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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