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HomeMy WebLinkAboutC22-278 Battle Mountain SCLicense Agreement for Rockfall Mitigation This License Agreement (the “Agreement”) is made this _______________ by and between Eagle County, Colorado, a body corporate and politic, acting by and through its Board of County Commissioners (the “County”) and Battle Mountain SC, LLC, a Colorado limited liability company (“Owner”). WHEREAS, Owner owns certain real property located above High Road, also known as County Road 709, in Eagle County, Colorado, and more particularly described on Exhibit A, attached hereto and incorporated herein by reference; and WHEREAS, the County desires to hire Geovert, LLC (the “Contractor”) to perform rockfall mitigation which will entail providing a 4-man crew, with three rope scalers to remove select loose rock hazards on the rockface of the Property; and WHEREAS, Owner desires to grant this License Agreement to allow County’s Contractor to access and enter onto its Property for the purpose of performing the Project; and WHEREAS, this License Agreement will govern the use and access to the Property. AGREEMENT For and in consideration of the mutual covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows: 1. Grant of Permission. The Owner hereby grants permission (which is revocable and terminable as provided below), to County’s Contractor to access and enter onto Owner’s Property for the purpose of using the License Area (defined herein) to perform rockfall mitigation which will entail providing a 4-man crew, with three rope scalers to remove select loose rock hazards on the rockface above County Road 709 (the “Project”), all on the terms and conditions set forth in this Agreement. The License Area is located on a portion of the Property above High Road/County Road 709 and is approximately 39,000 square feet in size or 0.9 acres and is generally depicted on Exhibit B, attached hereto and incorporated herein. County’s Contractor shall have at all times the full right of ingress to and egress from the License Area. This permission is granted for the purpose specified above and no other. Should the County or County’s Contractor use or attempt to use the License Area for any other purpose without the prior written consent of the Owner, the permission granted herein shall terminate immediately. 2. Term of Agreement. Subject to any earlier termination as provided for herein, the term of this Agreement shall commence effective July 1, 2022, and shall expire at 11:59 P.M. on September 30, 2022 (the "Term"). At the conclusion of the Term, County’s Contractor shall DocuSign Envelope ID: 2B1C7626-F5D0-43FA-B46D-C52ACABB7CDD 7/20/2022 2 remove from the License Area all materials and equipment used in the performance of the Project. The County shall remove and dispose of all rocks and debris associated with the Project. 3. Permission Not Exclusive. The permission granted to County’s Contractor under this Agreement is not exclusive to County’s Contractor with respect to use of the License Area by the Owner, by third parties or other licensees. Any additional uses of the License Area allowed by the Owner during the Term shall not unreasonably interfere with the use as allowed hereunder by County’s Contractor. 4. Improvements, Buildings or Structures. Except as specifically allowed pursuant to Section 1 herein, County’s Contractor shall not alter or make any improvements to the License Area, erect any structures on the License Area, or erect, or have erected or installed, or permit to remain on the License Area any temporary structures, fixtures, shelters, or other attachments without the prior written consent of the Owner, which may be withheld in the Owner’s sole and absolute discretion. 5. County Covenants. In consideration of the grant of the rights hereinabove set forth, the County covenants and agrees, in addition to the matters set forth above, as follows: (a) County shall cause County’s Contractor to at all times keep all equipment used on or in the License Area in good condition; (b) County shall cause County’s Contractor to at all times keep debris, trash and rubbish clear from the License Area following any activity on the License Area; (c) County shall not permit or suffer any excessive noise or nuisance whatsoever about the License Area or to allow County’s Contractor to use such License Area in any way so as to interfere with Owner’s use of the License Area or the use by other licensees or permittees of the Owner; (d) County shall not subject or assign this Agreement or any interest therein without the prior written consent of the Owner which may be withheld for any reason in its sole discretion; (e) County shall neither hold nor attempt to hold the Owner liable for any injury or damage, either proximate or remote, occurring through or caused by reason of the negligence of any person or party, or any default of any person occupying or using the License Area, nor shall the Owner be liable for any injury or damage occasioned by any condition of whatsoever kind or nature on the License Area during the License Period. 6. Insurance. County’s Contractor shall obtain and maintain during the Term the following insurance: (a) commercial general liability insurance for the protection of County’s Contractor, the County, Owner and their respective employees, agents and contractors, as their interests may appear, insuring against any liability arising out of the use, occupancy or maintenance of the License Area (including liability for death, personal injury and property damage), in the combined single limit amount of not less than $1,000,000.00; (b) worker's compensation insurance coverage as required by the statutes of the State of Colorado or any applicable federal or local laws or regulations in effect at any time during the Term for the protection of County’s Contractor; and (c) automobile liability insurance covering any auto (including owned, hired and DocuSign Envelope ID: 2B1C7626-F5D0-43FA-B46D-C52ACABB7CDD 3 non-owned autos) with a minimum limit of not less than $1,000,000 each accident combined bodily injury and property damage. Upon execution of this Agreement, County shall provide Owner with a certificate evidencing that County’s Contractor has obtained such policies of insurance. Each such policy shall name Owner and the County as an additional insured and shall contain provisions that it cannot be cancelled or modified except after 30 days' prior written notice to the Owner and the County and that the insurer waives its rights of subrogation under such policy as to any claim against the Owner or the County. 7. Termination. Owner reserves the right to terminate this Agreement and the permission granted herein at any time by giving the County at least seven (7) days' written notice of such termination, except that the Owner may, at its election, terminate this Agreement immediately without such notice at any time if County and/or County’s Contractor fails to comply with or abide by each and every provision contained in this Agreement, if the County and/or County’s Contractor willfully or deliberately violates any provisions or conditions of this Agreement, or on the grounds that health, safety or welfare requires such action. 8. Surrender of License Area. On revocation, surrender, or other termination of the permission granted by this Agreement, County’s Contractor shall quietly and peaceably surrender the License Area occupied by County’s Contractor in as good condition as such License Area was at the time of entry on such License Area by County’s Contractor, subject to removal of loose rock hazards as permitted in Section 1 hereof. 9. Damage to Personal Property. Owner shall not be responsible for any damage, theft, or vandalism done to the personal property of the County’s Contractor while such property is on the License Area, and County’s Contractor shall look exclusively to its own insurance coverage, if any, for recovery in the event of any such damage, loss or theft. 10. Binding. The parties understand and expressly agree that this Agreement shall bind and benefit the successors and assigns of the parties. 11. No Waiver. The failure of either party to this Agreement to insist upon the performance of any of the terms and conditions of this Agreement, or the waiver of any breach of any of the terms and conditions of this Agreement, shall not be construed as subsequently waiving any such terms and conditions. 12. Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Colorado. 13. Notices. All notices or other communications made pursuant hereto shall be in writing and shall be deemed properly delivered, given or served (i) when personally delivered, or (ii) two (2) calendar days after being deposited in the United States mail, certified or registered, postage prepaid, return receipt requested, or (iii) when delivered by FedEx or other comparable courier service, charges prepaid, to the parties at their respective addresses listed below. Either party DocuSign Envelope ID: 2B1C7626-F5D0-43FA-B46D-C52ACABB7CDD 4 may change its address for the purposes of this paragraph by giving five (5) days prior written notice of such change to the other party. Eagle County: County Manager Eagle County 500 Broadway P.O. Box 850 Eagle, CO 81631 With a copy to Eagle County Attorney 500 Broadway P.O. Box 850 Eagle, CO 81631 Owner: Battle Mountain SC LLC Attention: Phil Hadley 61 Dawn Harbor Lane Riverside, CT 06878-2608 14. Entire Agreement. This Agreement shall constitute the entire agreement between the parties and any prior understanding or representation of any kind preceding the date of this Agreement shall not be binding upon either party except to the extent incorporated in this Agreement. Modification of this Agreement shall be binding only if in writing and signed by each party. BATTLE MOUNTAIN SC, LLC, a Colorado limited liability company By:________________________________ Its: ______________________________ DocuSign Envelope ID: 2B1C7626-F5D0-43FA-B46D-C52ACABB7CDD Phillip Hadley 5 COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its County Manager By:______________________________ Its: Jeff Shroll, County Manager DocuSign Envelope ID: 2B1C7626-F5D0-43FA-B46D-C52ACABB7CDD 6 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY A parcel of land located in Eagle County, Colorado within Sections 1, 12, 13 and 24 of Township 6 South, Range 81 West, 6th P.M. and in Sections 5, 6, 7, 8, 9, 16, 17, 18, 19, 20, 21, and 29 of Township 6 South, Range 80 West, 6th P.M DocuSign Envelope ID: 2B1C7626-F5D0-43FA-B46D-C52ACABB7CDD 7 EXHIBIT B GENERAL DEPICTION OF LICENSE AREA DocuSign Envelope ID: 2B1C7626-F5D0-43FA-B46D-C52ACABB7CDD DocuSign Envelope ID: 2B1C7626-F5D0-43FA-B46D-C52ACABB7CDD DocuSign Envelope ID: 2B1C7626-F5D0-43FA-B46D-C52ACABB7CDD DocuSign Envelope ID: 2B1C7626-F5D0-43FA-B46D-C52ACABB7CDD