Agreement Example

For Reference Only

COLORADO AGRICULTURAL DITCH COMPANY 
CROSSING AGREEMENT 

1. PARTIES. The parties to this Agreement are the COLORADO AGRICULTURAL DITCH COMPANY, a Colorado mutual ditch company (“Ditch Company”), and GRANNY’S CABLE COMPANY, a Colorado intergovernmental entity (“Licensee”). The Ditch Company and Licensee are jointly referred to as the Parties. 

2. RECITALS. The Licensee desires to obtain the permission of the Ditch Company to install one 1.25-inch diameter HDPE conduit containing one 24 count fiber optic cable at three locations beneath the Colorado Agricultural Ditch (“Ditch”). The locations of the crossings are described in EXHIBIT A. The Ditch Company agrees to permit the proposed crossings, subject to the terms, conditions, covenants and agreements set forth in this Agreement. Accordingly, in consideration of the mutual promises set forth in this Agreement, the Parties covenant and agree as follows: 

3. CONSTRUCTION.

1. Pursuant to the terms of this Agreement, the Licensee is granted the license to install one 1.25-inch diameter HDPE conduit containing one 24 count fiber optic cable at three locations under the Ditch (the Installations) pursuant to the plans and specifications approved by the Ditch Company and attached hereto as EXHIBIT B. Licensee is responsible to meet all criteria and satisfy all concerns and provisions of those certain letters from the Ditch Company’s Engineering Firm to Colorado Agricultural Ditch Ditch Company dated September 19, 2013, October 3, 2013, and October 17, 2013, attached hereto as EXHIBIT C.

2. The Ditch Company’s review of the plans and specifications is solely for its own benefit and creates no obligation on the Ditch Company.

3. All portions of the Ditch, bottoms, sides, banks, and all affected portions of the Ditch Company’s easement which are disturbed by the Licensee’s Installations shall be restored to their original condition so the flow of the water in the Ditch runs at the original amount and velocity, and with the same quality, and so that there is no increase in the burden on the Ditch Company’s easement. Any and all fencing and other facilities appurtenant to the Ditch Company’s easement shall be replaced in a condition at least equal to the condition of such facilities and appurtenances prior to construction.

4. The Licensee shall not spill any dirt, debris or other foreign material into the Ditch. In the event that dirt, debris or other foreign material is spilled into the Ditch, the Licensee agrees to completely clean the affected portions of the Ditch.

5. The Licensee agrees that the Installations shall proceed expeditiously and with reasonable diligence from the commencement of construction to its completion. The Installations shall be completed by March 15, 2014. If the Installations are not completed by that date, this Agreement expires and is of no force or effect.

6. If the Licensee’s construction, maintenance, repair, and/or replacement of the Installations interrupts the Ditch Company’s water supply for any reason, the Licensee shall pay as liquidated damages $10,000 per day for any day that the Ditch Company has a request for water from a shareholder and cannot deliver water to that shareholder or shareholders as a result of the Installations.

7. It is not known whether Licensee’s project requires any local, state or federal permits or approvals. It is Licensee’s obligation to investigate and determine the need for any such permits or approvals. Licensee is responsible, at its own expense, for obtaining all local, state and federal permits or approvals and for compliance with all local, state and federal laws and regulations, including but not limited to land use and environmental laws and regulations, and specifically including the Endangered Species Act, prior to beginning construction. To the extent permitted by law, Licensee shall indemnify the Ditch Company for any and all costs, damages, fines, and fees, including reasonable attorneys’ fees, incurred by the Ditch Company as a result of Licensee’s failure to obtain such permits or approvals or failure to comply with all applicable laws and regulations.

4. CROSSING FEE. The Licensee shall pay to the Ditch Company a crossing fee of $5,000.00. The crossing fee shall be paid prior to the commencement of the Licensee’s construction. This crossing fee shall be in addition to any other costs for which the Licensee is responsible pursuant to this Agreement. 

5. INSPECTION. 

1. The Licensee shall notify the Ditch Company at least five (5) days prior to commencement of the Installations, or prior to replacement, maintenance or repair of the Installations permitted by this Agreement. The Ditch Company is permitted to inspect the Installations and the replacements, maintenance and repairs during construction and upon their completion. The Ditch Company, at its option, may hire an engineer at Licensee’s expense to inspect the Installations, maintenance, repair, or replacement during the construction thereof as it deems necessary to protect its interest.

2. The Ditch Company’s right to inspect the Installations (including replacement, maintenance or repair of the Installations) in no way relieves the Licensee of its liability for improper construction, maintenance, repair, or replacement. The Ditch Company’s inspection is solely for the benefit of the Ditch Company and creates no obligation on the Ditch Company.

6. REIMBURSEMENT OF EXPENSES. 

1. The Licensee agrees to reimburse the Ditch Company (or pay directly) for all reasonable engineering, legal, and administrative costs incurred by the Ditch Company in preparing, approving and enforcing this Agreement, costs associated with billing and collecting those amounts for the Ditch Company, and the costs of inspection as described in ¶5. 

2. The Licensee has paid a deposit to the Ditch Company in the amount of $2,500.00 toward payment of the Ditch Company’s expenses. The Ditch Company may require additional deposits as needed to cover current and future expenses. The Ditch Company will provide copies of invoices to the Licensee periodically, and all remaining portions of the deposit not needed to cover expenses shall be reimbursed to Licensee within 30 days after the completion of the Installations by the Licensee.

3. In the event the Ditch Company’s expenses exceed the amount of the deposit paid to the Ditch Company, statements for costs chargeable to the Licensee hereunder will be forwarded to the Licensee. Licensee shall reimburse the Ditch Company within 30 days after the billing date. If the Ditch Company has not received payment within 30 days, Licensee shall have breached this Agreement and the Ditch Company may institute legal proceedings to collect the amount due and owing. In such a proceeding, the Ditch Company shall be entitled to its costs and reasonable attorneys’ fees from the Licensee.

7. MAINTENANCE. Licensee specifically agrees and pledges to maintain, repair and replace the Installations described in EXHIBIT B so as not to require the Ditch Company to maintain, repair or replace them. All such maintenance, repair and replacement shall be subject to the same standards as are imposed on the original construction by this Agreement. 

8. WATER LOSS. The Licensee agrees that the Installations will not increase carriage or transit loss over the loss that occurred historically. The Licensee agrees to compact earth materials so that such additional water losses will not occur. If the Licensee’s Installations increase carriage or transit loss in the Ditch, the Licensee agrees to repair the construction to prevent such additional loss. 

9. LIABILITY AND INDEMNIFICATION. 

1. By virtue of entering into this Agreement, the Ditch Company: (1) assumes no liability for use, operation, or existence of the Licensee’s Installations; and (2) assumes no additional responsibilities or obligations related to the Licensee’s future or additional activities in the area described in EXHIBIT A which are allowed or required by this Agreement. 

2. To the extent permitted by law, the Licensee agrees to indemnify and hold harmless the Ditch Company, from all claims and liability for damage or injury to property or persons arising or caused directly or indirectly by the Licensee’s construction, restoration, maintenance, repair, or replacement of, or failure to maintain, repair or replace, the Installations and the Licensee’s occupancy and use of the area located in EXHIBIT A.

3. The Ditch Company shall not be responsible for any damage caused by seepage water or inadvertent striking of the Installations during maintenance of the Ditch. Licensee is responsible for contacting the Ditch Company immediately upon notification of any damage to infrastructure or land owned by the Ditch Company or to which the Ditch Company enjoys easement rights.

4. EASEMENT RIGHTS. The License granted to the Licensee herein in no way restricts the Ditch Company’s right to the use of its easement to construct, operate, or maintain all existing structures and facilities of the Ditch.

10. NOTICES. Any notice required or permitted by this Agreement shall be in writing and shall be deemed to have been sufficiently given for all purposes if sent by certified or registered mail, postage and fees prepaid, addressed to the party to whom such notice is intended to be given at the address set forth below, or at such other address as has been previously furnished in writing to the other party or parties. Such notice shall be deemed to have been given when deposited in the U.S. mail. 


DITCH COMPANY: 
Colorado Agricultural Ditch Company 
c/o Mister President, President 
P. O. Box 1072
Eastlake, CO 80614

COPY TO: 
Ditch Company Attorney, Jr., Esq. 
8563 Redwood Avenue 
Boulder, Colorado 80301

 


LICENSEE: 
Granny’s Cable Company 
c/o Michael Tompson, V.P. of Operations 
9526 Dream Parkway 
Denver, CO 80203 

COPY TO: 
_____________________________ 
_____________________________ 
_____________________________ 
_____________________________ 


11. WAIVER OF BREACH. The waiver by any party to this Agreement of a breach of any term or provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by any party. 

12. RECORDATION. This Agreement shall be recorded at the cost of Licensee and shall be binding on any successors of the Parties. The failure to record all or portions of EXHIBIT B because of the size of the documents shall not affect this Agreement. 

13. EXHIBITS. All exhibits referred to in this Agreement are, by reference, incorporated in this Agreement for all purposes. 

14. ATTORNEYS’ FEES. If any party breaches this Agreement, the breaching party shall pay all of the non breaching party’s reasonable attorneys’ fees and costs in enforcing this Agreement whether or not legal proceedings are instituted. 

DATED: __________________. 

[Signature page(s) follow(s)]. 

                                                                        COLORADO AGRICULTURAL 
                                                                        DITCH COMPANY,
                                                                        a mutual ditch company 

                                                                        By______________________________ 
                                                                        President 

ATTEST:

__________________________
Corporate Secretary 


STATE OF COLORADO ) 
                                    ) ss 
COUNTY OF _________ ) 

The foregoing instrument was subscribed and sworn to before me this _____ day of ______________, 2013, by __________, as President, and __________, as Secretary, for the Colorado Agricultural Ditch Company, a mutual ditch company. 

Witness my hand and official seal. 

My commission expires: . 

                                                                        __________________________________
                                                                        Notary Public 


                                                                        GRANNY'S CABLE COMPANY                                                         
                                                                        By______________________________ 
                                                                        ____________________ 
                                                                        Title:

STATE OF COLORADO ) 
                                    ) ss 
COUNTY OF _________ ) 

The foregoing instrument was subscribed and sworn to before me this _____ day of ______________, 2013, by __________, as President, and __________, as Secretary, for the Granny’s Cable Company, a mutual ditch company. 

Witness my hand and official seal. 

My commission expires: . 

                                                                        __________________________________
                                                                        Notary Public 

EXHIBIT A 
CROSSING AGREEMENT 
COLORADO AGRICULTURAL DITCH COMPANY 
Location of crossings 

EXHIBIT B 
CROSSING AGREEMENT 
COLORADO AGRICULTURAL DITCH COMPANY
Plans and Specifications

EXHIBIT C 
CROSSING AGREEMENT 
COLORADO AGRICULTURAL DITCH COMPANY
Letters from the Ditch Company’s Engineering Firm to 
Colorado Agricultural Ditch Company