Vermont-Windsor-Ascutney State Park Agreement - Vermont ETV and New England Wireless
AGREEMENT
This AGREEMENT made and entered into this August 1, 1991, between Vermont
ETV, a public television network incorporated and existing under the laws of
the State of Vermont and having its principal offices in Colchester, Vermont
(ETV hereinafter) , and New England Wireless, a wireless cable television
company, having its principal place of business at Bellows Falls, Vermont
(NEWCTV hereinafter):
WHEREAS ETV is the Lessee of certain land under a Lease from the State of
Vermont acting by and through its Department of Forests, Parks, and Recreation,
said Lease dated September 27, 1989, (attached hereto as Exhibit B and
incorporated by reference herein), by which there is demised to ETV
approximately 3.3 acres of Land located within the Ascutney State Park,
designated as "South Peak," Town of Windsor, Vermont, which Lease will continue
unless terminated as provided therein for a term of ten (10) years beginning
January 1, 1990;
WHEREAS NEWCTV has requested the use of certain ETV premises and
facilities for the purpose of installing, operating, and maintaining at the
site of the leased premises an antenna and ancillary equipment housed in
cabinets, all of which is more particularly described in Exhibit A attached
hereto, which is hereby incorporated by reference, in connection with the
operation of a wireless cable television service by NEWCTV; and
WHEREAS NEWCTV has satisfied criteria established by ETV for use of ETV's
premises and facilities for electromagnetic broadcast purposes;
NOW, THEREFORE, it is agreed as follows:
1. INSTALLATION, OPERATIONS, AND MAINTENANCE. NEWCTV shall be permitted to
install, operate, and maintain an antenna(s) on the existing ETV
transmitter tower and to install, operate, and maintain certain ancillary
equipment within the ETV-owned building, as specified in Exhibit A to
this Agreement, for the purposed stated above. Any installation and/or
alterations by NEWCTV deviating in any way from the original installation
authorized in Exhibit A must be specifically authorized in writing by
ETV.
2. ACCESS TO PREMISES. NEWCTV shall have such access to and use of ETV's
premises and facilities, including common areas, as may be reasonable and
necessary for its installation, operations, and maintenance under this
AGREEMENT. NEWCTV shall be solely responsible for securing from third
persons not party to this AGREEMENT, appropriate authorization for access
to premises and facilities not within the possession and control of ETV.
3. TERM. The term of this AGREEMENT shall commence on July 1, 1991 and shall
expire at midnight on June 30, 1999 unless sooner terminated as
hereinafter provided. There shall be no automatic renewal of this
AGREEMENT by holdover, however, NEWCTV shall have the option to renew
this agreement at the end of the initial term.
4. TERMINATION. This AGREEMENT may be terminated by either party upon one
(1) year's written notice by certified mail. In addition, if NEWCTV fails
to comply with any provision or condition of this Agreement, and such
noncompliance shall continue for a period of forty-five (45) days after
timely written notice thereof is given by ETV to NEWCTV, ETV may
terminate this AGREEMENT and pursue all remedies otherwise available
under law.
5. FEE. NEWCTV shall pay to ETV the annual base rent of Thirty-one Thousand,
two-hundred-thirty dollars and no cents ($31,230.00) for the license term
established in equal monthly installments in advance beginning on the
commencement date of this license AGREEMENT. On 1 July of each succeeding
year of the term of this license AGREEMENT, the revised annual base rent
for each additional yearly period shall be increased by multiplying that
year's base rent by one hundred percent (100%) plus the percentage
increase in the Consumer Price Index, All Urban Consumers for the United
States Average, published by the Bureau of Labor Statistics of the United
States Department of Labor (CPI hereinafter), and computed as follows:
5.1 The CPI level reported as of December of the year prior to the current 1
July will be the numerator of a fraction and the CPI as reported for
December 1990 will be the denominator.
5.2 CPI Base. The initial CPI to be used in calculating the escalator index
to the base rent shall be the rate published for the month ending
December 1990.
5.3 In no instance shall the annual base rent be less than the previous base
rent as escalated.
5.4 NEWCTV shall forward monthly payment checks made payable to Vermont ETV,
Inc., and mailed to the address stated in Paragraph 16 of this license
AGREEMENT.
5.5 ETV reserves the right to make appropriate adjustments to the base rent
which reflect use of the site, in particular, its power requirements.
Such adjustments shall be made only on July 1 of each succeeding year,
with no less than sixty (60) days notice to NEWCTV. ETV also reserves the
right to require NEWCTV to procure metered power service, should NEWCTV's
power requirements be significant.
6. INTEREST. Interest shall be charged on all overdue accounts in accordance
with ETV's policies in effect at the time such interest is charged. ETV's
assessment of interest shall not constitute a waiver of its rights to
terminate this AGREEMENT for non-payment and/or to pursue remedies
otherwise available under law.
7. TAXES AND OTHER GOVERNMENTAL LEVIES, FEES, OR CHARGES. NEWCTV shall pay,
or cause to be paid, any and all taxes or payments in lieu thereof,
levies, fees, or charges assessed against ETV or NEWCTV which result from
or arise out of NEWCTV's operations under this AGREEMENT. NEWCTV shall
have any such right as may be provided by law to dispute the
reasonableness of any such taxes, levies, fees, or charges; provided
NEWCTV agrees to pay all costs and/or expenses incurred in any such
dispute and to indemnify ETV for all costs, expenses, fees, or judgments
arising from NEWCTV's non-payment.
8. PERMITS, RULES, AND REGULATIONS. NEWCTV shall be solely responsible for
obtaining and maintaining all local, state, and federal permits and
licenses required for its operations under this AGREEMENT. In addition,
NEWCTV shall be solely responsible for complying with all local, state,
and federal ordinances, rules, regulations, and laws applicable to
installations and/or operations that are the subject of this AGREEMENT.
ETV agrees to provide reasonable assistance to NEWCTV securing said
permits and licenses, provided LICENSEE agrees to indemnify and hold ETV
harmless from any and all expenses, penalties, damages, or costs,
including but not limited to reasonable attorney's fees incurred in
discharging this obligation.
9. INITIAL APPLICATION. NEWCTV warrants and agrees that all information it
provided in its application to ETV for the installation, operations, and
maintenance that are the subject of this AGREEMENT is true and accurate.
NEWCTV further warrants and agrees that it will advise ETV in writing of
any contemplated changes in such installation, operations, or maintenance
activity so that ETV can determine whether such use is consistent with
its criteria for use of ETV's premises and facilities.
10. REMOVAL OF EQUIPMENT. NEWCTV shall be solely responsible for the removal
of its materials, equipment, and the like from ETV's premises and
facilities upon termination of this AGREEMENT, said removal to occur
within a reasonable time not to exceed thirty (30) days. Title to any
property not removed within thirty (30) days shall vest in ETV unless
NEWCTV has obtained prior to the expiration of such period written
consent from ETV for an extension of time within which to remove such
equipment.
Subject to the terms of Paragraph 12, NEWCTV shall assume responsibility
for the cost and expense of restoring the premises and facilities to
their condition at the time it commenced installation under this
AGREEMENT, reasonable wear and tear excepted.
11. DAMAGE. NEWCTV shall be responsible for all damage to persons or property
done to or resulting from its installation, operations, maintenance, or
any other activity arising out of or incidental to this AGREEMENT or
conducted by NEWCTV in violation thereof. NEWCTV shall indemnify and hold
harmless ETV from any such loss, cost, fees, claims, damage, expense, or
liability for such damage, including but not limited to all costs of
defense. NEWCTV agrees to maintain commercial general liability insurance
with a combined single limit of at least $1,000,000, including
contractual liability coverage which will respond to obligations assumed
under this license agreement.
11a. INSURANCE. NEWCTV shall at all times maintain adequate property and
liability insurance for its activity at the site. Within thirty (30) days
following the execution of this agreement, NEWCTV shall provide ETV with
a current Certificate for insurance coverage in effect for its activities
at the site.
12. PRINCIPAL LEASE. NEWCTV agrees to abide by all the terms and conditions
expressed in the above-referenced Lease between the State of Vermont and
ETV (attached as Exhibit B and incorporated by referenced herein). NEWCTV
agrees to assume sole liability for its own breaches, violations or
defaults of said Lease, and to indemnify and hold harmless ETV from
claims or actions by the State of Vermont against ETV resulting from such
breaches, violations or defaults by NEWCTV.
13. INTERFERENCE. In the event that the operations of NEWCTV under this
AGREEMENT interfere with the transmitting or receiving of radio,
television, or electronic signals on the data hereof by ETV or other
earlier authorized operators on the site, NEWCTV shall at its own expense
and as soon as reasonably possible after notice thereof correct such
interference and shall cease its operations until such correction occurs;
provided, cessation of operations shall not be required if written
consent is obtained from the operator suffering the interference; further
provided, this provision shall not apply to test periods where the source
of the interference is being determined for purposes of suppression. In
the event that transmitting or receiving devices installed on the site in
the future by any authorized user shall interfere with NEWCTV's
transmission or reception, NEWCTV shall cooperate with such user in
eliminating such interference.
14. AIRTIME LOSS. ETV shall not be held liable or responsible for air time
losses sustained for any reason by NEWCTV under this AGREEMENT or its
rights hereunder. If any claim is made against ETV by NEWCTV's client,
customer, or other third party for air time losses and any damage arising
out of or resulting from such losses, NEWCTV shall indemnify and hold
harmless ETV for all losses and expenses incurred by ETV including but
not limited to all costs of defense.
15. ASSIGNMENT. NEWCTV shall not assign or sublicense this AGREEMENT or its
rights hereunder without the expressed written approval of ETV and
subject to the underlying ground lease attached in EXHIBIT B.
16. NOTICES. All notices required by this AGREEMENT shall be presented as
provided below:
TO ETV: Business Office
Vermont ETV, Inc.
88 Ethan Allen Avenue
Colchester, Vermont 05446
TO NEWCTV: New England Wireless
56 Green Street
Bellows Falls, VT 05101
17. PAYMENTS. All payments required by the AGREEMENT shall be made payable to
Vermont ETV, Inc., and mailed to:
Business Office
Vermont ETV, Inc.
88 Ethan Allen Avenue
Colchester, Vermont 05446
18. PERFORMANCE. The failure of ETV to demand strict performance of any of
the terms, conditions, and covenants herein shall not be deemed a waiver
of any rights and/or remedies ETV has and shall not be deemed a waiver of
any subsequent breach or default in the terms, covenants, and conditions
herein contained.
19. AMENDMENT. This AGREEMENT may not be modified or amended except by
written Agreement signed by both parties.
20. DISPLAY OF LICENSE. NEWCTV shall attach and prominently display a copy of
NEWCTV's current FCC license on equipment installed by NEWCTV on the
premises.
21. LAWS. This AGREEMENT shall be governed by the laws of the State of
Vermont.
22. STATE CONSENT. This AGREEMENT shall be subject to the consent of the
State of Vermont through its Department of Forests, Parks, and
Recreation, said consent provided as attached Exhibit C, which is hereby
incorporated by reference.
23. This AGREEMENT has been signed in duplicate, each of which shall stand as
an original.
ETV: Vermont ETV, Inc.
By: /S/_________________________________
John E. King
Vice President
Finance and Administration
Date: 8/2/91
On the 2nd day of August, in the year 1991, before me Louise Rashleigh, Notary
Public in and for said state, personally appeared John E. King and signed said
Agreement of his own free will.
Signature /S/___________________________
Notary Public
NEWCTV: New England Wireless
By: /S/_________________________________
Scott A. Wendel
President
Date: August 2, 1991
On the 2nd day of August in the year 1991, before me Louise Rashleigh, Notary
Public in and for said state, personally appeared Scott Wendel, and signed said
Agreement of his/her own free will.
Signature ______________________________
Notary Public
EXHIBIT A
EQUIPMENT INVENTORY
EXHIBIT B
Underlying sublease agreement between the State of Vermont and Vermont ETV, Inc.
EXHIBIT C
STATE CONSENT
I, ________________________ duly authorized Agent of the State of Vermont,
acting through its Agency of Natural Resources, Department of Forests, Parks
and Recreation, do hereby consent to the foregoing Agreement dated
________________, 1991, between Vermont ETV, Inc. and ________________________.
STATE OF VERMONT
By: /S/____________________________ __________________________________
Witness
Title: ____________________________ __________________________________
Witness
Date: _____________________________
EXHIBIT D
CALCULATION OF ANNUAL LEASE PAYMENT
Annual Site Fee $ 2,000
Tower Space:
1 - 27 foot receive antenna (2 sides) = 54 feet
2 - 12 foot transmit antenna = 24 feet
1 - 6 foot microwave dish antenna = 6 feet
84 feet @ $80/lineal foot 6,720
Building Space:
4 - equipment cabinets = 58.74 square feet
@ $200/square ft. 11,748
Estimated Power Consumption:
12.29 KWH per day 10,762
--------
Total $ 31,230
or $2,602.50/month