HomeMy WebLinkAboutC10-297 License Agreement with Union Pacific Railroad Company Information Technologies
UNION
PACIFIC
1 1111 1
Keith Montag August 30, 2010
Eagle County
PO Box 850
Eagle County, Colorado 81631 -0850
RE: Eagle County Collocation at Blowout Mtn, CO
Barry,
Per our discussion today, this Letter of Agreement outlines the cost associated with the construction of the electric
power line, the Commencement date of our License Agreement dated August 10,2007 and the rent free period.
The cost of the electric power line is agreed as One Hundred Ten Thousand ($110,000.00). As stated in Section 7A
of the License Agreement, "Licensor shall calculate such rent -free period by taking one -half of Licensee's total as-
constructed costs and divide that figure by $12,000.00" to determine the rent free period. Rounding, the rent free
period is hereby agreed to be Five(5) years.
The Commencement date is hereby agreed to be November 1'`, 2008.
The Rent Free period is determined to be from November 1, 2008 thru and including October 31,2013.
Beginning November 1, 2013, Licensee's annual rental rate will be Twelve Thousand($12,000.00) dollars.
All other sections of the License Agreement will remain in full force and effect.
If you agree to the terms and conditions of this Letter Agreement, please sign below, return the signed copy to me
and keep a copy for your records.
Keith Montag
County Manager
Sincerely,
Mike Wallman
MS0640
1400 Douglas St.
Omaha, Ne 68179
(402) 544 -0577
Associate System Engineer
Union Pacific Railroad
UNION PACIFIC RAILROAD
1400 Douglas St, STOP 0640, Omaha, NE 68179
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8 -9 -07
LICENSE AGREEMENT
THIS LICENSE AGREEMENT ( "License "), is made and entered into this day of
, 2007, by and between UNION PACIFIC RAILROAD COMPANY, a
Delaware corporation, having an office at 1400 Douglas Street, Mail Stop 0640, Omaha, Nebraska
68179, (hereinafter referred to as "Licensor ") and Eagle County, a Government entity with an office
at 500 Broadway, Eagle, Colorado 81631 (hereinafter referred to as "Licensee ").
RECITALS:
Licensor operates an existing Communications Facility on federal land under a
Communications Use Lease with the United States Department of the Interior, Bureau of
Land Management (BLM). Said Facility is located on a tract of land situate in the Southeast
quarter of the Southeast quarter of Section 21, Township 4 South, Range 86 West, 6
Principle Meridian, in Eagle County, Colorado (the "Licensor's Site "). Electrical power is
currently supplied to Licensor's Site by solar panels.
Licensee wishes to locate antennas on Licensor' s eighty -five (85) foot tower located
within Licensor's Site.
Licensee also wishes for Licensor to provide to Licensee an area of 200 square feet
adjacent to the Tower to accommodate Licensee's 10 foot by 20 foot equipment shelter (the
"Equipment Shelter ") and an area to accommodate a 30 KW propane generator. Licensee's
site plan is attached hereto as Exhibit A.
Licensee is currently working on a separate agreement (the "Power Line Agreement ")
with the BLM which, if successful, will allow Licensee to have commercial AC power
brought to the site.
AGREEMENT:
NOW, THEREFORE, IT IS MUTUALLY AGREED BY AND BETWEEN THE
PARTIES HERETO AS FOLLOWS:
Section 1: RELOCATION OF LICENSOR'S SOLAR PANEL ARRAY
Licensee shall be allowed to relocate Licensor's solar panel array to a location
agreeable to by both parties. Licensee shall supply detailed plans to Licensor on the means of that
relocation for Licensor's approval. The relocation shall be completed in such a matter that will not
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cause a disruption in the solar panel array function. The actual movement of the solar panel array
shall be scheduled and coordinated with Licensor. All costs associated with the solar panel array
relocation shall be borne by Licensee.
Section p. LICENSEE SHELTER SPACE
)Following the relocation of Licensor's solar panel array Licensee shall then have the right to
place Licensee's 10 foot by 20 foot Equipment Shelter in the location vacated by the solar panel
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array y in ccordance with Exhibit A.
Section 3. LICENSE OF TOWER SPACE
Licensot, for and in consideration of the rental arrangements between Licensor and Licensee
provided in Section 5 below, hereby grants to Licensee the right to place one (1) six -foot microwave
dish at Ole 45 foot level of Licensor's 85 foot tower and one (1) six -foot microwave dish at the 35
foot level of Licensor's 85 foot tower. Licensor also grants Licensee the right to place two (2) 44"
stick antennas at the 40 foot and 60 foot level of Licensor' s 85 foot tower. Licensee shall be allowed
to run o� wave-guide wave - e run of microwave antenna uide to each dish and one run of 7/8 inch coaxial
antenna Cable to each stick antenna. Said antennas to be used by licensee for use in the operation of
Licensee's public safety radio system. Licensee shall not use the tower for any other purposes
without the prior written consent of Licensor.
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Section 4. COMMERCIAL AC POWER INSTALLATION
Following Licensee's successful execution of the Power Line Agreement with the
BLM Licensee agrees to arrange for construction and installation of a commercial AC power line
("PowerLine") to supply power to Licensor's Site. Licensee shall be responsible for paying all costs
associated with the construction and installation of said Power Line. Upon completion of said Power
Line Licensor shall be allowed to connect to said Power Line and use it to supply AC power to
Licensors existing equipment, as well as any equipment Licensor may add in the future. Licensor
will be responsible for payment for the electricity Licensor's equipment consumes.
Section $. EMERGENCY POWER
Licensee, at Licensee' s sole cost shall provide and install one 30KW propane
generatot to be located on Licensor's Site in accordance with Exhibit A. Said propane generator shall
be configured and used to supply emergency backup power to both Licensee and Licensor. Licensee
shall ma ntain said propane generator at Licensee's sole cost.
Section 6. TERM
A. Subject to the terms and conditions of Section 12 relating to termination, and Section
6C belov', the initial term of this License is for the period of ten (10) years, commencing on the date
installation of Licensee's facilities and/or equipment begins (the " Commencement Date ").
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B. Thereafter, so long as neither party is in default, the term of this License shall
automatically renew without any further documentation on a year to year basis until terminated by
either party at any time by such party giving the other party six (6) months written notice of
termination. Each yearly renewal shall be upon the same terms and conditions set forth in this
License.
C. Licensor hereby grants to Licensee a right of first offer to purchase Licensor's tower
at said tower's appraised value (as determined by the average between an appraisal done by Licensor
and an appraisal done by Licensee) only in the event Licensor elects to cease operations at Licensor's
Site and/or elects to sell the tower and/or terminate Licensor's Communications Use Lease with the
BLM. If such event should occur and if Licensee elects to make a written offer to Licensor, it shall
do so within twenty days after the appraised value has been determined. Licensor shall take into
account the special rent -free provisions contained in this License when reviewing Licensee's offer. If
Licensee declines to submit an offer, Licensor may sell the Tower to a third party, subject to this
License, and Licensor will assign this License to the third party purchaser, or Licensor may remove
the tower at Licensor's cost and terminate this Agreement.
D. This Agreement may be terminated at any time by either party, with or without cause.
Such termination will be accomplished by delivery of a Notice of Termination to the other Party
specifying the date upon which such termination shall become effective. Licensee will only be
responsible for rental payments through the date of termination."
Section 7. RENTAL; RENTAL REEVALUATION; SERVICE FEE.
A. After Licensee has completed the construction and activation of the AC power line,
Licensee shall provide written evidence to Licensor of costs incurred by Licensee in constructing the
power line, including the costs of plans, surveys, engineering for the power line, generator and
generator installation. Licensee agrees that all other costs associated with Licensee's equipment
installation, including, without limitation, site preparation, foundations and other construction costs,
shall be at Licensee's sole cost and expense and shall not be included in determining Licensee's rent -
free period. If Licensee' s costs related to the construction of the AC power line do not exceed One
Hundred Twenty Thousand Dollars ($120,000.00), Licensor will use such actual as- constructed costs
in determining a rent -free period covering Licensee's use of space on Licensor's Site for Licensee's
Communications Facility. Licensor shall calculate such rent -free period by taking one -half of
Licensee' s total as- constructed costs (if such costs do not exceed $120,000.00) and divide that figure
by $12,000.00. Such calculations will determine the number of years (or fraction thereof) that
Licensee will receive free rent with the understanding that the rent -free period will not exceed five
(5) years. After the rent -free period ends, Licensee shall pay to Licensor an annual rent of $12,000.00
on or before each anniversary of the Commencement Date, partial years prorated and subject to the
rental increase provisions contained in Section 5B below. Licensor and Licensee will execute an
addendum to this License after actual costs and the rent free period have been determined to
document actual costs and the rent -free period.
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B. After the rent -free period ends, the monthly rent will be increased annually by three
percent (3%) over the previous year's rent.
C. Notwithstanding anything to the contrary contained in this Agreement, no charges
shall bej made to the Licensee nor shall any payment be made to Licensor without the written
approval of the County in accordance with a budget adopted by the Board of County Commissioners
in accordance with the provisions of Article 25 of Title 30 of the Colorado Revised Statutes and the
Local Government Budget Law (C.R.S. 29 -1 -101 et. seq.). The parties recognize that the Client is a
governmental entity and that all financial obligations beyond the current fiscal year are subject to
funds being budgeted and appropriated.
Should Licensee not be successful in executing the Power Line Agreement and the
Power Line cannot be constructed then there will be no rent -free period and Licensee will be required
to start paying annual rent as outlined herein as of the Commencement Date.
Section i8. INSTALLATION OPERATION AND MAINTENANCE.
A. The installation, operation, maintenance, repair and removal of Licensee's equipment
shall be in accordance with the requirements and specifications of Licensor's Engineer; and prior to
installation thereof, Licensee shall submit to and receive the approval of Licensor of the means and
manner f accomplishment thereof. Licensee shall provide the maintenance and repair of Licensee' s
equipm nt. Licensee shall not at any time change the location of the antennas on the tower or make
additio 1 attachments without the written permission of Licensor.
B. During the existence of this License, Licensor agrees that Licensee shall have full
access duly to Licensee's equipment inside Licensee's Equipment Shelter for the purpose of
installing, operating, maintaining, repairing and removing its equipment. Only authorized personnel
of Licensee shall be permitted access to Licensee's equipment and Equipment Shelter.
C. Licensee's equipment installation, operation, maintenance, repair and removal shall in
no way pnaterially damage the premises or tower and shall in no way interfere with the maintenance
of the tdwer or tower lighting system (if applicable). Licensee further agrees that the installation,
operation, maintenance, repair and removal of Licensee' s equipment on Licensor's Site shall comply
with all iapplicable rules and regulations of the Federal Communications Commission (FCC) and
electric41 codes of any other governmental authority having jurisdiction.
1p. Licensee shall provide assistance to Licensor while trying to eliminate interference
problenns that involve Licensee's equipment. In the event Licensor has granted more than one license
agreement of the Tower, the most recent licensee shall be responsible for curing any interference
caused by the installation and /or operation of additional equipment and facilities unless a prior
licensee modifies its communications equipment and thereby causes interference.
Section 9. INSURANCE.
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Licensee shall, at its sole cost and expense, procure and maintain during the life of
this Agreement the following insurance coverage:
(a) General Liability insurance providing bodily injury including death, personal injury
and property damage coverage with a combined single limit of at least $2,000,000 each occurrence
and an aggregate limit of at least $4,000,000. This insurance shall contain contractual liability
coverage. Exclusions for explosion, collapse, underground hazard and Railroads (except where the
Premises is more than fifty feet (50') from any railroad tracks, bridges, trestles, roadbeds, terminals,
underpass or crossing) shall be removed. Coverage purchased on a claims made form shall provide
for at least a two (2) year extended reporting or discovery period if (a) the coverage changes from a
claims made form to an occurrence form, (b) there is a lapse /cancellation of coverage, or (c) the
succeeding claims made policy retroactive date is different for the expiring policy.
(b) Automobile Liability insurance providing bodily injury and property damage
coverage with a combined single limit of at least $2,000,000 each accident. This insurance shall
cover all motor vehicles including hired and non - owned, and mobile equipment if excluded from
coverage under the general public liability insurance.
(c) Workers' Compensation insurance covering Licensee's statutory liability under the
workers' compensation laws of the state(s) affected by this License, and Employers' Liability. If such
insurance will not cover the liability of Licensee in states that require participation in state workers'
compensation fund, Licensee shall comply with the laws of such states. If Licensee is self - insured,
evidence of state approval must be provided.
Where permitted by law and subject to Licensee's indemnification obligations herein,
Licensee and its insurers shall endorse the required insurance policy(ies) to waive their right of
subrogation against Licensor. Licensee and its insurers also waive their right of subrogation against
Licensor for loss of its owned or licensed property or property under its care, custody and control.
Licensee's insurance shall be primary with respect to any insurance carried by Licensor. The
policy(ies) required under (a) and (b) above shall provide severability of interests and shall name
Licensor as an additional insured with respect to liability arising from Licensee's operations for
which Licensee has legally assumed responsibility herein.
Prior to the start of Tower construction, Licensee shall furnish to Licensor certificate(s) of
insurance evidencing the required coverage. The certificate(s) shall contain a provision that obligates
the insurance company(ies) issuing such policy(ies) to notify Licensor in writing of any material
alteration including any change in the retroactive date in any "claims- made" policies or substantial
reduction of aggregate limits, if such limits apply, or any cancellation at least thirty (30) days prior
thereto.
The insurance policy(ies) shall be written by a reputable insurance company(ies) acceptable
to Licensor or with a current Best's Insurance Guide Rating of B and Class VII or better, and, with
the exception of Licensee's (AT &T's ?) affiliated insurance company, authorized to do business in
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the stat: (s) in which the Job Site is located.
f Licensee fails to procure and maintain insurance as required, Licensor may elect to do so at
the cost of Licensee.
he fact that insurance is obtained by Licensee shall not be deemed to release or diminish the
liability
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of Licensee, including, without limitation, liability under the indemnity provisions of this
Agreement. Damages recoverable by Licensor shall not be limited by the amount of the required
insurance coverage.
Section X10. USE OF TOWER AND PREMISES BY THIRD PARTIES
A. During the existence of this License, Licensor agrees that permission shall not be
. granted to any third party for the installation or use of radio or any other equipment on the tower if
such installation and/or use will in any way affect or interfere with Licensee's rights hereunder.
License warrants that its use of the premises will not interfere with existing radio frequency
user(s) n the Licensor's Site as long as the existing radio frequency user(s) operate and continue
to operate within their frequencies and in accordance with all applicable laws and regulations.
1. Licensor will not permit its employees, tenants, licensees, invitees or agents to use
any portion of Licensor's Site in any way that interferes with the operations of Licensee or the rights
of Licensee under this License. Licensor will cause such interference to cease upon not more than
twenty -Dour (24) hour notice from Licensee. In the event any such interference does not cease within
the afor *mentioned cure period then the parties acknowledge that Licensee will have the right to
elect to Onjoin such interference or to terminate the License upon notice to Licensor.
Section 1.1. ASSUMPTION OF RISK; INDEMNITY
A. Licensee accepts the tower and premises in its present condition and hereby assumes
the risk gf any injury to and death of persons and damage to or destruction of property resulting from
the condition of or any defects anywhere in or upon the tower and premises, regardless of whether
such condition or defects are known or unknown, apparent or latent, and regardless of whether such
condition or defects exist at the commencement of this License or at some later time.
B. The occupation of and activities upon the tower and/or premises by Licensee will
expose Licensor's Site, operations and facilities to additional hazards; and as one of the material
considerations for this License, Licensee agrees to assume the risk of and to indemnify and hold
harmless Licensor as follows: Licensee assumes the risk of and shall indemnify and hold harmless
Licensor, and its affiliates, their officers, agents and employees, against and from any and all
liability,;loss, damage, claims, demands, costs and expenses of whatsoever nature, including court
costs and attorneys' fees, arising from or growing out of any injury to or death of persons
whomsoever or loss of or damage to property whatsoever. The right to indemnify, and hold harmless
shall accrue when such injury, death, loss or damage occurs from any cause and is associated in
whole or in part with, incidental to or caused by the construction, occupation or use of the Tower
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and/or Premises, or any activity upon the Tower and/or Premises by Licensee, its employees or
agents, or by any person on or near the Tower and/or Premises by reason of any relation, contractual
or otherwise, with Licensee, its officers, employees or agents, or caused by Licensee's breach of this
License. Licensee shall not indemnify and hold harmless Licensor when any such injury, death, loss
or damage is caused by the sole direct negligence of Licensor, its officers, employees or agents.
Section 12. TERMINATION.
In the event that either party breaches any provision of this License, the non - breaching
party shall provide written notice to the breaching party of such default. If the default is not remedied
within thirty (30) days following receipt of such notice, the non - breaching party shall have the right
to terminate this License. In addition to the right of termination, the non - breaching party shall be
entitled to exercise all rights possessed at law or in equity.
Section 13. NOTICE
A. Any notice, demand, request, consent, approval or communication that either party
hereto desires or is required to give to the other party under this License shall be in writing. Notice
shall be deemed to have been given to Licensee by serving Licensee personally or by mailing the
same, postage prepaid, to Licensee at:
Eagle County
Barry Smith
P.O. Box 850
Eagle, Colorado 81631 -0850
Notice may be given to Licensor by mailing the same, postage prepaid, to the office of:
Union Pacific Railroad Company
David Burden
1400 Douglas Street, Mail Code 0640
Omaha, Nebraska 68179
B. Postal notices shall be by certified mail, return receipt requested, and such notice shall
be deemed given on the date deposited with the United States Postal Service.
Section 14. CONSENT
Wherever the consent, approval, judgment or determination of Licensor is required or
permitted under this License, Licensor shall exercise good faith and reasonable business judgment in
granting or withholding such consent or approval or in making such judgment or determination and
shall not unreasonably withhold or delay its consent, approval, judgment or determination.
Section 15. SURRENDER; ABANDONMENT; VACATION OF PREMISES;
REMOVAL OF LICENSEE'S PROPERTY
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Licensee agrees that upon the expiration or abandonment of the Licensor' s Site by
Licensela, or sooner termination of this License, Licensee will peacefully and quietly surrender
occupat on of the premises to Licensor, or Licensor's successors and assigns, without Licensor giving
any noti e to quit or demand for possession. Licensee's non -use of the tower and premises for the
purpose described in this License continuing for one (1) year shall be sufficient and conclusive
evidenc of such abandonment, unless Licensee shall have notified Licensor in writing of its reasons
for such non -use, and shall continue to pay rent as and when due to Licensor. No later than the
expiration or termination date of this License, Licensee shall (a) remove from the tower and
premise$, at the expense of Licensee, all structures, property and other materials belonging to
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License; and (b) restore the surface of the ground to as good a condition as the same was in before
such structures were erected and/or constructed, including, without limiting the generality of the
fore of the removal of foundations of such structures to depth nlg, a d pth of three (3) feet, the filling in of
all exca' ations and pits, and the removal of all debris and rubbish, all of which shall be performed at
Licensee's expense. If Licensee should fail to perform such removal, Licensor may perform the work
and Licensee shall reimburse Licensor for the cost thereof within thirty (30) days after the bill is
rendered.
Section 16. LICENSEE NOT TO SUBLET OR ASSIGN
Licensee agrees not to sublet the Licensor' s Site, in whole or in part, or to assign this
License without the consent in writing of Licensor, and it is agreed that any transfer or assignment of
this License, whether voluntary, by operation of law or otherwise, without such consent in writing,
shall be absolutely void and, at the option of Licensor, shall terminate this License. Notwithstanding
the foregoing, however, Licensee shall not require Licensor' s consent in order to assign this License,
either irk whole or in part, to any entity controlling, controlled by or under common control of
Licensee, or to any entity which acquires substantially all of the assets of Licensee.
Section 17. SUCCESSORS AND ASSIGNS
Subject to the provisions of Section 14 hereof, this License shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns.
Section 18. PERMITS; LICENSES; EASEMENTS
Licensee shall obtain all necessary licenses and permits for the use of the Licensor' s
Site as contemplated by this License. Such licenses and permits are to be obtained by Licensee at no
addition& expense to Licensor.
Section 19. GOVERNING LAW
This License shall be governed in accordance with the laws of the State of Colorado.
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IN WITNESS WHEREOF, Licensor and Licensee have each duly executed this
License as of the date first herein written.
UNION PACIFIC RAILROAD COMPANY,
By
E. F. Kemp
AVP Telecom
EAGLE COUNTY
By:
•�� Name: - �
Title:
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