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HomeMy WebLinkAboutC07-250 Union Pacific Railroad_lease8-9-07 LICENSE AGREEMENT THIS LICENSE AGREEMENT ("License"), is made and entered into this day of 1 2007, by and between UNION PACIFIC RAILROAD COMPANY, a Delawa corporation, having an office at 1400 Douglas Street, Mail Stop 0640, Omaha, Nebraska 68179, (hereinafter referred to as "Licensor") and Eagle County, a Government entity with an office at 500 Broadway, Eagle, Colorado 81631 (hereinafter referred to as "Licensee"). RECITALS: Licensor operates an existing Communications Facility on federal land under a Communications Use Lease with the United States Department of the Interior, Bureau of Land Management (BLM). Said Facility is located on a tract of land situate in the Southeast quarter of the Southeast quarter of Section 21, Township 4 South, Range 86 West, 6"' Principle Meridian, in Eagle County, Colorado (the "Licensor's Site"). Electrical power is currently supplied to Licensor's Site by solar panels. Licensee wishes to locate antennas on Licensor's eighty-five (85) foot tower located within Licensor's Site. Licensee also wishes for Licensor to provide to Licensee an area of 200 square feet adjacent to the Tower to accommodate Licensee's 10 foot by 20 foot equipment shelter (the "Equipment Shelter") and an area to accommodate a 30 KW propane generator. Licensee's site plan is attached hereto as Exhibit A. Licensee is currently working on a separate agreement (the "Power Line Agreement") with the BLM which, if successful, will allow Licensee to have commercial AC power brought to the site. AGREEMENT: NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES HERETO AS FOLLOWS: Section 1: RELOCATION OF LICENSOR'S SOLAR PANEL ARRAY Licensee shall be allowed to relocate Licensor's solar panel array to a location agreeable to by both parties. Licensee shall supply detailed plans to Licensor on the means of that relocation for Licensor's approval. The relocation shall be completed in such a matter that will not cause a disruption in the solar panel array function. The actual movement of the solar panel array shall be scheduled and coordinated with Licensor. All costs associated with the solar panel array relocation shall be borne by Licensee. Section 2. LICENSEE SHELTER SPACE Following the relocation of Licensor's solar panel array Licensee shall then have the right to place Licensee's 10 foot by 20 foot Equipment Shelter in the location vacated by the solar panel array in accordance with Exhibit A. Section 3. LICENSE OF TOWER SPACE Licensor, for and in consideration of the rental arrangements between Licensor and Licensee provided in Section 5 below, hereby grants to Licensee the right to place one (1) six-foot microwave dish at the 45 foot level of Licensor's 85 foot tower and one (1) six-foot microwave dish at the 35 foot level of Licensor's 85 foot tower. Licensor also grants Licensee the right to place two (2) 44" stick antennas at the 40 foot and 60 foot level of Licensor's 85 foot tower. Licensee shall be allowed to run one run of microwave antenna wave -guide to each dish and one run of 7/8 inch coaxial antenna cable to each stick antenna. Said antennas to be used by licensee for use in the operation of Licensee's public safety radio system. Licensee shall not use the tower for any other purposes without the prior written consent of Licensor. Section 4. COMMERCIAL AC POWER INSTALLATION Following Licensee's successful execution of the Power Line Agreement with the BLM Licensee agrees to arrange for construction and installation of a commercial AC power line ("Power Line") to supply power to Licensor's Site. Licensee shall be responsible for paying all costs associated with the construction and installation of said Power Line. Upon completion of said Power Line Licensor shall be allowed to connect to said Power Line and use it to supply AC power to Licensor's existing equipment, as well as any equipment Licensor may add in the future. Licensor will be responsible for payment for the electricity Licensor's equipment consumes. Section 5. EMERGENCY POWER Licensee, at Licensee's sole cost shall provide and install one 30KW propane generator to be located on Licensor's Site in accordance with Exhibit A. Said propane generator shall be configured and used to supply emergency backup power to both Licensee and Licensor. Licensee shall maintain said propane generator at Licensee's sole cost. Section 6. TERM A. Subject to the terms and conditions of Section 12 relating to termination, and Section 6C below, the initial term of this License is for the period of ten (10) years, commencing on the date installation of Licensee's facilities and/or equipment begins (the " • Commencement Date"). B. Thereafter, so long as neither party is in default, the term of this License shall automatically renew without any further documentation on a year to year basis until terminated by either party at any time by such party giving the other party six (6) months written notice of termination. Each yearly renewal shall be upon the same terms and conditions set forth in this License. C. Licensor hereby grants to Licensee a right of first offer to purchase Licensor's tower at said tower's appraised value (as determined by the average between an appraisal done by Licensor and an appraisal done by Licensee) only in the event Licensor elects to cease operations at Licensor's Site and/or elects to sell the tower and/or terminate Licensor's Communications Use Lease with the BLM. If such event should occur and if Licensee elects to make a written offer to Licensor, it shall do so within twenty days after the appraised value has been determined. Licensor shall take into account the special rent-free provisions contained in this License when reviewing Licensee's offer. If Licensee declines to submit an offer, Licensor may sell the Tower to a third party, subject to this License, and Licensor will assign this License to the third party purchaser, or Licensor may remove the tower at Licensor's cost and terminate this Agreement. D. This Agreement may be terminated at any time by either party, with or without cause. Such termination will be accomplished by delivery of a Notice of Termination to the other Party specifying the date upon which such termination shall become effective. Licensee will only be responsible for rental payments through the date of termination." Section 7. RENTAL; RENTAL REEVALUATION; SERVICE FEE. A. After Licensee has completed the construction and activation of the AC power line, Licensee shall provide written evidence to Licensor of costs incurred by Licensee in constructing the power line, including the costs of plans, surveys, engineering for the power line, generator and generator installation. Licensee agrees that all other costs associated with Licensee's equipment installation, including, without limitation, site preparation, foundations and other construction costs, shall be at Licensee's sole cost and expense and shall not be included in determining Licensee's rent- free period. If Licensee's costs related to the construction of the AC power line do not exceed One Hundred Twenty Thousand Dollars ($120,000.00), Licensor will use such actual as -constructed costs in determining a rent-free period covering Licensee's use of space on Licensor's Site for Licensee's Communications Facility. Licensor shall calculate such rent-free period by taking one-half of Licensee's total as -constructed costs (if such costs do not exceed $120,000.00) and divide that figure by $12,000.00. Such calculations will determine the number of years (or fraction thereof) that Licensee will receive free rent with the understanding that the rent-free period will not exceed five (5) years. After the rent-free period ends, Licensee shall pay to Licensor an annual rent of $12,000.00 on or before each anniversary of the Commencement Date, partial years prorated and subject to the rental increase provisions contained in Section 5B below. Licensor and Licensee will execute an addendum to this License after actual costs and the rent free period have been determined to document actual costs and the rent-free period. 3 he rent-free period ends, the monthly rent will be increased annually by three B. After t percent (3°l0) over the previous year rent. e contrary contained in this Agreement, no charges C. Notwithstanding anything to th be made to Licensor without the. written shall be made to the Licensee nor shall any payment lorado Revised Statutes and the County in accordance with a budget adopted by the Board of County Commssioners approval of the C y S. Article 2501 et. l e30 The parties recognize that the Client is a in accordance with the provisions offRArticle 25 of Title 30 of t e rare subject to Local Government Budget Law (C mental entity and that all financial obligations beyond the current fiscal year govern appropriated. funds being budgeted and appro p D, Should Licensee not be successful in executing the Power Line Agreement and the nd Power Line cannot be constructed then there will be norent-free period Date.ensee will be require to start paying annual rent as outlined herein as of the Commenceme Section S. INSTALLATION OPERATION AND MAINTENANCE. A. The installation, operation, maintenance, repair and removal of Licensee s equipment dance with the requirements and specifications of Licensor's Engineer; and prior to shall be in accor approval of Licensor of the means and installation thereof, Licensee shall submit se and receive the app the tower e make accomplishment thereof. Licensee shall provide the maintenance andrepairof Licensee's manner of accompli equipment. Licensee shall not at any timh of Licensors a additional attachments without the writtenpermission the existence of this License, Licensor agrees that Licensee shall hauof ll insB During Equipment Shelter for the Purpose access only to Licensee's equipmenl and removde ing equipment. Only authorized personnel installing, operating, maintaining, repairing of Licensee shall be permitted access to Licensee's equipment and Equipment Shelter. equipment installation, operation, maintenance, repair and removal shall in C. Licensee's materially damage the premises or tower and shall ins e further agrees that the installation, noway ma Y Stem (if applicable). Licensee of the tower or tower lighting system operation, maintenance, repair and removal of Licensee's equipment cComm'ssion (FCC) and with all applicable rules and regulations of the FederalCommunications uurisdiction. electrical codes of any other governmental authority having j eliminate interference ing to D. Licensee shall provide assistance toLicensor Licensor hawhile s granted ore than one license problems that involve Licensee's equipment. In the anyriot he Tower, the most recent licensee shall be responsible and facilities unlessfa prior agreement of t caused by the installation and/or ps equ'pm eqtiouipment thereby causes interference. licensee modifies its communications Section 9. INSURANCE. M the state(s) in which the Job Site is located. If Licensee fails to procure and maintain insurance as required, Licensor may elect to do so at the cost of Licensee. The fact that insurance is obtained by Licensee shall not be deemed to release or diminish the liability of Licensee, including, without limitation, liability under the indemnity provisions of this Agreement. Damages recoverable by Licensor shall not be limited by the amount of the required insurance coverage. Section 10. USE OF TOWER AND PREMISES BY THIRD PARTIES A. During the existence of this License, Licensor agrees that permission shall not be granted to any third party for the installation or use of radio or any other equipment on the tower if such installation and/or use will in any way affect or interfere with Licensee's rights hereunder. Licensee warrants that its use of the premises will not interfere with existing radio frequency user(s) on the Licensor's Site as long as the existing radio frequency user(s) operate and continue to operate within their frequencies and in accordance with all applicable laws and regulations. B. Licensor will not permit its employees, tenants, licensees, invitees or agents to use any portion of Licensor's Site in any way that interferes with the operations of Licensee or the rights of Licensee under this License. Licensor will cause such interference to cease upon not more than twenty-four (24) hour notice from Licensee. In the event any such interference does not cease within the aforementioned cure period then the parties acknowledge that Licensee will have the right to elect to enjoin such interference or to terminate the License upon notice to Licensor. Section 11. ASSUMPTION OF RISK; INDEMNITY A. Licensee accepts the tower and premises in its present condition and hereby assumes the risk of any injury to and death of persons and damage to or destruction of property resulting from the condition of or any defects anywhere in or upon the tower and premises, regardless of whether such condition or defects are known or unknown, apparent or latent, and regardless of whether such condition or defects exist at the commencement of this License or at some later time. B. The occupation of and activities upon the tower and/or premises by Licensee will expose Licensor's Site, operations and facilities to additional hazards; and as one of the material considerations for this License, Licensee agrees to assume the risk of and to indemnify and hold harmless Licensor as follows: Licensee assumes the risk of and shall indemnify and hold harmless Licensor, and its affiliates, their officers, agents and employees, against and from any and all liability, loss, damage, claims, demands, costs and expenses of whatsoever nature, including court costs and attorneys' fees, arising from or growing out of any injury to or death of persons whomsoever or loss of or damage to property whatsoever. The right to indemnify, and hold harmless shall accrue when such injury, death, loss or damage occurs from any cause and is associated in whole or in part with, incidental to or caused by the construction, occupation or use of the Tower R and/or Premises, or any activity upon the Tower and/or Premises by Licensee, its employees or agents, or by any person on or near the Tower and/or Premises by reason of any relation, contractual or otherwise, with Licensee, its officers, employees or agents, or caused by Licensee's breach of this License. Licensee shall not indemnify and hold harmless Licensor when any such injury, death, loss or damage is caused by the sole direct negligence of Licensor, its officers, employees or agents. Section 12. TERMINATION. In the event that either party breaches any provision of this License, the non -breaching party shall provide written notice to the breaching party of such default. If the default is not remedied within thirty (30) days following receipt of such notice, the non -breaching party shall have the right to terminate this License. In addition to the right of termination, the non -breaching party shall be entitled to exercise all rights possessed at law or in equity. Section 13. NOTICE A. Any notice, demand, request, consent, approval or communication that either party hereto desires or is required to give to the other party under this License shall be in writing. Notice shall be deemed to have been given to Licensee by serving Licensee personally or by mailing the same, postage prepaid, to Licensee at: Eagle County Barry Smith P.O. Box 850 Eagle, Colorado 81631-0850 Notice may be given to Licensor by mailing the same, postage prepaid, to the office of: Union Pacific Railroad Company David Burden 1400 Douglas Street, Mail Code 0640 Omaha, Nebraska 68179 B. Postal notices shall be by certified mail, return receipt requested, and such notice shall be deemed given on the date deposited with the United States Postal Service. Section 14. CONSENT Wherever the consent, approval, judgment or determination of Licensor is required or permitted under this License, Licensor shall exercise good faith and reasonable business judgment in granting or withholding such consent or approval or in making such judgment or determination and shall not unreasonably withhold or delay its consent, approval, judgment or determination. Section 15. SURRENDER; ABANDONMENT; VACATION OF PREMISES; REMOVAL OF LICENSEE'S PROPERTY 7 Licensee agrees that upon the expiration or abandonment of the Licensor's Site by Licensee, or sooner termination of this License, Licensee will peacefully and quietly surrender occupation of the premises to Licensor, or Licensor's successors and assigns, without Licensor giving any notice to quit or demand for possession. Licensee's non-use of the tower and premises for the purposes described in this License continuing for one (1) year shall be sufficient and conclusive evidence of such abandonment, unless Licensee shall have notified Licensor in writing of its reasons for such non-use, and shall continue to pay rent as and when due to Licensor. No later than the expiration or termination date of this License, Licensee shall (a) remove from the tower and premises, at the expense of Licensee, all structures, property and other materials belonging to Licensee; and (b) restore the surface of the ground to as good a condition as the same was in before such structures were erected and/or constructed, including, without limiting the generality of the foregoing, the removal of foundations of such structures to a depth of three (3) feet, the filling in of all excavations and pits, and the removal of all debris and rubbish, all of which shall be performed at Licensee's expense. If Licensee should fail to perform such removal, Licensor may perform the work and Licensee shall reimburse Licensor for the cost thereof within thirty (30) days after the bill is rendered. Section 16. LICENSEE NOT TO SUBLET OR ASSIGN Licensee agrees not to sublet the Licensor's Site, in whole or in part, or to assign this License without the consent in writing of Licensor, and it is agreed that any transfer or assignment of this License, whether voluntary, by operation of law or otherwise, without such consent in writing, shall be absolutely void and, at the option of Licensor, shall terminate this License. Notwithstanding the foregoing, however, Licensee shall not require Licensor's consent in order to assign this License, either in whole or in part, to any entity controlling, controlled by or under common control of Licensee, or to any entity which acquires substantially all of the assets of Licensee. Section 17. SUCCESSORS AND ASSIGNS Subject to the provisions of Section 14 hereof, this License shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Section 18. PERMITS; LICENSES; EASEMENTS Licensee shall obtain all necessary licenses and permits for the use of the Licensor's Site as contemplated by this License. Such licenses and permits are to be obtained by Licensee at no additional expense to Licensor. Section 19. GOVERNING LAW This License shall be governed in accordance with the laws of the State of Colorado. IN WITNESS WHEREOF, Licensor and Licensee have each duly executed this License as of the date first herein written. UNION PACIFIC RAILROAD COMPANY, an E. F. 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