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business days of being notified by the County of the need for such repairs. The <br /> Company acknowledges that the Haul Route may be temporarily closed to Company <br /> travel until repairs are completed should the County determines that the condition of the <br /> Roads is a safety hazard to vehicles travelling on the Roads. <br /> d. In the event that the Company fails to complete the repairs required by the <br /> County, pursuant to this Agreement, the County may draw upon the Performance <br /> Guarantee to effect the repairs in accordance with the provisions of the surety bond or <br /> letter of credit. In the event that the Performance Guarantee is not sufficient to cover the <br /> cost of repairs, the Company shall be liable to the County for all reasonable and <br /> competitively bid costs (including reasonable attorney fees and costs) incurred by the <br /> County in repairing the affected Roads to substantially the same condition they were in <br /> immediately prior to the use by the Company and recovering the costs of such repairs. <br /> The Company shall have a right to receive details of all expenses incurred by the <br /> County. <br /> e. The County may, in emergency situations,and acting reasonably,and <br /> without giving any notice to the Company as required elsewhere in this Agreement, take <br /> immediate and all action necessary to close a County Road and either complete repairs <br /> to the Haul Route Roads that the County deems to be an emergency and necessary for <br /> public safety or to require the Company to take immediate action. The Company may <br /> also in emergency situations, and acting reasonably, and without first giving any notice <br /> to the County as required elsewhere in this Agreement, take immediate action to <br /> remove its vehicles and equipment on the Haul Route Roads. The County and the <br /> Company shall provide notification to each other of any emergency action taken under <br /> this Agreement as soon as is reasonably practicable. <br /> f. The Company shall indemnify the County against all actions, proceedings, <br /> claims,demands and costs suffered by the County to the extent that they are directly or <br /> indirectly attributable to damage caused by the Company, its employees, agents, <br /> contractors or subcontractors to the Haul Route Roads, but such indemnity shall not <br /> apply to the intentional acts or negligence of the County, its employees, agents, <br /> contractors or subcontractors. The Company's liability to the County shall be limited to <br /> direct damages and shall exclude other liability,including,without limitation, liability for <br /> special, indirect, punitive or consequential damages in contract, tort, warranty, strict <br /> liability or otherwise. Nothing in this Agreement shall be construed as a waiver to the <br /> County's defenses or protection that exist under the Colorado Governmental Immunity <br /> Act. <br /> g. No party shall be deemed to be in default with respect to non-performance <br /> if due to strikes, lockouts, fire, storm, acts of God or terrorists, or any other cause <br /> (whether similar or dissimilar to those enumerated) beyond its control; but lack of <br /> finances shall in no event be deemed to be cause beyond a party's'control. <br /> -7- <br /> ActiveUS 175104252v.1 <br />