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Home My WebLink AboutA7008 - 5BARS COMMUNITIES dba XG Communities LLC - WIRELESS MARKETING AGMT WIRELESS MARKETING AGREEMENT BETWEEN THE CITY OF PALM SPRINGS AND 5 BARS COMMUNITIES THIS WIRELESS MARKETING AGREEMENT ("Agreement") is entered into, and effective on , 201A, between the CITY OF PALM SPRINGS, a California charter ky and municipal corporation, ("City") and 5 Bars Communities dba XG Communities, LLC a Delaware limited liability company, ("Consultant"). City and Consultant are individually referred to as "Party" and are collectively referred to as the "Parties". RECITALS A. City has determined that there is a need for wireless consulting, management and development services for the purpose of planning, marketing, sublicensing, development, maintenance, and/or operation of certain tower(s), pole(s), building(s), fiber, conduit(s), data room(s), street furniture, and any structure(s) or object(s) of any kind or character not particularly mentioned herein (hereafter referred to as "City Assets"), located on City Property and within City Right-of-Way for the purposes of promoting, transmitting or facilitating wireless communication of telephone or data or any other means (hereafter referred to as "Wireless Telecommunications Facilities"). The desired scope of work as referenced herein this Rectial A, is collectively referred to as the "Project." B. Pursuant to a Request for Qualifications (Q16071011005) issued by the City of Sacramento, in March 2016 Consultant submitted a proposal to the City of Sacramento for a Wireless Market Plan, consistent with the scope of the services associated with the Project now to be undertaken by the City. As a result of its RFQ, the City of Sacramento selected Consultant as the most qualified firm to provide the requested services associated with its Wireless Marketing Plan, and on June 14, 2016, the City of Sacramento approved that certain Wireless Marketing and License Agreement No. 2016-0801 with Consultant for similar services to be undertaken by the City pursuant to this Agreement. C. Pursuant to a Request for Qualifications (RFQ) (Bid File 3503) issued by the City of Fresno, in November 2016 Consultant submitted a proposal to the City of Fresno for deployment of a wireless and/or wired/fiber network with broadband access, consistent with the scope of the services associated with the Project now to be undertaken by the City. As a result of its RFQ, the City of Fresno selected Consultant as the most qualified firm to provide the requested services associated with its wireless and/or wired/fiber network, and on June 15, 2017, the City of Fresno approved that certain Wireless Marketing and License Agreement with Consultant for similar services to be undertaken by the City pursuant to this Agreement. D. On the basis of the competitive qualifications-based selection processes completed pursuant to Sacramento's RFQ (Q16071011005) and Fresno's RFQ (Bid File 3503), Consultant is qualified by virtue of its experience, training, education, reputation, ORIGINAL BID Page 1 of 24 ANDIOR AGREEMENT and expertise to provide these services and has agreed to provide such services as provided in this Agreement. E. Palm Springs Municipal Code Section 7.04.020 "Sole source procurement by the city" allows the City to sole-source its selection of a vendor on the basis of a good faith review of available sources and determination that there is only one source of a required item or service. F. City has determined that Consultant is uniquely qualified, experienced and capable of providing Services of the scope and nature to City hereunder, and desires to retain Consultant to provide such Wireless Marketing Services. In consideration of these promises and mutual obligations, covenants, and conditions, the Parties agree as follows: AGREEMENT 1. SERVICES OF CONSULTANT 1.1 Scope of Services.In compliance with all terms and conditions of this Agreement, Consultant agrees to perform the professional services set forth in the Scope of Services described in Exhibit "A" (the "Services" or "Work") , which is attached and incorporated by reference. As a material inducement to the City entering into this Agreement, Consultant represents and warrants that Consultant is a provider of first class work and professional services and that Consultant is experienced in performing the Work and Services contemplated and, in light of such status and experience, Consultant covenants that it shall follow the highest professional standards in performing the Work and Services required in this Agreement. For purposes of this Agreement, the phrase "highest professional standards" shall mean those standards of practice recognized as high quality among well-qualified and experienced professionals performing similar work under similar circumstances. 1.2 Contract Documents. The Agreement between the Parties shall consist of the following: (1) this Agreement; (2) the Scope of Services; (3) the City of Sacramento's Request for Qualifications (Q1 6071 01 1 005); and, (4) the Consultant's signed, original proposal submitted to the City of Sacramento ("Consultant's Proposal"), (collectively referred to as the "Contract Documents"). The Sacramento's Request for Proposals and the Consultant's Proposal, which are both attached as Exhibits "B" and "C", respectively, are incorporated by reference and are made a part of this Agreement. The Scope of Services shall include the Consultant's Proposal. All provisions of the Scope of Services, the City's Request for Proposals and the Consultant's Proposal shall be binding on the Parties. Should any conflict or inconsistency exist in the Contract Documents, the conflict or inconsistency shall be resolved by applying the provisions in the highest priority document, which shall be determined in the following order of priority: (15t) the provisions of the Scope of Services (Exhibit "A"); Page 2 of 24 (2"d) the provisions of the City's Request for Proposal (Exhibit "B"); (3`d) the terms of this Agreement; and, (4t) the provisions of the Consultant's Proposal (Exhibit "C"). 1.3 Compliance with Law. Consultant warrants that all Services rendered shall be performed in accordance with all applicable federal, state, and local laws, statutes, ordinances lawful orders, rules, and regulations. 1.4 Licenses, Permits, Fees, and Assessments. Consultant represents and warrants to City that it has obtained all licenses, permits, qualifications, and approvals of whatever nature that are legally required to practice its profession and perform the Work and Services required by this Agreement. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect at all times during the term of this Agreement, any license, permit, qualification, or approval that is legally required for Consultant to perform the Work and Services under this Agreement. Consultant shall have the sole obligation to pay for any fees, assessments, and taxes, plus applicable penalties and interest, which may be imposed by law and arise from or are necessary for the Consultant's performance of the Work and Services required by this Agreement. Consultant shall indemnify, defend, and hold harmless City against any such fees, assessments, taxes penalties, or interest levied, assessed, or imposed against City to the fullest extent permitted by law. A. Right of Entry Agreement. Consultant shall have the right to analyze the suitability of the City Property designated by City for Consultant's intended use. City and Consultant shall enter into a Right of Entry Agreement for Consultant and its employees, agents, contractors, engineers, and surveyors to have the right to enter upon City Property, upon reasonable written notice to City, to inspect, conduct, perform and examine soil borings, drainage testing, material sampling, surveys and other geological or engineering tests or studies of City Property, to apply for all licenses and permits required for Consultant's use of the designated City Property from all applicable governmental or regulatory entities, and to do those things on or off the designated City Property that, in the sole opinion of Consultant, are necessary to determine the physical condition of designated City Property, the environmental history of the designated City Property, and the feasibility or suitability of the designated City Property for Consultant's use ("Due Diligence Investigation"). Activities conducted in connection with Consultant's Due Diligence Investigation shall be at the sole expense and cost of Consultant. The Right of Entry Agreement shall grant Consultant access to the designated City Property for a defined and specific period of time as set forth in the Right of Entry Agreement. The proposed form of Right of Entry Agreement is attached hereto and incorporated by reference herein as Exhibit "D". B. City-Owned Wireless Telecommunications Facilities and City Licenses. City shall retain ownership of all City leases, licenses, and other agreements in existence as of the Effective Date with wireless providers located within City's jurisdictional boundaries. City shall retain ownership of any Wireless Telecommunications Facilities City subsequently develops on property owned or leased by City for City's own non-commercial use. Consultant and/or its sublicensees shall own Page 3 of 24 the Wireless Telecommunications Facilities developed on City Assets pursuant to this Agreement. City leases, licenses, and other agreements in existence as of the Effective Date and any CITY owned/developed Wireless Telecommunications Facilities in existence as of the Effective Date shall not be subject to this Agreement and/or any accompanying agreements between City and Consultant, unless specifically designated otherwise in writing. C. City-Owned Wireless Telecommunications Facilities and Consultant Licenses. During the Agreement Term, Consultant may at any time request in writing that City make City Assets available for the development of Wireless Telecommunications Facilities. Upon a determination of approval, City shall notify Consultant of such determination in writing, and shall offer to enter into a license with Consultant, which license shall be in a form that is substantially consistent with the form set forth in Exhibit "E" to this Agreement. Thereafter Consultant or an affiliate of Consultant, at no cost to City, shall construct or cause the construction of the Wireless Telecommunications Facilities, and sublicense the City Assets (either as improved with Wireless Telecommunications Facilities, or subject to improvement with Wireless Telecommunications Facilities) in accordance with the terms of this Agreement and a license agreement to be executed for each designated City Asset (provided, however, that a single license agreement may be utilized for multiple or all sites that are the subject of this Agreement). Consultant understands and acknowledges that City shall have the final determination as to whether to move forward with the execution of a license and/or other agreement of substantially equivalent purpose (or an amendment to any such license and/or other agreement) for any existing structure (e.g., rooftop, existing City owned tower, etc.). Consultant further understands and acknowledges that it must comply (or cause compliance) with and receive (or cause receipt of) all necessary entitlements and permits from City, including but not limited to complying (or causing compliance) with City's ordinance and/or regulations governing Wireless Telecommunications Facilities, as such ordinances and/or regulation might be adopted or amended from time to time, all applicable building codes and public works requirements, as well as comply (or cause compliance) with and receive (or cause receipt of) all necessary and applicable permits from any other regulatory agency, before Consultant undertakes (or causes the undertaking of) any construction on a City Asset. Although the City will cooperate in Consultant's efforts to market the City's Wireless Telecommunciations Facilities, and to subsequently construct additional Wireless Telecommunications Facilities and sublicense City Asset(s), certain entitlements necessary for approval of Wireless Telecommunications Facilities are discretionary and require a full and formal public review, and the provisions of this Agreement do not guarantee or require the City's prior approval of such discretionary entitlements. Further, Consultant must pay such costs and/or fees arising from or related to any discretionary entitlements required ("Costs and Fees"). Consultant shall not be entitled to, or have any expectation of reimbursement for Costs and Fees. Furthermore, In the calculation of revenue sharing pursuant to section 2.1 below, Consutant shall not be entitled to any reduction in City's share of revenue based upon Consultant's incursion of Costs and Fees. Page 4 of 24 1.5 Familiarity with Work. By executing this Agreement, Consultant warrants that Consultant (a) has thoroughly investigated and considered the Scope of Services to be performed, (b) has carefully considered how the Services should be performed, and (c) fully understands the facilities, difficulties, and restrictions attending performance of the Services under this Agreement. If the Services involve work upon any site, Consultant warrants that Consultant has or will investigate the site and is or will be fully acquainted with the conditions there existing, prior to commencement of any Services. Should the Consultant discover any latent or unknown conditions that will materially affect the performance of the Services, Consultant shall immediately inform the City of such fact and shall not proceed except at Consultant's risk until written instructions are received from the City. 1.6 Care of Work. Consultant shall adopt reasonable methods during the term of the Agreement to furnish continuous protection to the Work and the equipment, materials, papers, documents, plans, studies, and/or other components to prevent losses or damages. Consultant shall be responsible for all such damages, to persons or property, until acceptance of the Work by the City, except such losses or damages as may be caused by City's own negligence. 1.7 Further Responsibilities of Parties. Parties agree to use reasonable care and diligence to perform their respective obligations under this Agreement. Parties agree to act in good faith to execute all instruments, prepare all documents, and take all actions as may be reasonably necessary to carry out the purposes of this Agreement. 1.8 Additional Services. City shall have the right at any time during the performance of the Services, without invalidating this Agreement, to order extra work beyond that specified in the Scope of Services or make changes by altering, adding to, or deducting from such Work. No such extra work may be undertaken unless a written order is first given by the City to the Consultant, incorporating any adjustment in (i) the Maximum Contract Amount, as defined below, and/or (ii) the time to perform this Agreement. Any adjustments must also be approved in writing by the Consultant. Any increase in compensation of up to twenty-five percent (25%) of the Maximum Contract Amount or $25,000, whichever is less, or in the time to perform of up to thirty (30) days, may be approved by the City Manager, or his designee, as may be needed to perform any extra work. Any greater increases, occurring either separately or cumulatively, must be approved by the Palm Springs City Council. It is expressly understood by Consultant that the provisions of this section shall not apply to the services specifically set forth or reasonably contemplated within the Scope of Services. 2. COMPENSATION 2.1 Maximum Contract Amount. City and Consultant hereby acknowledge and agree that the scope of services required by this Agreement will vary dependent upon the number, type, and extent of the services or work the Consultant shall provide; and no guarantee of the extent or the type of services required of Consultant under the Page 5 of 24 terms of this Agreement is made by the City. The annual level of services required by this Agreement is unknown, and may significantly increase or decrease from year to year. In acknowledgement of the fact that the number and type of projects requiring the Consultant's services has not been identified for this contract, City and Consultant hereby acknowledge and agree that there is no specific "Maximum Contract Sum" as provided in Section 1.8 and in this Section 2.1. City and Consultant hereby agree that for the Services rendered under this Agreement, Consultant shall receive no compensation from City except for, and only to the extent that, Consultant successfully neogitates and enters into new sub-licenses for Wireless Telecommunications Facilities on City-approved assets pursuant to the License Agreement attached hereto and incorporated herein as Exhibit "E". Pursuant to the License Agreement, upon Consultant's receipt of revenue from any new sub-licenses approved pursuant to this Agreement, Consultant shall be entitled to recover therefrom the following compensation: 1. 65% (City) / 35% (Consultant) Revenue Shares. City shall be entitled to sixty-five percent (65%) of recurring gross payments that are received by Consultant from sub-licensees on new Wireless Telecommunications Facilities that are on City Assets licensed to Consultant pursuant to this Agreement. 2. 75% (City) / 25% (Consultant) Revenue Shares. City shall be entitled to seventy-five percent (75%) of recurring gross payments that are received by Consultant as a result of the addition of one or more Wireless Telecommunications Facilities to the site of a City-owned Wireless Telecommunications Facility that was constructed prior to the Effective Date of this Agreement. 2.2. Method of Payment. There shall be no direct payment by City to Consultant pursuant to this Agreement. Compensation received by Consultant pursuant to this Agreement shall be in the form of a reduction in the revenue paid to City as Licensor by Consultant as Licensee pursuant to Rent paid to Consultant as Licensee by any and all of its Sub-Licensees. In accordance with Section 2.1, City shall receive payments of all Rents otherwise owed and due pursuant to the License Agreement, with Consultant retaining therefrom an amount equivalent to either thirty-five percent (35%) or twenty-five percent (25%) dependent upon the type of Sub-License approved. Payments to City pursuant to this Agreement shall be made at least quarterly (every three months), unless otherwise agreed by the Parties. 2.3 Changes in Scope. In the event any change or changes in the Scope of Services is requested by City, Parties shall execute a written amendment to this Agreement, specifying all proposed amendments, including, but not limited to, any additional fees. An amendment may be entered into: A. To provide for revisions or modifications to documents, work product, or work, when required by the enactment or revision of any subsequent law; or Page 6 of 24 i B. To provide for additional services not included in this Agreement or not customarily furnished in accordance with generally accepted practice in Consultant's profession. 3. SCHEDULE OF PERFORMANCE 3.1 Time of Essence. Time is of the essence in the performance of this Agreement. The time for completion of the services to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligently the Work of this Agreement according to an agreed upon Schedule of Performance. 3.2 Schedule of Performance. Consultant shall commence the Services under this Agreement upon receipt of a written notice to proceed and shall perform all Services within the time period(s) established in the Schedule of Performance. When requested by Consultant, extensions to the time period(s) specified in the Schedule of Performance may be approved in writing by the Contract Officer, but such extensions shall not exceed one hundred eighty (180) days cumulatively; however, the City shall not be obligated to grant such an extension. 3.3 Force Maieure. The time period(s) specified in the Schedule of Performance for performance of the Services rendered under this Agreement shall be extended because of any delays due to unforeseeable causes beyond the control and without the fault or negligence of the Consultant (financial inability excepted) if Consultant, within ten (10) days of the commencement of such delay, notifies the Contract Officer in writing of the causes of the delay. Unforeseeable causes include, but are not limited to, acts of God or of the public enemy, unusually severe weather, fires, earthquakes, floods, epidemics, quarantine restrictions, riots, strikes, freight embargoes, wars; and/or acts of any governmental agency, including the City. The City Manager shall ascertain the facts and the extent of delay, and extend the time for performing the Services for the period of the enforced delay when and if in the judgment of the City Manager such delay is justified. The City Manager's determination shall be final and conclusive upon the Parties to this Agreement. In no event shall Consultant be entitled to recover damages against the City for any delay in the performance of this Agreement, however caused, Consultant's sole remedy being extension of the Agreement under this section. 3.4 Term. Unless earlier terminated under this Agreement, this Agreement shall commence on the effective date, and continue in full force and effect for an initial term through June 30, 2022. Upon mutual agreement of the City and Consultant, this Agreement may be extended for an additional three (3), five (5) year terms, as follows: (1) Option 1 (Year 6 of Agreement), if exercised, shall be effective July 1, 2022, through June 30, 2027. (2) Option 2 (Year 11 of Agreement), if exercised, shall be effective July 1, 2027, through June 30, 2032. Page 7 of 24 (3) Option 3 (Year 16 of Agreement), if exercised, shall be effective July 1, 2032, through June 30, 2037. The maximum term of this Agreemen is twenty (20) years (the "Agreement Term"), unless otherwise terminated pursuant to Section 3.5, or extended by mutual agreement of the City and Consultant. 3.5 Termination Prior to Expiration of Term. City may terminate this Agreement for its convenience at any time, without cause, in whole or in part, upon giving Consultant thirty (30) days written notice. Where termination is due to the fault of Consultant and constitutes an immediate danger to health, safety, and general welfare, the period of notice shall be such shorter time as may be determined by the City. Upon such notice, City shall pay Consultant for Services performed through the date of termination equivalent to Consultant's recurring shares of gross revenue from the remainder of license agreement terms then in effect (excluding any optional extension of term that might be applicable) executed before date of termination. Upon receipt of such notice, Consultant shall immediately cease all work under this Agreement, unless stated otherwise in the notice or by written authorization of the Contract Officer. After such notice, the City shall not pay damages, costs, or other payments, and Consultant shall have no further claims against the City under this Agreement except for Consultant's recurring shares of gross revenue from the remainder of license agreement terms executed before date of termination. Within ten (10) days of its receipt of any notice of termination of the Agreement under this section, Consultant shall submit to the City a full and complete inventory listing all previously approved license agreements, effective dates and terms, and gross lease payments, approved by the Parties prior to the date of termination. Consultant shall continue to administer all previously approved license agreements through the duration of the remaining valid term, and to remit payment to City of City's recurring shares of gross revenue 4. COORDINATION OF WORK 4.1 Representative of Consultant. The following principal of Consultant is designated as being the principal and representative of Consultant authorized to act in its behalf and make all decisions with respect to the Services to be performed under this Agreement: Greg Steininger, Vice President National Communities. It is expressly understood that the experience, knowledge, education, capability, expertise, and reputation of the foregoing principal is a substantial inducement for City to enter into this Agreement. Therefore, the foregoing principal shall be responsible during the term of this Agreement for directing all activities of Consultant and devoting sufficient time to personally supervise the services performed hereunder. The foregoing principal may not be changed by Consultant without prior written approval of the Contract Officer. 4.2 Contract Officer. The Contract Officer shall be the City Manager or his/her designee ("Contract Officer"). Consultant shall be responsible for keeping the Contract Officer fully informed of the progress of the performance of the services. Page 8 of 24 Consultant shall refer any decisions that must be made by City to the Contract Officer. Unless otherwise specified, any approval of City shall mean the approval of the Contract Officer. 4.3 Prohibition Against Subcontracting or Assignments. The experience, knowledge, capability, expertise, and reputation of Consultant, its principals and employees, were a substantial inducement for City to enter into this Agreement. Therefore, Consultant shall not assign full or partial performance of this Agreement, nor any monies due, voluntarily or by operation of law, without the prior written consent of City, which shall not be unreasonably withheld. Consultant shall not contract with any other entity to perform the Services required under this Agreement without the prior written consent of City, which shall not be unreasonably upheld. If Consultant is permitted to subcontract any part of this Agreement by City, Consultant shall be responsible to City for the acts and omissions of its subcontractor(s) in the same manner as it is for persons directly employed. Nothing contained in this Agreement shall create any contractual relationships between any subcontractor and City. All persons engaged in the Work will be considered employees of Consultant. City will deal directly with and will make all payments to Consultant. In addition, neither this Agreement nor any interest in this Agreement may be transferred, assigned, conveyed, hypothecated, or encumbered voluntarily or by operation of law, whether for the benefit of creditors or otherwise, without the prior written consent of City. Transfers restricted in this Agreement shall include the transfer to any person or group of persons acting in concert of more than twenty five percent (25%) of the present ownership and/or control of Consultant, taking all transfers into account on a cumulative basis. In the event of any such unapproved transfer, including any bankruptcy proceeding, this Agreement shall be void. No approved transfer shall release Consultant or any surety of Consultant from any liability under this Agreement without the express written consent of City. 4.4 Independent Contractor. The legal relationship between the Parties is that of an independent contractor, and nothing shall be deemed to make Consultant a City employee. A. During the performance of this Agreement, Consultant and its officers, employees, and agents shall act in an independent capacity and shall not act or represent themselves as City officers or employees. The personnel performing the Services under this Agreement on behalf of Consultant shall at all times be under Consultant's exclusive direction and control. Neither City nor any of its officers, employees, or agents shall have control over the conduct of Consultant or any of its officers, employees, or agents, except as set forth in this Agreement. Consultant, its officers, employees, or agents shall not maintain an office or any other type of fixed business location at City's offices. City shall have no voice in the selection, discharge, supervision, or control of Consultant's employees, servants, representatives, or agents, or in fixing their number, compensation, or hours of service. Consultant shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, including but not limited to social security income tax withholding, unemployment compensation, workers' compensation, and other similar matters. City shall not in any Page 9 of 24 way or for any purpose be deemed to be a partner of Consultant in its business or otherwise a joint venturer or a member of any joint enterprise with Consultant. B. Consultant shall not have any authority to bind City in any manner. This includes the power to incur any debt, obligation, or liability against City. C. No City benefits shall be available to Consultant, its officers, employees, or agents in connection with any performance under this Agreement. Except for professional fees paid to Consultant as provided for in this Agreement, City shall not pay salaries, wages, or other compensation to Consultant for the performance of Services under this Agreement. City shall not be liable for compensation or indemnification to Consultant, its officers, employees, or agents, for injury or sickness arising out of performing Services. If for any reason any court or governmental agency determines that the City has financial obligations, other than under Section 2 and Subsection 1.8 in this Agreement, of any nature relating to salary, taxes, or benefits of Consultant's officers, employees, servants, representatives, subcontractors, or agents, Consultant shall indemnify City for all such financial obligations. 5. INSURANCE 5.1 Types of Insurance. Consultant shall procure and maintain, at its sole cost and expense, the insurance described below. The insurance shall be for the duration of this Agreement and includes any extensions, unless otherwise specified in this Agreement. The insurance shall be procured in a form and content satisfactory to City. The insurance shall apply against claims which may arise from the Consultant's performance of Work under this Agreement, including Consultant's agents, representatives, or employees. In the event the City Manager determines that the Work or Services to be performed under this Agreement creates an increased or decreased risk of loss to the City, the Consultant agrees that the minimum limits of the insurance policies may be changed accordingly upon receipt of written notice from the City Manager or his designee. Consultant shall immediately substitute any insurer whose A.M. Best rating drops below the levels specified in this Agreement. Except as otherwise authorized below for professional liability (errors and omissions) insurance, all insurance provided under this Agreement shall be on an occurrence basis. The minimum amount of insurance required shall be as follows: A. Errors and Omissions Insurance. Consultant shall obtain and maintain in full force and effect throughout the term of this Agreement, standard industry form professional liability (errors and omissions) insurance coverage in an amount of not less than one million dollars ($1,000,000.00) per occurrence and two-million dollars ($2,000,000.00) annual aggregate, in accordance with the provisions of this section. (1) Consultant shall either: (a) certify in writing to the City that Consultant is unaware of any professional liability claims made against Consultant and is unaware of any facts which may lead to such a claim against Consultant; or (b) if Consultant does not provide the certification under (a), Consultant shall procure from Page 10 of 24 the professional liability insurer an endorsement providing that the required limits of the policy shall apply separately to claims arising from errors and omissions in the rendition of services under this Agreement. (2) If the policy of insurance is written on a "claims made" basis, the policy shall be continued in full force and effect at all times during the term of this Agreement, and for a period of three (3) years from the date of the completion of the Services provided hereunder. In the event of termination of the policy during this period, Consultant shall obtain continuing insurance coverage for the prior acts or omissions of Consultant during the course of performing Services under the terms of this Agreement. The coverage shall be evidenced by either a new policy evidencing no gap in coverage, or by obtaining separate extended "tail" coverage with the present or new carrier or other insurance arrangements providing for complete coverage, either of which shall be subject to the written approval by the City Manager. (3) In the event the policy of insurance is written on an "occurrence" basis, the policy shall be continued in full force and effect during the term of this Agreement, or until completion of the Services provided for in this Agreement, whichever is later. In the event of termination of the policy during this period, new coverage shall immediately be obtained to ensure coverage during the entire course of performing the Services under the terms of this Agreement. B. Workers' Compensation Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, workers' compensation insurance in at least the minimum statutory amounts, and in compliance with all other statutory requirements, as required by the State of California. Consultant agrees to waive and obtain endorsements from its workers' compensation insurer waiving subrogation rights under its workers' compensation insurance policy against the City and to require each of its subcontractors, if any, to do likewise under their workers' compensation insurance policies. If Consultant has no employees, Consultant shall complete the City's Request for Waiver of Workers' Compensation Insurance Requirement form. C. Commercial General Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of commercial general liability insurance written on a per occurrence basis with a combined single limit of at least one million dollars ($1,000,000.00) and two million dollars ($2,000,000.00) general aggregate for bodily injury and property damage including coverages for contractual liability, personal injury, independent contractors, broad form property damage, products and completed operations. D. Business Automobile Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of business automobile liability insurance written on a per occurrence basis with a single limit liability in the amount of one million dollars ($1,000,000.00) bodily injury and property damage. The policy shall include coverage for owned, non-owned, leased, Page 11 of 24 and hired cars. E. Employer Liability Insurance. Consultant shall obtain and maintain, in full force and effect throughout the term of this Agreement, a policy of employer liability insurance written on a per occurrence basis with a policy limit of at least one million dollars ($1,000,000.00) for bodily injury or disease. 5.2 Deductibles and Self-Insured Retentions. Any deductibles or self- insured retentions must be declared to and approved by the City Manager or his/her designee prior to commencing any work or services under this Agreement. Consultant guarantees payment of all deductibles and self-insured retentions. City reserves the right to reject deductibles or self-insured retentions in excess of $10,000, and the City Manager or his/her designee may require evidence of pending claims and claims history as well as evidence of Consultant's ability to pay claims for all deductible amounts and self-insured retentions proposed in excess of$10,000. 5.3 Other Insurance Requirements. The following provisions shall apply to the insurance policies required of Consultant under this Agreement: 5.3.1 For any claims related to this Agreement, Consultant's coverage shall be primary insurance with respect to the City and its officers, council members, officials, employees, agents, and volunteers. Any insurance or self-insurance maintained by the City and its officers, council members, officials, employees, agents, and volunteers shall be in excess of Consultant's insurance and shall not contribute with it. 5.3.2 Any failure to comply with reporting or other provisions of the policies, including breaches of warranties, shall not affect coverage provided to City and its officers, council members, officials, employees, agents, and volunteers. 5.3.3 All insurance coverage and limits provided by Consultant and available or applicable to this Agreement are intended to apply to each insured, including additional insureds, against whom a claim is made or suit is brought to the full extent of the policies. Nothing contained in this Agreement or any other agreement relating to the City or its operations shall limit the application of such insurance coverage. 5.3.4 No required insurance coverages may include any limiting endorsement which substantially impairs the coverages set forth in this Agreement (e.g., elimination of contractual liability or reduction of discovery period), unless the endorsement has first been submitted to the City Manager and approved in writing. Page 12 of 24 5.3.5 Consultant agrees to require its insurer to modify insurance endorsements to delete any exculpatory wording stating that failure of the insurer to mail written notice of cancellation imposes no obligation, or that any party will "endeavor" (as opposed to being required) to comply with the requirements of the endorsements. Certificates of insurance will not be accepted in lieu of required endorsements, and submittal of certificates without required endorsements may delay commencement of the Project. It is Consultant's obligation to ensure timely compliance with all insurance submittal requirements as provided in this Agreement. 5.3.6 Consultant agrees to ensure that subcontractors, and any other parties involved with the Project who are brought onto or involved in the Project by Consultant, provide the same minimum insurance coverage required of Consultant. Consultant agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. Consultant agrees that upon request, all agreements with subcontractors and others engaged in the Project will be submitted to the City for review. 5.3.7 Consultant acknowledges and agrees that any actual or alleged failure on the part of the City to inform Consultant of non- compliance with any insurance requirement in no way imposes any additional obligations on the City nor does it waive any rights in this or any other regard. 5.3.8 Consultant shall provide proof that policies of insurance required in this Agreement, expiring during the term of this Agreement, have been renewed or replaced with other policies providing at least the same coverage. Proof that such coverage has been ordered shall be submitted prior to expiration. Endorsements as required in this Agreement applicable to the renewing or new coverage shall be provided to City no later than ten (10) days prior to expiration of the lapsing coverage. 5.3.9 Requirements of specific insurance coverage features or limits contained in this section are not intended as limitations on coverage, limits, or other requirements, or as a waiver of any coverage normally provided by any given policy. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue, and is not intended by any party or insured to be limiting or all-inclusive. 5.3.10 The requirements in this section supersede all other sections and provisions of this Agreement to the extent that any other section or Page 13 of 24 provision conflicts with or impair the provisions of this section. 5.3.11 Consultant agrees to provide immediate notice to City of any claim or loss against Consultant arising out of the Work performed under this Agreement and for any other claim or loss which may reduce the insurance available to pay claims arising out of this Agreement. City assumes no obligation or liability by such notice, but has the right (but not the duty) to monitor the handling of any such claim or claims if they are likely to involve City, or to reduce or dilute insurance available for payment of potential claims. 5.3.12 Consultant agrees that the provisions of this section shall not be construed as limiting in any way the extent to which the Consultant may be held responsible for the payment of damages resulting from the Consultant's activities or the activities of any person or person for which the Consultant is otherwise responsible. 5.4 Sufficiency of Insurers. Insurance required in this Agreement shall be provided by authorized insurers in good standing with the State of California. Coverage shall be provided by insurers admitted in the State of California with an A.M. Best's Key Rating of B++, Class VII, or better, unless such requirements are waived in writing by the City Manager or his designee due to unique circumstances. 5.5 Verification of Coverage. Consultant shall furnish City with both certificates of insurance and endorsements, including additional insured endorsements, affecting all of the coverages required by this Agreement. The certificates and endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. All proof of insurance is to be received and approved by the City before work commences. City reserves the right to require Consultant's insurers to provide complete, certified copies of all required insurance policies at any time. Additional insured endorsements are not required for Errors and Omissions and Workers' Compensation policies. Verification of Insurance coverage may be provided by: (1) an approved General and/or Auto Liability Endorsement Form for the City of Palm Springs or (2) an acceptable Certificate of Liability Insurance Coverage with an approved Additional Insured Endorsement with the following endorsements stated on the certificate: 1. "The City of Palm Springs, its officials, employees, and agents are named as an additional insured..." ("as respects City of Palm Springs Contract No._" or "for any and all work performed with the City"may be included in this statement). 2. "This insurance is primary and non-contributory over any insurance or self- insurance the City may have..." ("as respects City of Palm Springs Contract No._" or "for any and all work performed with the City' may be included in this statement). Page 14 of 24 3. "Should any of the above described policies be canceled before the expiration date thereof, the issuing company will mail 30 days written notice to the Certificate Holder named." Language such as, "endeavor to" mail and "but failure to mail such notice shall impose no obligation or liability of any kind upon the company, its agents or representative" is not acceptable and must be crossed out. 4. Both the Workers' Compensation and Employers' Liability policies shall contain the insurer's waiver of subrogation in favor of City, its elected officials, officers, employees, agents, and volunteers. In addition to the endorsements listed above, the City of Palm Springs shall be named the certificate holder on the policies. All certificates of insurance and endorsements are to be received and approved by the City before work commences. All certificates of insurance must be authorized by a person with authority to bind coverage, whether that is the authorized agent/broker or insurance underwriter. Failure to obtain the required documents prior to the commencement of work shall not waive the Consultant's obligation to provide them. 6. INDEMNIFICATION 6.1 Indemnification and Reimbursement. To the fullest extent permitted by law, Consultant shall defend (at Consultant's sole cost and expense), indemnify, protect, and hold harmless City, its elected officials, officers, employees, agents, and volunteers (collectively the "Indemnified Parties"), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of persons (Consultant's employees included), for damage to property, including property owned by City, from any violation of any federal, state, or local law or ordinance, and from errors and omissions committed by Consultant, its officers, employees, representatives, and agents, that arise out of or relate to Consultant's performance under this Agreement. This indemnification clause excludes Claims arising from the sole negligence or willful misconduct of the City, its elected officials, officers, employees, agents, and volunteers. Under no circumstances shall the insurance requirements and limits set forth in this Agreement be construed to limit Consultant's indemnification obligation or other liability under this Agreement. Consultant's indemnification obligation shall survive the expiration or earlier termination of this Agreement until all actions against the Indemnified Parties for such matters indemnified are fully and finally barred by the applicable statute of limitations or, if an action is timely filed, until such action is final. This provision is intended for the benefit of third party Indemnified Parties not otherwise a party to this Agreement. 6.2 Design Professional Services Indemnification and Reimbursement. If the Agreement is determined to be a "design professional services agreement" and Consultant is a "design professional" under California Civil Code Section 2782.8, then: Page 15 of 24 A. To the fullest extent permitted by law, Consultant shall indemnify, defend (at Consultant's sole cost and expense), protect and hold harmless City and its elected officials, officers, employees, agents and volunteers and all other public agencies whose approval of the project is required, (individually "Indemnified Party"; collectively "Indemnified Parties") against any and all liabilities, claims, judgments, arbitration awards, settlements, costs, demands, orders and penalties (collectively "Claims"), including but not limited to Claims arising from injuries or death of persons (Consultant's employees included) and damage to property, which Claims arise out of, pertain to, or are related to the negligence, recklessness or willful misconduct of Consultant, its agents, employees, or subcontractors, or arise from Consultant's negligent, reckless or willful performance of or failure to perform any term, provision, covenant or condition of this Agreement ("Indemnified Claims"), but Consultant's liability for Indemnified Claims shall be reduced to the extent such Claims arise from the negligence, recklessness or willful misconduct of the City and its elected officials, officers, employees, agents and volunteers. B. The Consultant shall require all non-design-professional sub- contractors, used or sub-contracted by Consultant to perform the Services or Work required under this Agreement, to execute an Indemnification Agreement adopting the indemnity provisions in sub-section 6.1 in favor of the Indemnified Parties. In addition, Consultant shall require all non-design-professional sub-contractors, used or sub- contracted by Consultant to perform the Services or Work required under this Agreement, to obtain insurance that is consistent with the Insurance provisions as set forth in this Agreement, as well as any other insurance that may be required by Contract Officer. 7. REPORTS AND RECORDS 7.1 Accounting Records. Consultant shall keep complete, accurate, and detailed accounts of all time, costs, expenses, and expenditures pertaining in any way to this Agreement. Consultant shall keep such books and records as shall be necessary to properly perform the Services required by this Agreement and to enable the Contract Officer to evaluate the performance of such Services. The Contract Officer shall have full and free access to such books and records at all reasonable times, including the right to inspect, copy, audit, and make records and transcripts from such records. 7.2 Reports. Consultant shall periodically prepare and submit to the Contract Officer such reports concerning the performance of the Services required by this Agreement, or as the Contract Officer shall require. Consultant acknowledges that the City is greatly concerned about the cost of the Work and Services to be performed under this Agreement. For this reason, Consultant agrees that Consultant shall promptly notify the Contract Officer the estimated increased or decreased cost if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the contemplated Work or Services. If Consultant is providing design services, Consultant shall promptly notify the Contract Page 16 of 24 Officer the estimated increased or decreased cost for the project being designed if Consultant becomes aware of any facts, circumstances, techniques, or events that may or will materially increase or decrease the cost of the design services. 7.3 Ownership of Documents. All drawings, specifications, reports, records, documents, memoranda, correspondence, computations, and other materials prepared by Consultant, its employees, subcontractors, and agents in the performance of this Agreement shall be the property of City and shall be promptly delivered to City upon request of the Contract Officer or upon the termination of this Agreement. Consultant shall have no claim for further employment or additional compensation as a result of the exercise by City of its full rights of ownership of the documents and materials. Any use of such completed documents for other projects and/or use of incomplete documents without specific written authorization by the Consultant will be at the City's sole risk and without liability to Consultant, and the City shall indemnify the Consultant for all resulting damages. Consultant may retain copies of such documents for their own use. Consultant shall have an unrestricted right to use the concepts embodied tin this Agreement. Consultant shall ensure that all its subcontractors shall provide for assignment to City of any documents or materials prepared by them. In the event Consultant fails to secure such assignment, Consultant shall indemnify City for all resulting damages. 7.4 Release of Documents. All drawings, specifications, reports, records, documents, and other materials prepared by Consultant in the performance of services under this Agreement shall not be released publicly without the prior written approval of the Contract Officer. All information gained by Consultant in the performance of this Agreement shall be considered confidential and shall not be released by Consultant without City's prior written authorization. 7.5 Audit and Inspection of Records. After receipt of reasonable notice and during the regular business hours of City, Consultant shall provide City, or other agents of City, such access to Consultant's books, records, payroll documents, and facilities as City deems necessary to examine, copy, audit, and inspect all accounting books, records, work data, documents, and activities directly related to Consultant's performance under this Agreement. Consultant shall maintain such books, records, data, and documents in accordance with generally accepted accounting principles and shall clearly identify and make such items readily accessible to such parties during the term of this Agreement and for a period of three (3) years from the date of final payment by City hereunder. 8. ENFORCEMENT OF AGREEMENT 8.1 California Law and Venue. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in Page 17 of 24 such County, and Consultant covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. 8.2 Interpretation. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties. The terms of this Agreement are contractual and the result of negotiation between the Parties. Accordingly, any rule of construction of contracts (including, without limitation, California Civil Code Section 1654) that ambiguities are to be construed against the drafting party, shall not be employed in the interpretation of this Agreement. The caption headings of the various sections and paragraphs of this Agreement are for convenience and identification purposes only and shall not be deemed to limit, expand, or define the contents of the respective sections or paragraphs. 8.3 Default of Consultant. Consultant's failure to comply with any provision of this Agreement shall constitute a default. A. If the City Manager, or his designee, determines that Consultant is in default in the performance of any of the terms or conditions of this Agreement, he/she shall notify Consultant in writing of such default. Consultant shall have ten (10) days, or such longer period as City may designate, to cure the default by rendering satisfactory performance. In the event Consultant fails to cure its default within such period of time, City shall have the right, notwithstanding any other provision of this Agreement, to terminate this Agreement without further notice and without prejudice of any remedy to which City may be entitled at law, in equity, or under this Agreement. Consultant shall be liable for all reasonable costs incurred by City as a result of such default. Compliance with the provisions of this section shall not constitute a waiver of any City right to take legal action in the event that the dispute is not cured, provided that nothing shall limit City's right to terminate this Agreement without cause under Section 3.5. B. If termination is due to the failure of the Consultant to fulfill its obligations under this Agreement, City may, after compliance with the provisions of Section 8.3A, take over the work and prosecute the same to completion by contract or otherwise. The Consultant shall be liable to the extent that the total cost for completion of the Services required hereunder exceeds the Maximum Contract Amount (provided that the City shall use reasonable efforts to mitigate such damages). The City may withhold any payments to the Consultant for the purpose of set-off or partial payment of the amounts owed the City as previously stated. The withholding or failure to withhold payments to Consultant shall not limit Consultant's liability for completion of the Services as provided in this Agreement. 8.4 Waiver. No waiver of any provision of this Agreement shall be effective unless in writing and signed by a duly authorized representative of the Party against whom enforcement of a waiver is sought. Any waiver by the Parties of any default or breach of any covenant, condition, or term contained in this Agreement, shall not be construed to be a waiver of any subsequent or other default or breach, nor shall failure Page 18 of 24 by the Parties to require exact, full, and complete compliance with any of the covenants, conditions, or terms contained in this Agreement be construed as changing the terms of this Agreement in any manner or preventing the Parties from enforcing the full provisions. 8.5 Rights and Remedies Cumulative. Except with respect to rights and remedies expressly declared to be exclusive in this Agreement, the rights and remedies of the Parties are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party. 8.6 Legal Action. In addition to any other rights or remedies, either Party may take legal action, in law or in equity, to cure, correct, remedy or recover damages for any default, to compel specific performance of this Agreement, to obtain declaratory or injunctive relief, or to obtain any other remedy consistent with the purposes of this Agreement. 8.7 Attorney Fees. In the event any dispute between the Parties with respect to this Agreement results in litigation or any non-judicial proceeding, the prevailing Party shall be entitled, in addition to such other relief as may be granted, to recover from the non-prevailing Party all reasonable costs and expenses. These include but are not limited to reasonable attorney fees, expert consultant fees, court costs and all fees, costs, and expenses incurred in any appeal or in collection of any judgment entered in such proceeding. To the extent authorized by law, in the event of a dismissal by the plaintiff or petitioner of the litigation or non-judicial proceeding within thirty (30) days of the date set for trial or hearing, the other Party shall be deemed to be the prevailing Party in such litigation or proceeding. 9. CITY OFFICERS AND EMPLOYEES: NON-DISCRIMINATION 9.1 Non-liability of City Officers and Employees. No officer or employee of the City shall be personally liable to the Consultant, or any successor-in-interest, in the event of any default or breach by the City or for any amount which may become due to the Consultant or to its successor, or for breach of any obligation of the terms of this Agreement. 9.2 Conflict of Interest. Contractor acknowledges that no officer or employee of the City has or shall have any direct or indirect financial interest in this Agreement nor shall Contractor enter into any agreement of any kind with any such officer or employee during the term of this Agreement and for one year thereafter. Contractor warrants that Contractor has not paid or given, and will not pay or give, any third party any money or other consideration in exchange for obtaining this Agreement. 9.3 Covenant Against Discrimination. In connection with its performance under this Agreement, Consultant shall not discriminate against any employee or applicant for employment because of race, religion, color, sex, age, marital status, Page 19 of 24 ancestry, national origin, sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition. Consultant shall ensure that applicants are employed, and that employees are treated during their employment, without regard to their race, religion, color, sex, age, marital status, ancestry, national origin, sexual orientation, gender identity, gender expression, physical or mental disability, or medical condition. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. Consultant shall otherwise fully comply with the provisions of Palm Springs Municipal Code Section 7.09.040 relating to non- discrimination in city contracting. 10. MISCELLANEOUS PROVISIONS 10.1 Patent and Copyright Infringement. To the fullest extent permissible under law, and in lieu of any other warranty by City or Consultant against patent or copyright infringement, statutory or otherwise: A. It is agreed that Consultant shall defend at its expense any claim or suit against City on account of any allegation that any item furnished under this Agreement, or the normal use or sale arising out of the performance of this Agreement, infringes upon any presently existing U.S. letters patent or copyright and Consultant shall pay all costs and damages finally awarded in any such suit or claim, provided that Consultant is promptly notified in writing of the suit or claim and given authority, information and assistance at Consultant's expense for the defense of same, and provided such suit or claim arises out of, pertains to, or is related to the negligence, recklessness or willful misconduct of Consultant. However, Consultant will not indemnify City if the suit or claim results from: (1) City's alteration of a deliverable, such that City's alteration of such deliverable created the infringement upon any presently existing U.S. letters patent or copyright; or (2) the use of a deliverable in combination with other material not provided by Consultant when it is such use in combination which infringes upon an existing U.S. letters patent or copyright. B. Consultant shall have sole control of the defense of any such claim or suit and all negotiations for settlement in the event City fails to cooperate in the defense of any suit or claim, provided, however, that such defense shall be at Consultant's expense. Consultant shall not be obligated to indemnify City under any settlement that is made without Consultant's consent, which shall not be unreasonably withheld. If the use or sale of such item is enjoined as a result of the suit or claim, Consultant, at no expense to City, shall obtain for City the right to use and sell the item, or shall substitute an equivalent item acceptable to City and extend this patent and copyright indemnity thereto. Page 20 of 24 10.2 Intellectual Property. A. Ownership of Services. Consultant retains all right, title, and interest in any underlying software subject to the limitations set forth in this Agreement. B. License. Consultant hereby grants to City a limited, non-exclusive, non-transferable, non-sublicensable license during the term of this Agreement to use the Services for the purposes of offering, promoting, managing, tracking, the development and use of Wireless Telecommunications Facilities. C. Exclusivity. During the term of this Agreement, Consultant will be the sole and exclusive provider of the Wireless Marketing Services, as defined in this Agreement, subject to the City's right to directly market City Marketed Assets. City expressly understands and agrees that the exclusivity set forth in this Agreement is consideration in exchange for the pricing and other benefits being provided to City hereunder. D. Additional City Commitments. City acknowledges that it is using licensed software containing propriety and intellectual property and shall: (i) not copy, modify, transfer, display, share, or use any portion of the licensed software except as expressly authorized in this Agreement or in the applicable documentation; (ii) not contest or do or aid others in contesting or doing anything which impairs the validity of any proprietary or intellectual property rights, title, or interest of Consultant in and to any software; (iii) not engage in any activity that interferes with or disrupts Consultant's provision of the Services; and (iv) use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations, and the rights of others. 10.2 Notice. Any notice, demand, request, consent, approval, or communication that either party desires, or is required to give to the other party or any other person shall be in writing. All notices shall be personally delivered, sent by pre- paid First Class U.S. Mail, registered or certified mail, postage prepaid, return receipt requested, or delivered or sent by facsimile with attached evidence of completed transmission. All notices shall be deemed received upon the earlier of (i) the date of delivery to the address of the person to receive such notice if delivered personally or by messenger or overnight courier; (ii) five (5) business days after the date of posting by the United States Post Office if by mail; or (iii) when sent if given by facsimile. Any notice, request, demand, direction, or other communication sent by facsimile must be confirmed within forty-eight (48) hours by letter mailed or delivered. Other forms of electronic transmission such as e-mails, text messages, and instant messages are not acceptable manners of notice required hereunder. Notices or other communications shall be addressed as follows: Page 21 of 24 To City: City of Palm Springs Attention: City Manager & City Clerk 3200 E. Tahquitz Canyon Way Palm springs, California 92262 Telephone: (760) 323-8204 Facsimile: (760) 323-8332 To Consultant: Kevin Muldoon, VP & General Counsel 5 Bars Communities a dba of XG Communities, LLC 19200 Von Karman Ave, Suite 100 Irvine, CA 92612 Phone: 949-514-4617 Fax: 949-266-9160 With a copy to: Rutan & Tucker, LLP 611 Anton Blvd., 14th Floor Costa Mesa, CA 92626 Phone: 714-641-5100 Fax: 714-546-9035 10.3 Integrated Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior negotiations, arrangements, agreements, representations, and understandings, if any, made by or among the Parties with respect to the subject matter in this Agreement. 10.4 Amendment. No amendments or other modifications of this Agreement shall be binding unless through written agreement by all Parties. 10.5 Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision of this Agreement shall be determined to be invalid by a final judgment or decree of a court of competent jurisdiction, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the reminder of that provision, or the remaining provisions of this Agreement unless the invalid provision is so material that its invalidity deprives either Party of the basic benefit of their bargain or renders this Agreement meaningless. 10.5 Successors in Interest. This Agreement shall be binding upon and inure to the benefit of the Parties' successors and assignees. 10.6 Third Party Beneficiary. Except as may be expressly provided for in this Agreement, nothing contained in this Agreement is intended to confer, nor shall this Agreement be construed as conferring, any rights, including, without limitation, any rights as a third-party beneficiary or otherwise, upon any entity or person not a party to Page 22 of 24 this Agreement. 10.7 Recitals. The above-referenced Recitals are hereby incorporated into the Agreement as though fully set forth in this Agreement and each Party acknowledges and agrees that such Party is bound, for purposes of this Agreement, by the same. 10.8. Corporate Authority. Each of the undersigned represents and warrants that (i) the Party for which he or she is executing this Agreement is duly authorized and existing, (ii) he or she is duly authorized to execute and deliver this Agreement on behalf of the Party for which he or she is signing, (iii) by so executing this Agreement, the Party for which he or she is signing is formally bound to the provisions of this Agreement, and (iv) the entering into this Agreement does not violate any provision of any other Agreement to which the Party for which he or she is signing is bound. [SIGNATURES ON NEXT PAGE] Page 23 of 24 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. "CITY" City of Palm Springs Date: /� 1 1 By. ' 094 avid H. Ready, sq. ity Manager APPROVE S TO FORM: ATTEST By: By: ,4" Edward Z. Kotkin Kathleen D. Hart, MMC City Attorney Interim City Clerk APPROVED BY CITY COUNCIL: ApPROVEDBYC TY COUNCIL �.�. ) l mw Date: Agreement No. Corporations require two notarized signatures. One signature must be from Chairman of Board, President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. "CONSULTANT" 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability company 19200 Von Karman Ave, Suite 100 Irvine, CA 92612 Phone: 949-514-4617 Fax: 949-266-9160 By ? By Signature(Notarizpv L Signature(Notar' d) 1—fa-P 3,SJ Ars�',c(r�i Printed NameftitfeJ Printed Namefritle Page 24 of 24 CALIFORNIA CERTIFICATE OF ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached,and not the truthfulness,accuracy,or validity of that document. State of California ) County of r ) On IV 2-51 1�tD beforeme, V1 trl�i lC� (� � �l-clolJr (here insert name and title Othe officer) personally appeared Kevin H'I(,1 am( �n M�1 n GZYl� who proved to me on the basis of satisfactory evidence to be the persop whose name@��subscribed to the within instrument and acknowledged to me that 4@41,1 executed the same In thel authorized capacit les , and that by der he' signature©on the Instrument the person or the entity upon behalf of which the persor @ acted,executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. �, V. CARRILLO Commission No. 21OW74 '1-` NOTARY PUBLIC-CALIFORNIA WITNESS/yhd a official seal. 4 ORANGE COUNTY .My Comm Expires APRIL 1.2021 Signature (Seal) Optional Information Although the information in this section is not required by law,it could prevent fraudulent removal and reattachment of this acknowledgment to an unauthorized document and may prove useful to persons relying on the attached document. Description of Attached Document Additional Information The preceding Certificate of Acknowledgment is attached to a document Method of Signer Identification titled/for the purpose of Proved to me on the basis of satisfactory evidence: O form(s)of Identification ❑ credible witnees(es) Notarial event is detailed in notary journal on: containing pages, and dated Page Entry The signer(s) capacity or authority is/are as: Notary contact-. ❑ Individual(s) Other ❑ Attorney-in-Fact ❑ Additional Signer(s) ❑ Signer(s)Thumbprint(s) ❑ Corporate Officer(s) Title(s) ❑ ❑ Guardian/Conservator ❑ Partner-Limited/General ❑ Trustee(s) ❑ Other: representing: Name(s)of Persons)or Cntlty(les)Signer is Representing ©Copyright 2007-2016 Notary Rotary,Inc.PO Box 41400,Des Moines,IA 50311-0507_ All Rights Reserved. Item Number 101772_ Please contact your Authorized Reseller to narchase copes of tnis form. EXHIBIT "A" SCOPE OF SERVICES Scope and Nature of Services. Consultant shall provide the services described in this Exhibit "A" (the "Services") for the purposes of Consultant's planning, marketing, sublicensing, development, maintenance, and/or operation of certain tower(s), pole(s), building(s), fiber, conduit(s), data room(s), street furniture, and any structure(s) or object(s) of any kind or character not particularly mentioned herein ("City Assets"), which Consultant proposes to locate or cause to be located on City Property and within City Right of Way for the purposes of promoting, transmitting or facilitating wireless communication of telephone or data or any other means ("Wireless Telecommunications Facilities"). City in its sole discretion shall identify a list ("Asset List") of City Assets to be included in services provided by Consultant. City shall elect to add or remove one or more assets from the Asset List at anytime and notify Consultant in writing. Consulting Services. Consultant shall provide City the following consulting services at no cost to City: 1. A comprehensive radio frequency ("RF") analysis, which will, among other things: (i) describe, using state-of-the-art metrics, the current state of wireless coverage within CITY's jurisdiction for each major wireless telecommunications carrier; (ii) identify key areas of multiple wireless broadband service provider coverage needs ("Coverage Needs"); (iii) identify available City Assets that would satisfy or partially satisfy Coverage Needs; and (iv) provide RF modeling to show how the selection of additional sites for Wireless Telecommunications Facilities will address Coverage Needs. The items referred to in clauses (i), (ii), and (iii) from the preceding sentence are hereinafter referred to as the "Master Plan," while the items referred to in clauses (i), (ii), (iii), and (iv) in the preceding sentence are hereinafter referred to as the "Consulting Services". 2. For the duration of the Agreement Term, Consultant shall also provide, on a quarterly basis, a written update summarizing investments, technology changes, financial gains and provider plans, and on an annual basis, ongoing RF analysis with reports, feasibility analysis, pricing and fee recommendations, form factor and aesthetic policy development, technology refresh and advancement updates, and other consultation specific to wireless broadband service providers, unless Consultant and City mutually waive the annual ongoing study, to ensure City is capitalizing on opportunities to improve wireless broadband service to the community. The Consulting Services may be used by City for the enhancement and evolution of the Master Plan. Exhibit "A" Page 1 of 2 Marketing Services. At no cost to City, Consultant shall market the Master Plan to wireless carriers, cable companies, internet service providers (ISPs), street light providers, and Internet of Things (IoT) companies, ("Wireless Services Providers") to obtain their feedback and interest in locating and/or collocating on any existing and/or proposed site(s) included in the Master Plan. City grants Consultant the exclusive right to market, license, sublicense, and construct upon, at Consultant's sole cost and expense, City Assets for the development of Wireless Telecommunications Facilities. Consultant shall market the Master Plan to all Wireless Services Providers equally, and without any discrimination and/or favoritism between Wireless Services Providers, with a goal of ensuring that residents, visitors, and businesses within City's jurisdiction receive the maximum benefit of all available services from all existing wireless services providers. Management Services. Consultant shall provide those certain management services in accordance with Section 1.4C of this Agreement. Construction, Engineering, and Other Services. Consultant shall be responsible for all construction, engineering and other services as required hereunder this Agreement. City shall have no financial responsibility for planning, construction, and engineering costs associated with the implementation of this Agreement. Consultant may recover from Wireless Service Providers construction costs, installation costs, utilities, or other expenses incurred by Consultant, to the extent said reimbursement does not reduce the rent to be paid by Wireless Service Providers, and such recovered sums shall not be included in the computation of compensation pursuant to Section 2.1 of this Agreement. Exclusions. 1. This Agreement shall not require or allow Consultant to market, license, sublicense, and/or construct Wireless Telecommunications Facilities on City Assets that are not on the Asset List. 2. City Assets intended for direct-marketing by the City for macro-cell site development are identified in writing by the City ("City Marketed Assets"). City Marketed Assets shall be marketed, if at all, directly by the City only; marketing rights for such assets shall not be granted, delegated, or contracted to any third party. 3. This Agreement shall not require or allow the provision of Services by Consultant for facilities licensed to any municipal, county, district, agency, state or Federal government for stations in the Private Land Mobile Radio Services, Maritime Radio Services, Aviation Radio Services, other stations designated for Homeland Security or Law Enforcement communications or the circuits necessary to support such facilities ("Excluded Services"). This Agreement shall not limit, control, or govern the provision of the Excluded Services by City. Exhibit "A" Page 2 of 2 EXHIBIT "B" CITY OF SACRAMENTO REQUEST FOR PROPOSALS RFQ (Q1 6071 01 1 005) FOLLOWS THIS PAGE 5 .BARS COMMUNITIES ck Sh MM E IT REQUEST FOR QUALIFICATIONS (RFQ) FOR CITY OF SACRAMENTO WIRELESS MASTER PLAN MARCH 25, 2016 Karen Sessions Chief External Affairs Officer (949) 514 4617 karen@5bars.com 1111111 © 2016 S BARS,LLC PROPRIETARY&CONFIDENTIAL i1�(25 Table of Contents SubmittalCover Sheet...............................................................................................................3 Letterof Transmittal .................................................................................................................4 SubmittalSignature...................................................................................................................7 Company Information/Qualifications and Experience................................................................8 ClientReferences .................................................................................................................... 18 SupportingInformation........................................................................................................... 22 InConclusion........................................................................................................................... 33 AppendixA..............................................................................................................................34 tD 2016 5 BARS, LLC PROPRIETARY&CONFIDENTIAL 2 ti 1Ca:t�` Submittal Cover Sheet ATTACHMENT 1 Submittal Cover Sheet .r o,/. SACRAMENT( Submittal for City of Sacramento Wireless Marketing Plan Request for Qualifications (RFQ) Q16071011005 Submissions Must Be Received Prior To 3:00 P.M. (Pacific Daylight Time) on Friday March 25, 2016 Submit Information to: (Electronically, in PDF format) via the City of Sacramento's online bid center http://www.planetbids.com/portal/portal.cfm?CompanVID=15300 NAME AND ADDRESS OF RESPONDER SUBMITTING THIS INFORMATION: Name of Vendor: 5 Bars, LLC Name of Contact Person: Karen Sessions, Chief External Affairs Officer Address: 19200 Von Karman, Suite 100 City, State, Zip Code: Irvine,California 92612 Phone Number: (949) 514-4617 E-MAIL: Karen@5bars.com CC]2016 5 BARS, LLC PROPRIETARY&CONFIDENTIAL 3 Iwo In 5 BARS COMMUNITIES Letter of Transmittal Date: March 25, 2016 To: Darin Arcolino Re: Response to "City of Sacramento Wireless Marketing Plan- Request for Qualifications(RFQ) Q16071011005" Dear Darin, Thank you for the opportunity to submit 5 Bars' qualifications for the City of Sacramento Wireless Marketing Plan RFQ. It is our pleasure to offer a comprehensive approach to implement the City of Sacramento Wireless Master Plan with a robust carrier marketing strategy to accelerate investment within the City. The carrier marketing strategy, led by 5 Bars, will also result in increased wireless investment that will support smart city and intelligent services in the City of Sacramento. 5 Bars believes wireless carriers and providers will have a strong interest to participate in the City of Sacramento wireless strategy with the goal of achieving a ubiquitous system and an outdoor Distributed Antenna System (oDAS) solution for the downtown business district. 5 Bars has strong relationships with the four major carriers and has engaged each of them in discussions regarding the City of Sacramento's future plans for small cell, DAS and Wi-Fi needs. 5 Bars recommends our wireless marketing services and expertise to: ■ Increase connectivity (wireless coverage for businesses, residents and citizens that will close the digital divide, deploy smart city and Internet of Things (loT) applications, enhance business investment, improve E911 services, prevent the "brain drain" and enhance City services). ■ Leverage the Wireless Master Plan with industry expertise (provide a holistic and a long- term view of the site locations to providers based on emerging smart city technologies and urban growth, recommend market rates for attachment fees and terms to offer carriers). ■ Maintain control and prevent visual blight (manage applications from carriers and the FCC "shot clock" regulation, preserve aesthetics of the City, and evenly distribute communications at pre-approved desirable locations throughout the City). OD 2016 5 BARS,LLC PROPRIETARY&CONFIDENTIAL 4 9 E AKA ■ Generate revenue (speed up carrier participation to generate revenue more quickly and encourage use of all City assets, such as fiber, conduit, and poles). Understanding the requirements set forth within this RFC, 5 Bars recommends: ■ 5 Bars advocacy and representation on behalf of the City of Sacramento for the implementation of the Wireless Master Plan marketing and to secure funding and investment from the carriers for implementation. ■ 5 Bars engagement with each carrier from conceptual designs to expedited implementation. ■ 5 Bars to act in a public-private partnership with the City of Sacramento using a Master License Agreement (MLA) that grants 5 Bars the ability to coordinate with carriers on behalf of the City of Sacramento for the permitting, construction, and ongoing maintenance of a seamless municipal wireless system. ■ Executing a Master License Agreement (MLA) with 5 Bars to represent the City of Sacramento with carriers and individual site locations to be determined with the City of Sacramento approval using an individual Site License Agreement (SLA) in coordination with the Wireless Master Plan. ■ The pre-approved wireless sites be chosen to enable smart city technologies beneficial to citizens with the use of pole attachments,fiber, and aesthetically pleasing form factors. ■ A 5 Bars recommended private or public-private investment for an outdoor Distributed Antenna System (oDAS) in the study area with a preliminary neutral host design. ■ City to maintain control (the MLA with 5 Bars allows maximization of City owned assets without the need to change telecom ordinances and manage applications from numerous carriers and the FCC "shot clock"). ■ Efficiency (the MLA streamlines permits for all the carriers, and gives a single point of contact for wireless site applications). ■ Cost effective and success-based revenue share model (a success-based agreement with 5 Bars and no out of pocket cost to the City of Sacramento). ©2016 5 BARS,LLC 5 BARS . PROPRIETARY&CONFIDENTIAL 5 5 BARS' UNIQUE OFFERING: When wireless applications are received, cities must act quickly to understand wireless carriers' coverage needs and the options that are available to meet those needs. Those needs and options are constantly evolving. 5 Bars' master planning tools merge technical expertise of coverage needs with proprietary surveys of existing and forecasted coverage conditions. That information is then evaluated in the context of existing municipal assets that can be used to support wireless facilities. This proprietary intelligent platform is kept current so that a subscribing City may access the information and identify intelligent options and solutions on a real time basis. 5 Bars has unique knowledge of the telecommunications marketplace. It proactively markets city assets to see that coverage solutions are identified, and satisfied, on terms that maximize revenue and minimize planning impacts. Because it has expertise in telecommunications leasing, 5 Bars also ensures that that non-monetary contract terms are uniform and favorable to the City interests. 5 Bars acts as an advocate for the City and offers this intelligent platform which provides an ongoing solution that maximizes opportunities while minimizing impacts from wireless facility siting decisions. No other company offers this service. 5 Bars looks forward to serving the City of Sacramento to market and achieve ubiquitous, well planned and state of the art wireless coverage for City services, businesses, citizens and visitors. 5 Bars has thoroughly reviewed the City of Sacramento requirements and is committed to complying with those requirements stated within the RFQ. This proposal and associated terms remain valid for ninety (90) days after the submittal due date, or on the date the last, best, and final offer has been submitted to the City of Sacramento. Sincerely, Karen Sessions Chief External Affairs Officer ©2016 5 BARS,LLC PROPRIETARY&CONEIDENTIAL 3 6 t:4f' Submittal Signature ATTACHMENT 2 Submittal Signature Form All Responders must complete and sign this section. Failure to complete and sign this section will result in rejection of the Submittal. Name of Responder: 5 Bars,LLC Business Address: 19200 Von Karman,Suite 100 Irvine,California 92612 (Street) (City) (State) (Zip Code) Telephone: (949)514-4617 FAX: (949)266-9160 Type of Business: [XI Corporation; [ ] Partnership; [ ] Individual doing business under own name; [ ] Individual doing business using a firm name; [ ] Joint Venture (Attach Joint Venture Agreement) Federal Tax I.D. Number: 46-2914352 To the City of Sacramento: The undersigned, as Responder, certifies that the only persons or parties interested in this Submittal as principals are those named herein as Responder; that this qualification statement is made without collusion with any other person, firm, or corporation; that in submitting this Submittal the Responder has examined all terms, conditions, and requirements set forth in the Request for Qualifications; that the Responder proposes and agrees that if this Submittal is accepted, the Responder will execute and fully perform the contract for which Submittals are called; that the Responder will perform all the work and/or furnish all the materials specified in the contract, in the manner and time therein prescribed, and according to the requirements as therein set forth; and that the Responder will take in full payment therefor,the prices set forth in the contract. Kevin Muldoon,General Counsel (Typed or Printed Name and Title) (Si ature) Address (if different than business address above) 21 (7 2016 5 BARS,LLC PROPRIETARY&CONFIDENTIAL 7 C'05 Company Information/Qualifications and Experience General Information 5 BARS, LLC ■ 19200 Von Karman Ave., Suite 100, Irvine CA 92612 ■ (949) 514-4617 ■ 5 BARS is a State of Delaware limited liability company ■ Established in 2013 ■ 5 BARS currently has 25 employees and an ecosystem of contractors, partners and vendors of over 500 personnel ■ Business License Number: BUS13-02996 Please reference Appendix A for 5 Bars Delaware LLC Certificate and the California Certificate of Secretary. Qualification and Experience 5 Bars is an Irvine, California based privately held leading wireless master planning and infrastructure services company. 5 Bars is a premier provider of wireless master plans for counties, cities and large scale venues and develops comprehensive wireless marketing strategies through a unique holistic view of a(l'assets; coverage and capacity. 5 Bars provides wireless master planning and marketing, network development, and end-to-end program and operational management representing cities and counties as the city or county advocate. 5 Bars delivers commercial indoor and outdoor Distributed Antenna Systems (DAS), carrier-grade Wi-Fi networks, and small cell systems as the city advocate working with owners and service providers. Our team brings over two decades of unique experience in planning, implementing, marketing, deploying, maintaining and managing wireless networks and complex technical solutions. We have established strong relationships with wireless carriers and service providers at key levels, and possess an impressive background with experience in legislative, regulatory and corporate communications with public policy, corporate strategy, external affairs and strategic partnerships. .JA 92016 5 BARS,LLC PROPRIETARY&CONFIDENTIAL B 4k Team Expertise The 5 Bars team will provide a comprehensive project plan with key milestones and reporting to guarantee timely deliverables. 5 Bars will provide Service Level Agreements (SLAs) to capture key milestones and ensure performance. 5 Bars will dedicate a project management team, with invaluable experience and expertise, to market and manage the City of Sacramento's wireless implementation effort. The unique approach provides the following services: 5'BARS UNIQUE SERVICES Advocate for the City Consultative holistic plan _ Rationalize City assets Accelerate permit processes ■ Fiber leases Maximize revenue for the City ■ Right of way licenses _Minimize visual blight ■ Conduit leases No conflict of interest Pole attachments No asset ownership model 5 Bars has a powerful team of engineering, planning, program management and marketing members that have completed many successful projects. The lead project team will manage the scope of work closely and carefully with the City of Sacramento with full accountability for results. The 5 Bars team can confidently demonstrate our capabilities in the following areas: ■ Negotiating favorable property agreements(e.g.,sub license and encroachment agreements)with multiple telecommunication service providers; The 5 Bars team successfully negotiated property agreements with the City of Anaheim (Angel Stadium of Anaheim), Harris County, Texas (NRG Stadium) and Irvine Company, LLC (Pimco). ■ Developing and managing service contracts with multiple telecommunication service providers; The 5 Bars team successfully manages Service Level Agreements (SLAs) with several service providers including Verizon, AT&T, Sprint and T-Mobile for the Angel Stadium of Anaheim and a Site License Agreement with Verizon for the 650/670 Newport Center Drive (Pimco). 9)2016 5 BARS, LLC PROPRIETARY&CONFIDENTIAL 9 BARS • Outdoor Distributed Antenna System ("oDAS") design, installation, and maintenance; The 5 Bars team successfully designed, installed, and implemented an oDAS for the City of Anaheim Angel Stadium with ongoing monitoring and maintenance of the system. o 122 remote nodes 0 388 outdoor antennas ■ Wireless Small Cell design, installation, and maintenance; The 5 Bars team successfully managed the implementation of 2.5 MHz LTE small cells for Sprint at Angel Stadium in the City of Anaheim, CA. ■ Outside plant cable design, installation and maintenance; The 5 Bars team successfully maintains a Fiber Optics Lease Agreement with the City of Anaheim. ■ Citywide Wi-Fi design, installation, and maintenance; The 5 Bars team successfully implemented a carrier grade Wi-Fi system for the Angel Stadium of Anaheim with ongoing monitoring and maintenance of the system. 0 400 outdoor access points (APs) 0 38 switches o Firewall and security ■ Developing and managing Data Center Co-Location property and service level agreements; 5 Bars successfully manages a collocation equipment agreement with the City of Anaheim utilizing its data center. O 2016 5 BARS, LLC -3 dt PROPRIETARY&CONFIDENTIAL 10 I'A;'. Project Team John Clarey CEO John Clarey is Founder and CEO of 5 Bars and previously founded TeleCore, an international telecommunications services company which was acquired by Viasource Communications. John is an expert in wireless broadband communications with 20 plus years of large scale, emerging technology system engineering and integration leadership. He has an exceptional ability to grasp developing technologies and to execute business plans focused around the convergence and disruption of emerging markets. With a history of success as an entrepreneur over the past 20 years,John has lead innovative investments through a variety of vehicles. In 1995 he was a founder of Huntington Capital, which made investments in 20 portfolios. In 1996, he founded TeleCore, an international telecommunications services company which completed one of the largest scale independent projects in modern US telecommunications history. Over an eighteen-month period the company designed and built broadband (DSL) infrastructure in 3 markets per month culminating in a nationwide network. Under John's leadership as Chairman and CEO, he grew TeleCore to operate in 44 U.S. markets,Saudi Arabia, Brazil, Mexico, Central America and the Caribbean.TeleCore became the largest independent US integrator of DSL networks. Brian R. Schaefgen CFO Brian serves as Chief Financial Officer and brings 25 years of financial experience to 5 Bars. He has an extensive background in corporate finance, planning, capital markets, investments, M&A and investor relations. Over the past 15 years, Brian has served as CFO of privately-held and publicly- traded companies in the telecommunications, real estate and transportation industries. In this capacity, he has been specifically involved in the financial underwriting, vendor selection, budgeting and internal controls of multi-million dollar projects. Prior to this time, Brian spent a decade with the Irvine Company, one of the world's most respected master planners and community developers. Here, he held senior positions leading the financial operations of its residential, commercial and hospitality divisions in addition to its land and infrastructure development group. Brian began his career with Deloitte where he served clients in various industries, including real estate, municipal government, financial services and higher education. Brian holds a Bachelor of Business Administration from the University of Notre Dame. He is a certified public accountant and a licensed real estate broker. Brian serves on the boards of b 2016 5 BARS, LLC -A PROPRIETARY&CONFIDENTIAL 11 ReRk't:' Anthem Entertainment, SPS Air and The Foundation for the Undefeated. He previously held board, executive and audit committee positions with the nonprofit agencies ForKids, Big Brothers Big Sisters of Orange County and Families Forward. Karen Sessions Chief External Affairs Officer Karen Sessions serves as 5 Bars Chief External Affairs Officer, focusing her expertise on public policy, corporate strategy, external affairs, strategic partnerships and stakeholder relationships. Karen brings more than 26 years of US and Global communications leadership to her current role at 5 Bars. Karen has an extensive background in external and public affairs, public policy, business development and complex architecture implementation in communications technology. She has traveled extensively internationally, both through her business and as part of U.S. Congressional delegations, to many countries. Prior to 5 Bars, Karen held the position of Vice President, Public Policy, Law and Security at Verizon Communications where she was responsible for both present and emerging Communications Public Policy including Smart Cities, Telematics, Internet of Things, Transportation, Machine to Machine (M2M), Healthcare, Energy, Security and Cybersecurity. In addition, Karen managed business stakeholder relationships including academics, think-tanks, engineering and standards research experts and external corporate communications. Karen's experience working with Legislative, Regulatory, Corporate Communications and External Affairs guides 5 Bars' objectives with acquisitions and strategic investments. Karen also held responsibility for the Global Solutions worldwide practice for Verizon Commercial and Government sectors. The practice involved Verizon expertise for business development of transformational outsourcing, integration and global procurement and IT/IS governance. The business unit revenue comprised professional services, program management, security, cloud computing, unified communications, vertical applications, new media and digital content. Karen also authored the corporate wide Verizon business development methodology, for complex contract pursuits to ensure Verizon profitability measures were met. Throughout her career, Karen has negotiated many intricate strategic agreements for marketing and revenue results. Some highlights include outsourcing and integration agreements with Danka, ($130MM), CSX Railroad ($37MM), Darden Restaurants ($22MM) and Outback Steakhouse, Inc. ($44MM), that included full integration, architecture and engineering work for infrastructure deployment, including wireless for thousands of locations. Karen holds a Bachelor of Business Administration degree in Finance from the University of Notre Dame and a Master of Business Administration degree from the University of South Florida. OO 2016 5 BARS,LLC PROPRIETARY&CONFIDENTIAL 12 Monnie McGaffigan Senior Vice President Monnie has 25 years of wireless, wireline and cloud technology expertise with the majority of her career bringing leadership to large scale business development teams. Monnie transitioned into the wireless infrastructure segment 5 years ago. She has been primarily focused on large public venues such as stadiums, arenas, in building solutions and master plans for communities and municipalities. Prior to 5 Bars, Monnie held several senior level executive positions with Sprint, reporting directly to the President of Sales & Distribution Worldwide. During her 25 years at Sprint, she had a variety of assignments, including managing strategic alliances and leading key initiatives enhancing their sales distribution model. She was accountable for a $4.3B line of business including wireless and wireline technologies, while influencing 1000+ key personnel for sales distribution of the entire product portfolio. Monnie has personally negotiated hundreds of deals throughout her career. These deals range from complex enterprise solutions, outsourced managed services contracts, unified communications, cloud computing to mid level wireless and wireline agreements. Monnie has personally negotiated master agreements with companies as large as Cisco, Oracle and Microsoft. She also has a background in negotiating directly with carriers such as AT&T, Sprint, VZ and T- Mobile on behalf of venues such as Angel Stadium, San Jose Earthquakes, Florida Citrus Bowl, St Louis Rams and NRG Stadium for the purposes of bringing better coverage and capacity solutions to the venues through DAS and carrier grade Wi-Fi solutions. She has championed many deals throughout the years structured as revenue share with the carriers. Monnie has the ability to bring win/win deal terms to the table in order to gain agreements from all parties. She has expertise in understanding market rates and the complex nature of carrier processes. Monnie is currently responsible for all business development and operations at 5 Bars. Kevin Muldoon VP, General Counsel Kevin Muldoon is VP and General Counsel of 5 Bars. Elected to City Council in 2014, Kevin currently serves as Mayor Pro Tern of the City of Newport Beach. Prior to completing the California State Bar, Kevin interned at the White House in Washington, D.C. He then returned to practice law as Deputy District Attorney in the Orange County District Attorney's office. In private practice, Kevin has represented individuals and corporate organizations as in-house counsel. OC 2016 5 BARS,LLC PROPRIETARY&CONFIDENTIAL 13 5I% lt* Kevin received his Bachelor's degree in History with a minor in Business Administration from Loyola Marymount University, and earned his Juris Doctor from Chapman University School of Law. Kevin also brings valuable experience in contract negotiation with carriers and service providers. A few project highlights include successfully negotiated contracts with T-Mobile and Sprint to participate in the DAS for Angel Stadium, an agreement with NRG Stadium for installation and monitoring of a Wi-Fi system and he drafted a consulting agreement with the Transportation Corridor Agency (TCA) and entered into Master License Agreement with Caltrans. Dolly SPicely Senior Program Manager Dolly Spicely is a Senior Program Manager at 5 Bars engaging in several existing, new and upcoming projects and initiatives. She brings 18 years of experience within the telecommunications and wireless industry focusing her expertise on leading projects of any size, to successful completion. Dolly is a dedicated team professional with experience in program and project management, vendor management, proposal management, business analysis and network operations. In her role, Dolly acts as a first point of contact with primary responsibilities including overall project coordination, communication, project planning and being the primary liaison with all partners, vendors, and the customer. Dolly brings valuable program management knowledge leading projects and initiatives effectively and in a timely manner. She brings expertise in process development, executing full life-cycle projects from ground up, and coordinating successful, simultaneous management of several projects. Dolly also brings expertise in end-to-end RFx process management and coordinating successful solution response criteria for concurrent bids. Prior to 5 Bars, Dolly held key positions with leading companies including Cable & Wireless, Nextel Communications, Sprint, LightSquared, and BroadSoft. Dolly holds a BS degree from the University of Maryland and a certification in Project Management. Bryan Courtney Program Director Bryan is a Program Director with 5 Bars, LLC, specializing in large facilities and special events wireless infrastructure. Bryan has worked as the lead consultant for the NFL and stadiums negotiating contracts, carrier agreements, developing statements of work (SOWs), and managing the complex wireless environments for the past four Super Bowls, as well as the WWE's WrestleMania at MetLife Stadium. He has also led several projects evaluating the wireless infrastructure at many of the largest stadiums and arenas around the country. He also is ©2016 5 BARS, LLC PROPRIETARY&CONFIDENTIAL 14 tire:,"' instrumental in analyzing and reporting performance data from cellular and Wi-Fi networks during and after the events. As Program Director, Bryan provides management oversight throughout all phases of the project. This includes the collective collaboration of all entities during the RFP, contract, design, mobilization, installation, integration, optimization, close-out phases. He engages with all wireless carrier for DAS participation and builds ongoing relationships to track performance issues and manage the implementation of carrier upgrades.._ Bryan has over 22 years of experience in the wireless industry. He remains at the forefront of emerging technologies and continues to work on developing new standards that serve to enhance performance within high density environments. Prior to 5 Bars, Bryan worked with RAM Mobile Data, BellSouth Wireless Data, Cingular Interactive, Centennial Wireless, AT&T and Cellular Specialties. Bryan is a veteran, who served eight years in the U.S. Army Signal Corps. Tommy Taylor Senior Manager, Engineering Services Tommy Taylor is the Senior Manager of Engineering Services for 5 Bars and has proven success in managing multi-million dollar indoor and outdoor DAS and Wi-Fi rollouts to a variety of wireless carrier and customers. He is certified in iBwave DAS Design Engineering software with each carrier, to work on their networks. Tommy has implemented more than 500 DAS systems and has been responsible for multiple quotes, installations, optimizations and closeouts across the country for stadiums, private industry and enterprise customers. He also brings insightful direction and support to the legal process of negotiating contracts with carriers and service providers. Tommy's primary responsibility includes the installation, commissioning, and ongoing maintenance of a project. He provides overall direction to the installation contractors and 5 Bars engineers. As construction manager he is also responsible for the infrastructure installation, performance and aesthetics. Tommy is the onsite expert and first point of contact for any installation questions, concerns or issues. He provides daily progress reports to the Program Manager. Major projects within his project portfolio include: Los Angeles Angels of Anaheim, Cincinnati Bengals, Kansas City Chiefs, Dallas Cowboys, Houston Texans, New Orleans Saints — Super Bowl, Texas Rangers — World Series, St. Louis Cardinals - World Series, TCU, Texas A&M, Texas Tech, KU, KSU, University of Arkansas, Baylor University, Auburn University, University of Oregon, Oregon State University, LSU, American Airlines Arena Dallas, San Antonio Spurs, Oklahoma City Thunder, Dallas Area Rapid Transit, Bay Area Rapid Transit, Library of Congress, Department of Transportation, NASA, Boeing, General Atomics, DFW Airport, Houston Intercontinental Airport, and Southwest Airlines Corporate. © 2016 5 BARS,LLC PROPRIETARY&CONFIDENTIAL is Please see below 5 Bars Project References and Team Qualifications: o I�I1C0 Building 2 Johr-Claret' T4CrLrriyTay�or t DAS +l �( d j Kar tl,5ess�ons j P_i_MCC}; 3hrAnlha7dynre Uwifi � , i I John Clarey Angel Stadium j I Kevin Muldoon ! DAS& ` Tommy Taylor i Wi-FI Karen Sessions I � i Kevin Mutdp4m 7d (olt Read* Rhc,-affigan. (I r Briars Schaefgen � Dk �I " , Bryan CvuitneY Dolly Spicely TotnrSpTay#oY Kevin Muldoon NRG Stadium* Monnie McGaffigan Brian Schaefgen Wi-FiN1d d ' Bryan Courtney C1t'C . ( ( Dolly Spicely Tommy Taylor ' Bruce Barr[gan i N�i�Paitga* 'L � � i � � ManriP��rlcGaffi��n � ' i, ' r 'bf4a 1! 1� ; Kevin h�ltllbbri Dolly 3cely �QN40 I Brarr SCJoirrtnsy _-_ ._ TotmyTaylor ..� *in progress �� OD2016 5 BARS, LLC � PROPRIETARY&CONFIDENTIAL 16 } �kiii+k '. Financial Reference Trisha Miller AVID, California United Bank 19100 Von Karman Avenue, Suite 140 Irvine, California 92612 (949) 271-3000 Revenue Report 2015 2014 2013 Revenue, net $5.1 million $7.8 million n/a* *5 Bars, LLC was founded in 2013 with no-revenue in 2013. © 2016 5 BARS, LLC PROPRIETARY&CONFIDENTIAL 17 BARS, Client References ATTACHMENT 3 Client References (MINIMUM OF THREE REFERENCES REQUIRED) CITY OF ANAHEIM NAME CITY OF ANAHEIM-ANGEL STADIUM OF ANAHEIM NAME OF PROJECT Neutral host Distributed Antenna System(DAS)and high density carrier grade Wi-Fi CITY/COUNTY Anaheim,Orange County STATE CA ADDRESS 2000 E.Gene Autry Way. Anaheim,California 92806 KEY CONTACT NAME/EMAIL/TELEPHONE NUMBER Molly Taylor Jolly,Senior Vice President, Finance and Administration,Angel Stadium. molly.00lly@anciels.com 714.940.2000 DETAILS DATE SERVICES WERE PROVIDED 2013-Present SCOPE OF THE ASSIGNMENT ON THE PROJECT Design,engineer,install and provide ongoing management and maintenance of a high density carrier grade Wi-Fi and carrier grade neutral host Distributed Antenna System (DAS)for the Stadium. ADDITIONAL REMARKS The City of Anaheim and Angel Stadium selected 5 Bars to design,install and operate a Distributed Antenna System (DAS)and high density carrier grade Wi-Fi system for the Los Angeles Angels of Anaheim at Angel Stadium. The scope included:engineering,design,permitting,installation,testing,operation,maintenance,life cycle support and reporting for both systems. 24/7/65 NOC monitoring and maintenance of the DAS and Wi-Fi systems,including the following services: analytics,optimization,maintenance,MTTR,resource deployment,staging,spares,replacement and break fix. Description: Carrier grade,neutral host Distributed Antenna System (DAS)with 388 antennas,multiple frequencies. All four carriers on air:AT&T,Verizon,T-Mobile and Sprint. Carrier grade Wi-Fi in all public areas designed to off-load data traffic of the four major wireless carriers. Over 300 high-capacity smart Wi-Fi access points with the latest"state-of-the-art"technology to give a new generation of fans,the cutting edge connected experience imaginable,and increases service efficiency for vendors and staff everywhere at the stadium. State-of-the-art head end room.System exceeded MLBAM standards. © 2016 5 BARS, LLC APROPRIETARY&CONFIDENTIAL zs .I ATTACHMENT 3 Client References (MINIMUM OF THREE REFERENCES REQUIRED) IRVINE COMPANY-PIMCO HEADQUARTERS NAME IRVINE COMPANY NAME OF PROJECT PIMCO Headquarters-DAS System CITY/COUNTY Newport Beach,Orange County STATE CA Irvine Company-550 Newport Center Drive.Newport Beach,CA 92660 ADDRESS PIMCO—650 Newport Center Dr.Newport Beach CA 92660 KEY CONTACT NAME/EMAIL/TELEPHONE NUMBER Michael Driscoll,Information Technology and Services Irvine Company. mdriscollc@irvinecompany.com 949.370.0543 DETAILS DATE SERVICES WERE PROVIDED 2014-present SCOPE OF THE ASSIGNMENT ON THE PROJECT Design,engineer and install public safety radio for Orange County Sheriff and Fire Department.Also,design,engineer,install and commission a neutral host Distributed Antenna System (DAS). ADDITIONAL REMARKS 5 Bars designed and installed a neutral host Distributed Antenna System(DAS)and a public safety radio for the Orange County Sheriff and Fire Department. 5 bars commissioned 700 LTE and 2100 LTE carrier services. The system covers 800,000 sq.ft.of building space and includes the parking garage. PIMCO headquarters is a 20-story office tower located in the heart of Newport Beach,California.It is the tallest and most lavish state-of-the-art office tower in Orange County.The premier office building serves thousands of employees. O 2016 5 BARS,LLC PROPRIETARY&CONFIDENTIAL 29 a` KARq ATTACHMENT 3 Client References (MINIMUM OF THREE REFERENCES REQUIRED) TRANSPORTATION CORRIDOR AGENCY NAME Transportation Corridor Agency NAME OF PROJECT 73Toll Road,outdoor Distributed Antenna System CITY/COUNTY Irvine,Orange County STATE CA ADDRESS 125 Pacifica,Suite 120. Irvine,CA 92618 KEY CONTACT NAME/ EMAIL/TELEPHONE NUMBER DavidW. Lowe,Director of Design&Construction. dlowe@the tollroads.com (949) 754 3488 DETAILS DATE SERVICES WERE PROVIDED 2015-present SCOPE OF THE ASSIGNMENT ON THE PROJECT Develop a Wireless Master Plan for the 73Toll Road to provide a multi carrier solution engaging all major wireless carriers. Develop a comprehensive plan to implement an oDAS and small cell nodes to ensure continuous connectivity of wireless coverage throughout the 17-mile toll road. ADDITIONAL REMARKS The Wireless Master Plan is intended to improve cellular coverage for residents,commuters and local residents who use the 73 Toll Road and rely on their cell phones and wireless devices for business, recreation or emergencies. PHASE I:The scope of the project included data collection and analysis,entitlement plan,technical survey of the current wireless systems and existing infrastructure, performance metrics, projections,right of way, master planning,site planning and contracting.Phase I,Completed. PHASE ll:Includes design,entitlement,and installation of an oDAS and small cell nodes to bring wireless connectivity throughout the 17-mile toll road intended to improve cellular coverage for residents,commuters and local residents.Market system to all wireless carriers. The Wireless Master Plan is developed based on projected 2020 wireless usage. At OO 2016 5 BARS,LLC PROPRIETARY&CONFIDENTIAL 20 ,BA 0 ATTACHMENT 3 Client References (MINIMUM OF THREE REFERENCES REQUIRED) HARRIS COUNTY-NRG STADIUM NAME HARRIS COUNTY SPORTS AND CONVENTION CORPORATION NAME OF PROJECT NRG Stadium Wi-Fi System CITY/COUNTY Houston, Harris County STATE TX ADDRESS NRG Park-One NRG Park KEY CONTACT NAME/EMAIL/TELEPHONE NUMBER Bill Merrill,Project Manager bmerrill@nrgpark.com (832)667 3291 cell: (712)412 0286 DETAILS DATE SERVICES WERE PROVIDED 2015-present SCOPE OF THE ASSIGNMENT ON THE PROJECT RF benchmark survey,design,engineer,install and provide ongoing management and maintenance of a high density carrier grade Wi-Fi System for the NRG Stadium, in accordance with the"Wireless Local Area Networks"("WLAN")requirements for NFL stadiums. ADDITIONAL REMARKS Harris County selected 5 Bars to design,install and operate a high density carrier grade Wi-Fi network to be deployed at NRG Stadium in Houston,TX. The scope included: Engineering,design,permitting,installation,testing,operation,maintenance,life cycle support and reporting for the system.24/7/65 NOC monitoring and maintenance of the Wi-Fi system,including the following services: analytics,optimization,maintenance,MTTR,resource deployment,staging,spares,replacement and break fix. Description: Installation of a carrier grade high density Wi-Fi network designed to off-load data traffic of the four major wireless carriers,that will support data needs of the NFL and Super Bowl 51.The network will provide the ability for over 50,000 clients to simultaneously associate to the network. Installation of over 1200 Wave 1 and 2 access points delivering the maximum throughput for clients to utilize for an ultimate fan experience.Implementation of an analytics package that will enable real-time visibility into the client experience and trend traffic consumption. 5 Bars will provide on-going event support, managed services and risk mediation.The network offers capability for wireless cellular carriers to have their subscribers auto-authenticate onto the networkfor a seamless experience. ©2016 5 BARS LLC PROPRIETARY&CONFIDENTIAL 21 BARS Supporting Information A. Statement of Interest 5 Bars, LLC ("5 Bars") is pleased to submit herewith our statement of interest to respond to the City of Sacramento Wireless Marketing Plan, Request for Qualifications (RFQ) - Q16071011005. 5 Bars commends the City of Sacramento for organizing the planning and marketing of City assets to enhance wireless coverage and capacity for the City, business, citizens and visitors. 5 Bars' expertise is to function as the City advocate and provide consulting, planning and marketing services for the City of Sacramento while fully complying with the scope of work in the RFQ. 5 Bars has the expertise to execute on the needs of the City using the recently completed Wireless Master Plan and maximize particular City assets available for use to address those needs. As the author of the Wireless Master Plan developed for the City of Sacramento, 5 Bars is fully qualified to produce marketing and operational outcomes that meet the expectations of the City and the citizens. We look forward to responding to the City of Sacramento RFQ and depict how 5 Bars possesses unique qualifications and expertise to implement a Wireless Marketing Plan as the next step to meeting the growing demands for increased coverage in the City of Sacramento. ., n 2016 5 BARS,LLC I �l�f PROPRIETARY&CONFIDENTIAL 22 B. Relevant Qualifications demonstrating property agreements and contract negotiations with service providers; experience in the development of oDAS, Wi-Fi, and Small Cell networks;.outside plant and data center co- location property and service level agreements. 5 Bars brings US and global communications leadership, expertise and experience at the forefront of emerging wireless technologies, with an extensive background in: ■ Implementing and managing complex technical solutions ■ Providing leadership of business partnerships and alliances to drive growth ■ Specializing in large wireless infrastructure ■ Strong relationships with all major wireless service providers at the executive level ■ Comprehensive knowledge of wireless market trends, carrier requirements, SLA's and market rates ■ Experience marketing and deploying large scale Distributed Antenna System (DAS) ■ Experience marketing, deploying and managing carrier grade high density Wi-H Systems ■ Experience in small cell technology ■ Executive team with over 100 years of combined wireless experience ■ In house regulatory and legal expertise O 2016 5 BARS, LLC PROPRIETARY&CONFIDENTIAL 23 BARS Description �ill; Contract Recluirement 5 Bars Qualification r. �.1=� 1 rii T`I DA$Ste Lrcense reement wP t(fe ; Rr SCA between S Bars ar{t4property 2/25/ 0 4 ,V . ` RualiftCations ;ll rteCorT any J, owner Irvine Company,for - at�ol �ieiripnsatig pra�erty design anti build a DAS systPn at the, ;p agreements 650/670NewpprtCenterDrueoffice '{ �r �b campus.' Lease Agreement for Access to Angels Wireless service provider SLA 2/10/2014 Stadium DAS System with Verizon negotiated between 5 Bars and Verizon to use the DAS at Angels Stadium,City of Anaheim. ! -- Lea3eAgr��mentf9, Atress to 4ndeisStadi: WireFessservice pCoviderSlA 1j DIGS ysfemWrfhAF&T negotiated bet"in 5 Sars aWd AT&T' to use the DAS at Angels-Stadium } n_ Crty of Anaim. °' Qualifications Lease Agreement for Access to Angels Stadi,�Wireless service provider SLA 6/9/2015 demonstrating contract DAS System with Sprint negotiated between 5 Bars and Sprint negotiations with service to use the DAS at Angels Stadium, providers City of Anaheim. 1 LeaseAgreerrrentfarAccesstaArrgelsSf6dii. Wireless serviceprovlderStA 12/�5/20 4 D IS1W1*iSystem with T Mobile negotiated beLwedn 5 Bats'aridT- . Mobile to use the DASiat fingels i z Stadium- City-of Atiahelin DAS Site License Agreement for 6501670 Wireless service provider SLA 7/3/2014 Newport Center Drive, Newport Beach negotiated between 5 Bars and California with Verizon Verizon to use the DAS at Pimco building Newport Beach,CA Agr�eentaq Prpwde plstrrkcrtQd An-agreement-for 5 Barslo design [15/201 r itpQrPence�n tie .a i'gittGstem,lVi-F!setvaces with and install oDAS nt Angelstadlum, i Opine AngafsBasabatiEPa d ars' City of Anaheim. Agreement to Provide Distributed An agreement for 5 Bars to design 9/15/2013 Antenna System, Wi-Fi Services with and install Wi-Fi system at Angels 3 Angels Baseball LP and 5 Bars Stadium,City of Anaheim. I Experience in the Agreerent tizProUide Wr�Fr rrrd Services An agreement for.5 Bar, to c esrgn �, 12/27/2i115 development ofWi-Fi ' '`'i`i�� oridliistallWi-Ffit um for;''' _ facility owner and operat6r H6rtis Countp Sports sit..... HHoustarijexas Lease Agreement for Access to Angels Stadiiu An agreement for 5 Bars to design 11/15/2015 Experience in the with Sprint and manage the implementation of development of Small Cell small cells on behalf of Sprint at networks Angels Stadium, City of Anaheim. Ffbe-Optics Lease Agreement Byarid {tl agtgerriefitnegatiated ry.S Bars S/5{ OI4 0q �al-Ae °l ihoh ,in1 'd rs 0 alo'w Bt :1,64e bB B�iweeh C� --Optic yYia8 network,andass6di�tedfaci ., � a a tres an�''a dot seater cb ; developed by the City of Anaheim fpr: location pro-",and the olaa��tions of F7AS al7ditGu�f „ der Fce Ferrel armaments , " system at Angels Stadium,City of r' ¢� a is li'nl.y av itil"� Anahelrt � � et H *All referenced agreements can be provided in their entirety upon request. Cc7 2016 5 BARS,LLC PROPRIETARY&CONFIDENTIAL 24 ;§BARS The 5 Bars team provides wireless master planning for counties, cities and private large scale developers through master planning, marketing, network development, asset inventory, platform development, management, maintenance and guidance around design and deployment. 5 Bars also provides on going data collection to support intelligent decision-making and technology re-fresh guidance to support best in class and aesthetically pleasing form factors and policy recommendations. 5 Bars creates a plan to enhance the wireless coverage that allows the City of Sacramento to achieve 5 Bars of Certification, which can include constructing a network using municipal assets where possible, licensing the site locations to the carriers and providing rent or access fees to the City. 5 BARS' UNIQUE OFFERING: When wireless applications are received, Cities must act quickly to understand wireless carriers' coverage needs and the options that are available to meet those needs. In some cases, regulatory policies will dictate decisions in on accelerated time frame, which can cause for inadequately planned results. Additionally, the needs and options are constantly evolving. 5 Bars' master planning tools merge technical expertise of coverage needs with proprietary surveys of existing and forecasted coverage conditions. This information is then evaluated in the context of existing municipal assets which can be used to support wireless facilities. This proprietary intelligent platform is kept current so that subscribing Cities may access the information and identify intelligent options and solutions on a real time basis. The platform provides a database of information, that is refreshed annually, to be used in order to make smart and judicious decisions with the City and citizens best interests in mind. The information provided can be used as a guide to comply with regulatory and City strategy and priorities. As carriers come to the City of Sacramento to facilitate the deployment of their technology objectives, in order to serve their citizens, 5 Bars provides the City the information required to make the best decisions possible while maintaining control. D 2016 5 BARS, LLC PROPRIETARY&CONFIDENTIAL. 25 Et R S 5 Bars has unique knowledge of the telecommunications landscape. This unique view of information and perspective allows 5 Bars to effectively and proactively market cities' assets to ensure that coverage solutions are identified, and satisfied, on terms that maximize revenue and minimize planning impacts. Because of our years of expertise in wireless telecommunications, 5 Bars ensures that non-monetary contract terms are uniform and favorable to the cities' interests. (for example, the standardization of pole form factors,SLAB, lease rates, etc.) 5 Bars acts as an advocate for the City of Sacramento and offers this intelligent platform which provides an ongoing solution in order to maximize revenue and coverage opportunities while minimizing impacts from wireless facility siting decisions. No other company offers this service. �. © 2015 5 BARS, LLC PROPRIETARY&CONFIDENTIAL 26 5 BARS IS YOUR ADVOCATE FOR WIRELESS COVERAGE SOLUTIONS SBA® atat CROWN A ye/jz CASTLE Sprint r wx�oacwn�ovvart• akilEf tP-4Mobller Industry Expertise ✓ V ✓ ✓ RF Benchmarking Situation Report f —------------. ._..._..... _---- Subscription Agreement-Asset Database&Marketing y D o Cross-Agency Asset Inventory y Ln Ordinance &Franchise Agreement Review V Oco ____. ...— --' ---- ---_— -.� _.—.—_ _ ...._....__ I_ - - — - --_.. --- �---.._.__. / -- o - Additional Coverage Y f z -- - — - — - --- - r n D Maximizing Revenue Generation-City Assets Only r History of Litigation with Cities Y V V ............ ......- - Wireless Master Plan FCC Shot Clock Mitigation No Conflict of Interest None Owns over 51,000 Owns over 40,000 sites Owns over 25,000 Site Ownership sites domestically domestically sites domestically N V C. A conceptual property agreement rate structure for wireless carriers for both capital and recurring expenses. Rates shall include: 1) oDAS network buildout in the downtown business district ■ Street light or pole attachment ■ Fiber and conduit connectivity to co-location site ■ Co-location services 5 Bars proposes to conceptually design and market a neutral host outdoor Distributed Antenna System (oDAS) in the downtown business district utilizing the City's streetlights. 5 Bars will further utilize the city's existing fiber network in the downtown district for fronthaul and backhaul to these communication site locations. 5 Bars will identify a potential head end location for the carriers' base stations and ancillary equipment. The preliminary concept and intended results is outlined in the projected propagation survey below. All available City assets would be utilized and marketed as a package to the carriers for use in the oDAS network. f�. City of Sacramento Business District ©2016 5 BARS, LLC 1,4>y PROPRIETARY&CONFIDENTIAL 28 City of Sacramento Business District with oDAS propagation 5 Bars will use the oDAS design and, on behalf of the City, identify, award and negotiate with a neutral host provider. The process will be conducted in alignment with the City of Sacramento staff. 5 Bars will only select a neutral operator that can build and manage the system within agreed-upon market economics at no cost to the City while utilizing the maximum number of City assets. 5 Bars will work with the selected operator to further market and seek co-location tenancy and to ensure full carrier participation over time. 5 Bars will work expeditiously in order to secure "go-live" in the downtown district in time for the opening of Golden 1 center and the Sacramento Kings season with initial carrier participation. 5 Bars will be aligned with the City of Sacramento through a success-based revenue sharing proposal that will maximize the revenue to the City. With this concept, 5 Bars will derive a monthly market price for utilization of the poles for attachment, city fiber, city conduit and city head end room. This pricing will be used in the neutral host's build proposal and maximize revenue to the City. ©2016 5 BARS,LLC PROPRIETARY&CONFIDENTIAL 29 S BARS 2) Small Cell deployment outside of the downtown business district In the area outside of the downtown business district, 5 Bars proposes to inventory and rationalize the City assets, including fiber, poles, conduit, street furniture, buildings, etc., and align them with gaps in carrier coverage per the RF studies. 5 Bars will organize this synthesized information on our cloud-based software platform and market specific, pre- approved City sites to wireless carriers to quickly accommodate Small Cell deployments and expand city-wide coverage and capacity for the City's residents. 5 Bars proposes to add the City of Sacramento to the 5 Bars' subscription based intelligent software platform which includes a wireless asset inventory, marketing to providers (existing and new), regular carrier updates, form factor and aesthetic policy development, technology refresh and advancement updates, pricing recommendations, co-location services, annual reports and RF assessments. Pursuant to our agreement, the City will approve all individual site locations and pricing. Please reference oDAS and small cell high level project schedule below: OctNanic Duration St3rt Finish Mar Alar May Jun Jul Aug Sep Sacramento oDAS and small cell 154 d 3/2/16 10/1/16 j 4ntract;Megotiations 3$d ' 3/2/16 4/ 8/16 Contract Award,Execution 1 d 4/25/16 4/25/16 BusiihessDlstricf,(o nirl �ngp2ckage 16d 4/15/16 , 5/16/16 -' .Cleve`}�op, font Small Cell outside Business District marketing package 16 d 4/25/16 5/16/16 i development 5rnall C�I�i4Wt�I�e'6usfn+�S�� ; ' Distract carper interest { Business District oDAS carrier f I 1 d 6/13/16 6/13/16 design presentation i BNsrnes cEto desigeE _ � sL%tecfEiitt, 6/17/16 6J27/1b' _ Engineering&Permitting 21 d { 7/1/16 7/29/16 ! Gonst c 45 tf r �1 =16 9/3t}f 16 �__ L 1 Go Live 1 d 10/1/16 10/1/16 �__--- ----------._.----___-__ ......_------- _..m. © 2016 5 BARS,LLC PROPRIETARY&CONFIDENTIAL 30 D. Provide a revenue cost share/split proposal with the City. 5 Bars will align its financial interests with the City of Sacramento in a revenue share, success-based model. As the City's' advocate, 5 Bars will market the wireless intelligence and assets and propose a revenue share model in which the City benefits from 60% of the monthly recurring license fee revenues and 5 Bars receives the remaining 40% of the license fee for for any new wireless revenue generated from its marketing program. 5 Bars will provide the following services for the 40%share of the license fee revenue: Access and maintenance of the subscription Technology refresh and platform of intelligence which includes wireless advancement updates asset inventory, RF analysis and other demographic data on which the marketing and license decisions will be based I ,larl�etfng,t€r carrier's any#providers bath'existing Cc Iacatiri seryi�e's an nevv an i,and neiu entrantsm existing wii'reless fac�iities Regular carrier updates Pricing and fee recommendations .Forrn fa 4r an l;aesth tie pblicY'de-velo'pmtnt T ; Ann pa,jeports zincf RF . s _ ! assessments , City of Sacramento Subscription Based Marketing Program —Summary Terms 1. 5 Bars shall provide consulting and planning services to identify City of Sacramento assets to market. These services, which shall be refreshed from time to time, shall include RF analysis, asset inventory, ordinance and siting policy reviews, equipment and pole form factor (aesthetic) review and other associated services which shall be shared with the City of Sacramento. 2. As an advocate for the City, 5 Bars shall market the City of Sacramento's public assets to all wireless carriers and providers. 3. The City of Sacramento assets included in the Marketing Program subscription agreement will include city-owned building(s), pole(s), tower(s), fiber, conduit(s), cable(s), cabinets(s), street furniture(s), vault(s) and any structures which could be utilized for the purposes of promoting, transmitting or facilitating communications. O 2016 5 BARS, LLC PROPRIETARY&CONFIDENTIAL 31 4'(ARS 4. 5 Bars will present to the City of Sacramento potential sites to market and the City of Sacramento will have the right to determine which sites are marketed to carriers and providers. 5. 5 Bars will propose site agreement(s) for approved sites. The City of Sacramento maintains final approval on the execution of agreement(s). 6. 5 Bars will waive its subscription set up fee for the Marketing Program for the City of Sacramento. 7. Pursuant to the Marketing Program Agreement 5 Bars will enter into sublease agreements with carriers and share revenue received from collocation, site agreements and multiple tenants on new sites with the City as follows: City of Sacramento 60% 5 Bars 40% 8. Any costs incurred by the carriers or 5 Bars associated with engineering, permitting or improvements (such as pole construction, fiber lateral or conduit construction etc.) shall not be paid by the City of Sacramento and shall be paid or reimbursed by the carriers. 9. The City of Sacramento will retain ownership and control of any licensed City assets. 10. The term of the agreement shall be five (5) years with four(4) elective renewals. 11. The City of Sacramento shall have the right to terminate the agreement based on non- performance. 12. 5 Bars shall provide quarterly updates and an annual report summarizing investments, technology changes, financial gains and provider plans. .� � © 2016 5 BARS, LLC PROPRIETARY&CONFIDENTIAL 32 z ESrtlk In Conclusion 5 Bars has built strong and collaborative working relationships with wireless carriers in implementing coverage and capacity solutions on many engagements. Our primary goal has been to act as the city advocate to provide proven expertise in understanding the dynamics of cities' wireless telecommunications infrastructure and utilize city assets to improve communications. The 5 Bars team brings over two decades of invaluable experience in planning, marketing, deploying, maintaining and managing wireless solutions. We believe with our wireless. master planning and marketing knowledge, excellent leadership and dedication, 5 Bars can bring the City of Sacramento a faster, more responsive, reliable and ubiquitous wireless connectivity experience for the entire City through accelerated investment. 5 Bars is committed to delivering the best and most comprehensive Wireless Marketing solution to the City of Sacramento orchestrated to also meet projected smart city initiatives. Our reliable approach to advocate on behalf of the City of Sacramento, engage each carrier to participate and act in a public-private partnership with the City, ensures an efficient, cost effective, and state of the art wireless coverage. 5 Bars is excited to partner with the City of Sacramento on this Wireless Marketing Plan opportunity to implement the Wireless Master Plan requirements set forth within this RFC!, that will bring a creative, ubiquitous wireless solution to benefit its residents and visitors. O 2016 5 BARS,LLC 'A PROPRIETARY&CONFIDENTIAL 33 5 NAR Appendix A © 2016 5 BARS,LLC 'ot PROPRIETARY&CONFIDENTIAL 34 S 6R VVIleXV14 M X4 NAb aunlugJ $fit* of wow" _ 4 IROAMY of $tdtR3 tk2:l9Mssd 71of I YD13 Tit 130133M - $2"443 FM STATE v,fDELAWARE IMOTM LLAR'EIM WMPANY CMTMC of FORMATION 5 Bare Inside, LLb seemd: of its lvels tw In ftstato of Dek Yem xtl7 .. '_wz—wr,, 1100 in the ciV of ROVER ,Zip,code 10303. 1 he rAm orits lWoomd agu at,sucb ids nm Is UMAL:Z+Tc CORPOnT13 Suncim :ryc TWrd:(Use" *toly ifthm oowpww Is to have aspecific effbcdvedaftof dlswlatim.*The WW date on wbich tine lIwWd!lability corm fs to dialaf"is u� of ,. a+ , A 4mizW Piro(s) Name- Delaware ..�� s If a7SF'F'J Y W. BULLOC."fe SECRETARY OF STATE. OF THE STATE OF DZZAWARE, DO HEREBY CERTIFY rVAT THE SAID 01,5 .BARS IN.S.TDE, :LZC", FILED A CEIRT.XFICArR OF A1M4DMENT, CHAXGXNG ITS !'aW Ta "5 234RS, TLLCrr, THE THIRTSMSTR PAY OF JANUARY, A.D. 2015, AT 7438 O'CLOCK P.M. r� k Y W BUNIO k Sewetary of State -, 5287443 8920 AFITH IO.N. 2244956 a 150 8? 3 ♦a� DATE. 03-28-1,5 Yau mey Ma,r4 ,lttly cartt loots abLos. at ,cM.daic�Tara.gov/aat3par.shtm2 LI.C-6 Amendment to Registration of a Foreign Urnited Liability Company(MC) To change the name of record for your registered foreign LLC, fill out this form,and submit for filing along with: - A$30 filing fee. — A certificate by the agency where the LLC was formed, certlfyttg that the norm was changed in that atate, country or other place, also must be included if that name has changed. FILER — A separate,non-refundable$15 service fee also must be included, wry of Stdo if you drop off the completed form. cog of Ca ftTk 104kWatltt To change the LLG addresses, or to change the name or address of the LLC's agent for service of process, you must file a ` 2 1 20 5 &element of Information (Form LLC-12). To get Form LLC-12, go to www.sos.cagovibusiness-programs/business-entfflWstatements. This Spam For Vice the Only For questions about this faun,go to www.sos.ca.govlbusiness-programs!business-entitleslifti rg-Ups (D LLC fame used in California (on tee with cA se"et"of Stye) LLC Fire No.osmeti ty cA seaerety of Stye) 5 Bars inside, LLC 201317810033 New LLC Nance to be used for this LLC in California If changed,list the LLC name now In the state,country or other place of the LLC's formation: 5 BarSr LLC LLC Name Lest an alternate name to be used in CanxTda it (1) the LLC name in Item 3 does not comply with Caiilonis naming requirements 2E(2)you only are f$ng this form to change an existing alternate name. List the alternate name a mady as 3 is b appear an the rest of the California is Secretary of State. The afteemmatte name most include:LLC,L.L.C.,Umfted Lk tty Company. United LW)W Co„ Ltd. Uabli ty Co. or Ltd. Uabii«y Company; and may not hrduda be* trust, trustee, incorporated,inc., corporation, or carp., insurer, or insurance company. (Cs ilbmia Corporations Code section 17701,08:) Go to www.soe.mgovftWness-program&bueiness-entifies/nameavellability for general name requiremente d,restridone: ARerrtafe Mama Fxisting Alternate LLC Name Check fins boor if you oompfafed Item 3 above,and if applicable, ff you check Nos box,do not complete item 4 above. This LLC registered In Caiifomia before January 1,2014,currently transacts Intrastate business In CaMunk under the allemate name Hated In item 1 above; and upon this filing, will c ordirme to transact Intrastate business In California under the alternate name fisted In Item 1 above, 0 Cheek tiffs box ff . ff you check Nils box,do riot complete!hem 4 above. Note: 8 tttk LLC �California after December 31,2013,and the LLC name now used In the state,country or other place of the LLC's krmation comps with CaHxnla Corporations Code eadion 17701.08,you must check this boar to reHnqutsh the alternate name. tr j The Alternate name under which this LLC currently transacts intrastate business In California will no longer be used. Upon tttts 11ing,this LLC we us ed intrastate business in Calffornia under the LLC norms now used In the stab, country or*firer place of the LLC's formation. Read and siq below. I am auth l sign t under a laws of the state,country or other place whore this LLC was farmed_ John Clayey CEO soi r Pontywnairwuses Yatesbu*vsswe Maly cheridmoney order payable to: of$fate fay flrafr VMP-EW Upon fling,we MR rahrm one(1)uncertified copy of your Med Secretary of State Secretary of State do wrnerd for free,and will car*the copy upon request and Business Entities,P.Q.Box 94422E 160011111 Street.,3rd Floor payment of a 85 oerHHiicsfiort t Sacramento,CA 94244-2280 Sacramento,CA 9914 Corp-Om Code§9 t77o1 d18,177" 2DR Cmllunb 8soluyd9tate State of California Secretary of State AMENDED CERTIFICATE OF REGISTRATION 1,ALEX PADILLA, Secretary of State of the State of California, hereby certify: That on the 21st day of April, 2015, there was filed in this office an Amended Application for Registration, Foreign Limited Liability Company whereby the name, under which the foreign limited bbility company was registered and transacting business in California, as 5 BARS INSIDE, LLC a limited liability company organized and existing under the laws of Delaware was changed to 5 BADS, LLC. This limited liability company complied with the requirements of California law in effect on that date for the purpose of registering to transact intrastate business in the State of California and as of the said date has been and is qualified and authorized to transact intrastate business in the State of California. Subject, however to any licensing requirements otherwise imposed by the laws of this State. IN WITNESS WHEREOF, I execute this certificate and affix the Great Seal of the State of Califomia this 24th day of April, 2015, titiafir ,4 ,••4tlREKq ' . S LLI $ p ' Y ' • r cq LIFO �P ALEX PADILLA Secretary of State LML AF25(REV 01/"15) EXHIBIT "C" CONSULTANT'S PROPOSAL FOLLOWS THIS PAGE Y 0 9f� SAC-RAMENTO Inf ormation Technology Request for Qualifications (RFQ) (Q16071011005) City of Sacramento Wireless Marketing Plan RFQ Submittals Due: March 25, 2016 by 3:00 p.m. (PST) (Submit electronically, in PDF format) via the City of Sacramento's online bid center at: httg://www.planetbids.com/portal/portal.cfm?Coml)anvlD=l 5300 i TABLE OF CONTENTS Section1. General Information................................................................................................................... 3 Section 2. General Requirements............................................................................................................... 7 Section3. Background ................................................................................................................................9 Section4. Scope of Work.......................................................................................................................... 10 Section 5. Submission Content and Submittal Evaluation /Selection Criteria ...................................... 163 Section 6. Acceptance of Submittal and Format.................................................................................... 185 Section 7.Submittal Evaluation/Selection Criteria.................................. Error! Bookmark not defined.6 Section 8.Acceptance of Submittal........................................................... Error! Bookmark not defined.8 ATTACHMENT 1-Submittal Cover Page.................................................................................................... 20 ATTACHMENT 2-Submittal Signature Form............................................................................................. 21 ATTACHMENT 3—Client References...................................................................................................... 222 ATTACHMENT4—Supporting Information............................................................................................. 223 APPENDIXA-City Fiber Map.................................................................................................................... 24 APPENDIX B -5 Bars Wireless Plan Findings............................................................................................. 25 2 Section 1. General Information 1.1 Purpose The City of Sacramento ("City" or"Sacramento") invites interested parties ("Responder" or "Responder(s)")to demonstrate knowledge and expertise ("Qualifications") in the development of a Wireless Marketing Plan (the "Plan" or "Marketing Plan").The Marketing Plan would be used to strategically develop the City's wireless telecommunication infrastructure to meet the needs of the City.The successful Responder would be expected to utilize the Plan and work on the City's behalf to develop agreements to construct, manage, and leverage certain City assets and telecommunication infrastructure with third parties. It is anticipated that this project could utilize the following City assets: building(s), pole(s), tower(s),fiber, conduit(s), cable(s), cabinets(s), street furniture, vault(s), and any structures which could be utilized for the purposes of promoting, transmitting or facilitating wireless communications. The ideal Responder or Responders would demonstrate expertise in several areas including: • Negotiating favorable property agreements (e.g., sub license and encroachment agreements) with multiple telecommunication service providers; • Developing and managing service contracts with multiple telecommunication service providers; • Developing similar networks in other jurisdictions; • Outdoor Distributed Antenna System ("oDAS") design, installation, and maintenance; • Wireless Small Cell design, installation, and maintenance; • Outside Plant Cable design, installation and maintenance; • Citywide Wi-Fi design, installation, and maintenance; • Developing and managing Data Center Co-Location property and service level agreements; and • Delivering benefits which could be offered to the City as part of the Plan (e.g.,.financial benefits that would support the wireless infrastructure and expansion efforts, wireless communications infrastructure, services, hardware, and programs to underserved communities). More specific information regarding the project background and scope of work under this RFQ is provided under Section 3, "Background", and Section 4, "Scope of Work". 1.2 Process A review committee composed of City staff and other experts will review the submitted materials and may interview one or more of the Responders. A shortlist of Responders who meet the minimum criteria outlined in the RFQ and who most closely meet the other requirements specified in the RFQ will be invited to submit supplementary information. 1.3 Opportunity 3 The City of Sacramento is well positioned to meet future coverage and capacity demands through the use of its existing assets. A public-private partnership model can provide a fast, well-engineered, and professionally managed system that maximizes the overall benefits to the City's Central or Downtown Business District, the community, businesses, and telecommunication providers. The City is looking for an optimal partnership that will maximize benefit to all parties by bringing extensive industry knowledge and technical expertise to this process. 1.4 City Information The City of Sacramento is California's capital city. As of 2010, it has a population of 466,488. Sacramento is a progressive city with great pride in its ethnic and cultural diversity, concern for environmental and social issues, and emphasis on quality in the provision of governmental services. As a Charter City, Sacramento operates under the City Council — City Manager form of government. It has an annual budget of $858 million and approximately 4,300 full time equivalent positions. City responsibilities include: fire and police protection; public works functions including provision of water, sewer, storm drain, and solid waste services; parks and recreation; and a variety of other community services. The City is committed to working in a digital environment to increase efficiencies and reduce costs. This commitment enhances collaboration, provides consistent practices, and provides transparency where appropriate. Many City processes currently require updating and migration from a paper based format to an electronic and digital format. 1.5 City's Rights, Options and Policies Qualifications may be withdrawn or modified before the due date by delivering a written and signed request by the due date. A request for modification of the Submittal after the due date will not be considered, including a representation that the Responder was not fully informed regarding any information pertinent to the Submittal or the offer. The City shall not be responsible for or bound by any oral instructions, interpretations or information provided by the City or its employees other than the RFQ contact. The City reserves the right to reject any or all Submittals submitted, correct any technical errors in the RFQ process, waive any irregularities in any Submittal, negotiate with any of the Responders, accept other than the lowest fee offer, or enter into a subsequent agreement with another Responder if the originally selected Responder fails to execute its agreement with the City. Any agreement is not binding unless it is executed by authorized representatives of the City and the selected Responder. Proposing firms are solely responsible for any expenses incurred in .preparing their Submittals in response to this RFQ. 4 Submittals should be prepared simply and economically, providing straightforward, concise delineation of the firm's capabilities to satisfy the requirements of this RFQ.The emphasis should be on completeness and clarity of content. To expedite Submittal evaluations, it is essential that specifications and instructions contained in the Submittal instructions are followed as outlined. Submittals submitted become the property of the City and may be reviewed and evaluated by any persons at the discretion of the City. Submittals to this RFQ become the exclusive property of the City. At such time as City staff recommends a Responder to the City Council, all Submittals received in response to this RFQ become a matter of public record and shall be regarded as public records and will be disclosed upon receipt of a request for public disclosure pursuant to the California Public Records Act; provided, however, that if any information or elements of the Submittal is set apart and clearly marked as"Trade Secret"or"Proprietary"when it is provided to the City,the City will give notice to the Responder of the request for disclosure to allow the Responder to seek judicial protection from disclosure. Failure by the Responder to take timely steps to seek judicial protection from disclosure shall constitute a complete waiver by the Responder of any rights regarding the information designated as "Trade Secret" or"Proprietary" and such information may be disclosed by the City pursuant to applicable procedures under the California Public Records Act. Under no circumstances will City have any obligations to seek,judicial protection from disclosure for any Submittals or other materials submitted in response to this RFQ. City has no liability for any disclosure, unless such disclosure is made in violation of a court order obtained by a Responder or pertains to materials marked as "Trade Secret" or "Proprietary"for which the City failed to give the above notice. Any/all Responders responding to this RFQ do so entirely at their expense.There is no expressed or implied obligation by the City to, reimburse any individual or firm for any costs incurred in preparing or submitting responses, for providing additional information when requested by the City or for participating in any selection demonstrations or interviews, including pre-contract negotiations and contract negotiations. The City reserves the right to decide that one Responder is more responsive than the others and to select that Submittal based on review of the Submittal only. The City reserves the right to reject individual firm members, firms, and subcontractors and request substitution without indicating any reason. A Submittal is late if received at anytime after the required submittal date and time:A Submittal received after the specified time will not be considered and will be returned to the Responder. 5 1.6 Submission Instructions: See section 4 for detailed information to be included with the RFQ submissions. 6 Section 2. General Requirements 2.1 RFQ Issue Date: February 22, 2016 2.2 RFQ Due Dates and Submittal Instructions: RFQ submittals will only be accepted electronically in PDF format. Submittals are due prior to March 25, 2016 at 3:00 p.m. (PST). Send submittals electronically in (PDF Format)to: http://www.planetbids.com/portal/portal.cfm?CompanVID=15300 Attn: Darin Arcolino 2.3 RFQ Questions All questions regarding this RFQ are to be directed in writing (Attn: Darin Arcolino) via submission through the City of Sacramento bid center : http://www.planetbids.com/portal/portal.cfm?CompanVID=15300 All submittals must reference this RFQ number and include the individual's name, company, address, and contact information. Questions via phone will not receive a response. All questions must be received no later than March 3, 2016 at 3:OOpm (PST). An addendum addressing all questions submitted will be posted on the City's online bid portal PlanetBids by close of business on March 8, 2016. Responders may rely only upon written information and/or instructions from the City.The City shall not be responsible for any oral information and/or instructions given with regard to this RFQ from third parties outside the City's online bid portal. To maintain a fair and equal process for all Responders, upon receipt of this RFQ, Responders (or their designated agents) SHALL NOT directly or indirectly contact any Council member or other City staff, other than the person identified in this RFQ, for meetings, conferences or technical discussions that are related to the RFQ. Unauthorized contact of any Council member or other City staff may be cause for immediate disqualification of the Responder's information from the RFQ process. 2.5 Submission Instructions: The following information should be included with RFQ submissions (see Section 4 and 5 for more details): a. Statement of Interest 7 b. Relevant qualifications demonstrating property agreements (e.g., sublicense and encroachment agreements) and contract negotiations with service providers; experience in the development of oDAS, WiFi, and Small Cell networks; outside plant and data center co- location property and service level agreements. c. A conceptual property agreement rate structure for wireless carriers for both capital and recurring expenses. Rates shall include: 1) oDAS network buildout in the City's Downtown Business District a) Street light or pole attachment b) Fiber and conduit connectivity to co-location site --- c) Co-location services 2) Small Cell deployment outside of the City's Downtown Business District d. Provide a revenue cost share/split proposal with the City. 8 Section 3. Background 3.1 Project Background The City of Sacramento is experiencing significant growth and redevelopment of its core business area and is expected to grow by 12%over the next 10 years. In line with Mayor Kevin Johnson's Cities 3.0 vision,the City is a hub of innovation, entrepreneurship, and technology. One of the major focus areas of Cities 3.0 is infrastructure. Infrastructure lays the foundation for sustained economic growth. In July 2014, City staff issued a Request for Information ("RFI") for a Community Wireless Broadband Network in the City of Sacramento. The purpose of that RFI was to determine if there is sufficient market interest and/or alternative options the City should consider before proceeding to a Request for Proposal or RFQ. In June 2015, the City partnered with a third party vendor to provide wireless master planning services. This effort provided the City with valuable information that included a radio frequency ("RF") benchmark survey, a technical survey of existing infrastructure, and projections of wireless requirements. The specific findings under this agreement is included as Appendix B. 9 Section 4. Scope of Work 4.1 Project Scope 1. CONTRACTOR (for the purpose of this section CONTRACTOR means or refers to selected responder) shall provide consulting and planning services to identify City of Sacramento ("City") assets in the City's Central Business District to market.These services, which shall be refreshed at a minimum annually, shall Include RF analysis, asset inventory, wireless master planning, review of equipment and pole mounting for the wireless infrastructure (aesthetics) and other associated services which shall be shared with the City. 2. At no cost to the City and as an advocate for the City, CONTRACTOR shall exclusively market City assets or to build out the wireless infrastructure to Carriers (including Verizon,T-Mobile, Sprint, AT&T, Mobilitle, Crown Castle,American Tower, Extenet, Boingo and other Carriers and neutral host providers. The purpose of the Marketing Plan is to build out wireless capacity that lays the foundation for sustained economic growth making Sacramento a hub of innovation, entrepreneurship, and technology. 3. CONTRACTOR will recommend potential City assets to market and the City will have the right to determine which City assets are marketed. 4. The City assets that may be marketed include building(s), pole(s),tower(s), fiber, condui(s), cable(s), cabiriets(s), street furniture,vault(s), and any structures which could be utilized for the purposes of promoting, transmitting or facilitating communications. 5. CONTRACTOR will negotiate and propose property agreements (e.g., license, sublicense, or encroachment agreements)with Carriers for City approved sites.The City shall have the final authority to grant or approve all property agreements pursuant to this Plan. 6. CONTRACTOR and the City shall negotiate a revenue split from the revenue received from all property g i agreements under this pl an. 7. The City will retain underlying ownership of any City owned or licensed property. 8. The term of the agreement with the CONTRACTOR shall be five (5)years with four(4) automatic renewals at the discretion of both parties. 9. The Responder(s) recommended for this award will be required to sign the Professional Services Agreement. The Agreement can be found at the following URL: http://Portal.citvofsacramento.org/Finance/Procurement/standard-agreements. Responders are responsible for reading and understanding the Professional Services Agreement's requirements, terms and conditions prior to submitting their bids. 10 10. CONTRACTOR shall provide an annual report summarizing marketing efforts, network construction, market changes, and RF analysis results. 4.2 City Assets The City recognizes that the availability of high quality broadband fiber(gigabit and above) and wireless next generation communications serve an increasingly important role for businesses and households in considering where to locate, raise families, and start new businesses. Access to high quality communications infrastructure is also important to government, schools, and community institutions. The City of Sacramento desires to expand the availability of this infrastructure to serve these various groups, diversify the local and regional economy, and enhance the quality of life for all. It is projected that City of Sacramento assets will be available to support cellular carrier small cells and City Wi-fi services. Appendix B to this RFQ is attached for reference. a. Signalized Intersections The City of Sacramento, currently maintains over 751 signalized intersections. Approximately 450 intersections are currently networked using either fiber or copper cabling.The traffic signal's network data traffic is interfaced into the City's fiber network, along with City facilities and are aggregated at key locations round our Central Business District and then transported to our current, but soon to be vacant, data center. b. Conduits The City also owns and maintains over 150 miles of conduit throughout the City, see attached. The City can offer space within existing conduits or duct banks to help facilitate the installation and expansion of needed fiber optic cabling to support Small Cells, City Wi-Fi, and eventually Gigabit Broadband Services. c. Outside Plant Fiber The City currently owns over 120 miles of outside plant fiber optic cable, see attached. City business operations currently occupy portions of the cable; however excess capacity is currently being identified and can be used to support both wireless and broadband efforts. d. Street Lights The City currently owns and maintains over 37,000 Street Lights. Some light standards have already been used for smart meter aggregation points for existing automated water, gas, and electric, meter services. In a similar fashion, these light standards can be modified to support small cells and City Wi-Fi services. e. Towers 11 The City currently maintains several radio towers.These towers either stand alone or are located on existing water towers, located outside the Central Business District.The towers can also act as aggregation points for a variety of wired and wireless services. f. Co-Location Site Within the Central Business District the City operates a data center which we are in the process of vacating.The data center currently has multiple enterprise level Liebert UPSs, computer room air conditioners and environmental controls, backup generator power, and diverse paths out to the City fiber optic network.The data center also has direct fiber from or into AT&T Central Office, CENIC,Time Warner Telecom, Integra, Sure-West/Consolidated, and several other internet service providers.This site is an ideal location to act as a co-location site for any wireless carrier to interface to either small cells, or service providers. Several additional co- location sites within the city are also currently under review, which will help augment a citywide strategic broadband deployment. 12 Section 5. Submission Content and Format 5.1 Contents of Submission At a minimum, the statement of qualification/proposal shall include the following: 1. Submittal Cover Sheet (Attachment 1). 2. Letter of Transmittal:The Submittal letter will summarize, in a brief and concise manner,the Responder's understanding of the requested services. Please include the official name of the firm submitting the Submittal, mailing address, email address, telephone number,fax number and contact name.The letter must be signed by an official authorized to bind the Responder contractually and contain a statement that the Submittal is firm for ninety (90) days. An unsigned letter or one signed by an individual not authorized to bind the Responder will be rejected. 3. Submittal Signature (Attachment 2). If the Submittal is made by an individual, it shall be signed and the individual's full name and address shall be given. If it is made for a firm or partnership, it shall be signed with the firm or partnership name by a principal of the firm or partnership, who shall sign his or her own name and title.The names and addresses of each firm principal or partner shall also be provided. A Certificate of Secretary shall be attached to any Submittal submitted by a corporation. 4. Company.Information/Qualifications and Experience: The Responder shall include qualifications and experience of the firm and resumes of individuals who would be assigned to this project. The Responder shall identify the year the firm was established, the total number of employees, and the number of employees focused on this type of engagement. The Responder will provide a financial reference or annual report, and a gross/net revenue report for each of the last three fiscal years.The Responder shall complete the company information in the form at Attachment 2. The Responder may include any additional literature and product brochures. 5. Client References(Attachment 3): The Responder must provide client references for similar work performed for clients of a similar size, complexity and business. The Responder will provide the following information about clients being used as references: client name, client contact information, client size and industry, and brief description of the engagement. If possible, examples of similar projects should be provided either as part of the proposal or for viewing as part of presentations. 6. Supporting Information (Attachment 4): a. Statement of Interest b. Relevant qualifications demonstrating property agreements and contract 13 negotiations with service providers; experience in the development of oDAS, WiFi, and Small Cell networks; outside plant and data center co-location property and service level agreements. C. A conceptual property agreement rate structure for wireless carriers for both capital and recurring expenses. Rates shall include: 1) oDAS network buildout in the downtown business district a) Street light or pole attachment b) Fiber and conduit connectivity to co-location site c) Co-location services 2) Small Cell deployment outside of the downtown business district d. Provide a revenue cost share/split proposal with the City. 14 Section 6. RFQTimeline 6.1 Listed below are the important dates when the City plans to take steps or actions. If the City finds it necessary to change any dates, such change will be accomplished by addendum to this RFQ. 047 3. RFQ Released 2/22/16 Deadline for questions (submit electronically via PlanetBids) site 3:00 PM on 3/3/16 Addendum issued responding to questions 3/8/16 Deadline for Submissions (electronic PDF submission via City's 3:00 PM on 3/25/16 online bid portal PlanetBids) Submission Review 4/4/2016—4/8/16 Vendor Elevations/ Presentations 4/11/16—4/15/16 15 Section 7. Submittal Evaluation / Selection Criteria Submittals will be evaluated on the basis of the overall best qualifications to the City based on the criteria set out in this RFQ or otherwise reasonably considered relevant. Firms may be asked to participate in an oral interview, product demonstration and a proof of concept. Submittals should present information in a straightforward and concise manner, while ensuring complete and detailed descriptions of the Firm's abilities to meet the requirements of this RFQ. Evaluation Criteria Maximum Points Company and Personnel Qualifications 45 Contents of Submission 30 Maximum Economic Benefit to the City 15 References Feedback 5 Accuracy and Completeness of the Submittal 5 LBE Preference 5 Total Points 105 At the completion of the evaluation process, a total point value will be compiled for each Submittal. The award recommendation(s), if any, will not necessarily be based on the lowest prices proposed or on the point values assigned. LBE Five percent(5%)Submittal Evaluation Preference http://porta l.cityofsacramento.org/Economic-Development/Small-Business/LB E Reiection of Submittals: The City of Sacramento reserves the right to reject any and all Submittals received in response to this request, or to negotiate separately with any source whatsoever in any manner necessary to serve the best interest of the City. The City of Sacramento may at its discretion determine not to award a contract solely on the basis of this RFQ and will not pay for the information solicited or obtained. It is recognized that each Responder may have developed unique and typical methods of service delivery. It is not the City's intention to disqualify a Responder due to variations in services equivalent to or of better quality and performance than that requested, which provides the necessary service,will receive full consideration for award. Withdrawal of Submittals: Unauthorized conditions, limitations, or provisions attached to a Submittal may be cause for its rejection. No oral, telegraphic or telephonic Submittals or modifications will be considered. The Submittal may be withdrawn upon request by the Responder without prejudice to the Responder prior to, but not after the time fixed for opening of Submittals, provided that the request for withdrawal is in writing, has been executed by the Responder or the Submittal's duly authorized representative, and has been filed with the City. 16 Contract Negotiations: Contract negotiations may be undertaken simultaneously during the evaluation of Submittals with the finalist(s) as determined by the City. The City will not accept any changes to the professional services agreement including contract exhibits. 17 Section 8 Acceptance of Submittal The contents of the successful Submittal will become t h e contractual obligations that will be contained in a formal written agreement. Failure of successful Responder to accept these obligations in a formal agreement may result in cancellation of the award. Addenda and Supplements to RFQ If it becomes necessary to revise any part of the RFQ, an addendum to the RFQ will be provided to all known prospective Responders via the City of Sacramento's online bid portal PlanetBids. http://www,planetbids.com/aortal/portal.cfm?CompanvlD=15300 It is the responsibility of the Responder to verify addenda and supplements up to the RFQ submission date and time. Contractor Responsibilities The Contractor must commit a professional staff and an experienced Project Manager who will be responsible for coordinating the services with the City. Service shall be the best of its respective kind. All professionals shall be skilled, knowledgeable, and successfully experienced in all aspects of providing the required services. Licenses The Contractor shall be required to obtain any necessary licenses and shall comply with all Federal, State and local laws,codes and ordinances without cost to the City. Non-Waiver of Defaults Any failure by the City to enforce or require the strict keeping and performance of any of the terms and conditions of the contract,shall not constitute a waiver of such terms and conditions, nor shall it affect or impair the right of the City to avail itself of such remedies as it may have for any breach of the terms and conditions. Business Operations Tax Certificate Chapter 3.08 of the Sacramento City Code requires that anyone conducting business in the City of Sacramento obtain a Business Operations Tax Certificate and pay the applicable tax if necessary. The successful Responder, and any subcontractors, will be required to show compliance with this requirement prior to award of the contract. Information about the Business Operations Tax Certificate may be obtained the City of Sacramento, Revenue Division,915 1 Street, New City Hall First Floor, Sacramento, CA 95814, or by telephone at(916) 808-8500. Contractual Obligations The standard City of Sacramento Professional Services Agreement includes, but is not limited to, the requirements shown in the attached sample contract. Responder should review the contract and indicate in the Submittal the extent to which Responder can and is willing to comply with 18 each and every provision of the attached contract. This Request for Qualifications together with Submittal's response shall be incorporated into the final contract. Professional Services Agreement The Responder(s) recommended for this award will be required to sign the Professional Services Agreement. The Agreement can be found at the following URL: http:/Iportal.cityofsacramento.org/Finance/Procurement/standard-agreements Responders are responsible for reading and understanding the Professional Services Agreement's requirements, terms and conditions prior to submitting their bids. 19 ATTACHMENT 1 Submittal Cover Sheet (IlyP SACRAMENT Submittal for City of Sacramento Wireless Marketing Plan Request for Qualifications(RFQ)Q16071011005 Submissions Must Be Received Prior To 3:00 P.M. (Pacific Daylight Time) on Friday March 25, 2016 Submit Information to: (Electronically, in PDF format)via the City of Sacramento's online bid center http://www.planetbids.com/portal/portal.cfm?CompanVID=15300 NAME AND ADDRESS OF RESPONDER SUBMITTING THIS INFORMATION: Name of Vendor: Name of Contact Person: Address: City, State, Zip Code: Phone Number: E-MAIL: 20 ATTACHMENT 2 Submittal Signature Form All Responders must complete and sign this section. Failure to complete and sign this section will result in rejection of the Submittal. Name of Responder: Business Address: (Street) (City) (State) (Zip Code) Telephone: FAX: Type of Business: [ ] Corporation; [ ] Partnership; [ ] Individual doing business under own name; [ ] Individual doing business using a firm name; [ ] Joint Venture (Attach Joint Venture Agreement) Federal Tax I.D. Number: To the City of Sacramento: The undersigned, as Responder, certifies that the only persons or parties interested in this Submittal as principals are those named herein as Responder; that this qualification statement is made without collusion with any other person, firm, or corporation; that in submitting this Submittal the Responder has examined all terms, conditions, and requirements set forth in the Request for Qualifications; that the Responder proposes and agrees that if this Submittal is accepted, the Responder will execute and fully perform the contract for which Submittals are called; that the Responder will perform all the work and/or furnish all the materials specified in the contract, in the manner and time therein prescribed, and according to the requirements as therein set forth; and that the Responder will take in full payment therefor, the prices set forth in the contract. (Typed or Printed Name and Title) (Signature) Address (if different than business address above) 21 ATTACHMENT 3 Client References (MINIMUM OF THREE REFERENCES REQUIRED) CLIENT NAME NAME OF PROJECT CITY/COUNTY STATE ADDRESS KEY CONTACT NAME/ EMAIL/TELEPHONE NUMBER DETAILS DATE SERVICES WERE PROVIDED SCOPE OF THE ASSIGNMENT ON THE PROJECT ADDITIONAL REMARKS 22 ATTACHMENT 4 - Supporting Information 1. Supporting Information a. Statement of Interest b. Relevant qualifications demonstrating property agreements and contract negotiations with service providers; experience in the development of oDAS, WiFi, and Small Cell networks; outside plant and data center co-location property and service level agreements. C. A conceptual property agreement rate structure for wireless carriers for both capital and recurring expenses. Rates shall include: 1) oDAS network buildout in the downtown business district d) Street light or pole attachment e) Fiber and conduit connectivity to co-location site f) Co-location services 2) Small Cell deployment outside of the downtown business district d. Provide a revenue cost share/split proposal with the City. 23 Appendix A City Fiber Map (See Attached) 24 Appendix B 5 Bars Wireless Plan Findings (See Attached) 25 EXHIBIT "D" RIGHT OF ENTRY AGREEMENT This Right of Entry Agreement (this "Agreement") is made as of the date of the final signature below, by and between the City of Palm Springs, a California charter city and municipal corporation, having a mailing address of 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92262 ("Grantor"), and 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability company, with an address at 19200 Von Karman Ave, Suite 100, Irvine, CA 92612 ("Grantee"). Grantor and Grantee are sometimes collectively referred to as "Parties" or individually as "Party." RECITALS A. Grantor is the fee owner of record of that certain real property located in the City of Palm Springs, Riverside County, California, as further identified on the City Asset List referenced as Exhibit 1 to this Agreement, (the "Property"). B. Grantor and Grantee have entered into that certain Wireless Marketing Agreement ("Wireless Marketing Agreement") pursuant to which Grantee has agreed to provide certain consulting, marketing, and management services relating to the placement of Wireless Telecommunications Facilities on some or all of the Property. C. Pursuant to the Wireless Marketing Agreement, Grantor and Grantee have agreed to enter into this Agreeement to that Grantee may enter upon the Property, upon 24 hour written notice to Grantor, to inspect, conduct, perform and examine soil borings, drainage testing, material sampling, surveys and other geological or engineering tests or studies of the Property, to apply for and obtain all licenses and permits required for Grantee's use of the designated Property from all applicable governmental or regulatory entities, and to do those things on or off the designated Property that, in the sole opinion of Grantee, are necessary to determine the physical condition of designated Property, the environmental history of the designated Property, and the feasibility or suitability of the designated Property for Grantee's use ("Due Diligence Investigation"). NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by each of the Parties, the Parties agree as follows: AGREEMENT 1. Right of Entry. Grantor hereby grants to Grantee and its agents, employees, contractors, subcontractors, and volunteers non-exclusive permission to enter over and across, as well as to use the Property as is reasonable and necessary, for the express purpose of conducting, at Grantee's sole expense, the Due Diligence Investigation. (the above-described activities are collectively referred to hereafter as the "Work"). Exhibit °D" Page 1 of 5 2. Term. The Right of Entry granted pursuant to Section 1, above, shall be for a limited term, commencing as of the date of this Agreement and expiring upon the expiration or earlier termination of the Wireless Marketing Agreement. 3. Entry at Own Risk; No Duty to Warn. Grantee and its agents, employees, contractors, subcontractors, and volunteers shall access, enter and use the Property at their own risk and peril. Grantor shall have no duty to inspect the Property (or any portion thereof) and no duty to warn of any latent or patent defect, condition or risk which may exist on the Property. 4. Liens. Grantee shall not permit to be placed against the Property, or any part thereof, any mechanics', materialmen's, contractors' or other liens (collectively, the "Liens") arising out of the acts or omissions of the Grantee or its agents, employees, contractors, subcontractors, or volunteers hereunder. Grantee hereby indemnifies and agrees to hold the Grantor and the Property free and harmless from all liability for any and all such Liens, together with all costs and expenses, including, but not limited to, attorneys' fees and court costs reasonably incurred by Grantor in connection therewith. 5. Hazardous Substances. Grantee and its agents, employees, contractors, subcontractors, and volunteers shall not use, store or transport or allow the use, storage or transportation of any hazardous substances on or onto the Property. 6. Restoration of the Property. Except to the extent otherwise contemplated by this Agreement, Grantee shall, at its own cost and expense, restore the Property to the same condition in which it was prior to Grantee's entry. 7. Indemnification by Grantee. Except to the extent otherwise provided below, Grantee agrees to hold harmless and indemnify Grantor from and against any and all, claims, demands, actions, and causes of action for injury or death of any person, or damages to property, arising out of or resulting from the use or access of the Property by the Grantee or its agents, employees, contractors, subcontractors, and volunteers pursuant to this Agreement, and as further required pursuant to Section 6.1 of the Wireless Marketing Agreement. Notwithstanding the foregoing, the Grantee shall have no obligation to indemnify Grantor from a pre-existing condition at the Property, any encroachments of the wall on any other property or for claims related to the gross negligence or willful misconduct of Grantor. 8. Authority to Execute. Grantor(s) warrants and represents to Grantee that Grantor is the sole owner of the Property and may execute and approve this Agreement and no permission or consent of any other person is required to approve this Agreement. 9. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns. Exhibit "D" Page 2 of 5 10. Entire Agreement. No representations or covenants of any kind other than those expressly contained herein have been made by either party hereto. This Agreement may only be modified or amended by an agreement in writing duly executed and delivered by each of the parties hereto. 11. Severability. If any provision of this instrument, or the application thereof to any person or circumstances, is found to be invalid, the remainder of the provisions of this instrument, or the application of such provision to persons or circumstances other than those as to which it is found to be invalid, as the case may be, shall not be affected thereby. 12. Permits. Prior to beginning any work, Grantee, at its sole expense, shall obtain all necessary permits to use the Premises as permitted under this Agreement. 13. All Expenses To Be Borne by Grantee. Grantee shall bear any and all costs and expenses associated with the rights granted to Grantee to use the Property, or any unforeseen costs or expenses incurred by the Grantor relating to Grantee's use of the Property in the performance of this Agreement. 14 Hours of Operation. The hours of operation that Grantee shall be permitted to conduct its project shall be between 7 am and 5 pm, Monday through Friday. No weekend work shall be permitted. 15. Governing Law. This Agreement shall be governed in accordance with the laws of the State of California. 16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and which together shall constitute a single agreement. [SIGNATURES ON NEXT PAGE] Exhibit "D" Page 3 of 5 IN WITNESS WHEREOF, the Parties have executed this Right of Entry Agreement as of the dates stated below. "GRANTOR" City of Palm Springs Date: By: David H. Ready, PhD, Esq. City Manager APPROVED AS TO FORM: ATTEST By: By: Edward Z. Kotkin Kathleen D. Hart, MMC City Attorney Interim City Clerk APPROVED BY CITY COUNCIL: Date: Agreement No. Corporations require two notarized signatures. One signature must be from Chairman of Board, President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. "GRANTEE" 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability company 19200 Von Karman Ave, Suite 100 Irvine, CA 92612 Phone: 949-514-4617 Fax: 949-266-9160 By By Signature(Notarized) Signature(Notarized) Printed Nanne/Title Printed Name/Title Exhibit "D" Page 4 of 5 EXHIBIT 1 TO RIGHT OF ENTRY AGREEMENT CITY ASSET LIST (TO BE COMPLETED) Exhibit "D" Page 5 of 5 City Owned Buildings, Parks, Golf Courses, Plazas and Parking Lots City of Palm Springs City Owned Building Square Footage Address Police Station Complex 53,680 square feet 200 S. Civic Drive Wastewater Treatment Plant 2,412 square feet(admin bldg.), 4575 E. Mesquite Ave. 1,440 square feet (portable ofc.) (site is approximately 60 acres) Palm Springs International 250,833 square feet(site is 920 3400 E.Tahquitz Canyon Way Airport acres) Plaza Theater 15,100 square feet 128 S. Palm Canyon Dr. Palm Springs Convention Center 274,479 square feet 277 N.Avenida Caballeros Coachella Valley Economic 15,457 square feet 3111 N. Palm Canyon Dr. Partnership(CVEP) Fire Station#2 19,309 square feet 300 N. El Cielo Rd. Fire Station#1 5,364 square feet 277 N. Indian Canyon Dr. Fire Station#3 5,807 square feet 590 E. Racquet Club Fire Station#4 4,608 square feet 1300 Laverne Way(closed) Fire Station#5 5800 Bolero Rd. City Corporation Yard 44,630 square feet 425 N.Civic Dr. Taxi Holding Facility& CNG 1,990 square feet Near airport 3,400 E.Tahquitz Fueling Station Canyon Way Palm Springs Stadium 16,506 square feet 1901 E. Baristo Rd. Stadium Practice Field 480 square feet 1901 E. Baristo Rd. Skate Park 30,000 square feet 401 S. Pavlion Way Swim Center 8,408 square feet 401 S. Pavlion Way Leisure Center 15,155 square feet 401 S. Pavlion Way Palm Springs Pavilion 20,200 square feet 401 S. Pavlion Way Plaza Racquet Club 1,384 square feet 1300 E. Baristo Rd. James 0.Jessie Desert Highland 13,373 square feet 480 Tramview Road Unity Center(JOJ) McManus Village/Village Green 7,851 square feet as follows: • Cornelia White House 949 square feet 223 S. Palm Canyon Dr. • Museum/Gallery 3,310 square feet 221 S. Palm Canyon Dr. • PS Fudge Shop 2,685 square feet 211 S. Palm Canyon Dr. • Ruddy's General Store 916 square feet 219 S. Palm Canyon Dr. Palm Canyon Theatre 13,199 square feet 538 N. Palm Canyon Dr. Desert Art Center 5,073 square feet 550 N. Palm Canyon Dr. Jaycee Frey Building 3,617 square feet 300 S.Sunrise Way near Library Palm Springs Boxing Club Bldg. 2,095 square feet 225 El Cielo Rd. Downtown Parking Structure 124,251 square feet 275 S. Indian Canyon Dr. Visitors Center 2,761 square feet 2901 N. Palm Canyon Dr. Palm Springs Train Station 1,483 square feet Garnet Station Rd. Demuth Community Center 21,000 square feet 3601 E. Mesquite Palm Springs City Hall 9.41 acres(site) 3200 E.Tahquitz Canyon Way Palm Springs Library 300 S.Sunrise Way Palm Springs Animal Shelter 19,000 square feet 4575 E. Mesquite Welwood Murray Library 4,030 square feet 100 S. Palm Canyon Dr. Page 1 of 3 City Owned Buildings, Parks,Golf Courses, Plazas and Parking Lots City of Palm Springs City Owned Building Square Footage Address Library 300 S.Sunrise Way Cork n Bottle 2,000 square feet 342 N. Palm Canyon Dr. Mizell Senior Center(land only) 5,029 square feet 480 S.Sunrise Way Boys&Girls Club (land only) 450 S.Sunrise Way PS Senior Affordable Apts. (land 3200 E. Baristo Rd. only) Golf Courses O'Donnell Golf Course and Approximately 40 acres 301 N. Belardo Rd. Carriage House Tahquitz Creek Golf Course 320 acres (Buildings: 18,457 1885 Golf Club Dr. square feet) Parks,Golf Courses, Plazas and Parking Lots Desert Highland Park 480 Tramview Rd. Demuth Park 4565 E. Mesquite Ave. Ruth Hardy Park 21.5 acres _ 700 Tamarisk Rd. (21.5 acres) Frances Stevens Park 3.5 acres 555 N. Palm Canyon Dr. (3.5 acres) Sunrise Park 35 acres 1901 E. Baristo Rd. (35 acres) Victoria Park 9.3 acres 2744 N.Via Miraleste (9.3 acres) Baristo Park 3.1 acres Calle El Segundo/Baristo (3.1 acres) Palm Springs Dog Park 3200 E.Tahquitz Cyn. Way behind City Hall Gateway Park SW corner Gene Autry/Vista Chino O'Donnell Golf Course and Approximately 40 acres 301 N. Belardo Rd. Carriage House Tahquitz Creek Golf Course 320 acres(Buildings: 18,457 1885 Golf Club Dr. square feet) Jackie Lee Houston Plaza 277 N. Avenida Caballeros across from Convention Center Downtown Parking Structure 261 S. Indian Canyon Dr. Vineyard Parking Lot 236 S. Belardo Rd. Plaza Mercado Parking Lot 155 S. Belardo Rd. Blue Coyote Parking Lot 435 N. Palm Canyon Dr. Catholic Church Parking Lot 151 W. Alejo Rd. Food Court Parking Lot 395 North Palm Canyon Dr. Henry Frank Arcade Parking Lot Indian south of Amado Former DFP Parking Structure Near 123 N. Palm Canyon Dr. and Lot Mizell Senior Center Parking Lot Page 2 of 3 City Owned Buildings, Parks, Golf Courses, Plazas and Parking Lots City of Palm Springs VacantLand(see notes) Square Footage Address/Location McKinney Property 6,970 square feet 190 W. Sunny Dunes Rd. Casa del Camino Property 0.75 acres 1479 N. Palm Canyon Dr. Reservoir Property 1 acre SW corner Stevens and North Palm Canyon *Vacant Successor Agency 5,810 square feet 285 N. Indian Canyon Dr. property(considered for acquisition) *COD Land surrounding JOJ 115 acres Near 480 Tramview Road (considered for acquisition) City owned property with lease or other agreement in place Property considered for acquisition NOTES: 1. Vacant Land Parcels shown is partial. The complete listing of City Owned Parcels by Assessor Parcel Number is in the table following: 2. City Assets include all existing and future City-owned public rights of way, all City-owned traffic signals and safety lights, and all City-owned street lights. Page 3 of 3 City Owned Parcels by Assessor's Parcel Number(APN) City of Palm Springs APN Street Address Zip Code 1 501-031-028 92262 2 501-181-016 92262 3 501-181-031 92262 4 501-181-071 92262 5 501-181-072 92262 6 501-313-001 92262 7 501-353-001 92262 8 501-354-008 92262 9 501-355-001 92262 10 501-355-002 92262 11 501-355-003 92262 12 501-355-005 1841 N FARRELL DR 92262 13 501-590-009 92262 14 502-100-013 92262 15 502-100-017 275 N EL CIELO RD 92262 16 502-100-022 92262 17 502-100-024 3200 AVIATION WAY 92262 18 502-100-026 92262 19 502-100-027 92262 20 502-100-028 92262 21 502-100-029 2901 E ALEJO RD 92262 22 502-100-030 92262 23 502-100-031 92262 24 502-100-032 92262 25 502-100-033 92262 26 502-100-034 92262 27 502-100-035 92262 28 502-100-036 92262 29 502-100-038 92262 30 502-150-005 3200 E TAHQUITZ CANYON WAY 92262 31 502-150-007 92262 32 502-150-008 92262 33 502-150-011 265 N EL CIELO RD 92262 34 502-200-002 92262 35 502-210-020 92262 36 502-210-021 92262 37 502-210-023 92262 38 504-040-001 2901 N PALM CANYON DR 92262 39 504-040-053 92262 40 504-260-024 92262 41 505-020-008 92262 Page 1 of 8 City Owned Parcels by Assessor's Parcel Number(APN) City of Palm Springs APN Street Address Zip Code 42 505-020-020 92262 43 505-020-022 92262 44 505-182-004 92262 45 505-182-010 92262 46 505-194-002 92262 47 505-214-002 92262 48 505-324-002 151 W ALEJO RD 92262 49 505-370-018 92262 50 507-133-020 92262 51 507-170-007 92262 52 507-301-012 92262 53 507-301-027 92262 54 507-301-028 92262 55 507-301-029 92262 56 507-301-033 92262 57 507-302-004 92262 58 507-302-007 92262 59 507-302-010 92262 60 507-302-011 92262 61 507-302-012 92262 62 507-302-015 92262 63 507-302-016 92262 64 507-302-017 92262 65 507-340-018 92262 66 507-340-019 92262 67 507-340-020 92262 68 507-350-017 92262 69 507-350-026 92262 70 507-350-043 92262 71 507-350-044 92262 72 507-380-016 92262 73 507-380-017 3000 E ALEJO RD 92262 74 507-380-022 92262 75 508-092-005 92262 76 510-150-015 92264 77 510-210-002 92264 78 510-210-003 92264 79 510-210-017 92264 80 510-270-017 92264 81 510-270-019 92264 82 510-270-020 2540 S ARABY DR 92264 Page 2 of 8 City Owned Parcels by Assessor's Parcel Number(APN) City of Palm Springs APN Street Address Zip Code 83 510-290-004 92264 84 511-091-020 92264 85 511-093-018 92264 86 511-104-015 92264 87 511-104-017 92264 88 512-190-027 92264 89 512-310-002 92264 90 512-330-023 92264 91 512-340-029 92264 92 513-060-001 93 513-060-002 94 513-060-021 95 513-070-013 96 513-082-023 92262 97 513-082-040 92262 98 513-082-043 92262 99 513-091-004 261 N INDIAN CANYON DR 92262 100 513-091-021 92262 101 513-091-022 92262 102 513-091-023 92262 103 513-091-024 92262 104 513-091-025 92262 105 513-110-019 92262 106 513-110-052 92262 107 513-143-017 92262 108 513-144-006 92262 109 513-144-007 92262 110 513-144-010 128 S PALM CANYON DR 92262 111 513-153-015 236 S BELARDO RD 92262 112 513-153-016 92262 113 513-153-029 92262 114 513-154-027 92262 115 513-154-028 92262 116 513-154-036 92262 117 513-154-037 92262 118 513-154-044 255 S INDIAN CANYON DR 92262 119 513-154-045 92262 120 513-154-046 92262 121 513-154-047 92262 122 513-154-048 275 S INDIAN CANYON DR 92262 123 513-154-049 92262 Page 3 of 8 City Owned Parcels by Assessor's Parcel Number(APN) City of Palm Springs APN Street Address Zip Code 124 513-250-039 92264 125 513-290-013 190 W SUNNY DUNES RD 92264 126 513-340-001 92264 127 513-340-003 92264 128 513-340-004 92264 129 513-440-010 92264 130 513-450-001 131 513-450-005 132 513-450-008 133 513-450-009 134 513-460-002 135 513-460-013 136 513-550-001 92264 137 513-560-041 92262 138 513-560-047 123 N PALM CANYON DR 92262 139 513-560-053 92262 140 513-560-054 92262 141 513-560-055 92262 142 513-560-056 92262 143 513-590-047 92264 144 522-100-038 145 522-240-005 146 635-060-011 147 669-070-001 92262 148 669-070-002 92262 149 669-230-011 150 669-270-006 151 669-320-006 92262 152 669-330-025 480 W TRAMVIEW RD 92262 153 669-353-001 92262 154 669-401-010 233 W TRAMVIEW RD 92262 155 669-401-039 92262 156 669-404-060 92262 157 669-404-066 92262 158 669-500-033 92262 159 677-020-024 160 677-020-034 161 677-250-053 92262 162 677-250-062 92262 163 677-260-015 745 N GENE AUTRY TRL 92262 164 677-260-016 92262 Page 4 of 8 City Owned Parcels by Assessor's Parcel Number(APN) City of Palm Springs APN Street Address Zip Code 165 677-260-017 92262 166 677-260-018 92262 167 677-260-022 92262 168 677-260-023 92262 169 677-270-017 92262 170 677-270-020 92262 171 677-270-025 92262 172 677-270-029 92262 173 677-270-030 92262 174 677-270-031 92262 175 677-271-017 92262 176 677-280-010 92262 177 677-280-029 92262 178 677-280-030 92262 179 677-280-038 92262 180 677-280-039 92262 181 677-280-040 92262 182 677-280-042 92262 183 680-020-004 92264 184 680-020-010 4575 E MESQUITE AVE 92264 185 680-020-019 92264 186 680-020-020 92264 187 680-020-021 92264 188 680-020-023 92264 189 680-020-026 92264 190 680-020-027 92264 191 680-020-028 92264 192 680-020-031 92264 193 680-020-032 92264 194 680-020-033 92264 195 680-020-034 92264 196 680-020-036 92264 197 680-020-039 92264 198 680-020-043 92264 199 680-020-051 92264 200 680-020-052 92264 201 680-020-053 92264 202 680-020-054 92264 203 680-020-055 92264 204 680-020-059 92264 205 680-020-060 92264 Page 5 of 8 City Owned Parcels by Assessor's Parcel Number(APN) City of Palm Springs APN Street Address Zip Code 206 680-020-061 92264 207 680-020-070 92264 208 680-041-004 3845 E RAMON RD 92264 209 680-072-005 92264 210 680-072-006 4414 E CALLE DE RICARDO 92264 211 680-072-009 92264 212 680-072-012 92264 213 680-073-003 4421 E CALLE DE RICARDO 92264 214 680-073-004 92264 215 680-073-005 4488 E CALLE DE CARLOS 92264 216 680-073-006 4440ECALLE DE CARLOS 92264 217 680-120-031 92264 218 680-120-032 3601 E MESQUITE AVE 92264 219 680-180-009 92264 220 680-180-010 92264 221 680-180-012 92264 222 680-180-039 92264 223 680-180-048 92264 224 680-550-002 225 680-550-003 226 680-602-001 227 680-602-002 228 680-602-003 229 680-602-004 230 680-602-005 231 680-602-006 232 680-602-007 233 680-602-008 234 680-602-009 235 680-602-010 236 680-602-011 237 680-602-012 238 680-602-013 239 680-602-014 240 680-602-015 241 680-602-016 242 680-602-017 243 680-602-018 244 680-602-019 245 680-602-020 246 680-602-021 Page 6 of 8 City Owned Parcels by Assessor's Parcel Number(APN) City of Palm Springs APN Street Address Zip Code 247 680-602-022 248 680-602-023 249 680-602-024 250 680-602-025 251 680-602-026 252 680-602-027 253 680-602-028 254 680-602-029 255 680-602-030 256 680-602-031 257 680-603-001 258 680-603-002 259 680-603-003 260 680-603-004 261 680-603-005 262 680-603-006 263 680-603-007 264 680-603-008 265 680-603-009 266 680-603-010 267 680-603-011 268 680-603-012 269 680-604-001 270 680-604-002 271 680-604-003 272 680-604-004 273 680-604-005 274 680-604-006 275 680-604-007 276 680-604-008 277 680-604-009 278 680-604-010 279 680-604-011 280 680-604-012 281 680-604-013 282 680-604-014 283 680-604-015 284 680-604-016 285 680-604-017 286 680-604-018 287 680-604-019 Page 7 of 8 City Owned Parcels by Assessor's Parcel Number(APN) City of Palm Springs APN Street Address Zip Code 288 680-604-020 289 681-090-005 92264 290 681-141-015 92264 291 681-170-046 92264 292 681-210-007 92264 293 681-210-008 92264 294 681-210-009 92264 295 681-210-010 92264 296 681-210-011 92264 297 681-250-008 92264 298 681-250-011 92264 299 681-250-012 92264 300 681-260-013 92264 301 681-260-014 92264 302 1 681-260-015 92264 303 681-270-019 92264 304 681-270-021 92264 305 681-270-024 92264 306 686-450-013 92264 Page 8 of 8 EXHIBIT "E" LICENSE AGREEMENT THIS LICENSE AGREEMENT is made as of the date of the final signature below, by and between the City of Palm Springs, a California charter city and municipal corporation, ("Licensor"), and 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability company, ("Licensee"). Licensor and Licensee are sometimes collectively referred to as "Parties" or individually as "Party." Section 1. Definitions. "Agreement" means this License Agreement. "Approvals" means all certificates, permits, licenses and other approvals that Licensee must obtain as required by law in order for Licensee or its agents or sublicensees to use the Licensed Premises for the purpose intended by this Agreement. "Company Facilities" means any and all Wireless Telecommunications Facilities to be developed by Licensee on the Licensed Premises. "City Facilities" means any and all existing facilities, inclusive of, but not limited to, all buildings and improvements owned by and under the possession and control of Licensor, including but not limited to utility poles, lamp posts, other utility facilities, fences, gates, and all roof tops of all such buildings, facilities and/or improvements. "Defaulting Party' means the party to this Agreement that has defaulted as provided for in Section 26 of this Agreement. "Easement' and "Utility Easement' have the meanings set forth in Section 7 of this Agreement. "Harmful Interference" means Interference that endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radio communication service operating in accordance with both International Telecommunications Union Radio Regulations and the regulations of the Federal Communications Commission. "Hazardous Material" means any substance which is (i) designated, defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, as currently in effect or as hereafter amended or enacted, (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) asbestos, (vi) flammable explosives, (vii) infectious materials, or (vii) radioactive materials. "Environmental Law(s)" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101 et seq., and the Clean Water Act, 33 U.S.C. Section 1251 et seq., as said laws have been supplemented or amended to date, the Exhibit "E" Page 1 of 15 regulations promulgated pursuant to said laws and any other federal, state or local law, statute, rule, regulation or ordinance that regulates or proscribes the use, storage, disposal, presence, clean-up, transportation or release or threatened release into the environment of Hazardous Material. "Improvements" means a Wireless Telecommunications Facility(ies). "Interference" means the effect of unwanted energy due to one or a combination of emissions, radiations, or inductions upon reception in a radio communication system, manifested by any performance degradation, misinterpretation, or loss of information. "Licensed Premises" means those portions of Licensor's Property described in the sketches attached hereto as Exhibit 1 to this Agreement. "Licensee" means 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability company. "Licensee's Notice Address" means 19200 Von Karman Ave, Suite 100, Irvine, CA 92612. "Licensor' means City of Palm Springs, a California charter city and municipal corporation. "Licensor's Notice Address" means 3200 E. Tahquitz Canyon Way, Palm Springs, CA 92262. "Licensor's Properties" means those properties (each of which is a subject of this License Agreement) as further identified on Exhibit 2 to this Agreement. "Non-Defaulting Party' means the party to this Agreement that has not defaulted as provided for in Section 26 of this Agreement. "Rent' means percent (_%) of recurring Sublicense Revenue received by Licensee from Sublicensees on new Wireless Telecommunications Facilities constructed on Licensed Premises under or pursuant to this Agreement. "Sublicense Revenue" means the total amount of rent (excluding any reimbursement from Sublicensee(s) of taxes, construction costs, installation costs, utilities, or other expenses incurred by Licensee to the extent said reimbursement is not an offset of rent to be paid by Sublicensee(s)) paid to Licensee by all Sublicensee(s) using each of the Licensed Premises, whether pursuant to a license or other similar agreement, as modified, renewed, or assigned. "Sublicensee" means a third party to which Licensee has granted the right to use and occupancy of one or more of the Licensed Premises, subject to the terms and conditions contained herein. "Wireless Marketing Agreement' means the Wireless Marketing Agreement Regarding Licenses and Sublicenses of Publicly-Owned Properties Pertaining To Wireless Telecommunications Facilities, between Licensor and Licensee, dated 2017. Exhibit "E" Page 2 of 15 "Wireless Telecommunications Facilities" means the equipment and associated structures needed to transmit and/or receive electromagnetic signals. A wireless telecommunication facility typically includes antennas, supporting structures, enclosures and/or cabinets housing associated equipment, cable, access roads and other accessory development. Section 2. Licensor's Cooperation. During the Lease Term, and pursuant to Section 1 AC of the Wireless Marketing Agreement, Licensor shall: (i) cooperate with Licensee in its efforts to obtain all of the Approvals and (ii) take no action that would adversely affect any of the Licensed Premises; provided, however, that if Licensor elects to replace infrastructure on the Licensed Premises that is unrelated to the delivery of Wireless Telecommunications services, then such replacement shall be accomplished in a manner calculated to minimize interference with the Wireless Telecommunications infrasctructure on the Licensed Premises. Licensor acknowledges that Licensee's ability to use each of the Licensed Premises is contingent upon Licensee obtaining and maintaining the Approvals. Additionally, Licensor authorizes Licensee and its employees, representatives, agents and consultants to prepare, and submit, file and present on behalf of Licensor building, permitting, zoning or land-use applications with the appropriate local, state and/or federal agencies necessary to obtain land use changes, special exceptions, zoning variances, conditional use permits, special use permits, administrative permits, construction permits, operation permits and/or building permits. Licensor understands that any such application and/or the satisfaction of any requirements thereof may require Licensor's cooperation, which Licensor hereby agrees to provide. Licensor shall not knowingly do or permit anything that will interfere with or negate any Approvals pertaining to the Improvements or Licensed Premises or cause them to be in nonconformance with applicable local, state or federal laws. Licensor agrees to execute such documents as may be necessary to obtain and thereafter maintain the Approvals, and agrees to be named as the applicant for said Approvals. The provisions of this Section shall not apply in the event of any dispute between and/or involving Licensor and Licensee. Section 3. Subdivision. In the event that a subdivision of Licensor's Property is legally required to license any of the Licensed Premises to Licensee, and in accordance with the provisions of Section 1.4C of the Wireless Marketing Agreement, Licensor agrees to cooperate on an application for a subdivision approval of Licensor's Property, at Licensee's expense. Section 4. Term. The Term of this shall commence on 20 ("Commencement Date"), and the license for each Licensed Premise listed in Exhibit 2 shall continue until this Agreement and the correspondening Wireless Marketing Agreement is either: (i) terminated pursuant to Section 3.5 of the Wireless Marketing Agreement, or (ii) expires. The term of each License listed in Exhibit 2 shall begin on the commencement date listed for such Licensed Premises on Exhibit 2, and shall continue for a period of five (5) years with three (3), five (5) year options subject to the written mutual consent of the Licensor and Licensee. At the end of term of this Agreement, Licensee will hand over the administration of the lease to the Licensor unless mutually agreed upon by both parties. Exhibit "E" Page 3 of 15 Section 5. Rent. a. Rent. From and after the Commencement Date and effective upon Licensee's receipt of Sublicense Revenue, Licensee shall pay Rent to Licensor for each of the Licensed Premises. Rent shall be paid monthly, or at such other intervals approved by Licensor, in accordance with Section 2.1 of the Wireless Marketing Agreement as follows: (1) 65% (Licensor) / 35% (Licensee) Revenue Shares, Licensor shall be entitled to sixty-five percent (65%) of recurring gross payments that are received by Licensee pursuant to this Agreement on a new Wireless Telecommunications Facility that is located on a City Asset; or (2) 75% (Licensor) / 25% (Licensee) Revenue Shares, Licensor shall be entitled to seventy-five percent (75%) of recurring gross payments that are received by Licensee as a result of the addition of one or more Wireless Telecommunications Facilities to the site of a City-owned Wireless Telecommunications Facility that was constructed prior to the Effective Date of this Agreement. b. Sublicenses. Licensee shall exercise discretion as to whether, and on what terms, to sublicense, license or otherwise allow occupancy of the Licensed Premises, subject to the following: i. Licensee shall make every reasonable effort to ensure that each proposed Wireless Telecommunications Facility will not affect, detract, or impact the operation of existing Licensor facilities, particularly traffic signal control and street lighting devices. ii. Licensee shall ensure that the proposed Wireless Telecommunications Facility is not dependent on the resources dedicated to Licensor facilities. iii. Licensee shall propose new locations for Wireless Telecommunications Facilities to Licensor, and Licensor, in its sole discretion, shall have the final authority to approve or reject said locations. iv. In the event of damage, Licensor shall not be obligated to repair or restore the Wireless Telecommunications Facility to normal operating conditions unless Licensor is the primary and direct cause of such damage. As between Licensee and Licensor, Licensee shall bear all other costs incurred to repair or restore Wireless Telecommunications Facilities; provided, however, the Licensee may allocate its responsibility under this sentence to a third party, including a Sublicensee. V. Licensee shall make every reasonable effort to restore Licensor facilities in a safe and efficient manner. Licensor shall not be held responsible for lack of revenue during the down time. vi. Licensee shall give Licensor reasonable notice (or no less than fourteen (14) days) prior to impacting Licensor facilities in a manner that is beyond the routine maintenance and operation of Wireless Telecommunications Facilities. Exhibit "E" Page 4 of 15 vii. Any sublicense agreement shall include the requirement that the Sublicensee must comply with the terms and conditions of this Agreement. viii. Any sublicense agreement shall include a provision substantially consistent with the following, relating to interference with Licensor facilities and communications systems: Notwithstanding any other provisions this Sublicense Agreement, Sublicensee agrees to operate any and all of its Wireless Telecommunications Faciliites on the Property in full compliance with the technical standards set forth in the Rules and Regulations of the Federal Communications Commission ("FCC") as codified in 47 C.F.R. and upon notice of non-compliance agree to take all steps necessary to bring its operation into full compliance. Licensee and Sublicensee both recognize and stipulate that City's public safety communications systems are vital to the life, health, and safety of the public safety personnel and of members of the general public, and agree that protecting such systems against harmful interference is an integral responsibility of this agreement. Licensee and Sublicensee agree to meet and confer with the City on a case-by-case basis, and at the request of any Party and/or the City, in the event that additions or changes to Wireless Telecommunications Facilities on the property cause incompatibilities with the City's installed communications system(s). Licensee and Sublicensee agree that in the event of harmful interference or degradation to City's public safety radio operations, City may require on a case-by-case basis that the use of the interfering Wireless Telecommunications Facility be suspended upon reasonable notice by the City to Licensee and the applicable Sublicensee pending resolution of the cause and cure of such interference or degradation. The findings of the City's communications engineering representative shall be determinant in declaring harmful interference caused by such non-compliance, and in the event of a dispute the burden of seeking a determination of compliance from the Federal Communications Commissions shall be on the Sublicensee. This procedure shall not be invoked unless absolutely necessary. These provisions shall be binding on Licensee, Sublicensee, and any successor, assignee, or service provider designated by Licensee and/or Sublicensee. ix. Except as specified in this Section 5(b), Licensor shall not unreasonably interfere with Licensee's discretion relating to the terms of sublicenses, licenses or the grants of occupancy of the Licensed Premises. Exhibit "E" Page 5of15 c. Accounting/Adjustments. The parties hereto acknowledge that all information needed to calculate Rent may, from time to time, not be readily available. Accordingly, the parties agree that Licensee may base Rent on Sublicensee agreements, and later make adjustments if overpayments or underpayments occur. At any time, Licensor may request that Licensee provide an accounting of the Rent in such form and content as Licensor may reasonably request. Section 6. Construction, Engineering, and Other Costs a. Licensor shall have no financial responsibility for planning, construction, and engineering costs associated with the implementation of this License Agreement. b. Licensee may recover from Sublicensees's taxes, construction costs, installation costs, utilities, or other expenses incurred by Licensee, to the extent said reimbursement is not an offset of rent to be paid by Sublicensee(s), and such recovered sums shall not be included in the computation of Rent. Section 7. Licensed Premises; Survey. Licensee has provided Licensor with a copy of an "as-built" survey for each Licensed Premises, which shall depict and identify the boundaries of each Licensed Premises and the Easements. The description of the each Licensed Premises set forth in Exhibit 1 shall control in the event of any discrepancies. Section 8. Access. Conditioned upon and subject to commencement of the License Term, Licensor grants to Licensee and Licensee's employees, agents, contractors, sublicensees, licensees and their employees, agents and contractors access to land located within Licensor's Property to Licensee, for the purpose of constructing, repairing, maintaining, replacing, demolishing and removing the facility to be located upon each Licensed Premises as necessary to obtain or comply with any Approvals (the "Access License"). Licensee may request and Licensor shall not unreasonably deny or withhold the granting of an alternate Utility License either to Licensee or directly to the public utility at no cost and in a location acceptable to Licensee and the public utility. The Access Licenses and Utility Licenses (collectively, the "Access4JH/ity Licenses") shall be utilized for the purposes provided during the License Term and thereafter for a reasonable period of time necessary for Licensee to remove the Improvements. Section 9. Use of Property. The Licensed Premises and the Access/Utility Licenses shall be used for the purpose of constructing, maintaining and operating the Improvements and for uses incidental thereto. All Improvements shall be constructed at no expense to Licensor. All Improvements, inclusive of security fences, shall comply with the requirements of the Palm Springs Municipal Code and Zoning Code, and all other laws and regulations applicable thereto, and Licensee shall obtain all required and necessary governmental agency Approvals and permits. Licensee will maintain the Licensed Premises in a safe condition. It is the intent of the parties that Licensee's Improvements shall not constitute a fixture. Section 10. Removal of Obstructions. Licensee has the right to remove obstructions from Licensor's Property, as approved by the Licensor, which approval shall be requested in writing by Licensee and shall not be unreasonably withheld, Exhibit "E" Page 6 of 15 conditioned or delayed by Licensor. Potential obstructions include but are not limited to vegetation, which may encroach upon, interfere with or present a hazard to Licensee's use of the Licensed Premises or the Access/Utility Licenses. Licensee shall dispose of any materials removed. Section 11. Hazardous Materials. Licensee's Obligation and Indemnity. Licensee shall not (either with or without negligence) cause or permit the escape, disposal or release of any Hazardous Materials on or from the Licensed Premises in any manner prohibited by law. Licensee shall indemnify and hold Licensor harmless from and against any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, and consultants' and experts' fees) from the release of any Hazardous Materials on the Licensed Premises if caused by Licensee or persons acting under Licensee, (herein referred to as "Hazardous Waste Claims." This indemnification clause excludes Hazardous Waste Claims arising from the sole negligence or willful misconduct of Licensor, its elected officials, officers, employees, agents, and volunteers. Section 12. Real Estate Taxes. To the extent that a possessory interest is deemed created, Licensee acknowledges that notice is and was hereby given to Licensee pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any public property may subject the Licensee to possessory interest taxes or other taxes levied against Licensee's right to possession, occupancy or use of any public property. Licensee shall pay all applicable (federal, state, county, city, local) excise, sales, consumer use, possessory interest, or other similar taxes required by law that are levied upon this Agreement or upon Licensee's services under this Agreement. Licensee agrees to reimburse Licensor for any documented increase in real estate or personal property taxes levied against Licensor's Property that are directly attributable to the Improvements. Licensor agrees to provide Licensee any documentation evidencing the increase and how such increase is attributable to Licensee's use. Licensee reserves the right to challenge any such assessment, and Licensor agrees to cooperate with Licensee in connection with any such challenge. Section 13. Insurance. At all times during the performance of its Due Diligence Investigation and during the License Term, Licensee, at its sole expense, shall obtain and keep in force the required insurance as set forth in Section 5 of the Wireless Marketing Agreement. Licensor shall be entitled to coverage at the maximum policy limits carried by Licensee for the required insurance, which shall at no time be less than the required amounts set forth in Section 5 of the Wireless Marketing Agreement. The insurance provisions shall be separate and independent from the indemnification and defense provisions between the Licensee and Licensor and shall not in any way limit the applicability, scope or obligations of the indemnification defense provisions in Section 14. Section 14. Indemnification. a. Licensee shall indemnify, defend, and hold harmless Licensor, its elected and appointed officials, officers, employees, agents, and contractors, from and against liability, claims, demands, losses, damages, fines, charges, penalties, administrative Exhibit "E" Page 7 of 15 and judicial proceedings and orders, judgments, and the costs and expenses incurred in connection therewith, including reasonable attorneys' fees and costs of defense, to the extent directly or proximately resulting from Licensee's activities undertaken pursuant to this Agreement, except to the extent arising from or caused by the sole negligence or willful misconduct of Licensor, its elected and appointed officials, officers, employees, agents, or contractors. Licensor shall promptly notify Licensee of any claim, action or proceeding covered by this Section 14(a). b. Right to Audit. During the term of this Agreement, Licensee shall maintain originals, or when originals are not available copies, of all records, books, papers and documents relating to this Agreement and all accompanying agreements between Licensee and Sublicensees (subject to Licensee's right to reasonably redact such records, books, papers and documents to the extent they are proprietary, represent confidential information, or constitute trade secrets). At all reasonable times, Licensee shall allow Licensor to have access to, examine, copy, and audit such records, including but not limited to access to and audit of information pertaining to the identities of the Sublicensees whom Licensee has attempted to sublicense the Licensed Premises. Section 15. Waiver of Claims and Rights of Subrogation. The parties hereby waive any and all rights of action for negligence against the other on account of damage to the Improvements, Licensor's Property or to the Licensed Premises resulting from any fire or other casualty of the kind covered by property insurance policies with extended coverage, regardless of whether or not, or in what amount, such insurance is carried by the parties. All policies of property insurance carried by either party for the Improvements, Licensor's Property or the Licensed Premises shall include a clause or endorsement denying to the insurer rights by way of subrogation against the other party to the extent rights have been waived by the insured before the occurrence of injury or loss. The provisions of this Section 15 shall not apply to the extent that damage to the Improvements, Licensor's Property or to the Licensed Premises is directly caused by Licensee's negligence. Section 16. Eminent Domain. If Licensor receives notice of a proposed taking by eminent domain of any part of the Licensed Premises or the Access/Utility Licenses, Licensor will notify Licensee of the proposed taking within five (5) days of receiving said notice and Licensee will have the option to: (i) declare this Agreement null and void and thereafter neither party will have any liability or obligation hereunder other than payment of Rent for so long as Licensee remains in physical possession of the Licensed Premises; or (ii) remain in possession of that portion of the Licensed Premises and Access/Utility Licenses that will not be taken, in which event there shall be an equitable adjustment in Rent on account of the portion of the Licensed Premises and Access/Utility Licenses so taken. Section 17. Reserved. Section 18. Sale of Property. If during the Lease Term, Licensor sells all or part of Licensor's Property, of which the Licensed Premises is a part, then such sale shall be subject to this Agreement. Exhibit "E" Page 8 of 15 Section 19. Surrender of Property. Upon expiration or termination of this Agreement, Licensee shall, within a reasonable time, remove all above and below ground Improvements and restore the Licensed Premises to its original condition. Section 20. Recording. Licensee shall have the right to record a memorandum of the Agreement with the Riverside County Recorder's Office. Licensor shall execute and deliver each such memorandum, for no additional consideration, promptly upon Licensee's request. Section 21. Licensor's Covenant of Title. Licensor covenants that Licensor holds good and marketable fee simple title to Licensor's Property and each of the Licensed Premises and has full authority to enter into and execute this Agreement. Licensor further covenants that there are no encumbrances or other impediments of title that might interfere with or be adverse to Licensee. Section 22. Interference with Licensee's Business. Licensee shall have the exclusive right to construct, install and operate Wireless Telecommunications Facilities that emit radio frequencies on Licensor's Property. Licensor agrees that it will not permit the construction, installation or operation on Licensor's Property of (i) any additional wireless telecommunications facilities or (ii) any equipment or device that interferes with Licensee's use of the Licensed Premises for a Wireless Telecommunications Facility. Each of the covenants made by Licensor in this Section is a covenant running with the land for the benefit of the Licensed Premises. Section 23. Quiet Enjoyment. Licensor covenants that Licensee, on paying Rent and performing the covenants of this Agreement, shall peaceably and quietly have, hold and enjoy the Licensed Premises and Access/Utility Licenses. Section 24. Mortgages. This Agreement, Licensee's interest in the Licensed Premises and the Access/Utility Licenses shall be subordinate to any mortgage given by Licensor which currently encumbers the Licensed Premises, provided that any mortgagee shall recognize the validity of this Agreement in the event of foreclosure. In the event that the Licensed Premises is or shall be encumbered by such a mortgage, Licensor shall obtain and furnish to Licensee a mutually agreed upon non-disturbance agreement for each such mortgage, in recordable form. If Licensor fails to cooperate in providing any Licensee requested non-disturbance agreement, Licensee may withhold and accrue, without interest, the Rent until such time as Licensee receives all such documentation. Section 25. Title Insurance. Licensee, at Licensee's option, may obtain title insurance on each of the Licensed Premises and Access/Utility Licenses at Licensee's sole cost and expense. Licensor shall cooperate with Licensee's efforts to obtain title insurance by executing documents or obtaining requested documentation as required by the title insurance company. If Licensor fails to provide the requested documentation reasonably necessary to Licensee for Licensee to obtain title insurance within thirty (30) days of Licensee's request, Licensee, at Licensee's option, may withhold and accrue, without interest, the Rent until such time as Licensee receives all such documentation. Section 26. Default. Exhibit "E" Page 9 of 15 a. Notice of Default; Cure Period. If there is a default by Licensor or Licensee (the "Defaulting Party') with respect to any of the provisions of this Agreement or Licensor's or Licensee's obligations under this Agreement, the other party (the "Non- Defaulting Party') shall give the Defaulting Party written notice of such default. After receipt of such written notice, the Defaulting Party shall have thirty (30) days in which to cure any monetary default and sixty (60) days in which to cure any non-monetary default. The Defaulting Party shall have such extended periods as may be required beyond the sixty (60) day cure period to cure any non-monetary default if the nature of the cure is such that it reasonably requires more than sixty (60) days to cure, and the Defaulting Party commences the cure within the sixty (60) day period and thereafter continuously and diligently pursues the cure to completion. The Non-Defaulting Party may not maintain any action or effect any remedies for default against the Defaulting Party unless and until the Defaulting Party has failed to cure the same within the time periods provided in this Section. b. Consequences of Licensee's Default. In the event that Licensor maintains any action or effects any remedies for default against Licensee resulting in Licensee's dispossession or removal, (Q the Rent shall be paid up to the date of such physical dispossession or removal and (i►) Licensor shall be entitled to recover from Licensee, in lieu of any other damages, as liquidated, final damages, a sum equal to the Rent associated with the remaining term of the License or any Sublicenses which shall be calculated at the highest value of the Rent which is in effect on the date of default and for the remaining License term period thereafter. In no event shall Licensee be liable to Licensor for indirect or speculative damages in connection with or arising out of any default. c. Consequences of Licensor's Default. If Licensor is in default beyond the applicable periods set forth above in Section 26(a), Licensee may, at its option, upon written notice: (i) terminate the License, vacate the Licensed Premises and be relieved from all further obligations under this Agreement; (h) perform the obligation(s) of Licensor specified in such notice, in which case any expenditures reasonably made by Licensee in so doing shall be deemed paid for the account of Licensor and Licensor agrees to reimburse Licensee for said expenditures upon demand; (iii) take any actions that are consistent with Licensee's rights; (iv) sue for injunctive relief, and/or (v) set-off from Rent any amount reasonably expended by Licensee as a result of such default. Section 27. Force Majeure. If an event or condition constituting a "force majeure"—including, but not limited to, an act of God, labor dispute, civil unrest, epidemic, or natural disaster—prevents or delays either the Licensor or the Licensee ("Party') from performing or fulfilling an obligation under this Agreement, said Party is not in Default, under Section 26 of this Agreement, of the obligation. A delay beyond a Party's control automatically extends the time, in an amount equal to the period of the delay, for the Party to perform the obligation under this Agreement. The Licensor and Licensee shall prepare and sign an appropriate document acknowledging any extension of time under this Section. Section 28. Applicable Law. This Agreement shall be construed and interpreted both as to validity and as to performance of the Parties in accordance with Exhibit "E" Page 10 of 15 the laws of the State of California. Legal actions concerning any dispute, claim, or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Riverside, State of California, or any other appropriate court in such County, and Licensee covenants and agrees to submit to the personal jurisdiction of such court in the event of such action. Section 29. Assignment, Sublease, Licensing and Encumbrance. In accordance with Section 4.3 of the Wireless Marketing Agreement, Lessee may not assign this Agreement without the prior written consent of Licensor. Lessee shall provide written notice of any assignment requests to Lessor, and Lessor shall review such requests and determine in its sole discretion whether to approve or deny such request. Lessee may enter into Sublicenses, or other authorizations ("Sub- Authorizations") to allow a third party to utilize and operate from the Leased Premises, so long as such third party is a provider of services that utilize Wireless Telecommunications Facilities. Sub-Authorizations shall not require the specific written consent of Lessor; however, Licensee shall provide Licensor with 30 days' written notice of any Sub-Authorizations approved by Licensee. Section 30. Miscellaneous. a. Entire Agreement. Licensor and Licensee agree that this Agreement, together with the Wireless Marketing Agreement and Right-of-Entry Agreement, contain all of the agreements, promises and understandings between Licensor and Licensee with regard to the Licensed Premises. No oral agreements, promises or understandings shall be binding upon either Licensor or Licensee in any dispute, controversy or proceeding at law. Any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties hereto. b. Captions. The captions preceding the Sections of this Agreement are intended only for convenience of reference and in no way define, limit or describe the scope of this Agreement or the intent of any provision hereof. c. Construction of Document. Licensor and Licensee acknowledge that this document shall not be construed in favor of or against the drafter by virtue of said party being the drafter and that this Agreement shall not be construed as a binding offer until signed by Licensee. d. Notices. All notices hereunder shall be in writing and shall be given by (i) established national courier service which maintains delivery records, (ii) hand delivery, or (iii) certified or registered mail, postage prepaid, return receipt requested. Notices are effective upon receipt, or upon attempted delivery if delivery is refused or if delivery is impossible because of failure to provide reasonable means for accomplishing delivery. The notices shall be sent to Licensor at Licensor's Notice Address and to Licensee at Licensee's Notice Address. e. Partial Invalidity. If any term of this Agreement is found to be void or invalid, then such invalidity shall not affect the remaining terms of this Agreement, which shall continue in full force and effect. f. IRS Form W-9. Licensor agrees to provide Licensee with a completed IRS Form W-9, or its equivalent, upon execution of this Agreement and at such other times Exhibit "E" Page 11 of 15 as may be reasonably requested by Licensee. In the event the Property is transferred, the succeeding Licensor shall have a duty at the time of such transfer to provide Licensee with a completed IRS Form W-9, or its equivalent, and other related paper work to effect a transfer in Rent to the new Licensor. Licensor's failure to provide the IRS Form W-9 within thirty (30) days after Licensee's request shall be considered a default and Licensee may take any reasonable action necessary to comply with IRS regulations including, but not limited to, withholding applicable taxes from Rent payments. [SIGNATURES ON NEXT PAGE] Exhibit "E" Page 12 of 15 IN WITNESS WHEREOF, the Parties have executed this License Agreement as of the dates stated below. "LICENSOR" City of Palm Springs Date: By: David H. Ready, PhD, Esq. City Manager APPROVED AS TO FORM: ATTEST By: By: Edward Z. Kotkin Kathleen D. Hart, MMC City Attorney Interim City Clerk APPROVED BY CITY COUNCIL: Date: Agreement No. Corporations require two notarized signatures. One signature must be from Chairman of Board, President, or any Vice President. The second signature must be from the Secretary, Assistant Secretary, Treasurer, Assistant Treasurer, or Chief Financial Officer. "LICENSEE" 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability company 19200 Von Karman Ave, Suite 100 Irvine, CA 92612 Phone: 949-514-4617 Fax: 949-266-9160 By By Signature(Notarized) Signature(Notarized) Printed Nameffitle Printed Namefritle Exhibit °E° Page 13 of 15 EXHIBIT 1 TO LICENSE AGREEMENT LICENSED PREMISES (TO BE COMPLETED) Exhibit "E" Page 14 of 15 EXHIBIT 2 TO LICENSE AGREEMENT LICENSOR'S PROPERTIES (TO BE COMPLETED) Exhibit "E" Page 15 of 15