HomeMy WebLinkAboutMINUTES - 12191995 - SD8 TO: BOARD OF SUPERVISORS
FROM: J. MICHAEL WALFORD, PUBLIC WORKS DIRECTOR
DATE: DECEMBER 19, 1995
SUBJECT: LICENSE AGREEMENT FOR A FIBER OPTIC BACKBONE SYSTEM IN CONTRA COSTA
COUNTY RIGHTS-OF-WAY
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) &BACKGROUND AND JUSTIFICATION
I. Recommended Action:
APPROVE, in concept, a license agreement with GST Telecom, Inc. and AUTHORIZE the Public
Works Director to conclude license negotiations.
AUTHORIZE the County Administrator to execute a license agreement for the construction,
operation and maintenance of a fiber optic backbone system in the former Southern Pacific right-
of-way and in a portion of the Walnut Creek channel.
AUTHORIZE the Public Works Director to execute secondary license agreements for occupation
of conduit within the same rights-of-way.
II. Financiallmoact:
Licensing the occupation of these rights-of-way will potentially generate $6,300,000 in General
Fund revenues over a fifteen year period, and will, through competition, lower prices and improve
services to citizens and businesses.
Continued on Attachment: X SIGNATU
_ RECOMMENDATION OF COUNTY ADMINI OR
_ RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON 1`►t 199,5r APPROVED AS RECOMMENDED ��OTHER
VOTE OF SUPERVISORS
UNANIMOUS (ABSENT
AYES: NOES:
ABSENT: ABSTAIN:
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c:work\bofiber.tl2 if�tthi!!1!atn,eendeoneeteopy�
I hereby oertity
an action taken and entered on the mIntrtes of the
Orig. Div: Public Works (Administration) Board of Supervisors on the date showrL
Contact: Eileen Doten (313-2305) ATTESTED:Cu-t 'F-^— I Cr 1 11995—
PHIL BATCHELOR,Clerk of the Board
cc: County Administrator of Supervisors and County Administrator
GMEDA Director p,�� p�
Public Works Director y `��—�
Redevelopment Agency Director
LICENSE AGREEMENT FOR A FIBER OPTIC BACKBONE SYSTEM IN CONTRA COSTA COUNTY
RIGHTS-OF-WAY
December 19, 1995
Page Two
M. Reasons for Recommendations and Background:
On February 1, 1995 the Boards of Alameda and Contra Costa Counties approved and executed a joint
agreement to develop a request for proposals, seek bids, and determine circumstances by which a
telecommunications services provider could be licensed to use the former Southern Pacific right-of-way.
Staff from both Counties have studied the market, worked with consultants, developed and issued a
request for proposals, and have met with representatives of several telecommunications firms. Staff
then negotiated the principal points of a license agreement with a telecommunications services provider,
GST Telecom, Inc.
The firm proposes an installation of four conduits of four interducts each. One conduit will be used
by GST as a fiber optic backbone for distribution of services in the East Bay area. Three conduits will
be available for use by other service providers who desire access to East Bay markets. The
compensation for the use of the rights-of-way will meet, or exceed, the following minimum conditions:
A fifteen year term with two ten year, rate adjusted renewals; $1.75 per foot annual payment from GST
for exclusive use of one conduit; 50/50 revenue split with GST on the three unoccupied conduits;
revenues to be allocated to each County proportionate to total miles occupied.
The licensee's payment schedule will be based on the date of the signing of the agreement. The service
provider would like to begin construction as soon as practical after license terms and conditions are
finalized. To accommodate this business need, staff requests that the Board take this action, allowing
execution of the license agreement upon satisfactory completion of negotiation of terms of the agreement
and approval by County Counsel.
LICENSE FOR
THE CONSTRUCTION AND OPERATION OF
TELECOMMUNICATIONS SYSTEMS
ON SPECIFIED
CONTRA COSTA COUNTY PROPERTIES
THIS License, made and entered into this 21st day of February, 1996, by and between
CONTRA COSTA COUNTY, a political subdivision of the State of California, CONTRA
COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT,
a political subdivision of the State of California, and REDEVELOPMENT AGENCY OF
CONTRA COSTA COUNTY, a redevelopment agency formed under the laws of the State
of California, hereinafter jointly and severally referred to as "Licensor," and GST
TELECOM, INC., a Delaware corporation, hereinafter referred to as "Licensee."
WHEREAS, Licensor owns or controls the use of certain properties, consisting of the
former Southern Pacific Railroad property and certain flood control channels, within Contra
Costa County, California ("County"), in which a conduit system may be constructed;
WHEREAS, the Licensee proposes to furnish digital fiber optic communications
services in the County and will need to place conduits, cables, wires and associated
appliances in the Licensor's properties; and,
WHEREAS, the Licensee is willing to construct a conduit system and place, as
provided herein, fiber optics cables in this conduit system, for its own use and/or for the use
of customers or subsequent Licensees,
NOW, THEREFORE, in consideration of the mutual covenants, terms and
conditions, herein contained, the parties hereto for themselves and for their successors and
assigns do hereby mutually covenant and agree as follows:
ARTICLE" 1
DEFINITIONS
As used in this License, the following terms have the following meanings:
1.1 Cable - One or more telecommunications cables containing single mode optical fibers,
which are installed in the Conduit System pursuant to the terms of this License.
1.2 Conduit Occupancy Agreement - A written agreement between Licensee and an
occupant or user of Shared Revenue Conduit or any portion thereof, which agreement
specifies the terms of such occupancy or use and the revenue to be paid by such occupant
or user.
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1.3 Conduit System - A system, consisting of at least eight (8) one-inch inside diameter
high density polyethylene (HDPE) conduits or its equivalent, and necessary appurtenances
(e.g., handholes, splice boxes and precast concrete manholes), which is constructed and
maintained in the License Area for the installation of Cable.
1.4 Emergency Repairs - Repairs to the Conduit System or Licensee's Cable that do not
alter the original condition of improvements previously approved in writing by Licensor,
which repairs are necessary to protect the safety of the public or others or to restore or
prevent the imminent disruption of Licensee's service to its customers.
1.5 Fiber - An individual strand of optical lightguide which meets all standards of the
telecommunications industry.
1.6 Indefeasible Right of.Use or IRU - The unrestricted right to.use.the.Cable or Conduit
System limited and governed only by the provisions of this License.
1.7 Property - Property shall be as described in those documents listed in Exhibit "A" and
on file at the Contra Costa County Public Works Department.
1.8 License Area - The portion of the Property owned or controlled by Licensor which is
available for construction of the Conduit System by Licensee, said area beginning at the
Walnut Creek Channel outfall at Suisun Bay and continuing southward along Flood Control
District Channel and former Southern Pacific property, terminating at the Contra
Costa/Alameda County line.
1.9 Licensee - Licensee is defined as GST TELECOM, INC., a Delaware Corporation, a
subsidiary of GST TELECOMMUNICATIONS, INC., a Canadian Public Company ("GST")
and any subsidiaries of GST described in GST Telecommunications, Inc., Annual Report
1995, in.which GST has a 90% or greater equity interest.
1.10 -Licensee's Cable - Cable to be installed, maintained and operated in two of the
conduits in the Conduit System, the ownership and use of which Cable is reserved exclusively
for Licensee, except as provided otherwise in this License.
1.11 Routine Maintenance - Maintenance work that does not alter the original condition
of improvements originally approved in writing by Licensor, which work is required to
prevent deterioration of said improvements or is prescribed by original equipment or
material manufacturer or industry practice.
1.12 Shared Revenue Conduit - The six conduits in the Conduit System not occupied by
Licensee's Cable, the revenues from which are to be shared by Licensor and Licensee as
provided in this License.
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1.13 Other Terms - All other terms in this License will have their common meanings or
the meaning attributed in the context of the License through the use of quotation marks
within parentheses. Where such interpretation makes sense in the context of this License,
the conjunctive shall include the disjunctive, the singular shall include the plural, and the
plural shall include the singular.
ARTICLE 2
SCOPE OF LICENSE
2.1 Interest of Licensor- Licensee hereby acknowledges the title and real property interest
of Licensor in and to the Property and License Area and agrees never to assail, question or
resist Licensor's title or real property interest. Licensee acknowledges that it has been
granted only a limited right to occupy and use the License Area and that it has not been
granted any real property interest in the License.Area.
2.2 Grant of License - Licensor presently owns or controls the use of the License Area.
Subject to the terms and conditions of this License, Licensor hereby grants to Licensee the
non-exclusive right to use the License Area for the construction, installation, operation and
maintenance of the Conduit System and Cable in exchange for Licensee's payment of license
fees and other valuable consideration as described herein. Notwithstanding any other
provision in this License, Licensor makes no warranty as to the suitability of the License
Area for construction of the Conduit System or installation of Cable. This License shall not
be recorded in the official public records of Contra Costa County.
2.3 Non-Exclusivity - This License is non-exclusive and the Licensor retains the right to
grant additional licenses or rights to use the Property or License Area to parties other than
Licensee. However, in the event that Licensor grants additional licenses or similar rights to
use the Property or License Area to other telecommunications companies for installation of
fiberoptic cable, the license fees charged to those companies will be as great or greater than
_those license fees charged to Licensee under the terms of this License. If Licensor grants
such-licenses or rights to other telecommunications companies for installation of fiberoptic
cable and such companies are not charged fees equal to or greater than those charged to
Licensee under the terms of this License, then Licensee shall be entitled to -an equitable
adjustment of the fees set forth in this License.
2.4 Permitted Uses - Licensee's use of the License Area shall be in accord with the terms
and conditions of this License and shall be limited to the activities reasonably necessary for
the design, engineering, construction, operation, monitoring, maintenance, relocation,
replacement and repair of the Cable and Conduit System. Licensee will not be permitted
to construct any building, shelter, generator, terminal or any other structure other than the
Cable and the Conduit System in the License Area.
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2.5 Primary Use of Property - All rights granted to Licensee hereunder are subject to all
existing and future rights, conveyances , assignments, reservations, licenses and easements
in the Property, regardless of who holds the same, including Licensor's right to use the
Property for its primary purposes (i.e., construction, operation and maintenance of
transportation, flood control, public or other related improvements). In the event the
primary uses of the Property by Licensor reasonably require some permanent use of a
portion of the License Area for such primary purposes, Licensor may, upon six months'prior
notice, revoke this License as to the area reasonably required for such permanent primary
use. Licensor shall supply Licensee with a map or drawing identifying the area(s) as to
which this License is so revoked. In the event of such revocation, Licensor will make every
reasonable effort to provide an alternate area within the Property for Licensee's use.
Licensee shall not be required to relocate at its own expense to accommodate any future
telecommunications licensee.
2.6 Term and Renewal Periods - Licensor's right to use the License Area shall commence
on the 21st day of February, 1996, and such right to use the License Area shall terminate
on the 21st day of February, 2011, at 12:01 a.m., hereinafter called the "Initial License
Period." Following the expiration of the Initial License Period, the Licensee shall have the
right to two negotiated, ten-year renewals, hereinafter called "Renewal Period," subject to
the terms and conditions of this License and fee adjustment as provided in Sections 5.2 and
5.3 of this License.
2.7 Expiration of License - Upon expiration of the Initial License Period or any Renewal
Period, or upon termination of the License for any reason, Licensor may in its sole
discretion require Licensee to remove or abandon in place the Cable, Conduit System or any
part thereof. Should Licensee fail to perform the removal or abandonment within 60 days
of receipt of a notice from Licensor, Licensor shall have the right in its discretion to have
the removal or abandonment performed at Licensee's expense, which Licensee shall pay to
Licensor promptly upon written demand.
ARTICLE 3
CONSTRUCTION
3.1' General Responsibility - Licensee shall engineer, design, obtain necessary permits and
approvals for, and supervise the construction of all portions of the Conduit System and the
installation of Licensee's Cable in and through the License Area. Licensee shall provide at
its sole expense Licensee's Cable, as well as the cable accessories, splice boxes and all other
components necessary for the operation of Licensee's Cable. Pursuant to the terms of
individual Conduit Occupancy Agreements, Licensee may provide installation of Cable and
necessary accessories and components to occupants or users of Shared Revenue Conduit.
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3.2 Conduit System Specifications - The Conduit System shall be entirely underground and
shall consist of at least eight (8) one-inch inside diameter high density polyethylene (HDPE)
conduits, or the equivalent, handholes, splice boxes and precast concrete manholes. The
Conduit System shall meet or exceed the specifications detailed in Exhibit "B", which is
attached hereto and by this reference incorporated herein. No material change to these
specifications may be made without the express written consent of both parties.
3.3 Route - The final route for each segment of the Conduit System shall be determined
through the final engineering and encroachment permit process, as described in Sections 3.5
and 3.6. Once Licensor has given written approval of a final route for a particular segment,
no material change to the approved route may be made without the express written consent
of Licensor.
3.4 Construction Schedule - Construction of the Conduit System and installation of
Licensee's Cable shall begin within 90 days of the execution of this License and shall be
completed according to a schedule mutually agreed upon by the parties. Within two weeks
of the execution of this License, Licensee shall prepare and submit to Licensor for written
approval, a proposed construction schedule listing the beginning and ending dates for
construction of each segment of the Conduit System and the installation of Licensee's Cable.
It is the intent of the parties that construction of the Conduit System and installation of
Licensee's Cable commence as soon as possible and that, once commenced,construction and
installation proceed expeditiously to completion without undue delay. In no event shall
construction of the Conduit System and installation of Licensee's Cable be completed later
than February 1, 1998.
3.5 Construction and Installation Methods - All construction shall be at or below ground
level. Licensee shall not perform any construction, reconstruction, remodeling, removal or
other work within the License Area without first obtaining Licensor's approval in writing of
said work. In seeking Licensor's approval, Licensee shall furnish to Licensor a complete
description and sketch of the work proposed to be performed. In performing work approved
by Licensor, Licensee shall comply with all terms, conditions and requirements imposed by
Licensor and shall not deviate in any material manner from the description and sketch
approved by Licensor, without first obtaining additional approval in writing from Licensor.
Actual construction and installation will be done by Licensee or a licensed contractor hired
by Licensee.
Before beginning construction of any segment of the Conduit System or installation of
Licensee's Cable, Licensee shall apply for and obtain an encroachment permit from Licensor
to authorize the performance of such construction or installation. The application shall be
accompanied by engineered drawings showing in detail the final route to be followed and
construction and installation methods and materials to be employed in the work.
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Issuance of the permit shall constitute Licensor's written approval of the final route and
construction and installation methods and materials for the segment in question.
Construction and installation methods and materials shall comply with all applicable laws,
codes, ordinances, rules and rulings of regulatory agencies governing such work.
3.6 Permitting - Licensee will be responsible for obtaining all necessary authorizations,
permits, licenses, crossings, and clearances for the construction of the Conduit System and
the installation of the Cable. Licensor will assist Licensee in obtaining and expediting these
authorizations, permits, licenses, crossings, and clearances. Licensor will appoint a single
lead contact to provide such assistance. Licensee shall pay to Licensor the standard fees
charged for issuance of encroachment or similar permits and for any inspections performed
in connection with such permits. In addition, Licensee shall pay Licensor a standard hourly
rate for the services of the lead contact.
3.7 Hazardous Materials - Licensee shall not be responsible for any hazardous material or
contamination discovered through the construction of the Conduit System or installation of
the cable when such hazardous material or contamination pre-existed Licensee's initiation
of construction. This will apply even where such hazardous material or contamination may
not have been discovered but for such construction or installation. Licensee shall defend,
indemnify and hold harmless Licensor from and against any and all loss, damage, liability,
claims, suits, demands or expense of whatever character associated with construction delays
due to discovery of hazardous materials, Licensee releasing hazardous material in the
License area or any failure of Licensee to use due care upon discovering hazardous material
in the License Area.
3.8 Disruption - Licensee understands that the Licensor's long range intended use of the
Licensed Area is for public transportation purposes. Licensee shall employ methods which
avoid conflict with this intended use. Licensee shall also minimize disruption to
neighborhoods during construction and installation activities. During construction and
installation, the amount of equipment and number of personnel at any given time shall be
kept to a minimum. Construction activities shall be limited to those activities and hours
detailed in encroachment permits and other authorizations issued for such activities.
Construction equipment shall be properly muffled. Water sprinkling shall be used to
minimize dust from construction activities. Construction and installation shall create no
permanent damage to the environment. Upon completion of construction activities for a
particular segment of the Conduit System, Licensee shall cause the License Area for that
segment to be restored to its original condition.
3.9 Archeological Materials - Licensee shall notify Licensor of any archeological or
paleontological materials discovered by Licensee or its contractor in the Licensed Area.
Work shall cease upon such discovery until written authority to proceed is given by
appropriate representatives of Licensor. Licensor will not be responsible for Licensee's
construction delay costs due to such discovery.
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3.10 As-Builts - Within 90 days following completion of construction of any segment of the
Conduit System, Licensee shall, at its sole expense, provide Licensor with detailed as-built
drawings showing the actual placement of the Conduit System and all installed Cable.
Except as directed otherwise in writing by Licensor, the as-built drawings shall comply in all
respects with the encroachment permit and other written approvals previously given for such
segment by Licensor.
3.11 Documentation of Costs - Within 60 days following completion of construction of any
segment of the Conduit System, Licensee shall, at its sole expense, provide Licensor with
documentation of all expenses of construction and installation and shall warrant that funding
sources are not other telecommunications service providers. Documentation shall be
certified as accurate and complete by an officer of GST Telecom, Inc. The Licensor shall
have the right to audit Licensee's documentation of costs and funding sources and shall have
access to Licensee's books and records for that purpose.
ARTICLE 4
MAINTENANCE
4.1 Maintenance and Repairs - During the entire term of this License, including any
renewal, Licensee shall, at its sole expense, provide any necessary maintenance and repair
of the Conduit System and the Licensee's Cable, including Routine Maintenance activities.
A list describing anticipated routine maintenance activities which shall be developed by
Licensee within 60 days of signing of this License. No Emergency Repairs shall be
performed by Licensee until such procedures are approved by Licensor. The maintenance
and repair of Shared Revenue Cable shall be as specified in the various Conduit Occupancy
Agreements. Licensee shall not perform any maintenance or repair work within the License
Area without first obtaining Licensor's approval in writing of said work. In seeking
Licensor's approval, Licensee shall furnish to Licensor a complete description and sketch of
the work proposed to be performed. In performing work approved by Licensor, Licensee
shall comply with all terms, conditions and requirements imposed by Licensor and shall not
deviate in any material manner from the description and sketch approved by Licensor,
without first obtaining additional approval in writing from Licensor. Before commencing
any maintenance or repair work, Licensee shall be responsible for obtaining all necessary
authorizations, permits, licenses, crossings and clearances for the work. Subject-to the terms
and conditions of any permits, approvals or authorizations issued for the work, Licensor shall
allow access to the License Area for Licensee's performance of maintenance and repair
work.
4.2 Emergency Repairs - Notwithstanding the provisions of Section 4.1, Licensee shall not
be required to obtain Licensor's prior written approval for the performance of Emergency
Repairs, but Licensee shall submit to Licensor a written report of all Emergency Repairs
within forty-eight hours of performing the same. Any Emergency Repairs performed by
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Licensee shall not result in modification of the Conduit System or Cable, as previously
approved in writing by Licensor, and shall comply with procedures which will be developed
by Licensee within 60 days of the signing of this License. No Emergency Repairs shall be
performed by Licensee until such procedures are approved by Licensor.
4.3 Relocation - If, during the term of this License, including any renewal, relocation or
replacement of the Conduit System or Cable is required, Licensee shall promptly carry out
such relocation or replacement. The responsibility for costs of such relocation or
replacement shall be as follows.
(a) If requested or required by Licensee, then Licensee will pay all such costs.
(b) Except under the circumstances described in Section 2.5, if requested or required by
Licensor, Licensor will pay for relocation.
(c) If requested or required by a third party, then the third party shall pay all such costs,
except as provided otherwise by Iaw or in any existing instruments relating to the License
Area or the Property.
Under all other circumstances Licensee will pay for relocation.
ARTICLE 5
COMPENSATION
5.1 Annual License Fee - Within thirty (30) days of the execution of this License, or upon
the commencement of installation of the Conduit System, whichever comes first, and each
anniversary of the execution of this License thereafter throughout the Initial License Period,
Licensee shall pay to Licensor an Annual License Fee in an amount calculated by
multiplying the number of lineal feet available in the entire License Area for installation of
Licensee's Cable times the amount of one dollar and seventy-five cents ($1.75). The Annual
License Fee shall be subject to periodic adjustment as provided in Sections 5.2 and 5.3.
5.2 Renewal Adjustment - Upon renewal of the License as described in Section 2.6, the
Annual License Fee shall be adjusted based on a negotiated amount that is at least 75% of
the mean annual fees then paid for similar fiber optic systems in the Alameda/Contra Costa
County market areas.
5.3 CPI Escalator- On the fifth and tenth anniversaries of this License, the Annual License
Fee shall be adjusted based upon the United States Department of Labor Bureau of Labor
Statistics Consumer Price Index of Urban Wage Earners and Clerical Workers (CPI-U),base
year December 1995. If this License is renewed, a similar CPI adjustment shall also be
made on the twentieth and thirtieth anniversaries of this License. Should the
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CPI-U be superseded or discontinued during the term of this License, a consumer price
index comparable to the CPI-U shall be substituted for purposes of adjusting the Annual
License Fee.
5.4 Shared Fees for Use of Shared Revenue Conduit - All gross revenues or other
compensation received directly or indirectly from third parties for occupancy of the Shared
Revenue Conduit shall be shared equally by Licensor and Licensee.
5.5 Form of Payment of License Fees - The Annual License Fees may be paid in cash or,
by mutual agreement of the parties, through Licensee's provision of services to Licensor.
For the purpose of payment of these fees, services provided shall be valued at the lower of
the Licensee's published tariff for the provided service, or an amount ten percent (10%)
lower than the contract price for substantially similar services provided to any other
customer of Licensee or any of its parents, subsidiaries or affiliates.
5.6 Other Fees - Each party shall promptly pay all costs and charges for which it assumes
responsibility under the terms of this License. Except for the Annual License Fee described
in Section 5.1, payment shall be due within thirty (30) days of a party's receipt of an invoice
for the amount owed. Interest, not to exceed one and one-half percent (1.5%) of the unpaid
balance, may be charged on any amount not paid within thirty (30) days after receipt of
invoice.
5.7 Licensor's Use of Licensee's Cable - During the term of this License, including any
renewal, Licensee shall make available to Licensor, at no cost to Licensor, a choice of:
(a) six tested fibers within the Licensee's Cable to be used by and at the discretion of
Licensor, terminating into Licensee's fiber distribution panels or splicing enclosures, capable
of connecting lateral fiber cables for the Licensor's distribution. The Licensor's fibers shall
be allocated over the entire length of the Conduit System; or (b) twelve DS3's; or (c) one
OC12.
ARTICLE 6
OWNERSHIP AND USE
6.1 License Area - Licensor shall have and retain ownership or control of the License Area.
6.2. Conduit System - Licensor shall have and retain full ownership of the Conduit System,
subject only to Licensee's Indefeasible Right of Use and to the other terms and conditions
of this License.
6.3 IRU - Licensee shall have and retain an Indefeasible Right of Use ("IRU") of the
Licensee's Conduit and the Licensee's Cable. The IRU shall commence upon completion
of each segment of the Conduit System and shall remain in effect for the full term of this
License, including any renewal.
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6.4 Licensee's Cable - Licensee shall have and retain ownership of Licensee's Cable,
subject only to the use restrictions contained in this License. Licensee covenants that its use
of Licensee's Cable will comply with all applicable federal, state, county and local laws, codes
and regulations. Licensee further covenants that its use of Licensee's Cable shall not
compete with the anticipated marketing of Shared Revenue Conduit. Licensee's Cable shall
not be used to accommodate other providers of telecommunications services, which could
be accommodated instead on cable installed in Shared Revenue Conduit, so long as space
is available in such conduit.
6.5 Liens - Licensee shall not cause or permit the Conduit System or the Cable to become
subject to any mechanic's lien, materialman's lien, vendor's lien or any other similar lien,
whether by operation of law or otherwise. Should the Conduit System or Cable nevertheless
become subject to such a lien, Licensee shall promptly cause the lien to be released or
bonded over. Subject to the terms of this License, Licensee may in the normal course of
financing, with advance, written consent from Licensor, mortgage .or create a security
interest in the Cable or its IRU in the Conduit System, except for whichever choice is
selected by Licensor under Section 5.7.
6.6 Documentation - The parties will execute any and all documents necessary to effectuate
the above described rights of ownership.
6.7 Use of Shared Revenue Conduit - Neither Licensor nor Licensee shall occupy or use the
Shared Revenue Conduit without the express written consent of the other and with
compensation agreed upon by both parties in writing.
6.8 Use of Shared Revenue Conduit By Third Parties - Licensee and Licensor may jointly
or separately market the use of Shared Revenue Conduit. The terms and conditions of
use of the Shared Revenue Conduit by third parties shall be covered in Conduit Occupancy
Agreements approved in writing by Licensor and Licensee. In addition, each third party
user of -the Shared Revenue Conduit shall be required to obtain from Licensor a license
agreement substantially in the form set forth in Exhibit "C" attached to and incorporated in
this License, which shall provide for direct payment to Licensor of Licensor's share of the
gross revenues or other compensation paid by such user. So long as space is available in
Shared Revenue Conduit, Licensor and Licensee shall provide on a non-discriminatory basis
to all providers of telecommunications services and other users which so request, in writing,
access to Shared Revenue Conduit at competitive rates. Licensor and Licensee shall offer
non-discriminatory access to Shared Revenue Conduit on a first-come,first-served basis until
all Shared Revenue Conduit capacity is exhausted.
6.9 License Terms - Any Conduit Occupancy Agreements shall be subordinate to this
License and shall incorporate by reference all relevant provisions of this License.
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6.10 Fiduciary Duties - Each party hereby undertakes the fiduciary duties of loyalty and
care regarding and limited to the parties' marketing and conveyance of the of Shared
Revenue Conduit. Nothing in this section is intended or shall be construed to prevent or
restrict Licensor from granting other non-exclusive licenses in the Property, as provided in
Section 2.3.
ARTICLE 7
RELATIONSHIP OF THE PARTIES
7.1 Licensee/Licensor Relationship - The relationship between the parties shall be that of
a Licensee and Licensor. The relationship shall not be an employment relationship nor shall
it be a partnership, agency, or joint venture relationship. Nothing contained in this License
shall be deemed to constitute a partnership or agency or joint venture or employment
agreement for any purposes including but not limited to federal income tax purposes.
7.2 Project Management - Licensor hereby names Eileen Doten as its project manager.
Licensee hereby names Arthur Ammon as its project manager. If the parties' project
managers disagree regarding the interpretation of this License or the amount of any
fees or costs owed by one party to another, and reach impasse, then the resulting conflict
shall escalate to the following persons:
For the Licensor
Name J. Michael Walford
Title Director of Public Works
Address 255 Glacier Drive
Martinez, CA 94553
Phone (510) 313-2000
For the Licensee
Name Earl C. Kamsky
Title President, GST Telecom, Inc.
Address 4317 NE Thurston Way
Vancouver, WA 98662
Phone (360) 254-4700
7.3 Assignment/Change of Control - No rights of Licensee hereunder shall be transferred
or assigned unless the written consent of Licensor is first obtained. This provision
specifically includes transfers or assignments to companies related to Licensee or to any
reorganization of Licensee and/or related companies. No entity may possess Licensee's
rights and obligations under this License without the prior written consent of Licensor. Any
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other purported transfer or assignment by Licensee shall be void and, at Licensor's option,
shall result in immediate termination of this License. Subject to this requirement, this
License and each and all of the covenants herein contained shall inure to the benefit of and
be binding upon the successors and assigns of the respective parties hereto. Transfer or
assignment of rights among Licensee companies defined in Section 1.9 will not require
written consent of Licensor.
7.4 Confidential Material - The parties anticipate that it may be necessary for Licensee to
provide Licensor with access to information of a proprietary and/or confidential nature
pursuant to this License. .Licensee shall plainly mark such information "Confidential."
7.4.1 Non-Disclosure - Should Licensor receive a request from a third party for the copying
of any information that Licensee has marked "Confidential," Licensor shall promptly inform
Licensee, and Licensee shall, at its sole expense, promptly obtain a written disclosure
agreement with the requesting party, or an injunction or other court order to protect such
information from disclosure. In the event an injunction or other court order is issued,
Licensee shall defend, indemnify, save and hold harmless Licensor, its officers and
employees against any claims or litigation arising from Licensee's failure or refusal to
disclose the requested information. In the absence of an injunction or other court order,
Licensor may, in its discretion, copy the requested information for the third party, and
Licensee shall be deemed to have consented to such copying.
ARTICLE 8
WARRANTIES
8.1 General - Each party represents and warrants that:
It has the full right and authority to enter into, execute, deliver and perform its obligations
under this License;
It has taken all requisite corporate or government action, as appropriate, to approve the
execution, delivery and performance of this License;
This License constitutes a legal, valid, and binding obligation enforceable against each party
in accordance with its terms; and,
Its execution of and performance under this License shall not violate any applicable existing
statutes, rules, or court orders of any local, state or federal government agency, court or
body.
8.2 Government Authority - Licensee represents and warrants that it shall have and
maintain in effect at all times, and shall, if requested, deliver copies to Licensor of all
necessary certificates, consents, permits and authorizations from federal, state, county and
12
local authorities to construct, maintain, operate, and use its facilities at all locations
governed by this License.
8.3 Performance of Work - Licensee represents and warrants that the work it does in
performance of this License will be of a quality that meets the standards of the construction
and telecommunication industries as well as all terms and conditions of this License and any
encroachment permits or other approvals issued by Licensor.
ARTICLE 9
LIABILITY
9.1 Indemnity and Hold Harmless - Licensee shall indemnify, defend, save, protect and
hold harmless Licensor, its officers and employees from and against any and all loss,
damage, liability, claims, suits, demands or expense of whatever character, including
attorney's fees, for death or injury to persons or damage to-property, direct or.consequential,
directly or indirectly caused or contributed to by Licensee's operations, acts or omissions
pursuant to this License, save and except claims or litigation arising through -the sole
negligence or willful misconduct of Licensor, its officers or employees.
The obligations contained in this section shall survive the assignment, expiration or
termination of this License.
Nothing contained in this License shall be interpreted to impose a duty of care toward third
parties greater than that normally imposed by law.
9.2 Force Majeure - Except as otherwise expressly provided herein, neither party shall be
liable for any delay due to causes not reasonably within its control, including but not limited
to, acts of civil or military authority, including courts and regulatory agencies, acts of God,
war, riot or insurrection, inability to obtain required construction permits, blockades,
embargoes, sabotages, epidemics, fires, floods, strikes, lockouts or other labor difficulties,
provided such labor difficulties do not arise from inequitable labor practices. Failure of
subcontractors and inability to obtain materials shall not be considered as a force majeure
delay. In the event of any delay resulting from such causes, upon notice to the other party
within five (5) days of occurrence of the event giving rise to the delay; the time for
performance hereunder shall be extended for a period of time reasonably necessary to
overcome the effects of such delays. This section shall not apply to any payments required
to be made pursuant to this License.
13
ARTICLE 10
INSURANCE AND BONDING
10.1 Insurance - The Licensee agrees to procure and constantly maintain in force at its
expense, from companies reasonably satisfactory to the Licensor, the following policies of
insurance with minimum limits as follows:
Worker's compensation and employers' liability insurance for all of Licensee's employees.
If any of the work undertaken by the Licensee is sublet to a contractor, the Licensee shall
require the contractor to provide worker's compensation and employer's liability insurance
for the latter's employees unless such employees are covered under the Licensee's insurance.
Comprehensive general liability and vehicle insurance.that provides protection from claims
which may arise from operations._or performance under this License. If any of the work
undertaken by the Licensee is sublet to a contractor, the Licensee shall _require the
contractor to provide evidence of the same liability insurance coverage. For all insurance,
the amounts of insurance shall not be less than the following: single limit coverage applying
to bodily and personal injury liability and property damage, one million dollars per
occurrence. The required insurance coverage shall be provided by one or more insurers
authorized to issue
insurance policies in the State of California. Licensee will provide copies of insurance
certificates to the Licensor.
The following endorsements must be provided by Licensee:
(1) Contra Costa County, Contra Costa County Flood Control and Water Conservation
District, Redevelopment Agency of Contra Costa County, their boards, officers and
employees are additional insureds under the policy as to the work and operations being
performed under this License;
(2)' The coverage is primary and no other insurance or self insurance carried by Licensor
will be called upon to contribute to a loss under this coverage;
(3) The policy covers blanket contractual liability;
(4) The policy limits of liability are provided on an occurrence basis;
(5) The policy covers broad form property damage liability;
(6) The policy covers personal injury as well as bodily injury liability;
(7) The policy covers explosion, collapse and underground hazards;
14
(8)- The policy covers products and completed operations;
(9) The policy covers use of all classes of owned, hired and non-owned vehicles; and
(10) The coverage shall not be canceled or materially altered unless thirty (30) days written
notice is first given to Licensor.
Failure, inability or refusal of Licensee to obtain and maintain during the entire term or
terms of this License any and all of the required insurance coverage shall, at the option of
Licensor, constitute a breach of this License and justify immediate termination of the same.
10.2 Performance Bond - For the purpose of guaranteeing Licensee's performance of its
responsibilities under this License,-,Licensee shall furnish to the Licensor and maintain in
force at all times an appropriate performance bond issued by a corporate surety reasonably
acceptable to the Licensor and admitted to do business in the State of California. The
bond shall be in the amount of one million dollars.
ARTICLE 11
DEFAULT
11.1 Remedies upon Default - Upon the default of a party, the non-defaulting party may
terminate this License and seek any remedies available in law or equity.
11.2 Events of Default - A party will be deemed in default of this License upon the
occurrence of any one or more of the following events:
A party's failure to make any payment required by this License when due if the failure
continues for ten (10) days after written notice thereof is received;
Licensee's failure to maintain in force any of the insurance coverage or the bond required
by-this License if the failure is not remedied within the period of the notice given by the
insurance carrier or surety;
The initiation of proceedings or actions by or against a party seeking liquidation,
reorganization or other relief (such as assignment for the benefit of creditors or the
appointment of a trustee, conservator, receiver, liquidator or custodian or other such official)
under any bankruptcy, insolvency or other similar law;
A party's violation of any applicable laws, statutes, ordinances, codes or other legal
requirements if such violation is not remedied within ten (10) days after written notice
thereof is received;
15
Licensee's abandonment of the Cable or the Conduit System; or,
A party's failure to perform its obligations under this License if such nonperformance is not
remedied within thirty (30) days after notice thereof is received. However, if a failure to
perform cannot by its nature be remedied within a 30 days, and if Licensee has started to
remedy the nonperformance within the 30 day period and is diligently pursuing the remedy,
Licensor may extend the time for remedy up to an additional 30 days. The time for remedy
set forth in this Section shall not apply to defaults for which a shorter time for remedy is
listed above.
ARTICLE 12
GENERAL PROVISIONS
12.1 Parties Bound - Subject to the provisions of Section 7.3, this License shall be binding
upon and inure to the benefit of the parties and their respective successors and assigns.
12.2 Compliance with Laws - In performing and exercising its rights under this -License,
Licensee shall comply with all applicable laws and regulations, whether federal, state or
local.
12.3 Taxes and Assessments - Licensee shall pay, when due, all amounts owing to
governmental entities for taxes and assessments of general applicability, including possessory
interest tax and any taxes or assessments levied on telecommunications services.
12.4 Choice of Law - This License will be executed and interpreted according to the laws
of the State of California. The parties agree that jurisdiction for any disputes arising from
this License shall lie with the courts of that State.
12.5 Press Releases - Any press release or communication or use of a party's name related
to this License must be approved in writing by both parties, prior to any such press release,
communication or disclosure occurring.
12.6 Severability - In the event any one or more of the provisions of this License shall for
any reason be held to be invalid or unenforceable, the remaining provisions of-this License
shall be unimpaired and shall remain in effect and binding upon the parties.
12.7 Waiver - No act, omission or conduct of either party shall be held to operate as a
waiver of any provision or provisions of this License unless in the form of a writing signed
by the party against which it is asserted.
12.8 Modification - No modification or amendment of this License shall be valid unless the
same is made in accordance with the provisions of this License or by an instrument in
writing signed by Licensor and by the Licensee, and in case of any such alternation or
16
amendment, so much of this License as is not necessarily thereby changed shall remain in
force.
12.9 Notice - Any notice, request, instruction, demand, consent or other communication
required or permitted to be given under this License shall be in writing and shall be
delivered either by hand or by certified mail, postage prepaid, and certified return receipt
requested to the following address or such other address as the parties may provide to each
other in writing:
To Licensee - To Licensor -
GST Telecom, Inc. Contra Costa County
Earl C. Kamsky, President Public Works Department
4317 NE Thurston Way J. Michael Walford, Director
Vancouver, WA 98662 255 Glacier Drive
(360) 254-4700 Martinez, CA 94553
(510) 313-2000
Each such notice shall be deemed delivered (i) on the date delivered if done so by hand, or
(ii) if mailed on the date on which the returned receipt is either signed or, if delivery is
refused, the date the postal authorities designate the notice as undeliverable.
The Licensor acknowledges the Licensee's request to send a courtesy copy of any notice to:
Jim Geddis, Regional Vice President
GST Telecom, Inc.
871 Cofair Ct.
Solana Beach, CA 92075
(619) 481-8632
12.10 Timing and Reasonability of Approvals - Time is of the essence, and both parties
agree to undertake all actions decisions, approvals, and consents called for in this License
in a reasonable and timely manner.
12.11 Integration - This License is the entire agreement between Licensor and-Licensee on
the subject matter of this License.
17
r.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be
executed, and their corporate seals to be affixed hereto,by their respective officers thereunto
duly authorized, on the day, month and year first above written.
CONTRA COSTA COUNTY GST TELECOM, INC.
By: PQ -qb qIJ-" By:
_C___0
Phil Batchelor, County Administrator Name/TitIe: e-Ae✓'�
CONTRA COSTA COUNTY FLOOD
CONTROL AND WATER By: Gw"
CONSERVATION DISTRICT Nam e/Title• n
64 gz—
By: MA
Phil Batchelor, County Administrator
REDEVELOPMENT AGENCY OF
CONTRA COSTA COUNTY
By:
Phil Batchelor, County Administrator
RECOMMENDED FOR APPROVAL:
J. Michael Walford, Director
Public Works Department
By: w
J. Michael a f d, Director
APPROVED AS TO FORM:
Victor J. Westman, County Counsel
By:
David F. Schmidt,bepu -county Counsel
18
Note: For corporations, the agreement must be signed by two officers. The first signature must be that of the
chairman of the board, president or vice-president; the second signature must be that of the secretary, assistant
secretary, chief financial officer or assistant treasurer. (Civ. Code, Sec. 1190 and Corps. Code, Sec. 313.) The
acknowledgment below must be signed by a Notary Public.
CERTIFICATE OF ACKNOWLEDGMENT
State of . it f t4 )
cia k > SS.
County of A )
On the date written below, before me, the undersigned Notary Public, personally appeared
the persons signing above for GST Telecom, Inc., personally known to me (or proved to me
on the basis of satisfactory evidence) to be the persons whose names are subscribed to the
within instrument and acknowledged to me that they executed the same in their authorized
capacities, and that by their signatures on the instrument the persons, or the entity upon
behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
Dated: '.,....
[Nbtary
40
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�*1�5� 'VAP1' Jjotary Public
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doten\GSTLIC5.doc 'so *`,.AY 24,
19
-' A.
4317 NE THURSTON WAY
GAsr VANCOUVER.WA 98662
TELECOM 360-254-4700 360-260-2075 FAX
March 11, 1997
J. Michael Walford, Director
Contra Costa County
Public Works Department
255 Glacier Drive
Martinez, CA 94553
Dear Mr. Walford:
Please accept this letter as formal notice of GST Telecom, Inc.'s desire to substitute different
individuals to receive notice as outlined under section 12.9, "Notice," in the "License For The Construction
And Operation Of Telecommunications Systems On Specified Contra Costa County Properties." From this
date forward, please send notices to the following named parties on behalf of GST Telecom.
1. GST Telecom,Inc.
Robert L. Olson, President
4317 N.E. Thurston Way
Vancouver, WA 98662
(360)254-4700
2. With courtesy copies to:
GST Telecom, Inc.
Greg Warta
Asst. V.P.Network Development
4317 N.E. Thurston Way
Vancouver, WA 98662
GST Telecom, Inc.
Contracts Manager
Legal Department
4317 N.E.Thurston\Way
Vancouver, WA 98662
Thank you for your assistance. If you have any questions please contact our Contracts Manager,
Geri Roper at(360) 604-2824.
Cordiallyp r IT:
i
J: effr }��Mayhoo
V. . L al!and,,Re ulatory ffairs
JJM:mrm
GST Telecom, Inc.is a subsidiary of GST Telecommunications, Inc.(AMEX:GST).
Bakersfield • Berkeley • Bloomington • City of Industry • Coalinga Concord Danville • Farmington
Fremont Fresno • Hayward • Lafayette • Livermore • Loma Linda Los Angeles Mare Island • Martinez
Monterey, Park Oakland • Ontario • Palm Springs Pleasanton Rialto • Riverside • San Bernardino
San Francisco East Bay Area • San Ramon • San Luis Obispo • ry
Santa Barbara • Victoille • Walnut Creek
Albuquerque • Rio Rancho • Tucson • Phoenix • Amarillo EI
Paso Houston • Salt Lake City • Boise
Spokane 0 Vancouver • Portland • Reno Hawaii • Kauai Lanai • Maui • Molokai Oahu
FEB-14-1996 16:25 NDC, INC. REDDING, CA 916 247 81551 P.02
EXHW1`T B
CONDUIT SYSTEM SPECMCATIONS
G11KNERAL
The entire outside plant system to be constructed within the Counties RI& of Way will be
underground. The proposed conduit structure will comsist of eight (8), high density polyethylene
('IIDPV')ducts,handholes or pre-cut concrete manholes,buried warning tape,and warning sions.
DUCTS
Each of the 8 ducts will have a nominal inside diameter of one(1)inch, SDR-1 1, smooth wall IIDPF,
and-will be,color coded to dffaenbaft each duct from the others, and allow positive identification of
any duct at any point within the structure The ducts will be installed at an average depth of 48" from
ground level to the top of the uppermost duct.
HANDROLES and MANHOLES
Handholes or martWes. ("access points")for DST's use will be installed at intervals of approximately
2500 ket,or at all locations where acem to ducts is required for. the irLstallation of cable; at planned
or future laterals; at splice locations; as required for building entries. Access points for all ducts
other than those specified fhr use by GST will be installed at one mile intervals throughout the network.
At each of these access points,all ducts will terminate in the same handholo or manhole-
Handimles will be installed at locations where only pedestrian or incidental traffic is prescat.
Handholes will have an inside dimension of 3W x 57,x 3D,with no solid bottom_ Han&oles will be
construeW of polymer concrete or fiberglass and will be equipped with two plow lids with penta-head
loddog bolts_
Pre-cag omerete manholes will be installed in all areas where full traffic loading is required.
Manholes will have an inside dimension of 4V x 6'-6"L x 0-6"D, and will be equipped with a 30"
cast iron frame and cover designed to withstand standard H-20 highway live loading with impact.
Manhole lids will be equipped with penta-head locking bolts.
WARNING SIGNS
Warning signs will be placed along the entire network at a minimum of 300 foot intervals, and at each
change in duct alignment; an each side of every grade crossing, and each side of all drainage ditebus
and channels_
WARNINGTAPE
A buried warning tape will be placed over all ducts at a depth of 18"below the surface. This tape Will
serve as a final warning to excavators,that fiber optic cablestconduits are buried Wow. The warning
tape will be a 6"wide,6 ply,co-polyrner,high density tape with an elongation fhotor of 820%
TOTAL P.02
EXHIBIT "A"
PROPERTY
Contra Costa County Flood Control and Water Conservation District, Composite history
maps for Walnut Creek Right-Of-Way:
ED-500
ED-501
ED-502
ED-503
ED-504
ED-505
ED-506
ED-494
ED-495
ED-496
ED-497
ED-498
ED-499
ED-486
ED-487
ED-488
ED-489
ED-490
Record of Survey Maps of Former Southern Pacific Railroad Right-of-Way in incorporated
and unincorporated areas of Contra Costa County.
RSXXXX (Preliminary, December, 1994)
RS2090
RS2083
RS2059
EXHIBIT C
LICENSE AGREEMENT
BUCHANAN FIELD AIRPORT
This License Agreement("Agreement")by and between Contra Costa County hereinafter called
("County") and , a California Corporation, hereinafter called ("Licensee"),
shall be effective County is the owner of the real property known and designated
as Buchanan Field Airport located in Contra Costa County, California, hereinafter called
("Airport"). Licensee desires to obtain access to the Airport to provide
1. GRANT OF LICENSE: Subject to the terms and conditions of this Agreement, County
hereby grants to Licensee a nonexclusive,revocable license to enter.onto the property shown
in Exhibit "A", attached hereto, for the purposes described herein.
2. USE: The licensed premises may be used by Licensee only for providing
and shall be used for no other purpose without the prior written
approval of the Manager of Airports.
3. TERM: This License Agreement shall commence on , and may be
terminated by County at any time, for any reason,with or without cause on thirty (30) days
written notice to Licensee. However, in addition to those termination provisions described
in Section 6 Sublease Agreement, County may terminate this Agreement at any time on five
days written notice to Licensee in the event of a violation on Licensee's part of any term or
condition of this Agreement.
4. FEES: Beginning , as consideration for this Agreement, Licensee agrees to
pay a monthly concession fee ("Concession Fee") equal to two percent (2%) multiplied
times the monthly gross income from all gross receipts related to Licensee's business on the
licensed premises. The Concession Fee shall be calculated each and every month and shall
be paid to the County on or before the first day of each month while this License Agreement
is in effect, as described below.
All checks should be made payable to BUCHANAN FIELD AIRPORT and should
be mailed to: Manager of Airports, 550 Sally Ride Drive, Concord, CA 94520, or as
otherwise determined by the County. The monthly Concession Fee shall be paid in
accordance with the following provisions:
EDAz 6/96
doten\exhibitc 1
A. Licensee shall make payments of Concession Fees to the Manager of Airports not
later than the 20th day of each month representing business completed during the
previous month. If the Concession Fee is received by the County after the 20th day
of the month, the Concession Fee shall be delinquent, and shall be subject to
additional fees as described in Section 5. Delinquent Fees,herein below.
B. A gross monthly income report ("Monthly Report") will be submitted with each
payment. The Monthly Report will list the total gross income and the individual
totals for each income source resulting from all of Licensee's services provided under
this Agreement during the previous month. The Monthly Report shall be dated,
signed and approved as correct for submission to the Manager of Airports by
Licensee or an authorized officer of Licensee's company.
C. At the end of each calendar year,Licensee shall submit to County, an annual income
report("Annual Report"). Licensee shall, at all times,keep and maintain a full and
complete set of books and records which shall accurately show Licensee's annual
income at the Airport for the present and three(3)previous income tax years. Said
books and records shall at all reasonable times be open for inspection by County's
duly authorized representatives.
D. County reserves the right to inspect Licensee's books and records to determine the
accuracy of the Licensee's Monthly and Annual Reports.
E. The County reserves the right to revise and/or amend the Licensee's reporting
requirement at any time.
5. DELINQUENT FEES: In the event that Licensee shall become delinquent in paying to
County any payments due under paragraph 4.FEES hereinabove for a period of ten(10)days
or more after written notice by County, Licensee shall pay to County interest on said unpaid
balance at a rate of one and one-half percent(1.5%)per month, to be prorated if necessary,
from the date said unpaid balance was due and payable until paid in full.
6. SUBLEASE AGREEMENT: It is hereby acknowledged by the parties hereto that Licensee
has entered into a sublease agreement("Sublease Agreement")with ,
("sublessor") for Licensee's occupancy of Suite#2 of the Fixed Base Operation located at
on the Buchanan Field Airport ("FBO premises"). Upon the
expiration or earlier termination of said Sublease Agreement,this License shall immediately
terminate.
7. AIRPORT ACCESS: Manager of Airports shall designate the route and method of ingress
and egress to and from Airport.
EDAz 6/96
doten\exhibitc 2
8. SIGNAGE: All of Licensee's proposed signage shall be submitted to the Manager of
Airports for prior written approval. Upon said written approval, Manager of Airports shall
designate a suitable location on the Airport for Licensee's installation of the approved sign.
Airport reserves the right to reject or to have Licensee's signage modified until it is deemed
to be suitable for installation. County further reserves the right to remove or have removed,
at Licensee's expense, all signage installed without County's prior approval.
9. PERMITS AND APPROVALS: Licensee shall be responsible for obtaining any permits
or approvals from any agency having jurisdiction.
10. INSURANCE: Licensee agrees, at no cost to County, to obtain and maintain during the
entire duration of this Agreement, a comprehensive liability insurance policy with a
minimum combined single-limit coverage of One Million and no/100 dollars($1,000,000.00)
for all claims and losses due to bodily injury, or death to any person, or damage to property,
including loss of use thereof arising out of each accident or occurrence, and agrees to name
Contra Costa County, its officers, agents, and employees as an additional named insured
thereunder. Said coverage shall provide for a thirty (30) day written notice to County of
cancellation or lapse. A Certificate of Insurance, evidencing such coverage shall be
furnished to County prior to the start of this Agreement.
11. DEPOSIT: Prior to the commencement date of this Agreement,Licensee shall deposit the
amount of Five Hundred and No/100 Dollars ($500.00)with the Manager of Airports. Said
deposit will be returned to Licensee within thirty(30) days after the end of the term of this
Agreement, minus any outstanding amount due to the County.
12. HOLD HARMLESS: Licensee shall defend, indemnify, save,protect, and hold harmless
County its officers, agents, and employees from and against all liabilities, judgments,
claims, costs, and expenses arising directly or indirectly out of or connected with the
operations of Licensee, its agents, servants, employees,business invitees, or subcontractors,
any act taken by Licensee, its agents, servants, employees, business invitees or
subcontractors, pursuant to this License, or otherwise related to the granting of this
Agreement, save and except claims or litigation arising from the sole negligence or sole
willful misconduct of County.
13. WASTE: HAZARDOUS SUBSTANCES: Licensee shall not commit, or suffer or permit
the commission of any waste upon the premises, or any nuisance or other act or thing which
may disturb the quiet enjoyment of the use of the Buchanan Field Airport, or surrounding
property. Licensee shall not, and shall ensure that no others on the premises shall, store or
ED:Iz 6/96
doten\exhibitc 3
dispose of any hazardous materials which are, or during the term of the License become,
regulated by any local government authority, by the State of California, or by the United
States government.
Licensee shall not permit any activity on the premises which directly or indirectly
produces unlawful amounts for levels of air pollution (gases, particulate matter, odors,
fumes, smoke, or dust), water pollution, noise, glare, heat emissions, electronic or radio
interference with navigational and communication facilities for the operation of the Airport
and for its use by aircraft, trash or refuse accumulation, vibration, or which is hazardous or
dangerous by reason or risk of explosion, fire or harmful emissions. Airport shall have the
right to enter the premises at any time to verify Licensee's conformance with the provisions
of this paragraph.
14. ASSIGNMENT AND TRANSFER: Licensee shall not assign or transfer Licensee's right
under this Agreement. Licensee's assignment or transfer of Licensee's rights hereunder shall
be cause for County's immediate revocation of this Agreement.
15, ALTERATION OF TERMS AND CONDITIONS: The County reserves the right to alter,
amend, and/or change the terms and conditions of this Agreement upon thirty(30)days prior
written notice to Licensee.
16. INSTRUMENT OF TRANSFER AND NON-DISCRIMINATION COVENANTS:
Conditions:
A. Instrument of Transfer: This Agreement shall be subordinate and subject to the
provisions and requirements of the Instrument of Transfer by and between the United
States and County dated the 9th day of October, 1947, and recorded in Book 1137,
at page 114 of Official Records of Contra Costa County, California. This
Agreement shall be subordinate to the provisions and requirements of any future
agreement between the County and the United States, relative to the development,
operations, and/or maintenance of the Airport.
B. Non-Discrimination:
(1) Licensee assures that it will undertake an affirmative action program as
required by 14 CFR Part 152, Subpart E,to insure that no person shall on the
grounds of race, creed, color, national origin, or sex be excluded from
participating in any employment activities covered in 14 CFR Part 152,
Subpart E. Licensee assures that no person shall be excluded on these
grounds from participating in or receiving the services or benefits of any
program or activity covered by this Subpart. Licensee assures it will require
that its covered suborganizations provide assurances to Licensee that they
EDAz 6/96 4
doten\exhibitc
similarly will undertake an affirmative action program and that they will
require assurances from their suborganizations, as required by 14CFR Part
152, Subpart E, to the same effect.
(2) In the event of breach of any of the above non-discrimination covenants,
County shall have the right to terminate this Agreement as if said Agreement
had never been made or issued.
(3) Licensee agrees to furnish service on a fair, equal, and nondiscriminatory
basis to all users thereof, and to charge fair, reasonable, and non-
discriminatory prices for each unit of sales or service,provided,that Licensee
may be allowed to make reasonable and non-discriminatory discounts,
rebates, or other similar types of price reductions to volume purchasers.
Furthermore, Licensee shall neither discriminate nor permit discrimination
against any person or group of persons on the grounds of race,color,national
origin, sex or age in any manner,including,but not limited to, discrimination
prohibited by applicable Federal Aviation Regulations.
(4) Non-compliance with paragraph(3)above shall constitute a material breach
thereof and a default of this Agreement by Licensee and, in the event of such
non-compliance,.County shall have the right to terminate this Agreement
created without liability therefore, or at the election of the County or the
United States, either or both said Governments shall have the right to
judicially enforce the provisions of paragraphs (2) and(3) of this section.
17. GENERAL PROVISIONS:
A. County reserves the right to further develop or improve the Airport as it sees fit,
regardless of the desire or view of Licensee and without interference or hindrance
from Licensee.
B. County reserves the right to take any action it considers necessary to protect the
aerial approaches of the Airport against obstruction,together with the right to prevent
Licensee from erecting or permitting to be erected any building or other structure on
the Airport which, in the sole opinion of the County, would affect the usefulness of
the Airport or constitute a hazard to aircraft.
County, in exercising the rights stated in this subparagraph B, shall not be
held liable to Licensee for the expense, any loss or damage to Licensee resulting or
arising from County's removal of any aerial obstructions.
C. Neither the failure of County to strictly enforce all of the terms of this Agreement nor
the acceptance of payment by County after any breach by Licensee nor any delay on
the part of County to strictly enforce the provisions hereof, shall operate or be
deemed a waiver of any rights or remedies accruing by law or by this Agreement to
ED:lz 6/96
doten\exhibitc 5
County by reason of any subsequent breach.
D. In the event that any provisions herein contained is held to be invalid by any court
of competent jurisdiction, the invalidity of any such provisions does not materially
prejudice either County or Licensee in its respective rights and obligations contained
in the valid provisions of this Agreement.
E. It is understood,that Licensee's rights provided for under this Agreement at Airport
are non-exclusive. County retains the right to enter into other agreements which
might authorize similar use of the Airport and Airport facilities, and such
authorization shall be at the sole discretion of County.
F. Time is of the essence for each provision in this Agreement.
18. NOTICES: Any and all notices,requests,consents,approvals or communication that either
party desires or is required to give to the other party under this Agreement or otherwise, shall
be in writing and either served personally,or sent by prepaid first-class mail and shall be
effective from the date of the mailing of the same. For the purposes thereof,unless otherwise
provided in writing by the parties hereto, the address of the County and the proper party to
receive any such notices,requests, consents, approvals or communication on its behalf is:
Contra Costa County
c/o Manager of Airports
Buchanan Field Airport
550 Sally Ride Drive
Concord, CA 94520
and the address of Licensee is:
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19. ENTIRE AGREEMENT: This instrument contains the entire agreement between the
parties relating to the rights herein granted and the obligations herein assumed. No
alterations or variations of this Agreement shall be valid or binding unless made in writing
and signed by both parties hereto.
SIGNATURES
CONTRA COSTA COUNTY LICENSEE:
By By
J. Michael Walford,
Public Works Director
RECOMMENDED FOR APPROVAL: By
By
Harold E. Wight,
Manager of Airports.
By
Dick R. Awenius,
Airports Lease Manager
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LICENSE AGREEMENT
CONTRA COSTA COUNTY-BYRON AIRPORT
Bay Area Skydive
P.O. BOX 88
Byron, CA 94514
This License Agreement("Agreement")by and between Contra Costa County hereinafter called
("County") and Bay Area Skydive, hereinafter called ("Licensee") shall be effective March 1,
1996. County is the owner of the real property-known and designated as Byron Airport located in
Contra Costa County, California,hereinafter called("Airport"). Licensee desires to obtain access
to the Airport to provide skydiving lessons and pro shop sales on the Airport. Now, therefore, the
parties agree as follows:
1. GRANT OF LICENSE: Subject to the terms and conditions of this Agreement, County
hereby grants to Licensee a nonexclusive,revocable license to enter onto the property shown
in Exhibit "A", attached hereto, for the purposes described herein.
2. USE: The licensed premises may be used by Licensee only for providing skydiving lessons,
pro shop sales, and other services approved by the Manager of Airports, at the Airport, and
shall be used for no other purpose without the prior written approval of the Manager of
Airports.
3. TERM: This License Agreement shall commence on March 1, 1996,and may be terminated
by County at any time, for any reason, with or without cause on thirty (30) days written
notice to Licensee. County may terminate this Agreement at any time on five (5) days
written notice to Licensee in the event of a violation on Licensee's part of any term or
condition of this Agreement.
4. FEES: Beginning March 1, 1996, as consideration for this Agreement, Licensee agrees to
pay rent to the County each month as follows.
A. Hangar Rental Licensee shall pay a Monthly Hangar Rental Fee("Hangar Fee") for
that existing hangar consisting of approximately 4,350 square feet in the amount of
Eight Hundred and No/100 Dollars($800.00). Licensee shall pay the Hangar Fee not
later than the tenth(10th) day of each month.
B. Skydive Concession Fees Licensee agrees to pay a monthly concession fee
C'Skydive Concession Fee") equal to two percent (2%) multiplied times the
monthly gross income derived from all skydiving lessons and related services on the
licensed premises, excluding Pro Shop sales as described herein. The Skydive
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Concession Fee shall be calculated each and every month and shall be paid to the
County on or before the first day of each month while this License Agreement is in
effect.
C. Pro Shop Sales Concession Fees Licensee agrees to pay a monthly concession fee for
all Pro Shop sales("Pro Shop Concession Fee"). Beginning with the effective date
of this License Agreement and continuing to the last day of the twenty-fourth(24th)
calendar month thereafter, the amount of the Pro Shop Concession Fee shall be
calculated each and every month by multiplying the gross monthly income derived
from the Pro Shop sales by one percent(1 %).
Beginning with the first day of the twenty-fifth(25th) calendar month of this
License Agreement,the amount of the Pro Shop Concession Fee shall be calculated
each and every month by multiplying the gross monthly income derived from the Pro
Shop sales by two percent(2%).
D. Licensee shall make payments of all Concession Fees to the Manager of Airports not
later than the 10th day of each month representing business completed during the
previous month. A gross monthly income report ("Monthly Report") will be
submitted with each payment. The monthly Report will list total gross income and
the individual totals for all income sources resulting from Licensee's services
provided under this Agreement during the previous month. The Monthly Report
shall be dated, signed and approved as correct for submission to the Manager of
Airports by Licensee or an authorized officer of Licensee's company.
E. At the end of each calendar year,Licensee shall submit to County an annual income
report("Annual Report"). Licensee shall, at all times,keep and maintain a full and
complete set of books and records which shall accurately show Licensee's annual
income at the Airport for the present and three (3)previous income tax years. Said
books and records shall at all reasonable times be open for inspection by County's
duly authorized representatives.
F. County reserves the right to inspect Licensee's books and records to determine the
accuracy of the Licensee's Monthly and Annual Reports.
G. The County reserves the right to revise and/or amend the Licensee's reporting
requirement at any time.
5. DELINQUENT FEES: In the event that Licensee shall become delinquent in paying to
County any payments due under paragraph 4. FEES hereinabove for a period of ten (10)
days or more after written notice by County, Licensee shall pay to County a late fee of
Twenty-Five and No/1 00 Dollars($25.00),plus interest on said unpaid balance at a rate of
one and one-half percent (1.5%)per month, to be prorated if necessary, from the date said
unpaid balance was due and payable until paid. The $25.00 late fee shall be assessed for
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doten\exhibitc
i
S
each delinquency.
6. AIRPORT ACCESS: Manager of Airports shall designate the route and method of
Licensee's ingress and egress to and from Airport.
7. SIGNAGE: All of Licensee's proposed signage shall be submitted to the Manager of
Airports for prior written approval. Upon said written approval, Manager of Airports shall
designate a suitable location on the Airport for Licensee's installation of the approved sign.
Airport reserves the right to reject or to have Licensee's signage modified until it is deemed
to be suitable for installation. County further reserves the right to remove or have removed,
at Licensee's expense, all signage installed without County's prior approval.
8. PERMITS AND APPROVALS: Licensee shall be responsible for obtaining any permits
or approvals from any agency having jurisdiction.
9. INSURANCE: Licensee agrees, at no cost to County, to obtain and maintain during the
entire duration of this Agreement, a ,comprehensive liability insurance policy with a
minimum combined single-limit coverage of One Million and no/100 dollars($1,000,000.00)
for all claims and losses due to bodily injury, or death to any person, or damage to property,
including loss of use thereof arising out of each accident or occurrence, and agrees to name
Contra Costa County, its officers, agents, and employees as an additional named insured
thereunder. Said coverage shall provide for a thirty(30) day written notice to County of
cancellation or lapse. A Certificate of Insurance, evidencing such coverage shall be
furnished to County prior to the start of this Agreement.
10. DEPOSIT: Prior to the commencement date of this Agreement, Licensee shall deposit the
amount of One Thousand and Noll 00 Dollars ($1,000.00) with the Manager of Airports.
Said deposit will be returned.to Licensee within thirty(30) days after the end of the term of
this Agreement,minus any outstanding amount due to the County.
11. HOLD HARMLESS: Licensee shall defend, indemnify, save,protect, and hold harmless
County its officers, agents, and employees from and against all liabilities; judgments,
claims, costs, and expenses arising directly or indirectly out of or connected with the
operations of Licensee,its agents, servants, employees,business invitees, or subcontractors,
any act taken by Licensee, its agents, servants, employees, business invitees or
subcontractors, pursuant to this License, or otherwise related to the granting of this
Agreement, save and except claims or litigation arising from the sole negligence or sole
willful misconduct of County.
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12. ALTERATIONS: Licensee intends to install a modular building on the Licensed Premises.
Said modular building shall be Licensee's personal property and shall be promptly removed
by Licensee, at Licensee's sole expense,upon the termination of this Agreement, subject to
the terms of this Section. Licensee shall not make any other alterations or improvements to
the property.without the express prior written consent of both County and the Sublessor. All
such alterations or improvements shall remain on the property and shall become the property
of the County.
Upon the termination of this Agreement, County shall have the right to require
Licensee to remove Licensee's alterations or improvements,at Licensee's sole expense,upon
written notice to Licensee, and to return the property to at least a condition existing
immediately prior to the construction of the alteration or improvement.
In the event that Licensee fails to remove Licensee's alterations or improvements
within ten(10)days after Licensee's receipt of County's notice, County shall have the right
to remove the alterations and additions at Licensee's sole expense. Licensee hereby agrees
to reimburse County for all sums expended by County in having said alterations or
improvements removed from the property, immediately upon Licensee's receipt of such
written request by.County.
13. WASTE: HAZARDOUS SUBSTANCES: Licensee shall not commit, or suffer or permit
the commission of any waste upon the premises,or any nuisance or other act or thing which
may disturb the quiet enjoyment of the use of the Byron Airport, or surrounding property.
Licensee shall not, and shall ensure that no others on the premises shall, store or dispose of
any hazardous materials which are, or during the term of the License become, regulated by
any local government authority, by the State of California, or by the United States
government.
Licensee shall not permit any activity on the premises which directly or indirectly
produces unlawful amounts for levels of air pollution (gases, particulate matter, odors,
fumes, smoke, or dust), water pollution, noise, glare, heat emissions, electronic or radio
interference with navigational and communication facilities for the operation of the Airport
and for its use by aircraft, trash or refuse accumulation, vibration, or which is hazardous or
dangerous by reason or risk of explosion, fire or harmful emissions. Airport shall have the
right to enter the premises at any time to verify Licensee's conformance with the provisions
of this paragraph.
14. ASSIGNMENT AND TRANSFER: Licensee shall not assign or transfer Licensee's right
under this Agreement. Licensee's assignment or transfer of Licensee's rights hereunder
shall be cause for County's immediate revocation of this Agreement.
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15. GENERAL PROVISIONS:
A. County reserves the right to further develop or improve the Airport as it sees fit,
regardless of the desire or view of Licensee and without interference or hindrance
from Licensee.
B. County reserves the right to take any action it considers necessary to protect the
aerial approaches of the Airport against obstruction, together with the right to
prevent Licensee from erecting or permitting to be erected any building or other
structure on the Airport which, in the sole opinion of the County, would affect the
usefulness of the Airport or constitute a hazard to aircraft.
County, in exercising the rights stated in this subparagraph B, shall not be
held liable to Licensee for the expense, any loss or damage to Licensee resulting or
arising from County's removal of any aerial obstructions.
C. Neither the failure of County to strictly enforce all of the terms of this Agreement nor
the acceptance of payment by County after any breach by Licensee nor any delay on
the part of County to strictly enforce the provisions hereof, shall operate or be
deemed a waiver of any rights or remedies accruing by law or by this Agreement to
County by reason of any subsequent breach.
D. In the event that any provisions herein contained is held to be invalid by any court
of competent jurisdiction, the invalidity of any such provisions does not materially
prejudice either County or Licensee in its respective rights and obligations
contained in the valid provisions of this Agreement.
E. It is understood,that Licensee's rights provided for under this Agreement at Airport
are non-exclusive. County retains the right to enter into other agreements which
might authorize similar use of the Airport and Airport facilities, and such
authorization shall be at the sole discretion of County.
F. Time is of the essence for each provision in this Agreement.
16. NOTICES: Any and all notices, requests, consents, approvals or communication that
either party desires or is required to give to the other party under this Agreement or
otherwise, shall be in writing and either served personally or sent by prepaid first-class mail
and shall be effective from the date of the mailing of the same. For the purposes thereof,
unless otherwise provided in writing by the parties hereto,the address of the County and the
proper party to receive any such notices, requests, consents, approvals or communication
on its behalf is:
Contra Costa County
c/o Manager of Airports
Buchanan Field Airport
550 Sally Ride Drive
Concord, CA 94520
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and the address of Licensee is:
Bay Area Skydive
P.O. Box 88
Byron, CA 94514
17. TERMINATION OF PRIOR LICENSE: Upon commencement of this License, County
and Licensee hereby agree that certain License Agreement between County and Licensee
dated June 16, 1991 shall immediately terminate.
18. ENTIRE AGREEMENT: This instrument contains the entire agreement between the
parties relating to the rights herein granted and the obligations herein assumed. No
alterations or variations of this Agreement shall be valid or binding unless made in writing
and signed by both parties hereto.
SIGNATURES
CONTRA COSTA COUNTY LICENSEE: Bay Area Skydive
By By
J. Michael Walford Joseph J. Bango, Owner
Director of Public Works
RECOMMENDED FOR APPROVAL:
By
Harold E. Wight
Manager of Airports
By
Dick R. Awenius
Airports Lease Manager
EDAz 6/96
doten\exhibitc 13