibit A, which have been provided to the Company. The time period spent removing the Existing Bridge and RECEPTION#: 20130083235, 11/08/2013 at City Clerk's Office 03:41:00 PM,1 OF 9, R $51.00 TD Pgs: 0 1 J City of Fort Collins Angela Myers, Clerk & Recorder, Larimer County, co P.O. Box 580 Fort Collins, CO 80522 constructing and/or installing the Improvements will occur in the following two phases: (1) Phase 1 will involve removing the east side of the Existing Bridge and constructing and/or installing the Improvements on the east side; and (2) Phase 2 will involve removing the west side of the Existing Bridge and constructing and/or installing the Improvements on the west side. Phase 1 and Phase 2 are collectively referred to herein as the "Construction Phase". E. The Company has agreed to grant City a temporary easement to remove the Existing Bridge and to construct and/or install the Improvements, and a perpetual nonexclusive right to cross on, over and across the Crossing Area via the Improvements, in accordance with the provisions of this Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the Company, the parties mutually agree as follows: 1. The above Factual Recitals are incorporated herein as if fully set forth. 2. For good and valuable consideration, in the amount of FIVE THOUSAND DOLLARS ($5,000.00) the Company hereby grants to City a perpetual nonexclusive right of way and crossing on, over and across the Crossing Area in one location (the "Crossing") for the purposes of using the Improvements for vehicular and/or pedestrian travel over and across the Ditch at Bryan Avenue in the City of Fort Collins. 3. For the consideration set forth above in Section 2, the Company further grants to City a temporary easement on, over and across the Crossing Area for the purpose of removing the Existing Bridge and constructing and/or installing the Improvements in the manner and at the location designated and described in this Agreement and shown on Exhibit A (the "Construction Easement"). 4. City shall obtain all necessary consents, authorizations and permits and shall perform the construction and/or installation of the Improvements in accordance with all applicable laws, rules, regulations, plans and specifications for the design, construction, repair and/or maintenance of the Improvements. The Company acknowledges that City has provided the preliminary plans and specifications for the Improvements to the Company for its review and approval. Prior to any construction, maintenance and/or repair of the Improvements, City shall provide final plans and specifications and obtain the Company's written approval of such plans and specifications and any contemplated work prior to exercising its rights pursuant to this Agreement, which approval will not be unreasonably withheld. The Company's review and any approval of such plans and specifications and the contemplated work shall not constitute an engineering review or supervision and does not affect, release and/or limit City from any obligation, responsibility or liability to conduct such work in accordance with this Agreement and with all applicable governmental rules and regulations, or for the design, construction, repair and/or maintenance of the Improvements. City and the Company agree to cooperate in good faith to coordinate any construction, maintenance, operation and/or repair of the Ditch, Ditch Easement, Crossing Area and the Improvements. All construction, maintenance and repair of the Improvements thereto shall be done by City, entirely without cost to the Company. 2 5. The Company makes no representation or warranties as to whether City obtained, needs to obtain or has obtained consent from the owners of lands underlying and surrounding the Ditch and Ditch Easement in the SW1/a of Section 10, Township 7 North, Range 69 West of the 6th P.M., Larimer County, Colorado, or the owners of any existing pipelines, utility lines or other structures on, over, across or under the Property or other lands surrounding the Ditch and Ditch Easement prior to commencing construction of the Improvements. The Company shall be without liability for any damage to said owners as a result of City's exercise of its rights pursuant to this Agreement, except as to such damage as may be caused by the gross negligence or willful misconduct of the Company. 6. The Improvements shall be constructed, maintained and repaired by City, at its expense, upon notice to the Company as recited above; however, in the event any sum is expended by the Company for emergency repairs and maintenance, City shall reimburse the Company for such costs, fees and/or expenses related to such repairs and maintenance. In the event that the Company finds it necessary to make any emergency repairs and maintenance to the Improvements and/or any appurtenances, the Company shall be without liability for damage to City, its agents, employees and/or other third parties, including without limitation all landowners, homeowners and business owners in or surrounding the Ditch, Ditch Easement and Crossing Area, except as to such damage as may be caused by the gross negligence or wanton and willful misconduct of the Company. Determination of whether repair or maintenance is necessary and whether an emergency exists shall be in the sole discretion of the Company. 7. In the event that the Company finds it necessary to make repairs and maintenance to the Ditch and/or the Ditch Easement, either now or at any future time, the Company shall be wholly without liability for damage to the Improvements, as the result of the making of such maintenance and repairs, except as to such damage as may be caused by the Company's gross negligence or wanton and willful misconduct. In the event repair or maintenance of the Ditch or the Ditch Easement is required or advisable due to the existence, construction, installation, surveying, inspection, operation, maintenance, repair or replacement of the Improvements, at the Company's election, City will promptly repair and maintain the Ditch and the Ditch Easement to the reasonable satisfaction of the Company, or alternatively, the Company shall perform or cause to be performed such repair and maintenance and City shall promptly reimburse the Company for the costs and expenses of such repair and maintenance. Determination of whether repair or maintenance to the Ditch and the Ditch Easement is necessary or advisable and the nature and extent of such repair or maintenance shall be in the Company's sole discretion. 8. The Company shall have full power to operate, maintain, alter, enlarge, relocate, clean and manage the Ditch and Ditch Easement as if this Agreement had not been made, and any expense and/or damages caused thereby to City shall not be chargeable to the Company. In the event, however, that any such action on the part of the Company could reasonably be expected to affect the Improvements, except in the event of emergency repairs, the Company agrees to give prior notice to City and to reasonably cooperate with City to avoid injuries or damages to the Improvements. In the event that the Company finds it necessary to perform emergency repairs to the Ditch and Ditch Easement, either now or at any future time, the Company shall be wholly without liability for damages to the Improvements as the result of the performance of said repairs, except as to such damage as may be caused by gross negligence or wanton and willful misconduct. Determination of whether an emergency exists shall be at the sole discretion of the Company. 9. The Construction Phase shall be completed prior to April 1, 2014, unless written consent by the Company for an extension is granted, and shall be accomplished during the non - irrigation season, unless otherwise agreed to by the Company. 10. The Construction Phase, and any subsequent repair and/or maintenance of the Improvements shall be entirely without disturbance of the flow of water into the Ditch, unless permission in writing is first received from the Company for such disturbance. City expressly agrees that it shall be liable to the Company and/or its shareholders for damages for any unauthorized use or disturbance of the flow of water through the Ditch, without the Company's prior written permission. Upon completion of any activity upon the Crossing Area by City, City shall clean the Ditch and ditch bank area to cause it to be in substantially the same or better condition than existed prior to commencement of such activity, including the compacting of any disturbed soils. 11. Upon the completion of the project, City shall promptly notify the Company, and the Parties shall jointly inspect the Ditch at the location of the Improvements. If there are any deficiencies in the work of City or any variation from the plans, City shall forthwith remedy the same. In so doing, City shall meet all reasonable requirements of the Company for the protection of the Ditch comparable to conditions prior to the construction of the project. 12. The Improvements shall be owned by City. Installation, construction, repair and/or maintenance of the Improvements shall be entirely without cost to the Company. In addition to the consideration recited in Section 2, the Company's attorneys and engineers shall be directed to review this Agreement and to consult with Company officials and/or employees as to its contents and effect, and their reasonable fees and expenses shall be paid by City. 13. To the extent permitted by law, City shall indemnify and hold the Company, its officers, directors, employees, shareholders and successors and assigns, harmless from any and all liability, losses, damages and expenses, including attorneys' fees, arising in connection with the exercise by City of its rights pursuant to this Agreement, including, but not limited to, any personal injuries, deaths, property damage, mechanic's liens or other claims and causes of action of any kind arising out of use of the Crossing, Crossing Area and the Improvements thereon by City and/or its employees and/or invitees, and by other third parties, except to the extent caused by the gross negligence or intentional misconduct of the Company or its shareholders, employees, agents, contractors and/or subcontractors. 14. City hereby covenants and agrees: A. City shall not install a fence, plant trees, brush or vegetation that obstructs access to the Ditch, the Ditch Easement or the Crossing Area, or construct any building within the Ditch, the Ditch Easement or Crossing Area, unless written authorization is first received from the Company. 4 B. City shall promptly backfill any excavations made by it on the Ditch and Ditch Easement and repair any damage it shall do within the Ditch and Ditch Easement to the satisfaction of the Company. C. City shall not spill dirt, debris or other foreign material into the Ditch. In the event that dirt, debris or other foreign material is spilled into the Ditch, City agrees to completely clean and restore the affected area of the Ditch to the Company's satisfaction. Upon completion of any activity upon the Crossing Area by City, City shall clean the Ditch and ditch bank area to cause it to be in substantially the same or better condition that existed prior to commencement of such activity, including the compacting of any disturbed soils. D. If at any time the Improvements or any work by City causes any settling in the Ditch embankments, the roads thereon, the Crossing Area or any part of the Ditch Easement, City will upon notification from the Company, immediately make all repairs required by the Company at City's expense. 15. To protect the Ditch during construction and installation of the Improvements, City hereby covenants and agrees to the following: A. Any trench or other excavation in connection therewith shall be backfilled, compacted and stabilized by City to the satisfaction of the Company. B. City shall remove any hazardous materials that may result from removal of the Existing Bridge and construction and/or installation of the Improvements, and shall prevent any such hazardous materials from flowing into the Ditch. C. Should any water seepage and/or leakage from the Ditch occur as a result of City's construction and installation of the Improvements, City shall repair the Ditch to stop the seepage and/or leakage to the satisfaction of the Company. 16. In the event either City or the 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 said covenants and to commence legal or equitable action against the defaulting Party, upon a determination by the court of default, the defaulting Party shall be liable for all reasonable expenses of said litigation incurred by the enforcing Party, including, but not limited to docket fees, discovery and reasonable attorney's fees. 17. Notwithstanding any other provision of this Agreement to the contrary, the obligations of City in fiscal years after the fiscal year of this Agreement shall be subject to appropriation of funds sufficient and intended therefor, and the failure of City to appropriate such funds may be grounds for termination of this Agreement after ninety (90) days written notice to Company if City fails to appropriate the funds necessary for such obligation during the notice period. 5 18. Any notice required or permitted hereunder shall be deemed effective when deposited in the United States mail, postage prepaid, first class and addressed to the party to whom notice is to be given, as follows: If to Company: Larimer County Canal No. 2 Irrigating Company 730 Ash Mesa Road Delta, CO 81416 And Fischer, Brown, Bartlett & Gunn, P.C. Attn: Brent Bartlett 1319 E. Prospect Road Fort Collins, CO 80525 If to City: City of Fort Collins P.O. Box 580 Fort Collins, CO 80522-0580 With a copy to: City Attorney's Office City of Fort Collins In the event a different person or entity than the person or entity listed above shall be given notice, the other party shall be notified of this change in writing pursuant to this paragraph. 19. This Agreement, and any grant by the Company, is subject to all restrictions, reservations, rights -of -way, easements, documents or Agreements existing or of record in the Clerk and Recorder's office in Larimer County, Colorado at the time this Agreement is recorded. The Company makes absolutely no representations or warranties (including, without limitation, warranties of title) in or by this Agreement or any grant herein. 20. Following the approvals in Section 4 above, City shall promptly record this Agreement with the Clerk and Recorder of Larimer County, Colorado and tender the original recorded agreement to the Company. Unless otherwise agreed in writing, no work shall commence until this Agreement has been recorded and the original recorded Agreement is received by the Company. 21. This Agreement and all the terms and conditions thereof shall extend to and be binding upon the successors and assigns of each of the parties hereto. This agreement shall run with the land described in Exhibit A. Upon transfer of its interests in this Agreement, City, its successors and assigns, agrees to inform the Company of the name of the transferee. 22. This Agreement shall be interpreted and enforced under the laws of the State of Colorado. In the event of arbitration or litigation, venue shall be exclusively proper in Larimer County, Colorado. 23. This Agreement is contingent upon, and shall not take effect until, the approval of the Board of Directors of the Company of the completed plans and specifications of the Improvements, signed by the President and attested to by the Secretary of the Company, and the giving of such approval to City. The Company may make suggested revisions to the plans and specifications, and if such revisions are fully agreed to by City in writing, with notice of such acceptance being given to the Company, then this Agreement shall become effective upon receipt by the Company of such notice. 24. A copy of this Agreement may be executed by each parry, separately, and when each party has executed a copy thereof, such copies taken together shall be deemed to be a full and complete contract between the parties. [remainder of page intentionally left blank with signatures to follow on next page] 7 IN WITNESS WHEREOF, the Parties hereto have caused these presents to be duly executed by the proper officers or agents, and have affixed their seals hereto on the day and year first above written. THE CITY OF FORT COLLINS, COLORADO, a municipal corporation By: Darin A. Atteberry, anager Approved s o Form: Assistant City Attorney STATE OF COLORADO ss. Q,D COUNTY OF LARIMER ) Ll � oi The above and foregoing Agreement was acknowledged before me this 40 day of 2013, by Darin A. Atteberry, as City Manager of The City of Fort Collin , Colorado, a municipal corporation. WITNESS my hand and official seal. otary Public s: (SEAL) SARA GONZALES NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20014021847 THE LARIMER COUNTY CANAL NO.2 MY COMMISSION EXPIRES JULY 16, 2017 IRRIGATING COMPANY, a Colorado mutual irrigation company STATE OF COLORADO ss. COUNTY OF LARIMER By: John Strachan, President } The above and foregoing Agreement was acknowledged before me this--5,d 2013, by John Strachan, President of Larimer County Irrigating Company, a Colorado mutual ditch corporation. , WITNESS my hand and official seal. MY commission expires: Lilt,-J,L,� t,� _day of Canal No. 2 Q1REg: MY COOAMI y30" 0 01\ I Exhibit Bryan Avenue Bridge over Larimer County Canal #2 FCBRYN-0.2-MULB M W+ 1 inch = 400 feet Feet 400 200 0 400 800 1,200 City of F6rt Collins Printed: June 03, 2013