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HomeMy WebLinkAboutC08-033 Due Diligence AgreementBy signing this document, Owner acknowledges that this document has important legal consequences. LAFARGE RECOMMENDS THAT OWNER CONSULT SUCH LEGAL COUNSEL AS OWNER DEEMS NECESSARY OR DESIRABLE BEFORE SIGNING THIS AGREEMENT. Due Diligence Agreement This Due Diligence Agreement ("this Agreement") is made and entered into this ~ day of February, 2008, by and between Eagle County, Western Eagle County Metropolitan Recreation District (collectively "Owner°) and LAFARGE WEST, INC., a Delaware Corporation, the mailing address of which, for purposes of this Agreement, is 1800 North Taft Hill Road, Fort Collins, Co 80521 ("Lafarge"). AGREEMENT In consideration of the sum of five hundred dollars ($500.00) paid by Lafarge to Owner, the covenants herein contained, the mutual benefits to be derived therefrom, and other good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the parties agree as follows: 1. Riaht of limited Access This Agreement is to allow access to approximately 27 acres owned by Owner more particularly known as the Eagle County Ball Fields described on Exhibit A attached ("the Property"). The Owner will provide access onto the Property to Lafarge for the purpose of conducting such inspections, investigations, inquiries and other studies as Lafarge, in its sole discretion, deems necessary or appropriate in connection with its intended leasing and potential development of the Property for the purpose of exploring for, mining, extracting, processing, marketing and selling aggregate quality sand and gravel. ("Materials") 2. Term of License. The rights herein granted shall continue from the date hereof through 5:00 p.m., Mountain Time, on February 28, 2008, at which time the license and rights of access shall cease and terminate, and thereafter be null and void without further action or notice by Owner. 3. Earlv Termination. In the event that any due diligence investigations, inspections or other information derived by Lafarge in the conduct of its due diligence are unsatisfactory to Lafarge, in its sole discretion, Lafarge shall notify Owner in writing of such fact on or before the expiration date set forth in Paragraph 2 above, in which case, except with respect to obligations which by the terms of this Agreement survive termination, the parties will be released from any further obligations under this Agreement. 4. Indemnification. Lafarge hereby expressly agrees to indemnify, defend and hold harmless Owner and its shareholders, directors, officers, members, managers, agents, successors and assigns, from and against any and all losses, obligations, claims, suits, judgments, expenses, liabilities, penalties, fines or other costs (including, but not limited to, reasonable attorneys fees) of any kind resulting from the entry by Lafarge or any of its agents, -1 of 4 - ~ Initials employees, subcontractors or contractors onto the Property pursuant to this Agreement, and for any work undertaken by or for Lafarge with respect to or pursuant to this Agreement. Without limiting the foregoing, Lafarge hereby expressly agrees to indemnify, defend and hold harmless Owner and its shareholders, directors, officers, members, managers, agents, successors and assigns, from and against any and all claims, costs, liabilities or expenses (including, but not limited to, reasonable attorneys' fees) arising out of non-payment for any services rendered in connection with the conduct of Lafarge's activities as contemplated by this Agreement on or about the Property, and to protect against any mechanic's or materialmen's liens asserted against any portion of the Property as a result of the operations of Lafarge on the Property. These obligations of indemnity shall survive expiration or termination of this Agreement. 5. Insurance. Prior to entry upon the Property, and at all times thereafter while Lafarge is conducting any activities on the Properly pursuant to this Agreement, Lafarge shall maintain commercial liability insurance covering its activities upon such Property, with a combined single limit of at least Two Million Dollars ($2,000,000) for bodily and personal injury and property damage. Such insurance shall be primary and any insurance maintained by Owner for its own protection shall be secondary or excess, and not contributing to the insurance maintained by Lafarge pursuant to this Agreement. Lafarge shall also carry or cause any of its agents, contractors or subcontractors, as appropriate, to carry worker's compensation insurance in accordance with Colorado law. 6. Restoration/Repair. Following entry or conduct of any operations on any portion of the Property, Lafarge shall appropriately restore any disturbed land by appropriate grading and backfilling of test pits and boreholes. Lafarge shall also promptly repair any damage to improvements or structures of any kind on the Property caused by its entry or operations on the Property. The obligations to restore and repair pursuant to this Agreement shall survive expiration or termination of this Agreement. 7. Conduct of Operations. Lafarge agrees to consult with Owner, in advance of its entry onto the Property under this Agreement, to determine appropriate access routes and to avoid undue interference with Owner's use of the Property. Lafarge shall leave all gates open or closed, as it finds them, and will immediately repair or replace any fence, gate or cattle guard damaged by it or its agents, employees, contractors or subcontractors to substantially the same condition as existed at the time of entry, and shall not relocate or dismantle any fence without the prior written consent of Owner (which consent may be conditioned upon replacement with such temporary or relocated fences or gates as are necessary in order to appropriately restrain any livestock which may be present). Lafarge shall notify Owner (7) days in advance of its entry onto the Property for the purpose of investigating the nature, extent, quality and quantity of any and all sand, gravel, overburden and topsoil on or underlying the Property. Owner and his designated representatives shall have the right to fully observe and record any and all such investigations carried out on the Property by Lafarge and its contractors in this regard. In addition, Lafarge shall not extract, drain or use any irrigation water, well water or other water or water rights of Owner on or about the Property without the prior consent of Owner, which consent may be appropriately conditioned; nor shall Lafarge discharge, deposit, dispose - 2 of 4 - Initials of or otherwise cause any rock material, soil, dirt, or other materials to be deposited in any irrigation channel, canal, creek, spring, well, pond or other water way or water body. Any obligations or liabilities incurred by Lafarge under this paragraph 7 shall survive termination or expiration of this Agreement. 8. Exclusive Dealina. During the term of this Agreement, Owner shall not solicit, accept offers from any third party regarding extraction, processing or sale of Materials from the Properly. If the Owner receives any unsolicited inquiries or offers as to the Property of any nature, the Owner shall advise the inquiring or offering party of this Agreement and shall further advise the third party that Owner will not accept any offer or engage in any negotiations regarding the Property while this Agreement is in effect. 9. Extension of Aareement. Lafarge may request in writing, a sixty (60) day extension of the term of this agreement solely for the purpose of entering into a sand and gravel lease agreement granting Lafarge rights the "Materials" in the property. If, at the end of the sixty (60) day extension period, the Owner and Lafarge have not executed a sand and gravel lease agreement, this Agreement shall terminate and be null and void. 10. Confidentiality. The economic terms of this Agreement and the results of Lafarge's testing, sampling and operations will be and remain Lafarge's confidential information and its sole and exclusive property, with the exception of any and all observations recorded by the Owner and his designated representatives. 11. Ownership and Authority. The undersigned represents that the party or parties identified as "Owner" are all of the owners of the Property and that the undersigned has full authority to execute this Agreement as or on behalf of the Owner. IN WITNESS WHEREOF, the parties hereto have executed this Due Diligence Agreement as of the day and year first above written. LAFARGE WEST, INC., Delaware Corporation By: "Lafarge" EAGLE COUNTY, COLD DO By: ~~ "Owner" WESTERN EAGLE COUNTY METROPO AN REC N DISTRIC By: ; - "Owner" - 3 of 4 - Initials STATE OF COLORADO ) ss. COUNTY OF ) ~/~ The fo oing instrument was acknowledged before me this~-d y _, 2008 by _ 6.~~~v for the Western Eagle County Metropolitan creation District. Witness my hand and official seal. My commissio expi (~1' NOTA Y UBLIC STATE OF COLORADO My Commission Expires 12/18!2010 STATE OF COLORADO ) ss. COUNTY OF ) Nota Public The foregoing instrument was acknowledged before me this _ day of , 2008 by Eric Reckentine, for Lafarge West, Inc., a Delaware corporation. Witness my hand and official seal. My commission expires: STATE OF COLORADO Notary Public ss. COUNTY OF ) The foregoing instrument was acknowledged before me this _ day of _, 2008 by ,for the County of Eagle, State of Colorado. Witness my hand and official seal. My commission expires: Notary Public - 4 of 4 - Initials v ~' Johnson, Kunkel 1- p. a__ EAC~E <~~