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HomeMy WebLinkAboutC09-214 First Amendment to Temporary Access Agreement• • FIRST AMENDMENT TO TEMPORARY ACCESS AGREEMENT THIS FIRST AMENDMENT TO TEMPORARY ACCESS AGREEMENT (hereinafter "First Amendment") is made and entered into this Ly of July 2009, between Gypsum Investors, LLC (hereinafter "Owner") and Eagle County, by and through its Board of County Commissioners (hereinafter "County"). Owner and County shall collectively be referred to as the Parties. WHEREAS, owner and County entered into a Temporary Access Agreement dated June 30, 2008 (hereinafter "Original Agreement") for the use of a portion of Owner's property in Gypsum Colorado as a haul road access from Highway 6 for the County's runway extension project. WHEREAS, the Original Agreement's term was from June 9, 2008 to August 15, 2008. WHEREAS, the Parties are now desirous of amending the term of the Original Agreement to run through the October 1, 2009. THEREFORE, in consideration of the terms and conditions of the Original Agreement and the provisions in this First Amendment, the sufficiency of which is hereby acknowledged, Owner and County agree that this First Amendment shall replace and supersede those section(s) of the Original Agreement as modified herein. 1. Article II -Term, shall be deleted in its entirety and replaced with the following: The term of this Agreement shall run through October 1, 2009. In no event shall this Agreement be renewed for a period beyond this term, unless mutually agreed to in writing by the Parties. 2. Article III, paragraph 1, Indemnification, shall be deleted in its entirety and replaced with the following: 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. To the extent allowed by law, County will indemnify Owner and hold 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. This includes all responsibility related to regulatory infractions, government enforcement actions, permit violations, reclamation requirements, and compliance with zoning and other government regulations. This also includes • • actions that occur off of the Property (i.e. on Highway 6) which may have the effect of causing Owner costs, losses or damages. 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. 3. Article IV, paragraph 3, Site Work, the following language shall be added to Article IV, paragraph 3: County shall coordinate with the Colorado Division of Reclamation Mining and Safety to determine how to conduct re- vegetation of the area affected by the "haul road" with the obligations in the permit for the former Elam gravel pit. 4. Article IV, paragraph S, Site Work, the following new paragraph 5 shall be added to Article IV: 5. County shall ensure that adequate sanitation facilities are provided on the Property for the County's employees and contractors. 5. Article V, Paragraphs ,Prohibited Uses, the following new paragraphs shall be added to Article V: 3. County shall not remove any aggregate or material from the Property. 4. County shall not permit any camping or use of the Property outside of normal work hours. Article X -Hold Over, shall be deleted in its entirety and replaced with the following: County acknowledges that the term of this Agreement expires on October 1, 2009 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, then: (a) County shall pay a fee to Owner of $5,000 for each 30 day period (whether an entire 30 day period or a partial period) of the hold over, and (b) such holding over shall be subject to all the conditions, provisions and obligations of this Agreement insofar as the same are applicable. • ~• TERM SHEET 1) Requested hearing date: July 14, 2009 2) Reauesting department: Project Management 3) Title: Airport Runway Project: First Amendment (Temporary) to Access Agreement with Gypsum Investors 4) Staff submitting: Rick Ullom 5) Purpose: Extension of time for Contractor's Large Equipment access to North Side of Airport Project. 6) Schedule: Present -October 1, 2009 7) Financial Considerations: $4,600.00 -will be back charged to Contractor as part of the Project. Contractor is agreeable. 8) Other: None ~' ` r ~ ~ ~ ~~. ': :: ~~ l~PPR A ORM S Ea our ty tt rney's O e ~V:-.:-- Cagle Cou o mi ,rs' Office • • 7. County shall pay owner a one time use fee in exchange for the access and use rights to Owner's property granted by the Original Agreement and this First Amendment. Said fee shall be $4,600, which fee shall be paid within fourteen (14) days of the execution of this First Amendment. 8. Owner and County agree that, except as expressly altered, modified and changed in this First Amendment, all terms and provisions of the Original Agreement shall remain in full force and effect, and hereby are ratified and confirmed in all respects as of the date hereof. 9. If any conflict exists between the provisions of this First Amendment and the Original Agreement, the provisions of this First Amendment shall control. IN WITNESS WHEREOF, the parties have executed this First Amendment on the day and year first above written. COUNTY: COUNTY OF EAGLE, STATE OF COLORADO By and Through its Board of County Commissioners i By: er, airman ATTES ., By: , Teak Simonton ,~ Clerk to the Board of County Commissk ~~`` OWNER: GYPSUM INVESTORS, LLC By: Richard Kaba Manager