HomeMy WebLinkAbout102781 NEW MERCER DITCH - CONTRACT - AGREEMENT MISC - IRRIATION AGREEMENTGG
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AGREEMENT $GN,Sad�ry, Syiao.
THIS AGREEMENT is made and entered into t ' d5y of v , 200)� an`tW ' �D
between, THE CITY OF FORT COLLINS, COLORAD a municipal corporation, hereinafter referred to es--�
rCity"; and THE NEW MERCER DITCH COMPAN , a Colorado mutual irrigation company, here
referred to as "Ditch Company".
PROJECT DESCRIPTION
The City's Canal Importation Ponds and Outfall Project (the "Project") includes twelve components with
two phases that will impact the New Mercer Ditch Company as more specifically described below.
WITNESSETH:
WHEREAS, the Ditch Company is the owner of an irrigation ditch and the ditch right-of-way
through land as shown on the attached Exhibit A that is made a part of this Agreement by reference;
and
WHEREAS, the irrigation ditch and ditch right-of-way are shown on Exhibit A based upon the
best information available to the parties; and
WHEREAS, the Ditch Company is willing to grant to City certain rights upon certain terms and
conditions as described in this Agreement;
WHEREAS, the Project to be completed will span over several years and includes two phases of
construction; and
WHEREAS, the Ditch Company reserves the right to approve the plans for each stage of the
Project.
NOW, THEREFORE, in consideration of the premises and the terms of the within Agreement, it
is agreed, as follows:
1. The components of the first phase of the Project (hereinafter referred to as "Phase 1 ") are
generally described below and are more fully described in the construction plans for Phase 1 (hereinafter
referred to as "Phase 1 Plans"). A copy of the Phase 1 Plans is marked as Exhibit B, attached hereto
and incorporated herein by reference. The Phase 1 Plans were provided by the City to the Ditch
Company and approved by the Ditch Company prior to the execution of this Agreement. A general
description of Phase 1 is as follows:
1) Construction Dewatering —City will temporarily discharge water from construction dewatering
into the Ditch. City will obtain all necessary permits for this dewatering and provide Best
Management Practices to treat water prior to release into the Ditch.
2) 5'x1O' Concrete Box Culvert crossing — City will construct and install a new 5'x1O' reinforced
concrete box culvert to convey flows from the north into the Red Fox Meadows Detention Area.
The construction of this culvert will require crossing the New Mercer Ditch and the box culvert
improvement will remain on Ditch Company property after construction is completed.
3) Kane/ Red Fox Maintenance and Pedestrian crossing — City will construct a new box culvert
between the Kane Detention Area and the Red Fox Meadows Detention Area. The construction
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of this box culvert will require crossing the New Mercer Ditch. The box culvert will remain on
Ditch Company property after construction is completed.
4) Ditch Bank Modifications within Red Fox Meadows - City will lower the east bank of the New
Mercer ditch approximately 5 feet within the Red Fox Meadows Detention Area. This lowering
will allow 75 cubic feet per second to pass down the Ditch. The ditch bank modifications will
remain in effect after construction is completed.
5) Ditch Access Road within Red Fox Meadows - City will construct a combination access road
and recreation trail along the New Mercer Ditch within Red Fox Meadows Detention Area. The
road/trail will be constructed of crusher fines material. The road/trail improvements will remain
on Ditch Company property after construction is complete.
6) Temporary Construction Crossings within Red Fox Meadows - City will construct a temporary
crossing of the New Mercer Ditch to facilitate the construction of the Castlerock Stormsewer.
The crossing will consist of concrete box culverts and will be removed upon completion of the
project.
7) Concrete Flume Removal - City will remove the existing concrete flume in its entirety from its
location over the New Mercer Ditch at the southwest corner of the Red Fox Meadows Detention
Area.
8) Red Fox Meadows Side Spill Weir - City will construct and install a side spill weir on the north
bank of the New Mercer Ditch on the south side of the Red Fox Meadows Detention Area. The
weir will consist of a concrete cutoff wall and erosion control fabric on the downstream side.
The weir will allow 75 cubic feet per second to pass down the Ditch. The improvements will
remain on Ditch Company property after construction is complete.
9) Stuart Street/Red Fox Pedestrian Bridge crossing - City will construct a new pedestrian bridge
between Stuart Street and the Red Fox Meadows natural area. The construction of this bridge
will require crossing the New Mercer Ditch. The bridge improvements will remain on Ditch
Company property after construction is complete.
2. The components of the second phase of the Project (hereinafter referred to as "Phase 2") are
generally described below and are more fully described in Phase 2 Plans that will be provided to the
Ditch Company by the City in its effort to obtain the Ditch Company's approval of Phase 2 plans:
10) Plum Pond side spill weir - City will construct a side spill weir on the west bank of the New
Mercer Ditch just north of Elizabeth Street. The weir will consist of a concrete cutoff wall and
erosion control fabric on the downstream (west) side. The weir will allow 75 cubic feet per
second to pass down the Ditch. The weir will remain on the Ditch Company's property after
construction is completed.
11) Avery Park Pond outlet - City will modify the existing outlet structure for the pond that empties
into the ditch so flow will no longer be released into the ditch at this location.
12) Springfield Drive storm sewer outlet - City will construct a new storm sewer system in
Springfield Drive and Brentwood Drive to replace an undersized system that currently outlets
into the ditch. The system will outlet by a reinforced concrete pipe of a certain size into the
New Mercer Ditch. The new storm sewer system will remain on Ditch Company property after
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construction is complete.
3. The Project generally described above will occur in two phases. The Project requires the City to
access, cross over, construct on and make improvements to property owned by the Ditch Company.
The City has provided Ditch Company with Phase 1 Plans and will provide Phase 2 Plans prior to
construction of phase 2 components. The Phase 1 and Phase 2 Plans describe specifically the project
work and improvements to be made in a given phase. As of the date of execution of this Agreement,
the Ditch Company has approved the Phase 1 Plans. By doing so and by execution of this Agreement,
the Ditch Company has granted unto the City the right to construct, install and maintain the
improvements as described in the Phase 1 Plans 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. After the City provides a set of Phase 2 Plans and prior to the City proceeding with work on
Phase 2, the Ditch Company will have the opportunity to review such Phase 2 Plans and to approve the
described project work and improvements considering impacts to and compatibility with the Ditch
Company's improvements. When the Phase 2 Plans are approved by the Ditch Company, the Ditch
Company grants unto City the right to construct, install and maintain the improvements as described in
the Phase 2 Plans 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.
4. Ditch Company shall be paid a lump sum crossing fee in the amount of $17,000- as
consideration for work contemplated in the Project and as generally described above in Sections 1 and
2.
5. City shall pay to Ditch Company, concurrent with the execution hereof, the sum of $4,500for
legal fees and fees incurred by the Ditch Superintendent and Company President.
6. The construction herein contemplated shall be in strict accordance with the approved Phase 1
and Phase 2 Plans subject to any modifications mutually agreed to by the Parties. Upon execution of
this Agreement, the City will take no action to excavate or change the ditch during construction of the
Project in a manner that is not described in the approved Phase 1 or Phase 2 Plans subject to
modifications mutually agreed to by the Parties. Said work shall be constructed under the supervision
of the superintendent or other designated agents of the Ditch Company.
7. All construction shall be commenced promptly after execution of this Agreement and upon
approval of the Phase Plans for each given phase and completed within a reasonable period of time after
construction has commenced. The City is aware of the general timeframes when the Ditch Company
allows the flow of irrigation water in the ditch and agrees to cooperate with the Ditch Company in order
to ensure that the construction of the Project will in no way interrupt, impede or interfere with the flow
of irrigation water and that no contamination of the irrigation water occurs except as expressly agreed
by the Ditch Company.
8. Upon the completion of each Project phase, 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 the given Phase Description
Documents, the City shall forthwith remedy the same. In so doing, the City shall meet all reasonable
requirements of the Ditch Company for the protection of the ditch and surrounding property.
9. It is the intent of this Agreement that the City shall exercise due care in the construction
contemplated herein. 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.
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10. The Project shall be without cost to the Ditch Company, and the City shall hereby indemnify and
forever hold the Ditch Company harmless to the extent permitted by law and the charter of the City of
Fort Collins for liability for damages caused by either phase of the Project described in Sections 1 and 2
above.
11. The Ditch Company shall have full power to operate and maintain its ditch 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. The City, its successors, assigns and all subsequent owners, agree that, because of
increased maintenance expenses and difficulties occasioned by the location of the construction
within the ditch right-of-way, it shall conduct any maintenance activities to the facilities after
construction as are necessary and this obligation shall be perpetual, except that the future
expenditures necessary to maintain the construction improvements are subject to appropriation of
funds sufficient and intended for the same by the Fort Collins City Council in its sole discretion.
The failure of the City to appropriate such funds may be grounds for termination of this Agreement
by the Ditch Company at its option by providing written notice of termination to the City. The City
is responsible for remedying any seepage that both parties agree is caused by work described above
as Phases 1 and 2 of the Project.
13. In the event either the City 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 attorneys' fees.
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 firs1JvSwritten.
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THE CITY OF FORT COLLINS,
a municipal corporation
ATTES
Da �y � Darin At ry, City Manager
,11111v0d AS To
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Exhibit A - New Mercer Ditch
A
) New Mercer Ditch I
6a
THE NEW MERCER DITCH COMPANY
a Colorado mutual irrigation company
ATTEST:
Gene E. Fischer, Secretary Randy Gust fson, President
STATE OFCOLORADO)
ss.
COUNTY OF LARIMER ) j
fir'The above and foregoing Agreement was acknowledged before me this day of
200% by' Darin Atteberry, as City Manager;
City Clerk of The City of Fort Collie
corporation.
WITNESS my hand and official seal. -
MY commission expires: f�-Oq
{SEAL}
Notary Public
STATE OFCOLORADO)
ss.
COUNTY OF LARIMER )
aA
T e above and foregoing Agreement was acknowledged before me this �6 day of
—' 2008, by Randy Gustafson, as President, and attested to by Gene E. Fischer, as
Secretary of The New Mercer Ditch Company, a Colorado mutual irrigation company.
WITNESS my hand and official seal.
MY commission expires:
nRH
Notary Pu is
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