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HomeMy WebLinkAboutC08-191 TEMPORARY ACCESS AGREEMENT TIllS Temponuy Access Agreement (hereinafter referred to as \I Agreement") is made and entered into this _ day of . 2008 between Gypsum Investors, ILC (hereinafter referred to as "Owner') and Eagle Co1lllW, by and through its Board of COl.mty Commissioners (hereinafter referred to as "County"). Owner and County shall collectively be referred to as the Parties. wrrNESSETB: WHEREAS, Owner owns a parcel of property in Gypsum Colorado commonly known as Parcels B, H&I depicted on the Amended Exemption Plat Lehmann Parcels, recorded on June 30,2006 at Reception No. 2006n647. in the Eagle COl.mty real property records (hereinafter referred to as ''Property''). WHEREAS, County is desirous of utilizing a portion of said Property for haul road access from Highway 6 to Access Gate No. 17 of the Eagle County Airport for the runway extension project, from June 9,2008 to August 15,2008, as more particularly identified in the attached Exhibit n A" and incorporated herein. WHEREAS, Owner is willing to allow use of the Property for such endeavors under the terms and conditions of this Agreement NOW, THEREFORE, in consideration of the terms and covenants stated herein, the sufficiency of which is hereby acknowledged, Owner and County agree as follows: ARTICLE I Grant of Access Owner hereby grants to County, its officers, agents, contractors, and employees access to, over, and across the Property for the purposes stated herein. Access shall be limited to those sections of the Property reasonably necessary for the installations, use, maintenance. and removal of 1hat haul road in a location as more fully depicted in the attached Exlnbit "An and incorporated herein. This grant shall be non-exclusive and Owner may continue to use the Property in any manner deemed prudent provided such use does not reasonably interfere with 1he grant of access or County's use of the Property as provided for herein. ARTICLE n !m!! The term of this Lease of this Agreement shall be from June 9, 20081hrough August 15, ~?e 2008. In no event shall this Agreement be renewed for a period beyond this term, unless mutually ~ fL- agreed to in writing by the Parties. /' -t ARTICLE In Indemnification I. County acknowledges that it uses the Property at its own, sole risk. County hereby releases Owner from liability for any costs, losses or damages of any nature whatsoever which County may suffer as a result of its use of the Property, except for the willful misconduct of Owner. Additionally, to the extent allowed by law, County will indemnify Owner and save Owner harmless from and against any and all liability for any costs, losses or damages of any nature whatsoever suffered or alleged to be suffered by any third party (including County's members, directors, officers, employees and agents) as a result of County's use of the Property. In case Owner shall be made a party to any litigation commenced by or against County, then County shall fully protect and hold Owner harmless and pay all costs, expense, and reasonable attorney's fees, incurred or paid by Owner in connection with such litigation, to the extent allowed by law. 2. Notwithstanding the above, County is relying on, and does not waive or intend to waive, the monetary limitations, or any other rights, immunities and protections provided by the Colorado Governmental Immunity Act, CRS ~24-1O-101, et seq., as from time-to-time amended or as otherwise available to Owner, its commissioners, officers and employees, all of which rights, immunities and protections Owner expressly retains. ARTICLE IV Site Work I. County shall utilize existing paved access road from State Highway 6, which terminates approximately 800 linear feet south of the highway. In addition, County shall construct and utilize a haul road from the termination point of the existing paved access road, southerly, to Access Gate No. 17 of the Eagle County Airport, as identified in the attached Exhibit "A". The haul road will be built to emergency service provider standards for grade and width and will be constructed with a minimum aggregate base course section of 12-inches. 2. Coordination will be made with the utility contractor that is installing a new water line and raw water irrigation line, as to not damage or delay said installation or damage the completed water line. 3. The proposed haul road will be watered and maintained, as necessary, during construction operations and returned to existing conditions upon the completion of the project, which will include removal of the aggregate base course material, re-grading and re-vegetation of the haul road footprint, and any necessary repairs to the existing paved access road. Re-grading and re- vegetation of the area disturbed by the haul road shall be to the same grade and vegetation coverage as currently exists. County shall take such actions necessary to prevent erosion on that area of the Property disturbed by the haul road until re-vegetation efforts are completed. 4. County acknowledges that the Property is used for agricultural purposes that include grazing of livestock and growing of hay. Owner and County do not anticipate that livestock will be on the Property during the term of this Agreement; however, if livestock are pastured on the Property during a portion of the term of the Agreement, the parties agree to work cooperatively to separate the County's site work from the areas being grazed. Further, County understands that irrigation of the Property will be actively pursued during the term of the Agreement. In the event that County is responsible for damaging the irrigation ditches or pasture areas on the Property, County agrees to take prompt action to repair such irrigation ditches or remediate damage to the pasture areas. ARTICLE V Prohibited Uses I. County will not use, occupy, or permit the Property or any part thereof to be used or occupied for any unlawful or illegal business, use, or purposes. 2. County shall not operate any other types of activities other than those identified herein. ARTICLE VI Assienment and Sublettine County shall not assign this Agreement nor any interest herein, or permit the use of the Property by any person or persons other than County or those it has contracted with to perform the functions identified herein without Owner's prior written consent which may be reasonably withheld. ARTICLE vn Access to Premises Owner and Owner's authorized representative shall have the right to enter upon the Property at all reasonable hours (and in emergencies, at all times) to inspect the same and for any lawful purpose provided such entry does not substantially interfere with County's rights hereunder. ARTICLE VIn Default Delinquency by County in the performance of or compliance with any of the obligations of County contained in this Agreement, for a period of ten (10) days after written notice thereof from Owner, shall constitute a default of this Agreement by County. ARTICLE IX Termination I. This Agreement may be terminated upon the occurrence of any of the following: a. Default of either Party in performance of its obligations hereunder; b. Completion or abandonment of the hauling for the runway extension project prior to the expiration of the Term after completion of the reclamation requirements contained herein; 2. Upon the conclusion of this Agreement pursuant to this Article or pursuant to expiration of the stated Term, County shall peacefully surrender the Property to Owner, and Owner upon or at any time after any such expiration, may, without further notice, peaceably reenter the Property and take control of the same. 3. No such termination of this Agreement shall relieve County's liability and obligations under this Agreement. ARTICLE X Hold Over County acknowledges that the term of this Agreement expires on August 15,2008 and agrees to vacate the premises on or before said date. However, if County should remain in possession of the premises after the expiration of the Agreement term for whatever reason and without executing a new Agreement, then such holding over shall be subject to all the conditions, provisions and obligations of this Agreement insofar as the same are applicable. ARTICLE XI Notices I. All notices to be given with respect to this Agreement shall be in writing. Each notice shall be sent by registered or certified mail, postage prepaid and return receipt requested, to the party to be notified at the following address or at such other address as either party may from time to time designate in writing. County Eagle County attn: Rick Ullom 500 Broadway Owner Gypsum Investors, LLC attn: Jim Villars 750 Old Meadow Road, Suite 250 Mc Lean, VA 22102 P.O. Box 850 Eagle,.CO 81631 Tel 970 328-8880 Tel 703 442-4500 with copy to: Andy Hochberg Next Realty 400 Skokie Blvd., Suite 800 Northbrook, JL 60062 2. Every notice shall be deemed to have been given at the time it shall be deposited in the United States mail in the manner prescribed herein. Nothing contained herein shall be construed to preclude personal service of any notice in the manner prescribed for personal service of a summons or other legal process. ARTICLE XII Attornev's Fees & Waiver of Rieht to Jurv In the event of any litigation or other action or proceeding between the parties hereto arising out of the performance or nonperformance of this Agreement, or enforcement of any rights or remedies hereunder, including any indemnities herein contained, the prevailing party shall be entitled in such litigation, action or proceeding to also recover as part of any judgment, award or other relief, its reasonable attorney's fees and costs incurred. Owner and County expressly waive any right which either may have to trial by jury of any dispute arising under this Agreement relating to the issues of termination of this Agreement and rights to possession of the Premises. ARTICLE XIII Entire Aereement. Amendments This Agreement, with attachments, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior oral or written statements, understandings or correspondence, if any, with respect thereto. This Agreement may be amended only by one or more Amendments executed in the same manner as this Agreement. ARTICLE XIV Miscellaneous Provisions I. If any portion of this Agreement shall be declared invalid or unenforceable, the remainder of the Agreement shall continue in full force and effect. 2. This Agreement and all agreements herein contained shall bind the parties hereto and their heirs, personal representatives, successors and assigns. 3. This Agreement shall be construed in accordance with the laws of the State of Colorado. The parties stipulate and consent to the exclusive jurisdiction and venue of the District Court, Eagle County, Colorado, in any civil action which might arise under this Agreement. 4. The signatories below hereby represent and warrant that they have full authority to enter into this Agreement on behalf of the respective parties. 5. No agent, employee or volunteer of County shall be deemed an agent, employee or volunteer of the Owner. Likewise, no agent, employee or volunteer of Owner shall be deemed an agent, employee or volunteer of the County. //REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE FOLLOWS// IN WIlNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. COUNTY: GYPSUM INVESTORS, LLC 'By: Richard Kabat, Manager //REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE PAGE FOLLOWS/! IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written. COUNTY: COUNTY OF EAGLE. STAlE OF COLORADO By and Through its Board of County Commissioners By: Peter F. Runyon, Chairman ATfEST: By: Teak Simonton Clerk to the Board of County Commissioners OWNER: GYPSUM INVESTORS, LLC ~i1 O~ Nancy Wr~t Bryan Treu Monday, June 30, 200810:19 AM 'Michael J. Sawyer; jviilars@nextrealty.com; Richard Kabel; sprussne,@nextrea\ty.com Rick Ullom; Nancy Wright RE: Airport Agreement ~___~fl ~ From: Sent: To: Cc: sublect: ThankS, Mike. I will have peter initial the change. Also, Rick Ullom, in our Facilities Department, just notified me that he was anticipating the agreement going through october 1 with a week or so break during the August 15th time frame for water-line construction. He is going to get with his contact at Gypsum Investors to get the dateS locked down. we may need to do an amendment extending the time line if necessary sometime prior to AUgust 15th. Thanks again for all your efforts on this one. It is appreciated. Bryan R. Treu county Attorney 500 Broadway P.O. BoX 850 Eagle, Colorado 81631 (970) 328-8685 T (970) 328-8699 F THIS MESSAGE IS INTENDED ONLY FOR THE USE OF THE INDIVlUUAL OR ENTITY TO WHICH IT IS ADDRESSED AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. If the reader of this message is not the intended recipient, yOU are herebY notified that any dissemination, distribution, forwarding, copying of or taking action in reliance of the contents of this communication is strictlY prohibited. If you receive this communication in error, please notify the sender immediately by e-mail or telephone, and delete the original message immediately. Thank YoU. _____original MesSage----- From: Michael J. SawYer [mailto:mjs@lklawfirm.com1 Sent: Monday, June 30, 2008 10:05 AM TO' jvillars@nextrealty.com; Richard Kabat; sprussner@nextrealty.com; Bryan Treu Subject: Airport Agreement Attached is a counterpart signed copy of the Airport AccesS Agreement. You will note that Richard Kabat caught a typo on the first page and initialed the correction. Brian, if it is convenient to the Mr. Runyon, have him initial the correction as well. ThankS. Mike F S T S _____Original MesSage----- From: MJS [mailto:mjs@lklawfirm.com1 Sent: Monday, June 30, 2008 10:39 AM To: Michael J. SawYer Subject: 'fhis E-mail includes attached filelsl sent from "Ricohl060' lAfido 10601. Scan Date: 06.30.2008 11:39:18 (-0500) Tl Sc 1