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HomeMy WebLinkAboutC25-254 License Agreement for Installation and Operation of a Stream Monitoring StationLicense Agreement for Installation and Operation of a Stream Monitoring Station This License Agreement for Installation and Operation of a Stream Monitoring Station (this “Agreement”) is made on ____________, between Eagle County, Colorado, a body corporate and politic, by and through its Board of County Commissioners (“Licensor”), whose address is 500 Broadway, P.O. Box 850, Eagle, Colorado 81631, and the Town of Eagle, a political subdivision of the State of Colorado, by and through its Board of Trustees (“Licensee”), whose address is P.O. Box 609, Eagle, Colorado 81631. 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. Licensor hereby grants to Licensee the nonexclusive, personal, revocable license to enter upon certain real property of Licensor, described and defined below as the “License Area”, for the purpose of installing and operating a combined Stream Monitoring Station and Temperature Monitoring Station (collectively, the “SMS”), all on the terms and conditions set forth in this Agreement. The SMS to be installed and operated hereunder shall conform to those specifications described and depicted on the attached Exhibit “A”. The permission granted herein is for the purpose specified above and no other. Should Licensee use or attempt to use the License Area for any other purpose without the prior written consent of Licensor, which consent may be withheld in Licensor’s sole discretion, this Agreement shall be subject to immediate termination by Licensor. Licensee shall, at Licensee's expense, procure every permit, license, certificate or other authorization required in connection with Licensee’s lawful and proper use of the License Area. 2.License Period. The term of this Agreement shall commence on May 1, 2025 (the "Commencement Date") and shall continue through April 30, 2026 (the "License Period"). Subject to any earlier termination as provided for herein, this Agreement shall be automatically extended for additional license periods of twelve (12) months. The Parties may, by duly executed written amendment to this Agreement, extend the term of this Agreement on terms mutually acceptable to each Party. 3.Description of License Area. Licensor owns certain real property known as “The Brush Creek Confluence Open Space” located at 111 Violet Lane in Eagle, Colorado, generally described in the Eagle County Assessor Records as parcel 2109-052-00-005 (the “Property”). The specific area within the Property where Licensee is granted permission to enter and install and operate the SMS hereunder is referred to as the “License Area”, the coordinates of which are described and depicted on the attached Exhibit “B”. The specific ingress and egress routes (the “Ingress/Egress Routes”) by which Licensee is granted permission to access the License Area are described and depicted on the attached Exhibit “C”. Licensee shall only access the License Area and depart from the License Area by way of the Ingress/Egress Routes. Licensor acknowledges that vehicular access by Licensee may, under certain limited circumstances, be necessary when the SMS is delivered, installed, maintained, repaired, or replaced. Licensee agrees to use reasonable efforts to limit the frequency, duration, and impact of its use of vehicles on the Property. Licensee acknowledges that the License Area consists of undeveloped land and accepts the License Area in its "AS IS" condition. Licensor does not warrant or make any representations, express or implied, relating to the quantity, condition, suitability or FITNESS FOR ANY PURPOSE WHATSOEVER of the License Area. Licensor has no liability whatsoever to undertake any repairs, alterations, removal, remedial actions, or other work of any kind with respect to any portion of the License Area or the Stream Monitoring Station. Docusign Envelope ID: D3E0C58B-9B17-4923-A002-7509D189D15D 6/10/2025 4. License Fee. Licensor will not charge a fee for the grant of rights set forth herein. Licensor shall have all of the protections available to it under Colorado law including limitations of liability set forth in C.R.S. 24-10- 101, et seq. 5. Permission Not Exclusive. The permission granted to Licensee under this Agreement is not exclusive to Licensee with respect to use of the License Area and the Ingress/Egress Routes by Licensor, third parties or tenants, the grazing of livestock, or agricultural use. 6. Improvements, Buildings or Structures. Licensee is authorized to install only the SMS in the License Area. Licensee shall not make any other improvements to the License Area, erect any permanent buildings or other 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 improvements or attachments placed on such License Area by Licensee or the guests, invitees, or licensees of Licensee, without the prior written consent of Licensor, which may be withheld in Licensor’s sole and absolute discretion. 7. Licensee’s Covenants. In consideration of the grant of the rights hereinabove set forth, Licensee covenants and agrees, in addition to the matters set forth above, as follows: (a) Licensee shall be responsible for the installation, maintenance, operation, repair and replacement of the SMS in accordance with professional standards and in a manner that does not have any material adverse effect on the Property or on streamflow; (b) Licensee shall be responsible for all fees, costs and expenses, including but not limited to, labor costs, travel expenses, parts, service, repair, removal, replacement, mileage charges, supplies, mailing charges, installation, testing, communications, order and order tracking, reporting, debugging, analysis, delivery charges and any other expenses associated with the installation, operation, maintenance, repair or removal of the SMS; (c) Licensee shall not cut or permit any of Licensee's guests, invitees, or licensees to cut any growing trees or shrubbery on the License Area without prior written approval of Licensor; (d) Licensee shall not permit or suffer any disorderly conduct, excessive noise or nuisance whatsoever about the License Area or use such License Area in any way so as to interfere with Licensor’s and any tenant of Licensor’s use of the Property; (f) Licensee shall not install any utilities to the License Area; (g) Licensee shall not install any signage in the License Area without the prior written permission of Licensor; (h) Licensee shall make available or provide access to the data and information generated by the SMS to Licensor; (i) Licensee shall at all times strictly observe all wildlife laws whether state, federal or local, and shall comply with all rules and regulations concerning the Property; (j) Licensee shall not subject or assign this Agreement or any interest therein without the prior written consent of Licensor which may be withheld for any reason in the sole discretion of Licensor; (k) Licensee expressly covenants and agrees to restore, at its sole cost and expense, the License Area and all conditions thereof, harmed or damaged by Licensee’s use or occupancy of the License Area; and (l) Licensee shall neither hold nor attempt to hold Licensor 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 the License Area, nor shall Licensor be liable for any injury or damage occasioned by any condition of whatsoever kind or nature on the License Area. 8. Assumption of Risk. Licensee, as a material part of the consideration to Licensor, hereby assumes all risk of damage to property or injury to persons in, upon or about the License Area arising from any cause other than the negligence of Licensor or any of Licensor’s agents, contractors or employees and Licensee hereby waives all claims against Licensor in respect of the risks assumed. Subject to Sections 12 and 13 hereof and to the extent permitted by law, Licensee shall indemnify and hold harmless Licensor, and any of its officers, agents and employees against any losses, claims, damages or liabilities for which Licensor may become subject to insofar as any such losses, claims, damages or liabilities arise out of, directly or indirectly, this Agreement, or are based upon any performance or nonperformance by Licensee hereunder; and Licensee shall reimburse Licensor for reasonable attorney fees and costs, legal and other expenses incurred by Licensor in connection with investigating or defending any such loss, claim, damage, liability or action. This indemnification shall not apply to claims by third parties against Licensor to the extent that Licensor is liable Docusign Envelope ID: D3E0C58B-9B17-4923-A002-7509D189D15D to such third party for such claims without regard to the involvement of Licensee. This paragraph shall survive expiration or termination of this Agreement. 9. Surrender of License Area. Upon surrender, or other termination of this Agreement, Licensee shall quietly and peaceably surrender the License Area occupied by Licensee in the condition as such License Area was in at the time of Licensee's entry on such License Area and Licensee shall, at its sole cost and expense, remove the SMS, and any other fixtures, equipment, and other things related to the SMS and placed by Licensee on such License Area, and shall return the License Area to the condition it was in at the commencement of Licensee’s entry into this Agreement. 10. Damage to Personal Property. Licensor shall not be responsible for any damage, theft, or vandalism done to the SMS or other personal property of the Licensee or the licensees, invitees or guests of Licensee while such property is on the License Area, and Licensee shall look exclusively to its own insurance coverage, if any, for recovery in the event of any such damage, loss or theft. 11. Termination. Either party may terminate this Agreement at any time and for any reason, with or without cause, and without penalty therefor with thirty (30) calendar days’ prior written notice the other party. Upon surrender or other termination of this Agreement, Licensee shall, within 10 (ten) business days, remove the SMS in accordance with Section 9 hereof. In the event Licensee fails to remove the SMS as required herein, Licensor may remove and dispose of the SMS and charge the costs of said removal and disposal to Licensee. 12. Annual Appropriation. Pursuant to Article X, Section 20 of the Colorado Constitution, the parties’ obligations hereunder are subject to the annual appropriation of funds necessary for the performance thereof, which appropriations will be made in the sole discretion of each party’s governing board. 13. Insurance. Licensor and Licensee are "public entities" within the meaning of the Colorado Governmental Immunity Act, C.R.S. §24-10-101 ("CGIA"). Both parties shall, at all times during the term of this Agreement, maintain any such liability insurance, whether by commercial policy or self-insurance, as is necessary to meet any liability under the CGIA. Licensee shall include Licensor its officers, employees, and agents, as additional insured under its policy of insurance. Licensee’s insurance shall be primary and non-contributory as respects any covered claim against an additional insured arising out of the premises or operations of the named insured. Each party shall be responsible for any suits, demands, costs, or actions at law resulting from its own acts or omissions. Upon request, Licensee shall deliver a certificate of insurance to Licensor that conforms to these requirements. 14. No Waiver of Liability or Immunity. The parties hereto intend that nothing herein shall be deemed or construed as a waiver by either party of the monetary limitations or any other rights, immunities, defenses, and protections afforded to them under the CGIA, or otherwise available to Licensor or to Licensee or to their respective officers or employees. 15. Binding. The parties understand and expressly agree that this Agreement shall bind and benefit the successors and assigns of the parties. Neither party shall assign its interest in this Agreement without the other party’s prior written consent. 16. 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. 17. Governing Law and Venue. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Colorado. Venue for any action arising out of this Agreement shall be in the District Court in and for Eagle County, Colorado. 18. 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 Docusign Envelope ID: D3E0C58B-9B17-4923-A002-7509D189D15D respective addresses listed above. Either party 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. 19. 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. This Agreement may be executed in counterparts and by electronic signatures, which taken together shall constitute the original. WITNESS our signatures as of the day and date first above stated. LICENSOR: Eagle County, Colorado By and through its Board of County Commissioners By: _____________________________________ Jeanne McQueeney, Chair Attest: By:________________________________________ Becky Close, Eagle County Clerk LICENSEE: Town of Eagle By: ____________________________________ Scott Turnipseed, Mayor Attest: By: Jenny Rakow, Town of Eagle Town Clerk Docusign Envelope ID: D3E0C58B-9B17-4923-A002-7509D189D15D Exhibit A - Specifications Docusign Envelope ID: D3E0C58B-9B17-4923-A002-7509D189D15D SHEET1STREAMFLOW GAGETYPICAL DETAIL11CROSS SECTION DETAIL21RIVER INTAKE DETAIL31TYPICAL PROPOSED INSTALLATIONDocusign Envelope ID: D3E0C58B-9B17-4923-A002-7509D189D15D SHEET1TEMPERATURE GAGETYPICAL DETAIL11CROSS SECTION DETAIL21CROSS SECTION DETAILNOTES:(1)DO NOT MIX METALS BETWEEN FITTINGS AND PIPE SEGMENTS.(2)CO-LOCATE COMPRESSED AIR LINES WITH OTHER CONDUIT IN THESAME TRENCH WHEN FEASIBLE.Docusign Envelope ID: D3E0C58B-9B17-4923-A002-7509D189D15D Exhibit B – License Area Docusign Envelope ID: D3E0C58B-9B17-4923-A002-7509D189D15D Docusign Envelope ID: D3E0C58B-9B17-4923-A002-7509D189D15D Exhibit C – Ingress/Egress Docusign Envelope ID: D3E0C58B-9B17-4923-A002-7509D189D15D Docusign Envelope ID: D3E0C58B-9B17-4923-A002-7509D189D15D