HomeMy WebLinkAboutbocc.ord.027.1995AN ORDINANCE OF THE BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO,
APPROVING A LICENSE AND USE AGREEMENT FOR
THE USE OF ROOFTOP AREA ON THE
AIRCRAFT RESCUE AND FIREFIGHTING (ARFF) BUILDING AT THE
ASPEN /PITKIN COUNTY AIRPORT FOR THE
TRANSMISSION AND RECEPTION OF CELLULAR
TELEPHONE AND RADIO COMMUNICATIONS SIGNALS, AND
FOR THE INSTALLATION, MAINTENANCE, REPAIR OR REPLACEMENT
OF RELATED FACILITIES, ANTENNAS, EQUIPMENT AND RELATED ACTIVITIES
Ordinance No. 1995
1. Pitkin County owns and operates the Aspen /Pitkin County
Airport, also known as Sardy Field (hereinafter the "Airport ") and
& Firefi ht ng (ARFF) building (hereinafter the
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the Aircraft Rescue g
Fairport firehouse" or the "ARFF bui lding ") does maintain various
spaces for the use of the public and from time to time does and
shall license or permit the use of parts of these areas to various'`;
individual, firms or corporations to serve the users of the
Airport; and,
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2. The County has authority to regulate commercial activities on
Airport property, to enforce these regulations and to set and
collect fees for these commercial activities, pursuant to, inter
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alia C.R.S 41 - 4 - 101, et secr. , and the Pitkin County Airport
Regulations (Title IV, Pitkin County Code);
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THEREFORE, BE IT ORDAINED BY THE BOARD OF COUNTY COMMISSIONERS OF
PITKIN COUNTY, COLORADO:
Section 1
That the License & Use Agreement, which is attached hereto as
Exhibit "A" and is incorporated herein by this reference, is herebya
approved and adopted according to the stated terms and conditions.
Section 2 .�
That the Chair (or Vice- Chair) of the Board of County Commissioners;
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is hereby authorized and directed to execute on behalf of the
County the subject Agreement and any other documents necessary to
to form by
accomplish the transactions that have been approved as
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the County Attorney.
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Section 3
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That a copy of this Ordinance, including all Exhibits, shall be
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kept for public inspection to the time of the public Hearing hereon
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during regular business hours in the office of the Director of
East Airport Road,
Aviation, Aspen /Pitkin County Airport, 0233
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Suite A, Aspen, Colorado 81611.
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Section 4
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That a public Hearing on this Ordinance shall be duly- noticed and
held as provided by law..
Section 5
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That this Ordinance may be published by title and short outline
only after adoption.
INTRODUCED, FIRST READ AND SET FOR PUBLIC HEARING AT THE REGULAR
MEETING ON THE 11TH DAY OF OCTOBER 1995.
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PUBLICATION OF ORDINANCE IN FULL AND NOTICE OF PUBLIC HEARING MADE
IN THE ASPEN TIMES WEEKLY ON THE 24TH DAY OF NOVEMBER AND THE 1ST
DAY OF DECEMBER 1995.
APPROVED AND ADOPTED AFTER SECOND READING AND PUBLIC HEARING ON THE
20th DAY OF December 1995.
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PUBLISHED AFTER ADOPTION BY TITLE AND SHORT OUTLINE IN THE ASPEN
TIMES WEEKLY ON THE 30 DAY OF 1995.
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ST: BOARD OF COUNTY COMMISSIONERS
OF PITKIN COUNTY, COLORADO
By /Z
anette J es (date) Mick Ireland (date)
eputy Cl k & Recorder Chairman
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MANAGER APPROVAL:
APPROVED AS TO FORM:
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Su Anne Konc an
John Ely
Co y Manager
County Attorney��
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APPROVED AS TO BUDGET:
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Tom Oken
Hilary ith
Administrative Services
Risk Manager
Scott E. Smith
Director of Aviation
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State: Colorado
City: Aspen
Cell I.D.: Aspen Airport
ROOFTOP LICENSE AGREEMENT
THIS ROOFTOP LICENSE AGREEMENT (this "License ") is entered into this �'°`'� day of
1995 ( "Execution Date ") between the Aspen/Pitkin County Airport ( "Landlord ") and Colorado
Hig ountry Ce 1 ar, a Limited Partnership ( "Tenant ").
1. Premises Subject to the following terms and conditions, Landlord Licenses to Tenant certain space
within and on the side of the building (the "Building ") located on the real property (the "Property ") described in the
attached Exhibit A. The location and orientation of Tenant's space together with access and utilities, is described and
depicted in attached Exhibit B (collectively referred to hereinafter as the "Premises ").
The Premises, located at the Aircraft Rescue & Firefighting building at 0233 East Airport Road, Pitkin County,
Colorado, comprises approximately 121 square feet.
2. Term The initial term of this License shall be one year, commencing upon the earlier of (a) written
notification by Tenant to Landlord of Tenant's receipt of all Governmental Approvals, or (b) two months from the
Execution Date of this License (the "Commencement Date "), and terminating at Midnight on the last day of the month in
which the first annual anniversary of the Commencement Date shall have occurred.
i` If Tenant shall not have obtained all Governmental Approvals on or before the date specified in 2(b) above, then
Tenant shall, by notice to Landlord, have the right to cancel all rights and obligations under this License, provided Tenant
reimburses Landlord for actual, reasonable, legal or other preparatory expenses incurred to a maximum of $500.00.
3. Permitted Use The Premises may be used by Tenant only for permitted uses, which are the
transmission and reception of cellular telephone and radio communication signals and for the installation, maintenance,
repair or replacement of related facilities, antennas, equipment and related activities. Tenant shall obtain, at Tenant's
expense, all licenses and permits or authorizations required for Tenant's use of the Premises from all applicable
government and/or regulatory entities (the "Governmental Approvals ") and may (prior to or after the Commencement
Date) obtain a title report, perform surveys, soils tests, and other engineering procedures or environmental investigations
on, under and over the Property, necessary to determine that Tenant's use of the Premises will be compatible with Tenant's
engineering specifications, system, design, operations and Governmental Approvals. Landlord agrees to reasonably
cooperate with Tenant (at no cost to Landlord), where required, to perform such procedures or obtain Governmental
Approvals. Landlord agrees that Tenant shall have the right to immediately terminate this License if Tenant notifies
Landlord of unacceptable results of any title report or of the survey or soils tests prior to Tenant's installation of the
Antenna Facilities (as defined below) on the Premises. Landlord also agrees that if, based on the result of any
environmental investigation or inquiry, Tenant determines that the condition of the Property is unsatisfactory or if Tenant
believes that leasing or continued leasing of the Premises would expose Tenant to undue risks of government action or
intervention or third -party liability, Tenant may, without any penalty or liability, immediately terminate this Rooftop
License Agreement.
4. Rent
Upon the Commencement Date, Tenant shall pay Landlord, as rent, the sum of Six - Hundred Fifty
Dollars ($650.00) per month ( "Rent "). Rent shall be payable on the first day of each month in advance to Landlord at
Landlord's address specified in Paragraph 13 below.
5. Renewal Tenant shall have the right to extend this License for four additional one -year terms
( "Renewal Term "). Each Renewal Term shall be on the same terms and conditions as set forth herein except that Rent
shall be increased each term by a percentage equal to the percentage increase in the Consumer Price Index for the Denver
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Metropolitan Statistical Area. Rent shall not increase more than four percent (4 %) of the rent paid over the rent paid over
the preceding term.
G. Interference Tenant shall not use the Premises in any way which interferes with the use of the
Property by Landlord, or tenants or licensees of Landlord, with rights to the Property prior in time to Tenant's (subject to
Tenant's rights under this License, including non - interference). Similarly, Landlord shall not use, nor shall Landlord
permit its tenants, licensees, employees, invitees or agents to use, any portion of Landlord's properties in any way which
interferes with the operations of Tenant. Landlord agrees to notify Tenant prior to the installation of any additional
communications facilities on Landlord's property in an effort to ascertain any interference possibilities. Tenant's written
approval on the design and placement of additional communication facilities is required; said approval not to be
unreasonably withheld.
Such interference shall be deemed a material breach by the interfering party, who shall, upon notice
from the other, be responsible for terminating said interference. In the event any such interference does not cease
promptly, the parties acknowledge that continuing interference may cause irreparable injury and, therefore, the injured
party shall have the right, in addition to any other rights that it may have at law or in equity, to bring action to enjoin such
interference or to terminate this License immediately upon notice.
7. improvements; Utilities; Access
a. Tenant shall have the right, at its expense, to place and maintain on the Premises
improvements, personal property and facilities described in Exhibit C attached hereto which include radio transmitting
and receiving antennas (the "Antenna Facilities "). Landlord's prior consent to the plans and specifications for such
improvements shall be required but shall not be unreasonably withheld or delayed and shall be deemed given as to those
items listed in Exhibit C hereto. Tenant shall have the right to replace or upgrade the Antenna Facilities at any time
during the term of this License. Tenant shall cause all construction to occur lien -free and in compliance with all
applicable laws and ordinances. The Antenna Facilities shall remain the exclusive property of Tenant. Tenant shall have
the right to remove the Antenna Facilities upon termination of this License.
b. Tenant shall, at Tenant's expense, keep and maintain the Premises and all buildings and
improvements now or hereafter located thereon in commercially reasonable condition and repair during the term of this
License. Upon termination of this License, the Premises shall be returned to Landlord in good, usable condition.
C. Tenant shall have the right to install utilities, at Tenant's expense, and to improve the present
utilities on the Premises (including, but not limited to the installation of emergency power generators). Landlord hereby
grants Tenant the right to place any utilities on, or to bring utilities across, the Property in order to service the Premises
and the Antenna Facilities. Tenant shall install separate meters for utilities used on the Property. In the event separate
meters can not be installed, Tenant shall pay the periodic charges for all utilities attributable to Tenant's use. Tenant shall
have the right to install necessary conduit and sleeving from the antennas to the point of equipment connection.
d. As partial consideration for rent paid under this License, Landlord hereby grants Tenant
ingress, egress, and access to the Premises adequate to service the Premises and the Antenna Facilities at all times during
the term of this License or any Renewal Term. Upon notice, Landlord shall have the right, at Landlord's sole expense, to
relocate the ingress, egress and access to Tenant, provided such new location shall not materially interfere with Tenant's
operations. Any ingress, egress and access provided hereunder shall have the same term as this License.
C. Landlord represents and warrants that the Premises are now and shall continue in the future to
be operated, managed and maintained in compliance with all applicable Federal, State and local laws and regulations.
f. Tenant shall have 24- hours -a -day, 7- days -a -week access to the Premises at all times during the
term of this License and any Renewal Term.
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8. Default Any of the following occurrences, conditions, or acts shall be deemed a "Default" under this
License:
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a. if Tenant fails to pay amounts due under this License within ten (10) days of its receipt of
written notice that such payments arc overdue;
b, if either party fails to observe or perform its obligations under this License and does not cure
such failure within thirty (30) days from its receipt of written notice of breach; or such longer period as may be required to
diligently complete a cure commenced within the 30 -day period.
9. Termination Except as otherwise provided herein, this License may be terminated, without any
penalty or further liability as follows:
a. upon ten (10) days' written notice in the event of a Default (as defined above);
b. upon ninety (90) days' written notice by Tenant, if Tenant is unable to obtain, maintain, or
otherwise forfeits or cancels any license, permit or Governmental Approval necessary to the construction and/or operation
of the Antenna Facilities or Tenant's business;
C. upon ninety (90) days' written notice by Tenant if the Premises arc or become unacceptable
under Tenant's design or engineering specifications for its Antenna Facilities or the communications system to which the
Antenna Facilities belong;
d. immediately upon written notice if the Premises or the Antenna Facilities arc destroyed or
damaged so as in Tenant's reasonable judgment to substantially and adversely affect the effective use of the Antenna
Facilities. In such event, all rights and obligations of the parties shall cease as of the date of the damage or destruction,
and Tenant shall be entitled to the reimbursement of any Rent prepaid by Tenant. If Tenant elects to continue this
License, then all Rent shall abate until the Premises and/or Antenna Facilities arc restored to the condition existing
immediately prior to such damage or destruction;
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C. at the time title of the Property transfers to a condemning authority, pursuant to a taking of all
or a portion of the Property sufficient in Tenant's determination to render the Premises unsuitable for Tenant's use.
Landlord and Tenant shall each be entitled to pursue their own separate awards with respect to such taking. Sale of all or
part of the Premises to a purchaser with the power of eminent domain in the face of the exercise of the power, shall be
treated as a taking by condemnation.
10. Taxes Tenant shall pay any personal property taxes assessed on, or any portion of such taxes
attributable to, the Antenna Facilities. Landlord shall pay when due all real property taxes and all other fees and
assessments attributable to the Property. However, Tenant shall pay, as additional Rent, any increase in real property
taxes levied against the Property (excluding any additional taxes that relate to the period prior to the Commencement
Date) which is directly attributable to Tenant's use of the Property, and Landlord agrees to furnish proof of such increase
to Tenant.
11. Insurance
Tenant will provide Commercial General Liability Insurance in an aggregate amount of $1,000,000.00
and name Landlord as an additional insured on the policy or policies. Tenant may satisfy this requirement by obtaining
appropriate endorsement to any master policy of liability insurance Tenant may maintain.
12. Hold Harmless Tenant agrees to hold Landlord harmless from claims arising from the installation,
use, maintenance, repair or removal of the Antenna Facilities, except for claims arising from the negligence or intentional
acts of Landlord, its employees, its agents or independent contractors.
13. Notices All notices, requests, demands and other communications hereunder shall be in writing and
shall be deemed given if personally delivered or mailed, certified mail, return receipt requested, or sent by overnight
carrier to the following addresses:
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lf0o Landlord, Wu: l[ho Tenant, to:
oCounty Airport Colorado High Country Cellular, oLimited
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0233 East Airport Road 1001 lGUh Street, Suite [-1
Aspen CO 81611 Don/nr CO 80265
Attn Airport Administrator Attim8de Acquisition Department
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14. Ouiet En Title and Authority. Landlord covenants a Tenant Um10� Land
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has full right, power, and authority to execute this License; (ii) Landlord has good and unencumbered title to the Property
and the Building free and clear of any liens or inortgagccs except those disclosed to Tenant which will not interfere with
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Landlord covenants t at all times during the term of this License, Tenant's quiet ciijoyractit nf t Premises mr
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any part thereof shall not bu disturbed uo long uoTenant io not in default beyond any applicable grace orcure period.
15. Environmental Laws. Tenant represents, warrants and agrees that h will conduct its activities oothe
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9»opertyioonoup6unccwb6uDupplioublcEnvimoumun1u)L:no(umduUnud{nu11ucbcdBsbibitC). Landlord represents,
warrants and ugnoeo that it will in the future conduct its uo|lrbiuu on the Property in compliance with all applicable
Environmental Laws and t t Property is free of Hazardous Substance (as dcfincd in attached Exhibit C) as of the dat
o[ this License.
Landlord shall be responsible for, and shall promptly conduct any investigation and rcmcdiation as required by
any 8ovinoomono1u} Laws or common law, of all upO\n or other mo\cuuoo of Hazardous Snbo1unnn not nuuncd solely by
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Tenant, that have occurred or which may occur oo the Property.
Tenant agrees 1odefend, iodoounify and hold Landlord huoo\oux from and against any and all claims, causes of
action, domundm and liability including, but not limited to, dumu8ou, costs, ospuouos, assessments, penalties, 6nco, louaco
judgments Landlord may suffer due to the existence or discovery of any H
th Property or the migration o[ any Hazardous Substance to other properties or released into the environment arising
solely from Tenant's activities oo the Property.
Landlord agrees tudefend, indemnify and hold Tenant harmless from and against any and all claims, causes of
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action, demands and liuhUi1Yincluding, but not liooiicdto, damages, 000lo cspuosex, uuaosomuo1o penalties, Do�m, losses,
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'ud&znoo1euoduttorocy'o<ecm1bu1Tcoun1moyuufferduo1odhe existence ur discovery o{ any Hazardous Substance oothe
- 1b migration [ Hazardous S ho\unoulu o|hurpoopu�iouur�nl�000din1n16ocovinoomuoot that relate or
property or �mo�zu oou uo� u ,
arise from Landlord's activities during this License and from all activities on the Property prior 10 the commencement of
this License.
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The indemnifications io this section specifically include costs incurred io connection with any investigation of
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Tenant's Mortgagees simultaneously of any default by Tenant and to give Mortgagees the same right to cure any default as
Tenant except that the cure period for any Mortgagee shall not be less than ten (10) days after receipt of the default notice.
17. Successors and Assians This License shall run with the Property, and shall be binding upon and
inure to the benefit of the parties, their respective successors, personal representatives and assigns.
18. Waiver of Landlord's Lien Landlord hereby waives any and all lien rights it may have, statutory or
otherwise, concerning the Antenna Facilities or any portion thereof which shall be deemed personal property for the
purposes of this License, regardless of whether or not same is deemed real or personal property under applicable laws, and
Landlord gives Tcnant the right to remove all or any portion of same from time to time in Tenant's sole discretion and
without Landlord's consent.
19. Miscellaneous
a. The substantially prevailing party in any litigation arising hereunder shall be entitled to its
reasonable attorneys' fees and court costs, including appeals, if any.
b. Each party agrees to furnish to the other, within ten (10) days after request, such truthful
estoppel information as the other may reasonably request.
C. This License constitutes the entire agreement and understanding of the parties, and supersedes
all offers, negotiations and other agreements. There are no representations or understandings of any kind not set forth
herein. Any amendments to this License must be in writing and executed by both parties.
d. If either party is represented by a real estate broker in this transaction, that party shall be fully
responsible for any fee due such broker, and shall hold the other party harmless from any claims for commission by such
broker.
C. Each party agrees to cooperate with the other in executing any documents necessary to protect
its rights or use of the Premises.
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be in accordance with the laws of the state in which the Property
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f. This License shall construed
is located.
If any term of this License is found to be void or invalid, such invalidity shall not affect the
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remaining terms of this License, which shall continue in full force and effect
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Signed by the parties on the Execution Date specified on page 1.
LANDLORD:
TENANT:
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(For and on behalf of RSA 350 Cellular, Inc.,
Majority General Partner)
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STATE OF
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On this da of 1995, efore me personally appeared own
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to me to be the of the corporation that executed the within and
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foregoing instrument, and ac knowledged the said instrument to be the free and voluntary act and deed of said corporation
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for the uses and purposes therein mentioned, and on oath stated that he was authorized to execute said instrument.
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IN WITNESS WHEREOF, I have hereunto set my hand and aff ed y official seal the day and year first above
written.
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M commission expires:
STATE OF C. '.kti4cto )
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COUNTY OF &LVLtMIL,
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On this day of XeVent,(ir L , 1995, before me personally appeared Michael Sims, known to me to be the
Vice President /General Manager of Colorado High Country Cellular, a Limited Partnership, the corporation that
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executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and
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deed of said corporation for the uses and purposes therein mentioned, and on oath stated that he was authorized to
execute said instrument.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above
written.
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My commission expires:
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EXHIBIT C
to the Rooftop License Agreement dated this 3 day
o 1995'
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between the Aspen /Pitkin County Airport, as ndlord,�
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and Colorado High Country Cellular, a Limited Partnership, as Tenant1
Environmental Laws
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As used in this License, "Environmental Laws" means all federal, state and local environmental laws, rules,
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regulations, ordinances, judicial or administrative decrees, orders, decisions, authorizations or permits pertaining to the
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protection of human health and /or the environment, including, but not limited to, the Resource Conservation and
Recovery Act, 42 U.S.C. §§ 6901, et ses., the Clean Air Act, 42 U.S.C. § §7401, et se q., the Federal Water Pollution
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Control Act, 33 U.S.C. § §1251, et seg the Emergency Planning and Community Right to Know Act, 42 U.S.C.
§ §1101, et sec .., the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et^
Leg„ the Toxic Substances Control Act, 15 U.S.C. § §2601, et seq.., the Oil Pollution Control Act, 33 U.S.C. § §2701, et
seq., and Colorado (state laws), or any other comparable local, state or federal statute or ordinance pertaining to the
environment or natural resources and all regulations pertaining thereto. This definition includes all federal, state or local
land use laws dealing with environmental sensitivity including, but not limited to, laws regarding wetlands, steep slopes,
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aquifers, critical or sensitive areas, shorelines, fish and wildlife habitat, or historical or archeological significance.
As used in this License, "Hazardous Substance" means any hazardous or toxic substances as defined by they
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Comprehensive Environmental Response, Compensation and Liability Act, as amended from time to time; any hazardous
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waste as defined by the Resource Conservation and Recovery Act of 1976, as amended from time to time; any and all
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