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Home My WebLink About1.14 RFTA Private way licenseMRI May 2012 Appendix M RFTA Private Way License 6 Limited Impact Review Appendix M [This page was left blank intentionally.] Contract No. 374.90 This license cancels and supercedes contract #26222 PRIVATE WAY LICENSE THIS PRIVATE WAY LICENSE AGREEMENT ("Agreement") is made and entered into October 1, 2003 by and between TI -IE ROARING FORK TRANSPORTATION AUTHORITY, hereinafter called the "RFTA", and IRMW, LLC., of Carbondale, Colorado, hereinafter called the "Licensee." WITNESSETH, that RFTA, for and in consideration of the covenants and agreements of the Licensee contained herein and upon the terms and conditions stated, hereby Iicenses and permits the construction, maintenance and use of a non-exclusive Private Way ("Private Way") across its property within the rail corridor ("Corridor") of RFTA, the Private Way being located in Garfield County, Colorado, at approximate mile marker 374.90 on the Aspen Branch, and more particularly described on the attached Exhibit "A". THIS LICENSE is expressly conditioned upon the performance by the Licensee of all the covenants and agreements hereinafter set forth, and it is also hereby stipulated that a waiver by RFTA of any breach of any such covenant or agreement shall in no way impair the right of RIS TA to avail itself of any subsequent breach of the same or any other covenant or agreement. "PRIVATE WAY" shall mean a non-exclusive way for travel for pedestrians, vehicles, implements and livestock. It is expressly stipulated that the Private Way is to be a strictly private one and is not intended for public use, its use shall be limited to the Licensee, its family, guests, invitees, Iessees, tenants, employees and those having business with the Licensee, its lessees or tenants. The term "Private Way" shall include without limitation such grading, pavement, buildings, approaches, planking, ditches, drains, drain boxes, culverts, cattle guards, wing fences and fences (if present), gates, poles for the raising of overhead wires for proper clearance, and such signals, bells, sign posts and signs and other safety devices on the Private Way as shall be as reasonably required by RFTA, or which may at any time be required by any Local, State or Federal law, or by any order of any Local, State or Federal officer or regulatory board having jurisdiction over such matters. 1. Maintenance and Repair. The Licensee shall, at the sole cost and expense of the Licensee, maintain the Private Way in a safe manner that prevents damage to ItFTA's property and improvements. The right of RFTA to relocate or remove the Private Way shall in no manner or degree relieve the Licensee's responsibility to RFTA or to other persons or corporations for the failure of the Licensee to properly maintain, relocate or remove the Private Way. 2. Limitations on Rights Granted. This License is without covenant of title or quiet enjoyment and is subject and subordinate to a reservation of the prior and continuing right of RFTA to all other uses of the Corridor, including the right to construct, use, maintain, repair, ackt- n l0 : HARTERT & WILSON 210 TENTH H STREET GLENWOOD SPRINGS, CO 81601 IRMW, LLC, Private Way License #374.90 Page 1 of 9 relocate and renew in RFTA's sole discretion any and all improvements, including without limitation tracks, overhead lines, pipelines, busways, trails and other facilities upon, along, over, under or across any or all parts of the Corridor, all of which may be done at any time by RFTA without prior notice and without liability to Licensee or to any other party for compensation or damages. This License is subject and subordinate to all existing leases, licenses, easements, permits, claims of title or other interests and as may in the future be modified, renewed or extended by RFTA, including but not limited to any fiber optic cable. 3. License Fee. The Licensee agrees to pay to RFTA, in advance, the sum of $1000.00, for the License herein granted. Unless this License is sooner terminated as hereinafter set forth, the Licensee agrees to pay the License Fee on the first anniversary of this License Agreement and annually thereafter in the same amount or such greater amount based on the Consumer Price Index (CPI) Factor (see paragraph 21) as may be fixed by RFTA, at RFTA's discretion. 4. No Interference with RFTA's Uses. The Licensee at the Licensee's expense, shall keep any track, busway, trail or other improvement constructed at the Private Way clean and free from dirt, rocks and other material, and shall not damage or permit the damaging of any track, busway, trail or other improvement on the corridor, or permit any condition which RFTA determines in its discretion may interfere with the safe operation of locomotives, railcars, trains or other vehicles or the use of any trail over the railroad corridor. 5. Protection of Drainage. Any and all cuts and fills, excavations or embankments necessary in the maintenance for Licensee's use of the Private Way shall be made and maintained in such manner, form and extent as will provide adequate drainage of the Private Way, the Corridor, and adjoining lands. Wherever any fill or embankment may obstruct the natural and pre-existing drainage from such lands, Licensee shall construct and maintain sufficient culverts or drains as may be required to accommodate and preserve such natural and pre-existing drainage. 6. Environmental Protection. Licensee shall, at its expense, comply with all applicable laws, regulations, rules and orders regardless of when they become or became effective, including, without limitation, those relating to health, safety, noise, environmental protection, waste disposal, and water and air quality, and furnish satisfactory evidence of such compliance upon request of RFTA with regard to activities of Licensee or his agents on the Private Way. Should any discharge, leakage, spillage, emission or pollution of any type occur upon or arise from the Private Way as a result of Licensee's use, presence, operations or exercise of the rights granted hereunder, Licensee shall immediately notify RFTA and shall, at Licensee's expense, clean all property affected thereby, to the reasonable satisfaction of RFTA (insofar as the property owned or controlled by RFTA is concerned) and any governmental body having jurisdiction in the matter. RFTA may, at its option, clean RFTA's property of such discharge referred to above, and Licensee shall indemnify, defend and hold RFTA harmless from and against all claims, liability, costs and expenses (including without limitation, any fines, penalties, judgments, litigation costs and attorneys' and consultants' fees and expenses) incurred by RFTA as a result of any such discharge, leakage, spillage, emission or pollution by Licensee. IRMW, LLC, Private Way License #374.90 Page 2of9 7. Protection of Underground Cable. Licensee acknowledges that Qwest Communications Corporation or its successor has an easement for underground cable along the Corridor and that fiber optic cable is buried through the Corridor and possibly under the Private Way. Licensee, at least five (5) days prior to performing any excavation activities on the Corridor or Private Way, shall notify RFTA at (970) 704-9282 and shall notify Qwest at 1 -800 - AT -FIBER (a 24-hour number) to receive a Qwest Communications Corporation control number. Prior to beginning any work on the Private Way, Licensee shall determine where any telecommunications system is buried on or about the Private Way, the names of the telecommunications company(ies) involved, arrange for a cable locator, determine whether arrangements for relocation or other protection of the fiber optic cable is required and shall so notify RFTA. Any such relocation or protection shall be at Licensee's expense. 8. Protection of Trail and Conservation Easement. Licensee acknowledges that the Corridor is subject to and encumbered by conservation covenants running with the land held by the State Board of the Great Outdoors Colorado Trust Fund for the protection of the Conservation and Trail Values. The Licensee agrees not to undertake any additional construction activity within the Corridor, not contemplated in this Private Way License, without first obtaining the written approval of RFTA. The notice address for RFTA is as follows: RFTA c/o Corridor Manager P.O. Box 1270 Carbondale, Colorado 81623 9. Any Future Work to Require Permit. The Licensee shall not enter upon the Corridor except for the purpose of access or constructing the Private Way, or demolition of pre-existing encroachments without a special written permit first had and obtained from RFTA, except in cases of an emergency when work is necessary to avert injury to persons or loss or damage to property. All work of maintenance, relocation or removal shall be done by the Licensee in such manner as to cause no interference with the constant, continuous and uninterrupted use of the tracks, trails, buildings or other improvements of RFTA now in place or as may be installed in the future by RFTA in RFTA's discretion. 10. RFTA's Right to Alter, Relocate, or Remove. This License shall not be deemed to give the Licensee exclusive possession of any part of the premises described, but RFTA shall have the unimpaired right to construct, maintain, repair, relocate or remove track, trails, buildings or appurtenant structures or other improvements deemed appropriate in RFTA's discretion and nothing shall be done or suffered to be done by the Licensee at any time that shall in any manner impair the usefulness or safety of any property of RFTA or of any track, trail, building or appurtenant structure or other improvement to be hereafter constructed. RFTA shall have the right at any and all times hereafter to construct, maintain and operate such additional IRMW, LLC, Private Way License #374.90 Page 3 of 9 tracks, trails, buildings, appurtenant structures or other improvements on the Corridor, as RFTA may from time to time elect. 11. Liens. Licensee shall pay in full all persons who perform labor or provide materials on the Private Way for Licensee and will use his best efforts to prevent any mechanics' or materialmen's liens to be enforced against RFTA's Corridor or the Private Way for work done or materials furnished at Licensee's instance or request. If any such liens are filed thereon, Licensee agrees to remove the same at Licensee's own cost and expense and to pay any judgment, which may be entered thereon or thereunder. Licensee may contest the lien at his own cost and expense and provide a bond to RFTA during the proceedings. Should Licensee fail, neglect or refuse to remove the lien , RFTA may pay any amount required to release any such lien or liens, or to defend any action brought thereon, and to pay any judgment entered therein, and Licensee shall be liable to RFTA for the payment of any such liens or judgment and any and all costs, expenses, damages, attorneys' and consultants' fees and expenses, and any other amounts expended in defending any such proceedings. 12. Licensee's Assumption of Liability. The Licensee assumes the entire burden and duty of preventing the use of the Private Way by any persons, firms or corporations, other than those mentioned herein for whose benefit the Private Way is licensed; and Licensee assumes all liability for damage to or destruction of property, injury to or the death of persons resulting from the use of the Private Way by persons other than those for whose benefit the Private Way is licensed, or resulting from the failure on the part of the Licensee to maintain the Private Way in safe condition. 13. Indemnification. The Licensee shall at all times protect, indemnify, defend and save RFTA harmless from any and all claims, demands, judgments, cost, expenses, and all damage of every kind and nature made, rendered or incurred by or in behalf of any person or corporation whatsoever, in any manner due to or arising out of any claim for injury to or death of any person, or any claim for damage to property of any person or persons whomsoever, including the parties hereto and their officers, families, servants and employees, in any manner arising from or growing out of the construction, maintenance, operation, repair, extension, renewal, existence, use or removal of the Private Way, or the failure to properly construct, operate, maintain, renew or remove the same by Licensee or Licensee's contractors, family, guests, invitees, employees or agents pursuant to this Agreement, and from all costs and expenses, including attorneys' and consultants' fees and expenses, connected in any way with the matters and things contained in this License Agreement. Neither the right of supervision by RFTA of the location, installation, operation and the maintenance of the Private Way, nor the exercise or failure to exercise the right, nor the approval or failure to disapprove, by RFTA of the location, installation, operation and maintenance of the Private Way, nor the election of RFTA to repair, construct, reconstruct or remove the whole or any part of the Private Way, shall be deemed a waiver of the obligations of the Licensee contained in this License Agreement, expressed or implied. 14. RFTA's Right to Terminate License. If the Licensee shall fail to operate, use, maintain or remove the Private Way in accordance with the terms of this License Agreement and IRMW, LLC, Private Way License #374.90 Page 4 of 9 to the entire satisfaction of RFTA, or shall fail to pay to RFTA any License Fee or any other sum of money for the construction, repair, extension, renewal, relocation or removal of the Private Way, or shall fail to adjust the Private Way to any changes made by RFTA, or shall in any respect fail to keep and perform any of the conditions, stipulations, covenants and provisions of this License Agreement to be kept and performed by the Licensee, this License Agreement shall at the option of RFTA be void and of no effect; and this License shall immediately cease and terminate and RFTA shall have the right to remove the Private Way and restore the right of way and premises of RFTA at any time thereafter at the sole expense of the Licensee. Any termination hereunder shall be effective ten (10) days following notice delivered to Licensee. Any notice herein provided for shall be deemed given and delivered if mailed in an envelope properly stamped and addressed to the Licensee at Licensee's last known address. Termination of this License for the convenience of RFTA shall occur only if the RFTA Board votes by a 2/3 majority to do so, and only after notice delivered to Licensee six (6) months prior to planned termination of the License. 15. Licensee's Duty to Remove Private Way Upon Termination. Within thirty days after the abandonment or termination of this License, the Licensee, at Licensee's sole expense, shall, if RFTA so desires the Licensee to do, remove the Private Way and all its appurtenances and restore or construct the premises of RFTA, including all right-of-way fences and drains, to a condition which will be satisfactory to RFTA, and if the Licensee fails to do so, RFTA may do such work of removal, restoration and construction at the expense of the Licensee. In the event of the removal of the Private Way as in this section provided, RFTA shall not be liable to the Licensee for any damage sustained by Licensee for or on account of such removal, and such removal shall not prejudice or impair any right of action for damages or otherwise which RFTA may have against the Licensee. 16. License Assignability. The Licensee shall not assign this License or any interest therein directly or indirectly, nor encumber the same without the written consent of RFTA first had and obtained. RFTA shall not unreasonably withhold the assignment of this License by Licensee, and may, at it's sole discretion, issue a new license rather than allowing the assignment of this license, provided that the new license issued is consistent with the terms and conditions of this License. The covenants, stipulations and conditions of this License shall extend to and be binding upon RFTA and, if assigned , its successors and assigns, and shall extend to and be binding upon the Licensee and the heirs, administrators, executors, successors and assigns of the Licensee. 17. Headings. The section headings contained in this License Agreement are inserted for convenience only and are not intended to in any way affect the meaning or interpretation of any such section or provision of this License Agreement. 18. Governing Law. This License Agreement shall be governed and construed in accordance with the laws of the State of Colorado. IRMW, LLC, Private Way License #374.90 Page 5 of 9 19. Amendments and Waivers. No amendment of any provision of this License Agreement shall be valid unless the same shall be in writing and signed by RFTA. No waiver by RFTA of any default or breach of any covenant or agreement hereunder shall be deemed to extend to any prior or subsequent default or affect in any way any of RFTA's rights arising by virtue of any prior or subsequent default. 20. Severability. Any term or provision of this License Agreement that is held by a court of competent jurisdiction to be invalid or unenforceable shall not affect the validity or enforce ability of the remaining terms and provisions of this License Agreement. 21. Basis of Rent Adjustment/Rental Revision. The Base Rent shall automatically and without notice to Licensee be adjusted, upwards only, on each anniversary of the Effective Date, by the CPI Factor. The "CPI Factor" is the percentage of adjustment stated in the Consumer Price Index established during the last available twelve-month period immediately preceding each anniversary of the Effective Date, adjusted to the nearest one-tenth of one percent. The CPI Factor will be used as indicated on the Consumer Price Index, Urban Wage Earners and Clerical Workers, U.S. City Average, All Items (1982-84 = 100), ("Index"), published by the United States Department of Labor, Bureau of Labor Statistics, or any successor or substitute index published as a replacement for the Index by any United States governmental agency; or the fair rental value of the Premises at the time of said revision. The Base Rent, as so increased, shall be effective as of each anniversary of the Effective Date if increased by the CPI Factor and as of the effective date of any other increase, notwithstanding RFTA's acceptance of a lesser amount and notwithstanding any billing by RFTA for a lesser amount. 22. Entire Agreement. This License Agreement constitutes the entire agreement between the parties and supercedes all prior understandings, agreements or representations among them, written or oral, that may have related in any way to the subject matter hereof. IN WITNESS WHEREOF, the parties hereto have executed this License Agreement. [Signatures follow on next page] IRMW, LLC, Private Way License #374.90 Page 6 of 9 LICENSOR: ROARING FORK TRANSPORTATION AUTHORITY By: _ 4 ---- : Mike Hermes, Corridor Manager LICENSEE: IRMW, LLC By: ii()41 12(;/I (print name) (title) IRMW, LLC, Private Way License #374.90 Page 7 of 9 NOTARY ACKNOWLEDGEMENT STATE OF COLORADO County of (14,4W„Ft ELD The foregoing instrument was acknowledged before me this day of l.0 -66- 2a,) t2061.3 by MIKE HERPES, CORRIDOR MANAGER OF ROARING FORK TRANSPORTAION AUTHORITY My Commission expires FleiOrLiar Witness my hand and offici Form NOTARY .ACK 5, x005 NOTARY ACKNOWLEDGEMENT STATE OF COLO County of The foregoing instrument was acknowledged before me this day of (('/'v %a 24 ZOO by WILLIAM RICE, MANAGER OF IRMW, LLC My Commission expires Witness my hand and official seal. ELLEN M. LIPSCOMB NOTARY PUBLIC STATE OF COLORADO My Commission Expires Sept, 21, 2006 Form NOTARY.ACK Notary Public EXHIBIT "A" A 60 -foot wide area, to place a paved private road crossing at grade extending northerly across the 100 -foot wide right-of-way of the Aspen Branch main track of the RFTA, at Mile Post 374.90 more or less, near Carbondale, Garfield County, Colorado, within the southwest quarter of Section 34 Township 7 South, Range 88 West, Sixth. Principal Meridian, as shown on the attached map. Said private road crossing is for the purposes of ingress and egress to the following land in Garfield County, State of Colorado: A parcel of land comprising all of Lot 14, and parts of Lots 11, 12, 13, 15, 16 and 17 in Section 35, Township 7 South, Range 88 West of the 6th PrincipaI Meridian and part of Lot 15 in Section 36, Township 7 South, Range 88 West of the 6t' Principal Meridian and pat-ts of Lot 1 and 2 in Section 2, Township 7 South, Range 88 West of the 6`h Principal Meridian, as described more fully in the Garfield County Index for Informational Land Survey Plats under Reception Number Licensee shall receive written permission with conditions from RFTA to place any new improvements to this intersection at the location shown prior to initiation of construction. 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' .......- . ..7.',:',..,....6- , . , , 5...L ...,.. ,...,..• ),_, . „.„4......,..,!!: 4 ' ,,' ' . , , , , „. ;,:14,...,....1.7.c. -W :, -i.-- , .... ... -4 -•-• ---?,-:--'1; - ..• •-•1,‘..," .,-:v. frvi.,_^,'1••• L-- • ,-, . , -• -4 -;••• _ ......._„........„--- IRMW, LLC, Private Way License #374.90 Page 9 of 9