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Home My WebLink AboutC24-458 Fading West Building Systems_fifth amendment1 FIFTH AMENDMENT TO SUPPLY AGREEMENT AND PURCHASE ORDER BETWEEN FADING WEST BUILDING SYSTEMS, LLC AND EAGLE COUNTY, COLORADO THIS FIFTH AMENDMENT (“Fifth Amendment”) is effective as of _________________, by and between Fading West Building Systems, LLC a Colorado limited liability company (hereinafter “Fading West”) and Eagle County, Colorado, a body corporate and politic (hereinafter “Purchaser”). RECITALS WHEREAS, Fading West and Purchaser entered into a Supply Agreement and Purchase Order agreement dated the 18th day of April, 2023, for the purchase of Modular Units (the “Original Agreement”); and WHEREAS, a First Amendment to the Original Agreement (“First Amendment”) was executed on the 11th day of August, 2023, to remedy the typographical errors identified on page seventeen (17) of the Original Agreement; and WHEREAS, a Second Amendment to the Original Agreement (“Second Amendment”) was executed on the 10th day of October, 2023, in order for Purchaser to purchase heat pump system upgrades for the Modular Units; and WHEREAS, a Third Amendment to the Original Agreement (“Third Amendment”) was executed on the 2nd day of April, 2024, in order for Purchaser to purchase additional Energy Recovery Ventilators (“ERVs”) and an upgraded roof truss package from Fading West for the Modular Units; and WHEREAS, a Fourth Amendment to the Original Agreement (“Fourth Amendment”) was executed on the 12th day of September, 2024, in order provide Eagle County a credit for unprovided bathroom mirrors; and WHEREAS, the Original Agreement, First Amendment, Second Amendment, Third Amendment, and Fourth Amendment provide that the total cost for the purchase of the Modular Units and credit for unsupplied mirrors shall not exceed $2,039,846.24; and WHEREAS, the Modular Units were completed at various times throughout July, August, and September 2024; and WHEREAS, Section 6.3.3 of the Original Agreement, which was not subsequently modified by the First Amendment, Second Amendment, Third Amendment, or Fourth Amendment, provides that “Storage fees shall apply to each Modular Unit stored at Fading West’s storage location beyond fourteen (14) calendar days from the Completion Date. For each Modular Unit stored after fourteen (14) calendar days, Purchaser shall pay Fading West $100.00 per day, per individual Modular Unit;” and Docusign Envelope ID: 4377098B-F750-44B0-93AA-B5443EB3CB87 11/13/2024 2 WHEREAS, Purchaser has been unable to ship the Modular Units from Fading West’s storage location due to current roadway restrictions implemented by the Colorado Department of Transportation; and WHEREAS, because Purchaser is unable to ship the Modular Units for reasons beyond Purchaser’s control, the parties now desire to modify the storage fees of the Modular Units set forth in Section 6.3.3 of the Original Agreement. FIFTH AMENDMENT NOW THEREFORE, in consideration of the foregoing and the mutual rights and obligations as set forth below, the parties agree as follows: 1. Section 6.3.3 of the Original Agreement, which has not previously been amended, shall be amended to read as follows: 6.3.3 Storage Fees. Due to a State of Colorado requirement for on-going inspections of completed Modular Units, storage of completed Modular Units results in significant ongoing costs. Storage fees shall apply to each Modular Unit stored at Fading West’s storage location beginning on October 1, 2024. Any applicable storage fees from July, August, and September 2024 are waived. For each Modular Unit stored at Fading West’s storage location beginning on October 1, 2024, Purchaser shall pay Fading West $30.00 per day, per individual Modular Unit. Purchaser acknowledges storage fee charges must be paid prior to Modular Unit Transport. Purchaser agrees to make reasonable efforts to ship the Modular Units on or around November 8, 2024. 2. The storage fees as calculated pursuant to amended Section 6.3.3 set forth in this Fifth Amendment and set forth in Exhibit 1 to this Fifth Amendment shall increase the total cost of the Modular Units by $28,080.00. The total maximum compensation under the Original Agreement, First Amendment, Second Amendment, Third Amendment, Fourth Amendment, and Fifth Amendment for purchase of the Modular Units shall not exceed $2,067,926.24. 3. Capitalized terms in this Fifth Amendment will have the same meaning as in the Original Agreement, First Amendment, Second Amendment, Third Amendment, and Fourth Amendment. To the extent that the terms and provisions of the Fifth Amendment conflict with, modify or supplement portions of the Original Agreement, the First Amendment, the Second Amendment, Third Amendment, or the Fourth Amendment the terms and provisions contained in this Fifth Amendment shall govern and control the rights and obligations of the parties. 4. Except as expressly altered, modified and changed in this Fifth Amendment, all terms and provisions of the Original Agreement, First Amendment, Second Amendment, Third Amendment, and Fourth Amendment shall remain in full force and effect, and are hereby ratified and confirmed in all respects as of the date hereof. Docusign Envelope ID: 4377098B-F750-44B0-93AA-B5443EB3CB87 3 5. This Fifth Amendment shall be binding on the parties hereto, their heirs, executors, successors, and assigns. IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment to the Original Agreement the day and year above written. COUNTY OF EAGLE, STATE OF COLORADO, By and Through Its BOARD OF COUNTY COMMISSIONERS By: ______________________________ Matt Scherr, Chair Attest: By: _________________________________ Regina O’Brien, Clerk to the Board Fading West Building Systems, LLC By: _____________________________________ Print Name: ______________________________ Title: ___________________________________ Docusign Envelope ID: 4377098B-F750-44B0-93AA-B5443EB3CB87 Director of Client Services Chad M Cline SUPPLY AGREEMENT FIFTH AMENDMENT This Supply Agreement FIFTH Amendment (this “FIFTH Amendment”) is entered into on 01 October 2024, by and between Fading West Building Systems, LLC, a Colorado limited liability company, located at 1950 McCormick Place, Buena Vista, CO 81211 (“Fading West”) and Eagle County, a body corporate and politic (“Purchaser”). In consideration of the terms and mutual promises contained herein, and pursuant to the Supply Agreement the Parties agree as follows: Fading West is amending the storage fee values from $100 per day per unit to $30 per day per unit with an effective date of 01 October 2024. Under the assumption that a reasonable effort to begin shipping units is made on or around 08 November 2024. Unit Count Days Cost @ $30/day Little Bear(ADU) 16 39 $18,720.00 Antero 8 39 $9,360.00 Total $28,080.00 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date. FADING WEST BUILDING SYSTEMS, LLC By: __________________________ Name: Chad M Cline Title: Director of Client Services PURCHASER By: __________________________ Docusign Envelope ID: 4377098B-F750-44B0-93AA-B5443EB3CB87