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HomeMy WebLinkAbout103701 THE NORTH POUDRE IRRIGATION CO - CONTRACT - AGREEMENT MISC - NORTH POUDRE IRRIGATION COMPANYAGREEMENT � I L, -7((9& This Agreement is entered into by and between the following Parties: the City of Fort Collins, a Colorado municipal corporation ("City"); and the North Poudre Irrigation Company, a Colorado mutual ditch company ("Company"). WHEREAS, the Company owns and operates the Fossil Creek Reservoir Inlet Ditch ("Ditch"), and the Fossil Creek River Diversion Structure and headgates of which are located on the Cache la Poudre River in the NW 1/4 of the SW 1/4 of Section 21, Township 7 North, Range 68 West of the 61h P.M. ("Headgates"); and WHEREAS, the City desires to study and perform investigations regarding the Cache la Poudre River, including the portion of the river in the vicinity of the Headgates, and further desires to secure access to the Headgates and its associated structures and surroundings for and related to such studies and investigations; and WHEREAS, the Headgates were damaged in the flooding of September 2013 and the Headgates must consequently be repaired; and WHEREAS, the City desires to secure limited access to construct measuring devices on and in the vicinity of the Headgates, and the additional measurement structures and the data therefrom will be beneficial to the City in its studies and investigations, as well as being potentially beneficial for the administration of the water and water rights on the Cache la Poudre River; and WHEREAS, the City further desires that the Headgates include a structure that will allow fish to move upstream and downstream past the Headgates ("Fish Flume"); and WHEREAS, the Company and the City desire. to set forth in writing their ongoing relationship with respect to the matters and structures discussed in this Agreement; NOW THEREFORE, in consideration of the mutual covenants and promises between the Parties, which the Parties acknowledge and agree constitute adequate consideration, the Parties agree as follows: 1. Incorporation of Recitals. The Recitals set forth above are hereby incorporated into this Agreement as if fully set forth herein. 2. License for City Access. The Company hereby grants to the City, including its agents and employees, a perpetual license to access the Headgates, Fish Flume, and all measuring device(s) identified in Paragraph 3, which includes measuring devices located on Company property and measure devices not located on Company property, for the purposes of this Agreement including, but not limited to: inspecting the Headgates and Fish Flume and the use thereof by fish and other creatures, including for the purposes of studies or other investigations associated with the Cache la Poudre River and the Headgates and Fish Flume; inspecting the Fish Flume during the construction thereof, maintaining the Fish Flume; maintaining, operating, replacing, and repairing all measuring Page 1 of 6 device(s) identified in Paragraph 3; and accessing all measuring device(s) identified in Paragraph 3 to access data therefrom. 3. License for Measuring Device(s). The Company hereby grants to the City a perpetual license to construct, install, maintain, operate, replace, and repair (1) a measuring device or measuring devices on or adjacent to the Fish Flume, and (2) a measuring device or measuring devices below the Headgates, to the extent that such measuring devices(s) below the Headgates are constructed on Company property. The Parties acknowledge that, to the extent that such measuring devices(s) below the Headgates are not constructed on Company properly, no such license from the Company is required, except as set forth in Paragraph 2. The Company must approve, in writing, such measuring device(s) on Company property before their construction and installation, which approval shall not be withheld unless such measuring device(s) on Company property would unreasonably interfere with the operation and maintenance of the Ditch or Headgates in Company's sole and absolute discretion. All construction and installation work affecting the Ditch or Headgates must be coordinated with the Company and completed so as not to interfere with the carriage of water by the Company or any persons or entities with which the Company has carriage agreements. The City shall be responsible for the construction, installation, maintenance, operation, replacement, and repair of such measuring devices(s) on Company property. 4. Revocable License. The license for City access, as set forth in Paragraph 2, and the license for measuring device(s), as set forth in Paragraph 3, shall be non -revocable except said licenses shall be revocable in the event of an uncured breach and default as provided hereinafter at Paragraph 7, and/or the termination of the Agreement as provided in Paragraph 11. Any such revocation shall be made in writing with notice to the City under Paragraph 15. Revocation shall be in addition to the remedies as provided hereinafter at Paragraph 8. 5. Fish Flume. The Company has retained a consulting engineer to design a Fish Flume associated with the Company's Headgates to meet the City's and the Company's needs. A copy of a conceptual design is attached as Exhibit A, which was prepared for the Company by its consulting engineer. A final design of the Fish Flume meeting the City's and the Company's needs will be prepared and must be approved by both Parties before the construction of the Fish Flume. The Company shall construct a Fish Flume on the Headgates in its repair of the Headgates. The Company shall own the Fish Flume, which shall be subject to the City's rights under this Agreement. As part of the overall bargain set forth in this Agreement, the City shall reimburse the Company for the costs of constructing the Fish Flume, provided however, that the City shall not be responsible for any such costs greater than $30,000.00, unless the Parties expressly agree, in writing, to such greater amount. The Company shall provide to the City an invoice for the amount of such costs, and shall provide invoices and/or receipts to evidence such costs. The City shall pay to the Company such evidenced amount within thirty-five (35) days of the City's receipt of such invoice from the Company. The City shall be responsible for the maintenance of the Fish Flume. The Company shall be responsible for all other maintenance of the Headgates. 6. Warranty of Authority. The Parties to the Agreement warrant that they have the requisite authority to enter into this Agreement and that the persons signing on their behalf have been duly authorized. Page 2 of 6 7. Breach and Default. In the event of a breach of this Agreement, the non -breaching Party shall provide notice to the breaching Party of the breach of this Agreement and the breaching Party shall have twenty-eight (28) days from the date of the notice to cure the breach except as otherwise provided in Paragraph 8 of this Agreement, or if such breach cannot be cured within such twenty- eight (28) day period, within such longer period of time as maybe reasonably required. In the event the breaching Party does not cure the breach within such period, the non -breaching Party shall have the right, but not the obligation, to take such action as may be required to rectify the breach and bill the breaching Party for the cost of such action. In the event the non -breaching Party takes action to rectify the breach, the breaching Party shall pay the costs described in this paragraph within twenty- eight (28) days of the date when such costs are billed to the breaching Party. If the breaching Party does not pay the costs and the non -breaching Party is required to institute legal proceedings to obtain the payment, breaching Party shall pay all costs of collection, including, but not limited to, attorneys' fees associated with the collection. 8. Remedies. If any Party breaches this Agreement, the breaching Party shall pay all of the non -breaching Party's reasonable attorneys' fees and other costs in enforcing this Agreement whether or not legal proceedings are instituted. In addition to any remedies at law or in equity, the remedy of specific performance shall be available to the Parties. 9. Information. Upon request by the Company, the City shall provide to the Company all data including, but not limited to, studies, reports and investigations as stated hereinabove in Paragraphs 2 and 3, provided that the City shall have no obligation to provide any privileged or otherwise confidential information to the Company. All such information shall be provided at no cost or expense to the Company. 10. Noninterference. The primary duty of the Ditch and Headgates is to provide for delivery of water to Fossil Creek Reservoir and to carry water for other purposes and reasons. Pursuant to this Agreement or as determined acceptable by the Company, any licenses, devices, structures, or facilities permitted, constructed, or allowed under the terms of this Agreement are secondary and shall be removed at the discretion of the Company in the event the Company reasonably determines the same are interfering in any way with the primary purpose of the Ditch and/or Headgates. The Company shall have no liability for any cost, damage or expense in the event of such removal. 11. Fiscal Contingency. Notwithstanding any other provision of this Agreement to the contrary, the obligations of the 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 the City to appropriate such funds may be grounds for termination of this Agreement after ninety (90) days written notice if the City fails to appropriate the funds necessary for such obligation during that notice period. 12. Disposition of Structures and Licenses Upon Termination. Upon ternnation of this Agreement for any cause set forth herein, the Company may keep all measuring devices, facilities or structures on Company property installed and constructed pursuant to the terms of this Agreement. If requested by the Company, all measuring devices, facilities or structures on Company property installed and constructed pursuant to the terms of this Agreement shall be removed by and at the expense of the City within ninety (90) days of termination. Termination shall also result in revocation of any licenses granted or permitted under this Agreement. Page 3 of 6 13. Liability Indemnification. To the extent allowed by law, the City does hereby indemnify and agree to hold the Company harmless from any claims or causes of action against the Company, its officers, directors, shareholders and employees arising out of the City's use, operation, construction, maintenance or failure of any devices, structure or installation allowed or permitted under this Agreement. No provisions of this Agreement shall be construed to waive the City's immunity under the Governmental Immunity Act. 14. City Responsibility. By virtue of entering into this Agreement, City assumes liability for use, operation or existence of the City's activities upon the Company property including, but not limited to, those activities as provided hereinabove in Paragraphs 2 and 3. 15. Notices and Addresses. Any notices required by this Agreement shall be sent to the following addresses, or such other addresses as the Parties may indicate in writing, by postage prepaid, certified or registered mail: City of Fort Collins c/o Department of Natural Areas 1745 Hoffman Mill Road Fort Collins, Colorado 80524 With copies to: dfiggs@fcgov.com The North Poudre Irrigation Company P.O. Box 100 Wellington, Colorado 80549 With copies to: Lind & Ottenhoff, LLP 355 Eastman Park Drive, Suite 200 Windsor, CO 80550 Notices shall be deemed to have been delivered upon receipt by the other Party, unless the notice is returned and no forwarding address provided to the other Party, and then notice shall be deemed to have occurred upon mailing. Each Party may change its address or contact information for notices under this Agreement upon written notice to the other Party in accordance with this Paragraph. 16. Assignment and Transfer. This Agreement may not be transferred or assigned by the City, in whole or in part, without written approval of the Company, which will not be unreasonably withheld. 17. Time is of the Essence. Time is of the essence with respect to each and every aspect of this Agreement, and strict compliance with all time requirements is at the heart of this Agreement and shall be strictly enforced. 18. No Third -Party Beneficiaries. This Agreement is entered into between the Parties for the purposes set forth herein. It is the intent of the Parties that they are the only beneficiaries of this Agreement and the Parties are only benefitted to the extent provided under the express terms and conditions of this Agreement. 19. Recording. This Agreement shall be recorded with the Latimer County Clerk and Recorder. The City shall be responsible for such recording. 20. Captions. The captions of the paragraphs of this Agreement are for convenience only and shall not govern or influence the interpretation of the Agreement. Page 4 of 6 21. Computation of Time. In computing any period of time under this Agreement, the day of the act, event, or default from which the designated period of time begins to run shall not be included. Unless expressly indicated otherwise, all days shall be "calendar days," which means consecutive days including all holidays, Saturdays, and Sundays. `Business days" exclude federal holidays, Saturdays, and Sundays. If a deadline under this Agreement falls on a federal holiday, Saturday, or Sunday, the deadline shall be the next business day. 22. Colorado Law. The Agreement shall be governed by the laws of the State of Colorado, insofar as any matter is not regulated by applicable laws of the United States. 23. Entire Agreement. The making, execution and delivery of this Agreement by the Parties has been induced by no representations, statements, warranties or agreements other than those expressed in this Agreement. This Agreement embodies the entire understanding of the Patties as to the subject matter hereof and there are no further or other agreements or understandings, written or oral, in effect between the Parties relating to its subject matter unless expressly referred to in this Agreement. Modification of this Agreement by the Parties may be made only by a writing signed by the Party or Parties to be bound by the modification. 24. Binding Effect and Assignment. It is the intent of the Parties that this Agreement be and remain binding on their respective agents, assigns, heirs, and successors. 25. Severability. The invalidity or unenforceability of any of the provisions of the Agreement shall not affect any other provision of this Agreement which shall thereafter be construed in all respects as if such invalid or unenforceable provision were omitted. 26. Duplicate Originals. This Agreement may be executed in duplicate originals and each duplicate original shall be valid and enforceable against each Party. 27. Effective Date. This Agreement shall be effective on the last date it is signed by the Parties [REMAINDER OF PAGE, LEFT BLANK INTENTIONALLY] Page 5 of 6 THE CITY OF FORT COLLINS, COLORADO By: )- \', — -- , N Darin A. Atteberry, ' y Approved as to Form: AV — Assistant City Attorney STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The above and foregoing Agreement was acknowledged before me this 2 —day of ��V, 2014, by Darin A. Atteberry, as City Manager of the City of Fort Collins, Colorado, a municipal corporation. WITNESS my hand and official seal. 6 4 Notary Public My commission expires—:? —I(& — SARA GONZALES NOTARY PUBLIC STATE OF COLORADO NOTARY ID 20014021847 My COMMISSION EXPIRES JULY 16, 2017 STATE OF COLORADO ) ss. COUNTY OFL" ) THE NORTH POUDRE IRRIGATION COMPANY BY: . f6-- By and through MAN ubscri d and sworn to before me this 16jtk day of 9ka&j¢,L2014, by of the North Poudre Irrigation Company. Witness my hand and official seal. Mmusm. Notary Public Page 6 of 6 02 No Text