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HomeMy WebLinkAbout7/26/2017 - STAFF REPORTS - 5.E. U ACITY COUNCIL STAFF REPORT DATE: July 26, 2017 NEW BUSINESS SUBJECT: APPROVAL OF A WIRELESS MARKETING AGREEMENT WITH 5 BARS COMMUNITIES DBA XG COMMUNITIES, LLC, A DELAWARE LIMITED LIABILITY COMPANY FROM: David H. Ready, City Manager BY: Marcus L. Fuller, Assistant City Manager SUMMARY: At the Council meeting of July 19, 2017, the Council approved an Opposition Letter regarding SB 649, officially opposing legislation proposed by Senator Hueso which would amend Section 65964 of, and add Sections 65964.2 and 65964.5 to, the California Government Code relating to "small cell' wireless telecommunications facilities. SB 649 would limit local governmental control over the location, proliferation and appearance of small cell antennae installed within public rights-of-way and on public property; as a result the League of California Cities has also opposed SB 649, joining over 150 cities, counties and other local agencies in opposition to the legislation. This action will consider approving a Wireless Marketing and License Agreement with 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability community, to mitigate the effects of SB 649 on the City, if it becomes state law. PRINCIPALS: The Managing Members of XG Communities, LLC, are John Clarey and Christy Clarey, whose address is 19200 Von Karman, Suite 100, Irvine, CA 92612. RECOMMENDATION: 1. In accordance with Section 7.04.020 "Sole source procurement by the city," of the Palm Springs Municipal Code, waive all competitive requirements of Title 7 of the Palm Springs Municipal Code finding that 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability community has demonstrated experience and expertise of providing the required wireless marketing services through two competitive qualifications based selection processes completed by the ITEM NO. S I A L M sA4 iy u n H00"OMPT0 T9} c44 'FOR CITY COUNCIL STAFF REPORT DATE: July 26, 2017 NEW BUSINESS SUBJECT: APPROVAL OF A WIRELESS MARKETING AGREEMENT WITH 5 BARS COMMUNITIES DBA XG COMMUNITIES, LLC, A DELAWARE LIMITED LIABILITY COMPANY FROM: David H. Ready, City Manager BY: Marcus L. Fuller, Assistant City Manager SUMMARY: At the Council meeting of July 19, 2017, the Council approved an Opposition Letter regarding SB 649, officially opposing legislation proposed by Senator Hueso which would amend Section 65964 of, and add Sections 65964.2 and 65964.5 to, the California Government Code relating to "small cell' wireless telecommunications facilities. SB 649 would limit local governmental control over the location, proliferation and appearance of small cell antennae installed within public rights-of-way and on public property; as a result the League of California Cities has also opposed SB 649, joining over 150 cities, counties and other local agencies in opposition to the legislation. This action will consider approving a Wireless Marketing and License Agreement with 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability community, to mitigate the effects of SB 649 on the City, if it becomes state law. PRINCIPALS: The Managing Members of XG Communities, LLC, are John Clarey and Christy Clarey, whose address is 19200 Von Karman, Suite 100, Irvine, CA 92612. RECOMMENDATION: 1. In accordance with Section 7.04.020 "Sole source procurement by the city," of the Palm Springs Municipal Code, waive all competitive requirements of Title 7 of the Palm Springs Municipal Code finding that 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability community has demonstrated experience and expertise of providing the required wireless marketing services through two competitive qualifications based selection processes completed by the ]ITEM NO. S'b' .� .IPLM SA4 iy u m R i • Cp91pFAlFp, ' °q`'FOIL CITY COUNCIL STAFF REPORT DATE: July 26, 2017 NEW BUSINESS SUBJECT: APPROVAL OF A WIRELESS MARKETING AGREEMENT WITH 5 BARS COMMUNITIES DBA XG COMMUNITIES, LLC, A DELAWARE LIMITED LIABILITY COMPANY FROM: David H. Ready, City Manager BY: Marcus L. Fuller, Assistant City Manager SUMMARY: At the Council meeting of July 19, 2017, the Council approved an Opposition Letter regarding SB 649, officially opposing legislation proposed by Senator Hueso which would amend Section 65964 of, and add Sections 65964.2 and 65964.5 to, the California Government Code relating to "small cell' wireless telecommunications facilities. SB 649 would limit local governmental control over the location, proliferation and appearance of small cell antennae installed within public rights-of-way and on public property; as a result the League of California Cities has also opposed SB 649, joining over 150 cities, counties and other local agencies in opposition to the legislation. This action will consider approving a Wireless Marketing and License Agreement with 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability community, to mitigate the effects of SB 649 on the City, if it becomes state law. PRINCIPALS: The Managing Members of XG Communities, LLC, are John Clarey and Christy Clarey, whose address is 19200 Von Karman, Suite 100, Irvine, CA 92612. RECOMMENDATION: 1. In accordance with Section 7.04.020 "Sole source procurement by the city," of the Palm Springs Municipal Code, waive all competitive requirements of Title 7 of the Palm Springs Municipal Code finding that 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability community has demonstrated experience and expertise of providing the required wireless marketing services through two competitive qualifications based selection processes completed by the TEEM NO. S City Council Staff Report July 26, 2017 - Page 2 Approve 5 Bars Communities Wireless Marketing Agreement City of Sacramento in June 2016 through its Request for Qualifications (RFQ) (Q16071011005), and by the City of Fresno in May 2017 through its Request for Qualifications (RFQ) (Bid File 3503); 2. Approve Agreement No. , a Wireless Marketing and License Agreement with 5 Bars Communities dba XG Communities, LLC, a Delaware limited liability community, for an initial term of five (5) years, subject to three (3) additional five (5) year optional terms; and 3. Authorize the City Manager to execute all necessary documents. BACKGROUND: Senate Bill (SB) 649 (Huerto) The following are excerpts taken from the Legislative Counsel's digest on SB 649, with significant points emphasized that affect and otherwise limit the City's abilities to effectively continue regulating the installation of wireless telecommunications facilities within the City: Under existing law, a wireless telecommunications co-location facility, as specified, is subject to a city or county discretionary permit and is required to comply with specified criteria, but a co-location facility, which is the placement or installation of wireless facilities, including antennas and related equipment, on or immediately adjacent to that wireless telecommunications co-location facility, is a permitted use not subject to a city or county discretionary permit. This bill would prohibit a city or county from adopting or enforcing any regulation on the placement or operation of a communications facility in the rights-of-way by a provider that is authorized by state law to operate in the rights-of-way or from regulatino that service or imposing any tax, fee, or charge, except as provided in specified provisions of law or as specifically required by law. A complete copy of SB 649 is included as Attachment 1. Of particular importance to the City, is the fact that SB 649 includes a legislative declaration that providers of advanced wireless communications should be granted fair, reasonable, nondiscriminatory, and nonexclusive access to locally owned utility poles, streetlights, and other suitable host infrastructure located within the public rights-of-way and in other local public places such as stadiums, parks, campuses, hospitals, transit stations, and public buildings. SB 649 will add Section 65964.2 to the Government Code, making installation of "small cells" a permitted use subject only to a permitting process, including installations on public buildings (and specifically City Hall), with no exclusion for buildings designated as 02 City Council Staff Report July 26, 2017- Page 3 Approve 5 Bars Communities Wireless Marketing Agreement Class 1 "Historic Sites." (SB 649 only provides protections against installation of "small cells" in "Historic Districts"). The following photos are some examples of "small cell' installations in public rights-of- way on public utility poles, which would be permitted by right pursuant to SIB 649: In these photos are individual "small cells" permitted by each City (Oakland, and other unknown cities). R. l k F P r Another example of "small cell' wireless technology installed in the public right-of-way in Oakland, California, with the associated appurtenant infrastructure, is provided on the following page. In this case, Oakland has authorized the installation of the encroachments pursuant to its municipal powers. 03 ReportCity Council Staff MarketingApprove 5 Bars Communities Wireless Agreement fX r <y, 1y � 1 1 a City Council Staff Report July 26, 2017- Page 5 Approve 5 Bars Communities Wireless Marketing Agreement Another example of a "small cell' antenna installed on top of a retail office building is shown here: " try Yet another example of a "small cell' antenna installed on a public utility pole that was expressly permitted by the City of Rancho Palos Verdes is shown here: f. 05 City Council Staff Report July 26, 2017- Page 6 Approve 5 Bars Communities Wireless Marketing Agreement Currently, there are at least 122 cities, 12 counties, and 11 other organizations that have opposed SB 649. The League strongly opposes SB 649, and on its website states the following: Under the guise of building a strong 5G network for consumers, this bill effectively gives the wireless industry the keys to the store at the expense of local governments' responsibility to manage their communities. SB 649 moved to the Assembly last week where it is awaiting its first policy committee assignment and hearing date. This wireless industry sponsored bill restricts the ability of local agencies to control access to their public right-of-ways and caps the ability of local agencies to collect rent related to small cell siting on that public infrastructure. It eliminates public input, full local environmental and design review as well as the ability for local governments to negotiate leases or any public benefit for the installation of "small ce//" equipment on taxpayer-funded property. Instead of needing to negotiate with individual local agencies on siting issues and having to pay market-rate rents for the privilege of placing their equipment on public infrastructure, the industry seeks to use legislative preemption to reduce costs on multiple fronts. While the industry promises that SB 649 will allow them to rapidly deploy 5G technology, the bill fails to specify 5G, 4G, or any technological standard for this special permitting process and fails to include any deployment requirement to hold industry to their promise. Furthermore, 5G standards are still being developed which begs the question why the industry needs this special privilege today, especially when they have been unable to demonstrate any examples of city imposed obstacles. Cities statewide welcome new technology, especially for network and broadband deployment, but only when it's in collaboration with the industry, which SB 649 would eliminate. At the July 19, 2017, Council meeting, the Council joined in opposition to SB 649. Wireless Marketing Agreement- SB 649 was introduced on February 17, 2017, and on May 31, 2017, the Senate had its third reading of the legislation, and passed SB 649 on a vote of 32-1. SB 649 has now been referred to the Assembly, and has been reviewed and supported by its Committee on Local Government (by vote of 6-2) and its Committee on Communications and Conveyance (by vote of 10-0). SB 649 is currently referred to the Assembly's Appropriations Committee; it is anticipated that SB 649 may be acted upon by the Assembly by August 2017. Time is of the essence for the City to position itself in a way to preserve its rights to better control and regulate installation of "small cells" that will be declared a permitted use by right upon adoption of SB 649. 06 City Council Staff Report July 26, 2017- Page 7 Approve 5 Bars Communities Wireless Marketing Agreement SB 649 cannot on its face terminate or otherwise invalidate existing agreements or contracts that local agencies have previously executed that related to wireless marketing and administering leasing and licensing of public property. Specifically, limits have been placed upon federal and state preemption by use of the "Contracts Clause" both as they appear in the U.S. Constitution and the California Constitution. The "Contracts Clause" prevents a government entity from enacting legislation that affects the contractual rights of a private party. There is one provision in the current version of SB 649 that preserves some local control of the installation of "small cells," provided that the local agency has already established a contract to administer the leasing or licensing of "vertical infrastructure" pursuant to existing agreements. "Vertical infrastructure" is defined as all poles or similar facilities owned or controlled by a city or county that are in the public rights-of- way or public utility easements and meant for, or used in whole or in part for, communications service, electric service, lighting, traffic control, or similar functions. Specifically, SB 649 states: Existing agreements regarding the leasing or licensing of vertical infrastructure entered into before the operative date of this section remain in effect, subject to applicable termination provisions. The operator of a small cell may accept the rates of this section for small cells that are the subject of an application submitted after the agreement is terminated pursuant of the terms of the agreement. Although SB 649 would implement fixed fees and a limited calculation on determining leasing or licensing charges for "small cells" on public property, to the extent that, prior to enactment of SB 649, the City has entered into a commercial agreement with a private party for the management and administration of wireless facilities on and within public property, the City has legal defense pursuant to the "Contracts Clause" that SB 649 cannot diminish leasing and licensing fees and charges that are effective with such a commercial agreement. In light of the potential detrimental impacts to the City with the proliferation of "small cell' wireless technology on public property and within public rights-of-way, staff recommends that the City consider protecting itself with legal "Contracts Clause" defense by considering a Wireless Marketing Agreement that would include the following components: 1. Contract with a legitimate private party to manage the administration of wireless attachments in the right-of-way 2. Grant exclusivity to defend against "work arounds" 3. Term lengths that establish longevity to afford long term protection 4. Consideration that is tied to the generation of revenue for the city 07 City Council Staff Report July 26, 2017- Page 8 Approve 5 Bars Communities Wireless Marketing Agreement Having these four components would allow the City's wireless marketing administrator to argue that the reduced fees for leasing and licensing wireless technology on public property that would be implemented by SIB 649 degrades the contractual benefit to be realized by such a contract. The exclusivity provision protects the scope of the contract by not allowing "work arounds", i.e. carriers trying to bypass the management agreement. It is also important that a clear contractual term length, such as five years with possible renewals, can protect the municipality for the extended life of the contract. It is important to note that a Wireless Marketing Agreement must be executed before SB 649 is adopted in order to preserve a "Contracts Clause" defense. In March 2016, the City of Sacramento issued a Request for Qualifications (RFQ) (Q16071011005) related to the City of Sacramento Wireless Marketing Plan. The stated purpose of the City's solicitation was: 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 otheriurisdictions; • 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 08 City Council Staff Report July 26, 2017- Page 9 Approve 5 Bars Communities Wireless Marketing Agreement expansion efforts, wireless communications infrastructure, services, hardware, and programs to underserved communities). A copy of Sacramento's RFQ is included as Attachment 2. In response to Sacramento's competitive and qualifications-based solicitation, on June 14, 2016, Sacramento approved a Wireless Marketing and License Agreement with 5 Bars, LLC, a Delaware limited liability company'. As noted in the City staff report prepared for the action, the agreement "...represents an innovative public-private partnership that is both strategic and in alignment with the City's Wireless Master Plan. /t establishes a partnership with 5 Bars to assist the City in addressing both long and short term wireless broadband infrastructure needs. 5 Bars will function as the City's expert technical resource for managed wireless services. 5 Bars will act on the City's behalf to negotiate agreements with other parties such as telecommunication service providers to meet the needs of the community, service providers, and utilize City assets to manage and streamline the wireless development process." The agreement with 5 Bars, LLC, approved by Sacramento provides wireless marketing administration and coordination at no cost to the City, with a split of revenues from the profit made by the leasing and licensing of wireless facilities on public property and in public rights-of-way. The profit sharing is 25% of the lease revenue from all existing wireless leases, and 35% of the lease revenue from all new wireless leases. A copy of Sacramento's June 14, 2016, staff report, including a copy of its agreement with 5 Bars, LLC, is included as Attachment 3. In October 2016, the City of Fresno issued a Request for Qualifications (RFQ) (Bid File 3503) related to the City of Fresno's Wireless Marketing Plan. The stated purpose of the City's solicitation was: The City of Fresno (City) issues this Request for Qualifications (RFQ) to convey its interest in identifying one or more motivated, high-caliber partners (Respondent) to make affordable, ubiquitous Gigabit-class broadband services and capabilities available throughout the City. The City welcomes responses from any legally qualified entity, including for-profit and non-profit entities that envision a long-term relationship with the City, its businesses, and its users. Respondents to this RFQ should indicate whether and how their proposals will serve the following City goals: 1. Attract an ultra high-speed wireless or wired/fiber broadband network that will stimulate the City's economic growth and global competitiveness, drive job ' 5 Bars, LLC, has filed a business change and is now 5 Bars Communities doing business as XG Communities, LLC, a Delaware limited liability company 09 City Council Staff Report July 26, 2017- Page 10 Approve 5 Bars Communities Wireless Marketing Agreement creation, foster innovation, enhance healthcare delivery, improve education, and serve multiple new areas of development in the community; 2. Make broadband connectivity at symmetrical speeds of at least 1 Gigabit per second (Gbps) available to residents on an affordable basis throughout the city; 3. Make broadband connectivity at symmetrical speeds of at least 10-100 Gbps available to businesses and institutions on an affordable basis throughout the city; 4. Introduce competitive choice to ensure that businesses, institutions, and residents have access to the services of their choice from the service providers of their choice; 5. Consider innovative models, including, but not limited to: a. Leasing City-built and -owned dark fiber and other assets as available as part of a network to provide services, b. Working with the City to construct and operate a fiber-to-the-premises (FTTP) network; c. Fostering private investment and innovation; 6. Lay the foundation for the network to scale over time and expand to other areas of the region; 7. Offer services at favorable terms to the school district and/or other public and non-profit facilities that provide educational services to students; 8. Provide cost-effective services for price-sensitive customers and flexible pricing plans to help narrow the digital divide and ensure access to all City residents; 9. Offer free service in public spaces and popular gathering places, and 10. Offer free services to the City for its employees while performing City functions. Such services may include, but are not limited to: a. Mobile work force (field inspectors, code enforcement, police officers, fire fighters, etc.), b. Public Safety (shot spotter, video policing, fire inspectors, mobile fleet, etc.), and c. Transit, traffic operations and signal synchronization. A copy of Fresno's RFQ is included as Attachment 4. In response to Fresno's competitive and qualifications-based solicitation, on May 25, 2017, Fresno approved a Wireless Marketing and License Agreement with 5 Bars Communities, a dba of XG Communities, LLC, a Delaware limited liability company. As noted in the City staff report prepared for the action: The City received thirteen (13) responses to the RFQ. As a respondent, 5 Bars was chosen due to its unique business proposal. The proposed solution is to develop and implement a marketing program where 5 Bars will market the City's assets for lease/license at no cost to the City. This effort will result in revenue to the City. The goals of this endeavor are to: 10 ._._... .._.. ___ City Council Staff Report July 26, 2017 - Page 11 Approve 5 Bars Communities Wireless Marketing Agreement • Increase Connectivity • Enhance Wireless Coverage • Minimize/Close the Digital Divide • Improve E911 Services • Address Smart City Initiatives • Generate Revenue to the City • Drive Local Economic Development 5 Bars will market to all wireless carriers in the area without discrimination and/or favoritism to any wireless carrier, thereby executing a fair and reasonable process. Leasing the City's assets is projected to generate $2.6 million in revenue to the City over 5 years. A copy of Fresno's May 25, 2017, staff report, is included as Attachment 5. By entering into its Wireless Marketing and License Agreement, the cities of Sacramento and Fresno are defensively positioned against the potential impacts associated with SB 649's "by right" ministerial permitting of "small cell" wireless technology on public property and in public rights-of-way. Their agreements secure the marketing of all of the City's assets, and specifically includes a detailed list of those City assets where wireless technology should be marketed, permitted and leased — thereby excluding certain City assets (or locations) where such wireless technology should not be installed. The provisions of these Wireless Marketing and License Agreements executed with 5 Bars Communities will (in theory) safeguard these cities from lost revenue due to SB 649's fixed fee and limited fair-market value approach to permitting costs for "small cell" technology to be permitted "by right", but more importantly, will (in theory) prevent wireless service providers from having automatic rights to install "small cells" on City assets where those assets are excluded from being marketed and leased pursuant to its agreement with 5 Bars Communities. Whether or not these protections will occur after enactment of SB 649 will be unknown until these cities test their legal rights with 5 Bars Communities administering its Wireless Marketing and License Agreements with wireless service providers — and may ultimately require legal action to the extent a wireless service provider claims rights to install "small cells" contrary to the provisions of these agreements. However, in the absence of any such agreement, there would be no potential legal defense to prevent the proliferation of "small cell" installations throughout the City. In this case, given staff's good faith review of available sources of wireless marketing service providers, and that 5 Bars Communities has been selected as the most qualified wireless marketing service provider through two independently publicly administered RFQ processes, staff recommends the Council authorized selection of 5 Bars Communities, pursuant to Section 7.04.020 "Sole source procurement by the city," of II City Council Staff Report July 26, 2017 - Page 12 Approve 5 Bars Communities Wireless Marketing Agreement the Palm Springs Municipal Code, and waive all competitive requirements of Title 7 of the Palm Springs Municipal Code finding that 5 Bars Communities, has demonstrated experience and expertise of providing the required wireless marketing services. The provisions of the proposed agreement between the City of Palm Springs and 5 Bars Communities excludes any profit sharing from the City's existing wireless lease agreements; thus, the City will continue to administer the provisions of its existing wireless lease agreements without any loss of current revenue. However, 5 Bars Communities would market any new leases with wireless service providers on the City's existing assets, with profit sharing of 25%. 5 Bars Communities will also market new leases with wireless service providers on new wireless technology facilities specifically authorized by the City (i.e. new City assets not currently utilized by wireless service providers) with profit sharing of 35%. Staff has also secured approval from 5 Bars Communities to include a termination for convenience clause. Thus, at any time the City reserves the right to terminate the agreement — particularly useful to the extent SB 649 is not adopted or later repealed. More importantly, staff has ensured that the City Council reserves all rights to review and approve or deny any new wireless technology facilities that 5 Bars Communities might market to wireless service providers, to be authorized pursuant to a separate License Agreement. Specifically, staff has included Section 1.4C of the agreement, which reads: 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 12 City Council Staff Report July 26, 2017 - Page 13 Approve 5 Bars Communities Wireless Marketing Agreement causing compliance) with City's ordinance governing Wireless Telecommunications Facilities, all applicable building codes and public works requirements, as well as comply (or cause compliance) with and receive (or cause receipt oil all necessary and applicable permits from any other regulatory agency, before Consultant undertakes (or causes the undertaking ol) 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. Thus, the City reserves and retains full authority for any future approvals required to allow 5 Bars Communities, and any of its sub-licensees, to install wireless technology throughout the City. Staff has prepared a draft Wireless Marketing Agreement with 5 Bars Communities, and recommends that the City Council approve the agreement pursuant to all of the findings as noted in this staff report, subject to final legal review and edits deemed necessary by the City Attorney. A copy of the draft agreement is included as Attachment 6. ENVIRONMENTAL IMPACT: This action is not considered a "project" under the California Environmental Quality Act (CEQA), because the action does not involve any commitment to a specific project which may result in a potentially significant physical impact on the environment, as contemplated by Title 14, California Code of Regulations, Sections 15378(b)(2) and 15378(b)(4), and is not subject to the provisions of CEQA (CEQA Guidelines 15060(c)(3)). Therefore no negative environmental impact is noted. FISCAL IMPACT: Pursuant to the terms of the proposed agreement, 5 Bars Communities will provide all of its services at no cost to the City, and will only receive compensation through profit sharing of any new revenue realized by the City with new leases or licenses issued to wireless service providers marketed by 5 Bars Communities, as further stated in Section 2.1 of the proposed agreement: 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 negotiates 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 D" Pursuant to the License Agreement, upon Consultant's receipt of revenue from any new sub-licenses , 3 City Council Staff Report July 26, 2017- Page 14 Approve 5 Bars Communities Wireless Marketing Agreement 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. This agreement has the potential to generate significant revenues for the City, dependent upon the number of individual License Agreements ultimately approved by the City pursuant to the Wireless Marketing Agreement. SUBMITTED: Marcus L. Fuller, MPA, P.E., P.L.S. A6Kn Brown Assistant City Manager Director of Information Technology David H. Ready, Esq., P City Manager Attachments: 1. SB 649 2. Sacramento RFQ 3. Sacramento's June 14, 2016, staff report 4. Fresno RFQ 5. Fresno's May 25, 2017, staff report 6. Wireless Marketing Agreement with 5 Bars Communities 14 ATTACHMENT 1 15 ell LEGISLATIVE INFORMATION ll�t Home Bill Information California Law Publications Other Resources My Subscriptions My Favorites SB-649 Wireless telecommunications facilities. (2017-2018) SHARE THIS O `- Date Published: 07/03/2017 09:00 PM AMENDED IN ASSEMBLY JULY 03, 2017 AMENDED IN ASSEMBLY JUNE20, 2017 AMENDED IN SENATE MAY 02, 2017 AMENDED IN SENATE MARCH 28, 2017 I CALIFORNIA LEGISLATURE—2017-2018 REGULAR SESSION SENATE BILL No. 649 Introduced by Senator Hueso (Principal coauthor: Assembly Member Quirk) (Coauthor: Senator Dodd) (Coauthor: Assembly Member Dababneh) February 17, 2017 I An add Sections 65964.2 and 65964.5� to the Government act t� , Code, relating to telecommunications. LEGISLATIVE COUNSEL'S DIGEST SB 649, as amended, Hueso. Wireless telecommunications facilities. Under existing law, a wireless telecommunications collocation facility, as specified, is subject to a city or county discretionary permit and is required to comply with specified criteria, but a collocation facility, which is the placement or installation of wireless facilities, including antennas and related equipment, on or immediately adjacent to that wireless telecommunications collocation facility, is a permitted use not subject to a city or county discretionary permit. This bill would provide that a small cell is a permitted use, subject only to a specified permitting process adopted by a city or county, if the small cell meets specified requirements. By imposing new duties on local agencies, this bill would impose a state-mandated local program. The bill would authorize a city or county to require an encroachment permit or a building permit, and any additional ministerial permits, for a small cell, as specified. The bill would authorize a city or county to charge 3 types of fees: an annual adFH R StFalm ve peFFA it fee, charge for each small cell attached to city or county vertical infrastructure, an annual attachment rate, or awe one-time reimbursement fee. The bill would require the city or county to comply with notice and hearing requirements before imposing the annual attachment rate. The bill would require an action or proceeding to challenge a fee imposed under the provisions of this bill to be commenced within 120 days of the effective date of the ordinance or resolution. The bill would define the term"small cell"for these purposes. This bill would prohibit a city or county from adopting or enforcing any regulation on the placement or operation of a communications facility in the rights-of-way by a provider that is authorized by state law to operate in the rights-of-way or from regulating that service or imposing any tax, fee, or charge, except as provided in specified provisions of law or as specifically required by law. This bill WBH'd FeqbqFe permits fE)F these fae"Ities te be Fenewed feF equivalent durat ens, as spee fied. The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority Appropriation: no Fiscal Committee: yes Local Program: yes THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. The Legislature finds and declares that, to ensure that communities across the state have access to the most advanced communications technologies and the transformative solutions that robust wireless and wireline connectivity enables, such as Smart Communities and the Internet of Things, California should work in coordination with federal, state, and local officials to create a statewide framework for the deployment of advanced wireless communications Infrastructure in California that does all of the following: (a) Reaffirms local governments' historic role and authority with respect to communications infrastructure siting and construction generally. (b) Reaffirms that deployment of telecommunications facilities in the rights-of-way is a matter of statewide concern, subject to a statewide franchise, and that expeditious deployment of telecommunications networks generally is a matter of both statewide and national concern. (c) Recognizes that the impact on local interests from individual small wireless facilities will be sufficiently minor and that such deployments should be a permitted use statewide and should not be subject to discretionary zoning review. (d) Requires expiring permits for these facilities to be renewed so long as the site maintains compliance with use conditions adopted at the time the site was originally approved. (e) Requires providers to obtain all applicable building or encroachment permits and comply with all related health, safety, and objective aesthetic requirements for small wireless facility deployments on a ministerial basis. (f) Grants providers fair, reasonable, nondiscriminatory, and nonexclusive access to locally owned utility poles, streetlights, and other suitable host infrastructure located within the public rights-of-way and in other local public places such as stadiums, parks, campuses, hospitals, transit stations, and public buildings consistent with all applicable health and safety requirements, including Public Utilities Commission General Order 95. (g) Provides for full recovery by local governments of the costs of attaching small wireless facilities to utility poles, streetlights, and other suitable host Infrastructure in a manner that is consistent with existing federal and state laws governing utility pole attachments generally. (h) Permits local governments to charge wireless permit fees that are fair, reasonable, nondiscriminatory, and cost based. (i) Advances technological and competitive neutrality while not adding new requirements on competing providers that do not exist today. 7 shall Ret Ele any of the fallew my! ......yeF a -manre Land er other s ..ety ..- a nether L8r..n of see rity Finay be requl _.rI I ......L.. I amount of the Lend security is r.atien.ally related to the east of Fengey al _in est ablishimg the t eF k years are presumed te be unFeasenable absent pub!e safetY FeaseFis eF substantial Iai9d use Feasens. I lew&�er-, e9des and perm E eenElitiams applieable at the time the permit was iH tially approved. (e)ReqWdFe that all wiFeless teleeemmun'Eatiens faeolities be "FF4ed te sites awned by paFtiewlar parties within the SE6 3:SEC.2. Section 65964.2 is added to the Government Code, to read: 65964.2. (a) A small cell shall be a permitted use subject only to a permitting process adopted by a city or county pursuant to subdivision (b) if it satisfies the following requirements: (1) The small cell is located in the public rights-of-way in any zone or in any zone that includes a commercial or industrial use. (2)The small cell complies with all applicable federal, state, and local health and safety regulations, including the federal Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12101 et seq.). (3)The small cell is not located on a fire department facility. (b) (1) A city or county may require that the small cell be approved pursuant to a building permit or its functional equivalent in connection with placement outside of the public rights-of-way or an encroachment permit or its functional equivalent issued consistent with Sections 7901 and 7901.1 of the Public Utilities Code for the placement in public rights-of-way, and any additional ministerial permits, provided that all permits are issued within the timeframes required by state and federal law. (2) Permits issued pursuant to this subdivision may be subject to the following: (A) The same permit requirements as for similar construction projects and applied in a nondiscriminatory manner. (B) A requirement to submit additional information showing that the small cell complies with the Federal Communications Commission's regulations concerning radio frequency emissions referenced in Section 332(c)(7) (B)(iv) of Title 47 of the United States Code. (C)A condition that the applicable permit may be rescinded if construction is not substantially commenced within one year. Absent a showing of good cause, an applicant under this section may not renew the permit or resubmit an application to develop a small cell at the same location within six months of rescission. (D) A condition that small cells no longer used to provide service shall be removed at no cost to the city or county. (E) Compliance with building codes, including building code structural requirements. (F)A condition that the applicant pay all electricity costs associated with the operation of the small cell. (G) A condition to comply with feasible design and collocation standards on a small cell to be installed on property not in the rights-of-way. (3) Permits issued pursuant to this subdivision shall not be subject to: (A) Requirements to provide additional services, directly or indirectly, including, but not limited to, in-kind contributions from the applicant such as reserving fiber, conduit, or pole space. 18 (B)The submission of any additional information other than that required of similar construction projects, except as specifically provided in this section. (C) Limitations on routine maintenance or the replacement of small cells with small cells that are substantially similar, the same size or smaller. (D)The regulation of any micro wireless facilities mounted on a span of wire. (4) Notwithstanding any other provision of this section, a city or county shall not impose permitting requirements or fees on the installation, placement, maintenance, or replacement of micro wireless facilities that are suspended, whether embedded or attached, on cables or lines that are strung between existing utility poles in compliance with state safety codes. (c) A city or county shall not preclude the leasing or licensing of its vertical infrastructure located in public rights- of-way or public utility easements under the terms set forth in this subdivision. Vertical infrastructure shall be made available for the placement of small cells under fair and reasonable fees, subject to the requirements in subdivision (d), terms, and conditions, which may include feasible design and collocation standards. A city or county may reserve capacity on vertical infrastructure if the city or county adopts a resolution finding, based on substantial evidence in the record,that the capacity is needed for projected city or county uses. (d) (1)A city or county may charge the following fees: (A) An annual adFAiH StFatiYe peFmit fee charge not to exceed two hundred fifty dollars ($250) for each small cell attached to city or county vertical infrastructure. (B)An annual attachment rate that does not exceed an amount resulting from the following requirements: (i) The city or county shall calculate the rate by multiplying the percentage of the total usable space that would be occupied by the attachment by the annual costs of ownership of the vertical infrastructure and its anchor, if any. (ii) The city or county shall not levy a rate that exceeds the estimated amount required to provide use of the vertical infrastructure for which the annual recurring rate is levied. If the rate creates revenues in excess of actual costs, the city or county shall use those revenues to reduce the rate. (iii) For purposes of this subparagraph: (I) "Annual costs of ownership" means the annual capital costs and annual operating costs of the vertical infrastructure, which shall be the average costs of all similar vertical infrastructure owned or controlled by the city or county. The basis for the computation of annual capital costs shall be historical capital costs less depreciation. The accounting upon which the historical capital costs are determined shall include a credit for all reimbursed capital costs. Depreciation shall be based upon the average service life of the vertical infrastructure. Annual cost of ownership does not include costs for any property not necessary for use by the small cell. (II)"Usable space"means the space above the minimum grade that can be used for the attachment of antennas and associated ancillary equipment. (C) A one-time reimbursement fee for actual costs incurred by the city or county for rearrangements performed at the request of the small cell provider. (2) A city or county shall comply with the following before adopting or increasing the rate described in subparagraph (B) of paragraph (1): (A) At least 14 days before the hearing described in subparagraph (C), the city or county shall provide notice of the time and place of the meeting, including a general explanation of the matter to be considered. (B) At least 10 days before the hearing described in subparagraph (C), the city or county shall make available to the public data indicating the cost, or estimated cost, to make vertical structures available for use under this section if the city or county adopts or increases the proposed rate. (C)The city or county shall, as a part of a regularly scheduled public meeting, hold at least one open and public hearing at which time the city or county shall permit the public to make oral or written presentations relating to the rate. The city or county shall include a description of the rate in the notice and agenda of the public meeting in accordance with the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950.5) of Part 1 of Division 2 of Title 5). 19 (D) The city or county may approve the ordinance or resolution to adopt or increase the rate at a regularly scheduled open meeting that occurs at least 30 days after the initial public meeting described in subparagraph (C). (3) A judicial action or proceeding to attack, review, set aside, void, or annul an ordinance or resolution adopting, or increasing, a fee described in this subdivision, shall be commenced within 120 days of the effective date of the ordinance or resolution adopting or increasing the fee. A city or county or interested person shall bring an action described in this paragraph pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure in a court of competent jurisdiction. (4) This subdivision does not prohibit a wireless service provider and a city or county from mutually agreeing to an annual admimistFatiye pefmit fee charge or attachment rate that isms than different from the fees or rates established above. (e) A city or county shall not discriminate against the deployment of a small cell on property owned by the city or county and shall make space available on property not located in the public rights-of-way under terms and conditions that are no less favorable than the terms and conditions under which the space is made available for comparable commercial projects or uses. These installations shall be subject to reasonable and nondiscriminatory rates, terms, and conditions, which may include feasible design and collocation standards. (f) This section does not alter, modify, or amend any franchise or franchise requirements under state or federal law, including Section 65964.5. (g) For purposes of this section, the following terms have the following meanings: (1)"Micro wireless facility"means a small cell that is no larger than 24 inches long, 15 inches in width, 12 inches in height, and that has an exterior antenna, if any, no longer than 11 inches. (2) (A) "Small cell" means a wireless telecommunications facility, as defined in paragraph (2) of subdivision (d) of Section 65850.6, or a wireless facility that uses licensed or unlicensed spectrum and that meets the following qualifications: (i) The small cell antennas on the structure, excluding the associated equipment, total no more than six cubic feet in volume, whether an array or separate. (ii) Any individual piece of associated equipment on pole structures does not exceed nine cubic feet. (iii)The cumulative total of associated equipment on pole structures does not exceed 21 cubic feet. (iv) The cumulative total of any ground-mounted equipment along with the associated equipment on any pole or nonpole structure does not exceed 35 cubic feet. (v) The following types of associated ancillary equipment are not included in the calculation of equipment volume: (I) Electric meters and any required pedestal. (II) Concealment elements. (III) Any telecommunications demarcation box. (IV) Grounding equipment. (V) Power transfer switch. (VI) Cutoff switch. (VII)Vertical cable runs for the connection of power and other services. (VIII) Equipment concealed within an existing building or structure. (B) "Small cell"includes a micro wireless facility. (C)"Small cell"does not include the following: (i) Wireline backhaul facility, which is defined to mean a facility used for the transport of communications data by wire from wireless facilities to a network. 20 (ii) Coaxial or fiber optic cables that are not immediately adjacent to or directly associated with a particular antenna or collocation. (iii) Wireless facilities placed in any historic district listed in the National Park Service Certified State or Local Historic Districts or in any historical district listed on the California Register of Historical Resources or placed in coastal zones subject to the jurisdiction of the California Coastal Commission. (iv)The underlying vertical infrastructure. (3) (A) "Vertical infrastructure" means all poles or similar facilities owned or controlled by a city or county that are in the public rights-of-way or public utility easements and meant for, or used in whole or in part for, communications service, electric service, lighting, traffic control, or similar functions. (B) For purposes of this paragraph, the term "controlled" means having the right to allow subleases or sublicensing. A city or county may impose feasible design or collocation standards for small cells placed on vertical infrastructure, including the placement of associated equipment on the vertical infrastructure or the ground. (h) Existing agreements b,twee_ a w Feless se -- PF8Y:..- , 8F its ageRtsaFiEl __-g-_ and - -ky, - eatwty, OF - regarding the leasing or licensing of vertical infrastructure entered into before the operative date of this section remain in effect, subject to applicable termination PF8% deF Fma�' FeEid Fe the rates of this seet OR fE)F new small eel's s tes that are deplayed after the operat ve date provisions. The operator of a small cell may accept the rates of this section for small cells that are the subject of an application submitted after the agreement is terminated pursuant to the terms of the agreement. (i) Nothing in this section shall be construed to authorize or impose an obligation to charge a use fee different than that authorized by Part 2 (commencing with Section 9510) of Division 4.8 of the Public Utilities Code on a local publicly owned electric utility. (j)This section does not change or remove any obligation by the owner or operator of a small cell to comply with a local publicly owned electric utility's reasonable and feasible safety, reliability, and engineering policies. (k) A city or county shall consult with the utility director of a local publicly owned electric utility when adopting an ordinance or establishing permitting processes consistent with this section that impact the local publicly owned electric utility. (1) Nothing in this section shall be construed to modify the rules and compensation structure that have been adopted for an attachment to a utility pole owned by an electrical corporation or telephone corporation, as those terms are defined in Section 216 of the Public Utilities Code pursuant to state and federal law, including, but not limited to, decisions of the Public Utility Utilities Commission adopting rules and a compensation structure for an attachment to a utility pole owned by an electrical corporation or telephone corporation, as those terms.are defined in Section 216 of the Public Utilities Code. (m) Nothing in this section shall be construed to modify any applicable rules adopted by the Public Utilities Commission, including General Order 95 requirements, regarding the attachment of wireless facilities to a utility pole owned by an electrical corporation or telephone corporation, as those terms are defined in Section 216 of the Public Utilities Code (n) The Legislature finds and declares that small cells, as defined in this section, have a significant economic impact in California and are not a municipal affair as that term is used in Section 5 of Article XI of the California Constitution, but are a matter of statewide concern. SERA-.SEC.3. Section 65964.5 is added to the Government Code, to read: 65964.5. Except as provided in Sections 65964, 65964.2, and 65850.6, or as specifically required by state law, a city or county may not adopt or enforce any regulation on the placement or operation of communications facilities in the rights-of-way by a provider authorized by state law to operate in the rights-of-way, and may not regulate any communications services or impose or collect any tax, fee, or charge not specifically authorized under state law. 21 . 8E6-6-.SEC.4. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code. ., G2 ATTACHMENT 2 SACRAMENTO Information 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: http://www.planetbids.com/portal/portal.cfm?CompanvlD=l 5300 TABLE OF CONTENTS Section1. General Information................................................................................................................... 3 Section2. 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 ATTACHMENT 4—Supporting Information............................................................................................. 223 APPENDIXA- City Fiber Map.................................................................................................................... 24 APPENDIX B - 5 Bars Wireless Plan Findings............................................................................................. 25 2 (L C. 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 26 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 any time 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 8 1.6 Submission Instructions: See section 4 for detailed information to be included with the RFQ submissions. 6 nn c: 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?CompanvlD=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?CompanylD=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 3:00pm(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 30 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 31 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 32 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, 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 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 agreements under this plan. 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://porta l.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 33 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 J �� 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 35 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 13 116 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 37 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. Activity Date 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 . J� 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://portal.citvofsacramento.org/Economic-Development/Small-Business/LBE 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 J9 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 40 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/portal/r)ortal.cfm?Comr)anvlD=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 41 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://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. 19 42 ATTACHMENT 1 Submittal Cover Sheet SACRAMENTO 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?CompanylD=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 43 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 44 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 45 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 46 Appendix A City Fiber Map (See Attached) 24 47 Appendix B 5 Bars Wireless Plan Findings (See Attached) 25 48 ATTACHMENT 3 49 � .Meeting Date: 6/14/2016 os SAC n A�/�M E NTO Report Type: Consent City Council Report Report ID: 2016-00572 915 I Street, 1st Floor www.CityofSacramento.org Title: Wireless Marketing and License Agreement Location: Citywide Recommendation: Pass a Motion authorizing the City Manager or his designee to execute a Wireless Marketing and License Agreement with 5 Bars LLC to actively market City designated sites for wireless service infrastructure. Contact: Darin Arcolino, IT Manager, (916) 808-0403; Maria MacGunigal, Chief Information Officer, (916) 808-7998, Information Technology Department Presenter: None Department: Information Technology Division: IT Business Management Dept ID: Attachments: 1-Description/Analysis 2-Background 3-Contract City Attorney Review Approved as to Form Gerald Hicks 6/8/2016 12:10:00 PM Approvals/Acknowledgements Department Director or Designee: Maria MacGunigal - 5/31/2016 11:46:13 AM James Sanchez, City Attorney Shirley Concolino, City Clerk John Colville, Interim City Treasur65 0 John F. Shirey, City Manager Page 1 of 31 Description/Analysis Issue Detail: The use of wireless data communication is growing rapidly in all segments of society. Expectations of continuous data connectivity from residents, businesses, and visitors are also on the rise. Traditional approaches to increased capacity are no longer adequate to meet new needs and expectations. Cities are challenged with considering new business models that can meet the increased demand for wireless data while balancing affordability, transparency, equity, timeliness, and visual blight. The proposed Agreement, represents an innovative public-private partnership that is both strategic and in alignment with the City's Wireless Master Plan. It establishes a partnership with 5 Bars to assist the City in addressing both long and short term wireless broadband infrastructure needs. 5 Bars will function as the City's expert technical resource for managed wireless services. 5 Bars will act on the City's behalf to negotiate agreements with other parties such as telecommunication service providers to meet the needs of the community, service providers, and utilize City assets to manage and streamline the wireless development process. Policy Considerations: As noted above, the proposed recommendation is in alignment with the City's Wireless Master Plan Economic Impacts: None. Environmental Considerations: California Environmental Quality Act (CEQA): This report concerns administrative activities and government fiscal activities that do not constitute a "project" as defined by the CEQA Guidelines Sections 15378(b)(2) and 15378(b)(4) and are not subject to the provisions of CEQA (CEQA Guidelinesl 5060(c)(3)). Sustainability: Not applicable. Commission/Committee Action: Not applicable. Rationale for Recommendation: The City, residents, businesses, and visitors will benefit from better wireless services coverage, revenue generated from better utilization of City assets, and improved management of visual clutter in the rights-of-way: Service providers will benefit from a better managed, timely, and streamlined process for wireless development in the City. This agreement is expected to increase the number of opportunities for revenue generating leases to the City. 5 Bars has the requisite industry knowledge and expertise to maximize the number of leases issued, optimally manage leases, and develop a revenue stream that currently does not exist for the City. Financial Considerations: 5 Bars services are provided at no additional cost to the City. 5 Bars will receive 35% of the revenue for all new leases and 25% for leases on existing towers that they implement on the City's behalf. This is the best revenue split that we are aware of in the industry. The contract is for an initial five-year period with four five-year renewals for a potential total contract term of 25 years. 51 Page 2 of 31 Local Business Enterprise (LBE): 5 Bars is not an LBE. The minimum LBE participation requirement was waived by the Chief Information Officer. Staff conducted an extensive research with the local area and was unable to locate vendors that provide managed wireless services. 52 Page 3 of 31 Background 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. The City is well positioned to meet future coverage and capacity demands through the use of its existing assets. A public-private partnership model will provide a fast, well-engineered, and professionally managed system that maximizes the overall benefits to the City's diverse neighborhoods, businesses, telecommunication providers, and the City's operations. In February 2016, the City, through a Request for Qualifications, invited interested parties to demonstrate their knowledge and expertise in the development of a Wireless Marketing Plan. The Marketing Plan will be used to strategically develop the City's wireless telecommunication infrastructure to meet the needs of the City. A review committee invited responders who met the requirements specified in the RFQ to participate in an oral interview. 5 Bars was chosen as the most qualified responder bringing extensive industry knowledge and technical expertise to this process. At no cost to and as an advocate for the City, 5 Bars will market the use of City assets for lease/license to all wireless services providers equally, and without any discrimination and/or favoritism between wireless services providers. 5 Bars will act on the City's behalf with a goal of ensuring that residents and businesses within the city jurisdiction receive the maximum benefit of all available services from all existing wireless services providers. • Maximize the use of underutilized City assets • Maximize financial benefit to the City • Ensure Digital Divide is minimized • Reinvest in City fiber infrastructure • Reduce visual blight in crowded areas The driver behind this effort is to build out wireless capacity Citywide that lays the foundation for sustained economic growth that will drive forward Sacramento as hub of innovation, entrepreneurship, and technology. 53 Page 4 of 31 WIRELESS MARKETING AGREEMENT BETWEEN THE CITY OF SACRAMENTO AND 5 BARS,LLC This Wireless Marketing Agreement ("AGREEMENT") is made and entered into on June 4, 2016 (the "Effective Date'l between the City of Sacramento ("CITY") and 5 Bars, LLC a Delaware limited liability company ("5 BARS') (each a "PARTY" and collectively the "PARTIES"), with reference to the following facts and intentions, which the PARTIES agree are true and correct to the best of their knowledge and belief: BACKGROUND A. CITY is a municipal corporation formed under the laws of the State of California, operating under its charter. B. 5 BARS is a limited liability company formed under the laws of Delaware. C. 5 BARS offers master planning services and tools that merge technical expertise on coverage needs with surveys of existing and forecasted wireless coverage conditions. 5 BARS evaluates that information to identify existing municipal assets that can meet wireless coverage needs. D. 5 BARS provides planning tools so that subscribing municipal corporations may access the information and identify intelligent options and solutions for the processing of applications for wireless telecommunications facilities on a real time basis. E. In June 2015, CITY partnered with 5 BARS to provide the CITY with information that included a radio frequency ("RF") benchmark survey, a technical survey of existing infrastructure, and projections of wireless requirements. F. In February 2016, CITY invited interested parties to demonstrate their knowledge and expertise in the development of a Wireless Marketing Plan. A review committee invited responders who met the requirements specified in the RFQ to participate in an oral interview. 5 BARS was chosen as the most qualified responder. G. CITY desires to engage 5 BARS to provide wireless consulting, management and development services related to the use of CITY assets for the purpose of planning and implementing a marketing plan for Wireless Telecommunications Facilities (as that term is defined in Section 2, below), as further described herein. H. CITY desires to engage 5 BARS to proactively market CITY-owned underutilized assets on terms that maximize revenue and minimize planning impacts and visual blight. AGREEMENT NOW, THEREFORE, in consideration of the foregoing background, which is incorporated into the operative provisions of this Agreement by this reference,and for good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,the PARTIES AGREE as follows: I. Term. This Agreement shall be effective on the date it is executed by all PARTIES and shall be in effect for an initial term of five(5)years,with four(4) five year renewals subject to the written mutual consent of the PARTIES. The ftdl potential term of the Agreement is twenty five (25) years 54 Page 5 of 31 ("Agreement Term"). 2. Scope and Nature of Services. 5 BARS shall provide the services described in this section ("Services") for the purposes of 5 BARS'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 Asset(s)"), which 5 BARS 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 5 BARS. CITY shall elect to add or remove one or more assets from the Asset List at anytime and notify 5 BARS in writing. a. Consulting Services. 5 BARS shall provide CITY the following consulting services at no cost to CITY: 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, (ir)identify key areas of multiple wireless broadband service provider coverage needs ("Coverage Needs"), (lir) 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 Plait," while the items referred to in clauses (i), (ii), (iii), and (iv) in the preceding sentence are hereinafter referred to as the "Consulting Services". For the duration of the Agreement Term, 5 BARS 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 5 BARS 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. b. Marketing Services.At no cost to CITY, 5 BARS 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 5 BARS the exclusive right to market, license, sublicense, and construct upon, at 5 BAR's sole cost and expense, City Assets for the development of Wireless Telecommunications Facilities. 5 BARS 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. C. Management Services. During the Agreement Term, 5 BARS 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 5 BARS of such determination in writing, and shall offer to enter into a license with 5 BARS, which license shall be in a form that is substantially consistent with the form set forth in Exhibit"A"to this Agreement. Thereafter 5 BARS or an affiliate of 5 BARS, 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 55 Page 6 of 31 are the subject of this Agreement). 5 BARS 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 lower, etc.). 5 BARS 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 governing Wireless Telecommunications Facilities, 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 5 BARS undertakes(or causes the undertaking of)any construction on a City Asset. d. Exclusions. L This Agreement shall not require or allow 5 BARS to market, license, sublicense, and/or construct Wireless Telecommunications Facilities on City Assets that are not on the Asset List. i.i. 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. 11L This Agreement shall not require or allow the provision of Services by 5 BARS 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. 3. Telecommunications Ordinance Revision. Within one hundred eighty (180) days after the Effective Date, CITY shall reasonably consider revisions to its telecommunications ordinance to specify that the CITY's review of Wireless Telecommunications Facilities that are (i)on City Assets, and (it)subject to a license agreement that substantially conforms to the form attached as Exhibit"A", will be accomplished exclusively through the licensing process described in this Agreement. 4. Right of Entry Agreement. 5 BARS shall have the right to analyze the suitability of the City Property designated by CITY for 5 BARS' intended use. CITY and 5 BARS shall enter into a Right of Entry Agreement for 5 BARS 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 5 BARS' 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 5 BARS, 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 5 BARS' use ("Dire Diligence Investigation"). Activities conducted in connection with 5 BARS' Due Diligence Investigation shall be at the sole expense and cost of 5 BARS. The Right of Entry Agreement shall grant 5 BARS access to the designated City Property for a defined and specific period of titne 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"B". 56 Page 7 of 31 5. 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 wircicss providers located within CITY's jurisdictional boundaries. CITY shall retain ownership of any Wireless Tel ecomuwnications Facilities CITY subsequently develops on property owned or leased by CITY for CITY's own non-commercial use. 5 BARS and/or its sublicensees shall own 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 5 BARS, unless specifically designated otherwise in writing. 6. Compensation. a. 65%(CITY)/35% 5 BARS Revenue Shares. CITY shall be entitled to sixty five percent(65%)of recurring gross payments that are: 1 Received by 5 BARS from sublicensces on new Wireless Telecommunications Facilities that are on City Assets licensed to 5 BARS pursuant to this Agreement. b. 75% (CITY) / 25% 5 BARS Revenue Shares. CITY shall be entitled to seventy five percent(75%)of recurring gross payments that are: Received by either 5 BARS 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. C. Reports. Annual reports reflecting the revenue generated to CITY will be provided by 5 BARS. 7. Construction, Engineering, and Other Costs: CITY shall have no financial responsibility for planning, construction, and engineering costs associated with the implementation of this Agreement. 5 BARS may recover from Wireless Service Providers construction costs, installation costs, utilities, or other expenses incurred by 5 BARS, 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 hereunder. 8. Default. If there is a default by either PARTY to this Agreement, the PARTY claiming a default of any term or condition of this Agreement shall provide the defaulting PARTY with written notice of the default pursuant to the provisions contained in Paragraph 14(i) of this Agreement. After receipt of such notice, the defaulting PARTY shall have thirty (30) days in which to cure any monetary default and sixty (60) days in which to cure a non-monetary default. If a non-monetary default reasonably requires more than a sixty (60) day cure period, the defaulting PARTY shall have such extended period provided that the defaulting PARTY commences the cure within the sixty (60) day period and thereafter continuously and diligently pursues the cure to completion. 9. Right to Audit. During the Term of this Agreement the PARTIES shall maintain originals, or when originals are not available copies, of all records, books, papers and documents relating to this Agreement and all accompanying License Agreements between the PARTIES. At all reasonable times, the PARTIES shall allow each other to have access to examine, copy, and audit such records. Additionally, 5 BARS shall allow CITY,and CITY shall have the right, at any time,to have access to and examine,copy and audit records, books,papers and documents relating to or evidencing 5 BARS'efforts to 57 Page 8 of 31 obtain sublicenses as such records, books, papers and documents may or may not exist in the normal course of 5 BARS' business. 10. Indemnification. 5 BARS shall indemnify, defend, and hold harmless CITY, its elected and appointed officials, officers, employees, agents, and contractors, from and against liability, claims, demands, losses, damages, fines, charges, penalties, administrative 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 5 BARS' activities undertaken pursuant to this Agreement, except to the extent arising from or caused by the negligence or willful misconduct of CITY, its elected and appointed officials,officers,employees,agents, or contractors. CITY shall promptly notify 5 BARS of any claim,action or proceeding covered by this Section 9. 11. Insurance. At the time 5 BARS signs and delivers this Agreement to CITY, as well as at all times during the Agreement Tenn, 5 BARS shall maintain,at a minimum,the required insurance as set forth in the attached Exhibit "C"`to this Agreement. CITY shall be entitled to coverage at the maximum policy limits for the required insurance maintained by 5 BARS, which shall at no time be less than the amounts required set forth in the attached Exhibit "C" to this Agreement. This Agreement's insurance provisions shall be separate and independent from the indemnification and defense provisions of Section 9 of this Agreement and shall not in any way limit the applicability, scope or obligations of the indemnification defense provisions in Section 9. 12. Compliance With Local Ordinances. Subject to Section 3 above, 5 BARS shall comply with all CITY ordinances pertaining to Wireless Telecommunications Facilities, and all such additional CITY regulations that are consistent with such ordinances(such ordinances and regulations are collectively referred to hereinafter as the"Ordinance"). 13. Intellectual Property. a. Ownership of Services. 5 BARS retains all right, title, and interest in any underlying software subject to the limitations set forth in this Agreement. b. License. 5 BARS 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, 5 BARS will be the sole and exclusive provider of services as defined as Services 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 5 BARS in and to any software; (iii) not engage in any activity that interferes with or disrupts 5 BARS' 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. 58 Page 9 of 31 14. Governing Law.This Agreement shall be governed by the laws of the State of California. 15. General Provisions. a. Independent Contractor. 5 BARS shall, during the Agreement Term,be construed as an independent contractor and not an employee of CITY. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow CITY to exercise discretion or control over the professional manner in which 5 BARS performs the services which are the subject matter of this Agreement; however, the services to be provided by 5 BARS shall be provided in a manner consistent with all applicable standards and regulations governing such services. 5 BARS shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. i b. Authorizations. All individuals executing this Agreement on behalf of the respective PARTIES certify and warrant that they have the capacity, and have been duty authorized to so execute this Agreement on behalf of the entity so indicated. C. Cooperative Purchasing. CITY acknowledges and agrees that it has followed all applicable purchasing and procurement procedures in entering into this Agreement,and that 5 BARS shall have the right and ability to offer this Agreement as a template for cooperative or piggybacking purchasing agreements with other public agencies which, to the extent allowed by California or applicable State law and the ordinances and regulations of those other public agencies, may serve as a basis to forego competitive procurement processes for such future agreement(s). As used in this article, "public agency" includes, but is not limited to, the federal government or any federal department or agency, this state, another state or any state department or agency, a county, county board of education, county superintendent of schools, city, public corporation, public district, regional transportation commission of this state or another state, or any joint powers authority formed pursuant to this article by any of these agencies. In fifrtherance of the foregoing, 5 BARS agrees other public agencies may purchase additional items on the same terms as are set forth in this Agreement. To the extent 5 BARS enters into such subsequent agreement(s), this Agreement shall be construed to contain an express "Assignment" clause that provides for the assignment of all or part of the specified deliverables and/or provided, however, that CITY shall not be a signatory, obligee, beneficiary, or third party beneficiary under such future agreements with other public agencies. 5 BARS shall remit monthly to CITY a 2% revenue share of all gross revenues received from subsequent agreements executed with public agencies who benefit from this Agreement. d. Counterparts. This Agreement may be executed in two or more counterparts,each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. e. Entire Agreement and Amendment. This Agreement captures all terms, agreements,and understandings of the PARTIES and supersedes any prior promises,representations, agreements, warranties or undertakings by any of the PARTIES, either oral or written, of any character or nature binding except as stated herein. This Agreement may be modified, altered or amended only by an instrument in writing, executed by the PARTIES to this Agreement, and by no other means. Each PARTY waives its right to claim, contest or assert that this Agreement was modified, canceled, superseded or changed by any oral agreement, course of conduct, waiver or estoppel. f. Good Faith. The PARTIES agree to exercise their reasonable best efforts and 59 Page 10 of 31 utmost good faith to effectuate all the terns and conditions of this Agreement, and to execute such further instruments and documents as are necessary or appropriate to effectuate all of the terms and conditions of this Agreement. g. Assignment. 5 BARS may assign this Agreement to a person or entity with demonstrated capacity to carry out 5 BARS' obligations under this Agreement after receiving written CITY consent. 5 BARS shall provide any information requested or necessary for CITY to determine whether the proposed assignee has the capacity to fulfil 5 BARS obligations under this Agreement. 5 BARS shall provide 30 days prior written notice of such assignment to CITY. h. Discrimination. 5 BARS shall not discriminate because of race, color, creed, religion, sex, marital status,sexual orientation,age,national origin,ancestry,or disability,as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. 5 BARS affirms that it is an equal opportunity employer and shall comply with all applicable federal,state and local laws and regulations. i. Notices. All notices, approvals, acceptances, demands and other communication required or permitted under this Agreement, to be effective,shall be in writing and, unless otherwise provided herein, shall be deemed validly given on the date either: (1) personally delivered to the address indicated below; or (2) on the third business day following deposit, postage prepaid, using certified mail, return receipt requested, in any U.S.Postal mailbox or at any U.S. Post Office; or(3) one business day after the dispatch date by overnight delivery service; or (4) on the date of transmission by facsimile to the number provided below. All notices, demands, or requests shall be addressed to the following: CITY: Phone: Fax: Willi a copy to: Phone: Fax: 5 BARS: Kevin Muldoon, VP&General Counsel 5 Bars, 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., 14`r'Floor 60 Page 11 of 31 Costa Mesa,CA 92626 Phone: 714-641-5100 Fax: 714-546-9035 Any PARTY may change its address by giving the other PARTIES written notice of its new address as provided above. j. Successors. This Agreement shall be binding on and shall inure to the benefit of the PARTIES and their respective successors. 16. Waiver. No waiver of any provision of this Agreement, or consent to any action, shall constitute a waiver of any other provision of this Agreement, or consent to any other action.No waiver or consent shall constitute a continuing waiver or consent or commit a PARTY to provide a waiver or consent in the future except to the extent specifically stated in writing.No waiver shall be binding unless executed in writing by the PARTY making the waiver, based on a full and complete disclosure of all material facts relevant to the waiver requested. "CITY" The City of Sacramento Date: By: Title: ATTEST: APPROVED AS TO FORM: "5 BARS" 5 BARS, LLC Date: S~ 2 6 .. / By: ` Title: 4'l v/,61 M,Ido a jlPli;UW tov'o 4A34, APPROVED AS TO FORM: 61 Page 12 of 31 EXHIBIT A LICENSE AGREEMENT THIS LICENSE AGREEMENT is made as of the date of the final signature below, by and between the City of Sacramento, a municipal corporation, having a mailing address of 915 I Street, Sacramento, CA 95864 ("Licensor") and 5 Bars, LLC, a Delaware limited liability company, with an address at 19200 Von Karman Ave, Suite 100, Irvine, CA 92612 ("Licensee"). i 1. Definitions. i "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. ' "Easeutent"and"Utility Easement"have the meanings set forth in Section 7 of this Agreement. "Hare ful 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 La►v(s)" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,42 U.S.C. Section 9601 el seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 el seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 el seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101 el seq., and the Clean Water Act, 33 U.S.C. Section 1251 el seq., as said laws have been supplemented or amended to date, the 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). 62 EXHIBIT A Page 13 of 31 -1- "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. "Licenser! Premises" means those portions of Licensor's Property described in the sketches attached hereto as Exhibit "A" "Licensee"means 5 Bars, LLC, a Delaware limited liability company. "Licensee's Notice Address"means 19200 Von Karman Ave, Suite 100,Irvine CA 92612. "Licensor"means City of Sacramento,a municipal corporation. "Licensor's Notice Address"means 915 I Street, Sacramento, CA 95864. "Licensor's Properties"means those properties(each of which is a subject of this License 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 C_%) 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. I "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 (lie terms and conditions contained herein. "Subscription Agreement" means the Wireless Marketing Agreement Regarding Licenses and Sublicenses of Publicly-Owned Properties Pertaining To Wireless Telecommunications Facilities, between Licensor and Licensee, dated June 9, 2016. "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. 2. Licensor's Cooperation. Daring the Lease Term, 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 infrascrructue 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, 63 EXHIBIT A Page 14 of 31 -2- 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. i 3. Subdivision. In the event that a subdivision of Licensor's Property is legally required to license I the any of the Licensed Premises to Licensee, Licensor agrees to seek subdivision approval at Licensee's expense. 4. Term. The Term of this Agreement shall continue commence on 20 ("Conmreneement Date") and the license for each Licensed Premise listed in Exhibit "B" has expired. The term of each License listed in Exhibit "B" shall begin on the commencement date listed for such Licensed Premises on Exhibit `B", and shall continue for a period of ten (10) years with three five (5) year options subject to the written mutual consent of the Licensor and Licensee. At the end of terns of the lease agreement 5 BARS will hand over the administration of the lease to the CITY unless mutually agreed upon by both parties. 5. Rent. a. Rent. From and after the Commencement Date and effective upon Licensee's receipt of Sublicense Revenue, Licensee shall pay Rent for the each of the Licensed Premises. 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 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 Teleconmrunications 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. 64 EXHIBIT A Page 15 of 31 -3- 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. 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 city facilities and communications systems: Nolu,ithstanding any other, provisions this Sublicense Agmement, Sublicensee agrees to operate any and all of its 11,7reless Teleconanunications Facililtes on the Property in full compliance with the technical standards set forth in the Rules and Regulations of the Federal Coninninications Conunission ("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 frill compliance. Licensee and Sublicensee both recognize and stipulate that Citys public safety conrmrurrications systems are vital to the life, health, and safety of the public safety personae/and of members of the general public, and agree that protecting such systems against harpif d interference is an integral responsibility of this agreement. Licensee and Sublicensee agree to meet and confer i0th the City on a case-by- case basis, and at the request of any Parly and/or the City, in the event that additions or changes to Wireless Telecommunications Facilities on the property cause incomrpatibilities with the City's installed cotrl»rlrnicatioi7s.system(s). Licensee and Sublicensee agree that in the event of harnrTd interference o• degradation to Cily'.s public safety radio operations, City may require on a case- by-case basis that the rise of the interfering Tireless Teleconnnunications Facility be suspended upon reasonable notice by the Cih) to Licensee and the applicable Sublicensee pending resohition of the cause and cure of such irnteiference or degradation, The findings of the City's commmunications engirneering representative shall be determinant in declaring harn)fid 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 fire Sublicensee. This procedin•e shall riot 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. 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 65 EXHIBIT A Page 16 of 31 -4- 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. 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 Subiicensee(s),and such recovered sums shall not be included in the computation of Rent. 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 "A" shall control in the event of any discrepancies. 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 Licensoe'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 "Access/Utility 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. 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. Ail Improvements shall be constructed at no expense to Licensor. All Improvements, inclusive of security fences, shall comply with the requirements of the Sacramento City 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. 10. Removal of Obstructions. Licensee has the right to remove obstructions from Licensoe's Property, as approved by the Licensor, which approval shall be requested in writing by Licensee and shall not be unreasonably withheld, 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. 11. Hazardous Materials. a. 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 C6 EXHIBIT A Page 17 of 31 -5- 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. b. Licensoe's Obligation and Indemnity. Licensor shall not (either with or without negligence) cause or permit the escape, disposal or release of any Hazardous Materials on or from Licenser's Property or Licensed Premises in any manner prohibited by law. Licensor shall indemnify and hold Licensee 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 presence or release of any Hazardous Materials on Licensoe's Property or Licensed Premises unless caused by Licensee or persons acting under Licensee. 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 Licensoe's Property that are directly attributable to the I►nprovements. 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. 13. Insurance. At all times dining 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 the attached Exhibit "C". 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 the attached Exhibit "C" to this 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. 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 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 fi•onn Licensee's activities undertaken pursuant to this Agreement, except to the extent arising from or caused by the 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. G7 EXHIBIT A Page 18 of 31 -6- 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, Licensoe'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, Licensoe'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. 16. Eminent Domain. If Licensor receives notice of a proposed taking by eminent domain of any pall 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. 17. Right of First Refusal. If, during the License term, Licensor receives an offer to purchase, make a loan, or give any consideration in exchange for any of the following interests in all or a portion of any of the Licensed Premises: (i) fee title, (ii) a perpetual or other easement, (iii) a lease, (iv) any present or future possessory interest, (v) any or all portions of Licenser's interest in this Agreement including rent, or (vi) an option to acquire any of the foregoing, Licensor shall provide written notice to Licensee of said offer ("Licensoe's Notice"). Licensoe's Notice shall include the prospective buyer's name, the purchase price being offered, any other consideration being offered, the other terms and conditions of the offer, the due diligence period, the proposed closing date and, if a portion of Licenser's Property is to be sold, a description of said portion. Licensee shall have a right of first refusal to purchase, at its election and on the terms and conditions as in Licensoe's Notice, a fee simple interest in Licensoe's Property or the Licensed Premises or a perpetual easement for the Licensed Premises. If the Licensee's Notice is for more than the Licensed Premises, Licensee shall have the option of purchasing the property subject to Licensee's Notice in its entirety, or in the alternative, negotiating with the proposed purchaser to acquire a perpetual easement in only the Licensed Premises. If Licensee does not exercise its right of first refiisal by written notice to Licensor given within thirty (30) days, Licensor may sell the property described in the Licenser's Notice. If Licensee declines to exercise its right of first refusal,then this Agreement shall continue in frill force and effect and Licensee's right of first refusal shall survive any such conveyance. 18. Sale of Property. If during the Lease Term, Licensor sells all or part of Licensoe's Property, of which the Licensed Premises is a part,then such sale shall be subject to this Agreement. 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, without, however, being required to replace any trees or other plants removed, or alter the then existing grading. 20, Recording. Licensee shall have the right to record a memorandum of the Agreement with the Sacramento County Recorder's Office. Licensor shall execute and deliver each such memorandum, for no additional consideration,promptly upon Licensee's request. 21. Licensoe'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 68 EXHIBIT A Page 19 of 31 -7- 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. 22. Interference with Licensee's Business. Licensee shall have the exclusive right to construct, install and operate Wireless Telecommunications Facilities that emit radio fiequencies on Licensoe's Property. Licensor agrees that it will not permit the construction, installation or operation on Licensee'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. 23, Quiet Enjoyment. Licensor covenants that Licensee, on paying Rent and performing the I covenants of this Agreement, shall peaceably and quietly have, hold and enjoy the Licensed Premises and Access/Utility Licenses. 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 I Licensed Premises, provided that any mortgagee shall recognize the validity of this Agreement in the event of I foreclosure. In the event that the Licensed Premises is or sliall 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. 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. 26. Default. a. Notice of Default; Cure Period. If there is a default by Licensor or Licensee ((he "Defaulting f Party') with respect to any of the provisions of this Agreement or Licenser's or Licensee's obligations tinder this Agreement, the other party (the "Noce-Defaulting Partj�') 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. Licensor acknowledges that under the terms of this Agreement, Licensee has the right to terminate this Agreement at any time upon one hundred eighty (180) days' written notice to Licensor. Accordingly, in the event that Licensor maintains any action or effects any remedies for default against Licensee resulting in Licensee's dispossession or removal, (i)the Rent shall be paid up to the date of such physical dispossession or removal and (ii) Licensor shall be entitled to recover from Licensee, in 69 EXHIBIT A Page 20 of 31 -8- lieu of any other damages, as liquidated, final damages, a sum equal to six months' Rent which shall be calculated at the highest value of the Rent which is in effect on the date of default and for the six month 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 Licensee'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 Lease, 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; (in) sue for injunctive relief, and/or (v) set-off from Rent any amount reasonably expended by Licensee as a result of such default. 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 fiulfilling 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. 28. Applicable Law. This Agreement and the performance thereof shall be governed, interpreted, construed and regulated by the laws of the State where the Licensed Premises is located. The parties agree that the venue for any litigation regarding this Agreement shall be the state where the Licensed Premises is located. 29. Assignment, Sublease, Licensing and Encumbrance. Lessee may assign this Agreement to a person or entity with demonstrated capacity to carry out Lessee's obligations under this Agreement. Lessee shall provide 30 days prior written notice of such assignment to Lessor. Lessee may enter into subleases, licenses, 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 consent of Lessor. 30. Miscellaneous. a. Entire Agreement. Licensor and Licensee agree that this Agreement, together with that certain Consulting Services Agreement Regarding Wireless Master Planning and Memorandum of Understanding and Agreement Regarding Licenses and Sublicenses of Publicly-Owned Properties Pertaining To Wireless Telecommunications Facilities between Licensor and Licensee, 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. 70 EXHIBIT A Page 21 of 31 -9- 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 Licensee'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 frill 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 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. IN WITNESS WHEREOF, Licensor and Licensee having read the foregoing and intending to be legally bound hereby, have executed this Agreement as of the day and year this Agreement is frilly executed. [SIGNATURES CONTINUE ON FOLLOWING PAGE] A. EXHIBI`f A Page 22 of 31 -10- "LICENSOR" City of Sacramento Date: By: Title: ATTEST: APPROVED AS TO FORM: "LICENSEE" 5 BARS, LLC Date: By: Title: APPROVED AS TO FORM: � 2 EXHIBIT A Page 23 of 31 -]I- EXHIBIT B RIGHT OF ENTRY AGREEMENT This Right of Entry Agreement (this "Agreenrenf') is made as of the date of the final signature below, by and between the City of Sacramento, a municipal corporation, having a mailing address of 915 I Street, Sacramento, CA 95864 ("Grantor") and 5 Bars, LLC, a Delaware limited liability company, with an address at 19200 Von Kannan Ave, Suite 100, Irvine, CA 92612 ("Grantee"). Grantor and Grantee are sometimes collectively referred to as "Patties"or individually as"Party." RECITALS A. Grantor is tine fee owner of record of that certain real property (the"Property"). B. Grantor and Grantee have entered into that certain Subscription Agreement Regarding Wireless Master Planning ("Subscription 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 Subscription 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 Patties,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"). 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 Subscription Agreement, 3. Entry at Own Risk; No Duty to Warn. Grantee and its agents, employees, contractors, I 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 tine 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 173 EXHIBIT B Page 24 of 31 -1- 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 tine Property by the Grantee or its agents, employees, contractors, subcontractors, and volunteers pursuant to this Agreement. Notwithstanding the foregoing, the Grantee shall have no obligation to indemnify Grantor from a pre-existing condition at the Property,any encroachments of tine 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 lie/she/it/they is/are the sole owner(s) 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. 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. It. 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, Licensee, 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 Licensee. Licensee shall bear any and all costs and expenses associated with the rights granted to Licensee to use the Premises, or any unforeseen costs or expenses incurred by the City relating to Licensee's use of tine Premises in(lie performance of this Agreement. 14 Hours of Operation.The hours of operation that Licensee shall be perniued to conduct its project shall be between 7 ann and 5 pill,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. 74 EXHIBIT B Page 25 of st -2- IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. "GRANTOR" City of Sacramento Date: By: Title: ATTEST: APPROVED AS TO FORM: "GRANTEE" 5 BARS, LLC i Date: By: Title: APPROVED AS TO FORM: E5 EXHIBIT B Page zs of 31 -3- 'I EXHIBIT C INSURANCE REQUIREMENT'S 5 BARS shall procure and maintain or shall cause a sublicensee to procure and maintain (5 BARS and/or sublicensees shall be referred to hereinafter, as the context dictates, as "Contractor'), for the duration of the the Agreeemnt and any applicable sublicense entered into wider and/or pursuant to the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the 5 BARS, a sublicensee, its agents, representatives, or employees. Minimum Scope of insurance Coverage shall be at least as broad as: i 1. Insurance Services Office Cornmercial General Liability coverage(occurrence for CG 0001) Minimum Limits of Insurance Contractor shall maintain limits no less than: 1. General Liability: $1,000,000 per occurrence for bodily injury,personal injury and property damage. If Conunereial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. Deductibles and Self-Insured Retentions Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers; or the Contractor shall procure a bond guaranteeing payment of losses and related investigations,claims administration and defense expenses. Other Insurance Provisions The general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: 1. The City, its officers, employees and volunteers are to be covered as additional insureds as respects: liability arising out of activities performed by or on behalf of the Contractor; products and completed operations of the Contractor; premises owned, occupied or used by the Contractor; or automobiles owned, leased or borrowed by the Contractor. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, officials,employees or volunteers. 2. For any claims related to this project, the Contractor's insurance coverage shall be primary insurance as respects the City,its officers, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, officials, employees or volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 3. Any failure to comply with reporting or other provisions of the policies including breaches of warranties shall not affect coverage provided to the City, its officers, officials,employees or volunteers. c 6 EXHIBIT C Page 27 of 31 -1- 4. The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability. S. Each insurance policy required by this clause shall be endorsed to state that coverage shall not be suspended, voided, canceled by either party, reduced in coverage or in limits except after thirty (30) days prior written notice by certified mail,return receipt requested, has been given to the City, Acceptability for Insurers Insurance is to be placed with insurers with a current A.M. Best's rating of no less than ANII, unless otherwise acceptable to the City. Verification of Coverage Contractor shall furnish the City with original endorsements effecting coverage required by this clause. The Endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided by the City. All endorsements are to be received and approved by the City before work commences. As an alternative to the City's forms, the Contractor's insurer may provide complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications. Subcontractors Contractor shall include all subcontractors as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. EXIiIBIT C Page zs orst -2- I a 4 FIVES-1 OP 10,JC CERTIFICATE F LIABILITY INSURANCE oen ' . THIS CERTIFICATE 19 ISSUED AS A MATTER OF INFORIIIJATIOM ONLY AND CONFERS NO MOM UPON THE CERTIFICATE HOLDER,THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATI Y AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NO CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(ft AUTHORIZED REPRESENTATIVE OR PROOVCER.AND THE CERTIFICA HOLDER. IMPORTANT; If 1M esRl6sale h91'dW"'Q an ADDITIONAL URlD,the polcy(lal mwa be endoraed. If$UBROGATION IS WAIVED,sW*d to DN terms and conditions of the policy,certain polldes mayiroqulre an sndOtsemeTM A statemaM an this certificate does not corder rights to DNS certificea holder in Bev of sveh endanemen r. esOSVoceOrT FAX MG ERUM 108 AGENCY,INC 302 N.EL CAMINO REAL I"is SAN CLEMENTE,CA 9207E AS w Grey(cram IRtllri1 a SwC e INSURER A.-Ataln Specift Ins Co 17169 eRRIR40 6 BARS,LLC swags;Evanston haursnca Cam 36376 19200Yon.CarmanAvs8h1DO e,w,,.,c:Undsradbsn AtU s IM2 Irvirls,CA 9281E 2166E ,Farman insurance Exchan a:Truck Insurance Exchange 21709 P RA ES CERTIFICATE NUMBER., RMSIN NUMBER: THIS I CERTIFY THAT THE POLICIES OF INSUWXE UST14D BELOW HAVE BEEN ISSUED TO THE INSURED NAILED ADM FOR THE POLICY PERIOD INDICATED, NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT DR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES LIMITS S MAY HAVE BEEN REDUCED BY PAID CLAIMS. TWO Of WEIMAWCI Patlew NUMBER uwrs 4 e4WaRALLIABLm EACHOCCURRENCE 4 41000,000 A X eoenAERCLALOENERALLIABArTY P246443 06M312O16 0611=016 PREMISEStElMma9MI = 100, OCCUR A X Llabil�g o PERaoNu s ADV • , s 6, INJURY 4 1AOQ. Dod.Is6rE6,00 PLce.rA GENERAL AGGREGATE 6 2A00 cW x eA PROOUc is COWIOP AGO s 1.000. LOC S Au*OrosnauArUrr COMBINED IINGLE U1011,000, D ANY AUTO Ba91 iP248443 06MS(2016 06HM2016 8OOkYIH/AA1YINw WAetl ED. xSCJEDMED004 socxvlNNRrIF«snOwU I X HIRED AUTOS X AUT06 ' e x UYERLLLA Lae �CUR EACH OCCIAYIENCE I 6A00 B VMS! 4UAIII 1 CwaQ-NADE x08W69701I&MB6/66 O6N712016 W134010 AccREOATE 1 6,800,60 I WOR}®tE colwolMtlOR i xTWITat, AND BMMATtaT4'LUOUTY VONE ANY PROPMETORPARTNE MIKEcurrvE BOUT3345 i 061D4i2016 04AW7016 EI,EACH ACCIDENT s 1,000, pfF1�ERAMMOER EACLUIXOT NIA NWdg4.Y 6,H EL DIeEA4F•EAYFL EiDYE 4 11900. e Awe iA upW, IE,6 a LIMIT 4 1000,0 C Professional LIFT 1P00 03MI 06MS12016 06MIY2016 15000 Rot 3A000.0 A fakiablePapers 24aw ; 06M&7016 W212014 600Oed 261 OEetWPT10N tw BFaaATgM/LeQATWNf/vsRR:Lss 111NASIL/100ep roU R..�.eel,AeAlw W,Aa�pws N,piin� CITY Or aACA>NSW=, ITS OMCZALB, iev s, AM VOL9NTiER6 ARs KAN= g rTrONAL nTOM ID P'rA ATTACMM CC120370423 SI CO20100'704 WHOORSIBMIRTS. CERTIFICATE HOLDER CANCELLATION 8CIT1 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EiIMRATION DATE THEREOF, NoTice IMLL BE DELIVERED IN CITY OF SACRAMENTO ACCORDANCE VVITH THE POLICY PROVISION& CFO EBIX RCS REFERENCE 0:1064377162 AUTNOMM RIPMtHrATPA PO Box 2" f PORTLAND,Ml48676-028T - qq y y9 d ry V I J I N. AR rim reserved.1 p AGORD 26(2010106) The ACORO nanNR and logo are rsyleTsnd v 8a6n015 8.00AM POLICYNUMBER: CIP248443 COMMERCIAL GENERAL LIABILITY CO 2010 0413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - OWNERS, LESSEES OR CONTRACTORS -SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following. COMMERCIAL GENERAL LIABILITY COV41RAGE PART SCHEDULE Name Of Additional Insured Persols) oro!ganization(s) Location(s)Of Covered Operations THE CITY OF SACRAMENTO, ITS OF#icrAL";, EMPLOYEES AND VOLUNTEERS C/O EBIX RCS PO BOX 257 PORTLAND, MI 48875-0257 Information required to complete this Sch=edul it not sho wn above,will be shown in the Declarations, A. Section 11 - Who Is An Insured i d d to in B. With respect to the insurance afforded to these am clude as an additional insured th:p*Zin ) or or: additional Insureds, the following additional exclu- ganizaWn(s) shown in the Schedule, but my with sions apply. respect to liability for lbodlly injury","property dam- This insurance does not apply to 'bodily injury" or age"or"personal and advertising injury"caused, in property damage"occurring after whole or in part,by: 1. All work, including materials, parts or equip- ment furnished in connection with such work, 2. The acts or omissions of those acting on your on the project (other than service, mainte- behalf, nance or repairs) to be performed by or on in the performance of your ongoing opersitions for behalf of the additional insured(s) at the loca. tion of the covered operations has been com- the additional insured(s) at the location(i) desig- nated above. plated;or J However, 2. That portion of "your work" out of which the injury or damage arises has been put to its 1. The insurance afforded to such additonal In- intended use by any person or organization cured only applies to the extent porrnitted by other then another contractor at subcontractor law; and engaged In performing operations fora princi- 2. If coverage provided to the additions insured pal as a part of the same project. is required by a contract or agreeme .the in. surance afforded to such additional, insured V will not be broader than that which yo�r are re- quired by the contract or agreement to provide for such additional insured. CO 20 10 04 13 Co pyrig ht,III surance So rvicoo Oft Page I of 2 1" "PtIg"e' 30 of 31 8/26120t5 8:OOAM Y WC 99 06 20 FARM E RS WORKERS'COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE POLICY Named • 5 BARS LLC Insured • 19200 VON(CARMAN AVE k 100 • IRVINE CA 92612 Agent 97 61 32K B09473365 2015 Policy Number Policy of the Cotupnfly Year Effective Date 08N4115 WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT—SPECIFIC We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or or on named in the Schedule. (This agreement applies only to the extent that you perform work under a ttrritten contract that requires you to obtain this agreement from t us.) k You must maintain payroll records accurately tsegregating the remuneration of your employees while engaged in the work described in the Schedule. The additional premium for this endorsement$hall be 3%of the Workers' Compensation premium otherwise due such remuneration,subject to a minimum charge of $250. Schedule Pemon or Orgmlttedon j Job Description CITY OF SACRAMENTO CONSULTViG j CIO EBIX RCS PO BOX 257 PORTLAND MI 48975-0257 t i j ; This endorsement is part of your policy. It supersedes and controls anything to the contrary. It is otherwise subject to all the terms of the policy. n Countersigned Authorized Representative s383701"EDITION I J6370101 PAGE 10F 1 80 Page 31 of 31 8/26/2015 8:OOAM ATTACHMENT 4 81 H S f n e RE ". a 5 , a ✓ rvfF L ^� f e' e x z n r City of Fresno Gigabit Wireless and/or Wired/Fiber System Request for Qualifications a .a n oCtobE'1� � fi. City of Fresno City of Fresno, California Request for Qualifications (RFQ #3503) for An Entity Interested in Developing and Operating a Citywide Gigabit Wireless and/or Wired/Fiber System Issued: October 21, 2016 83 City of Fresno I RFQ for Wireless and/or Wired/Fiber I September2016 Contents I. Introduction........................................................................................................................... 1 II. The City's Vision.................................................................................................................. 3 III. Background: The City of Fresno....................................................................................... 4 IV. Project Goals........................................................................................................................ 7 V. Available Infrastructure, Facilities, and Services ........................................................... 8 VI. RFQ Response Requirements........................................................................................ 12 VII. Selection Process..........................-.................................................................................. 15 VIII. Response Process............................................................................................................ 18 Letterof Intent/Interest.......................................................................................................... 18 Questions................................................................................................................................. 18 ResponseDeadline................................................................................................................ 18 Summary of RFQ Process Deadlines................................................................................. 18 IX. Personal Presentations.................................................................................................... 19 Appendix A: Responsibility Matrix........................................................................................... 19 Appendix B: Financial Responsibilities Questions................................................................ 19 Appendix C: Current and Planned Fiber/Conduit Map......................................................... 19 84 City of Fresno I RFQ for Wireless and/or Wired/Fiber Partnership I September 2016 1. Introduction The City of Fresno, California (City) issues this Request for Qualifications (RFQ) to convey its interest in identifying one or more motivated, high-caliber partners (Respondent) to make affordable, ubiquitous Gigabit-class broadband services and capabilities available throughout the City. The City welcomes responses from any legally qualified entity, including for-profit and non-profit entities that envision a long- term relationship with the City, its businesses, and its users. The City of Fresno is centrally located in the center of the San Joaquin Valley and serves as a hub to three national parks, the Central California Coast, and California's largest cities (Sacramento, San Francisco, and Los Angeles). As the fifth largest city in California and California's largest inland city, Fresno is a center for innovation and growth in the region. Since 2011, the City has experienced a significant increase in technology jobs making Fresno one of the leading technology regions in California. In addition to its growing technology industries, the Fresno economy has a major export industry presence, an expansive medical and health services industry, and numerous higher educational institutions. As the City's economy continues to expand and evolve, City leadership is committed to ensuring that Fresno is well situated to meet the Internet infrastructure needs of future- facing companies and industries, which are increasingly requiring ultra-high speed, high-bandwidth connections. The City seeks a Respondent that will collaborate to build and operate the proposed broadband network throughout the Fresno area. In return, the City pledges its support and facilitation of any necessary processes and potential grant opportunities, access to city/community assets, commitment to providing streamlined right-of-way (ROW) access, assistance with permitting, and any other advantage it may lawfully be able to bring to facilitate deployment of the network. The City may also share future infrastructure plans throughout this process. The City envisions the deployment of a wireless and/or wired/fiber network with ubiquitous Gigabit-class broadband access, which will enhance the broadband connectivity of the City's residents, businesses, municipal facilities, and community anchor institutions (CAIs) by expanding the range and quality of available broadband and data transport services. The City has initiated this RFQ to identify one or more entities to enable or directly provide high-capacity fixed or wireless broadband services over a Gigabit network to users within the City. Responses to this RFQ should state how the respondent's approach will result in a world class network that furthers the City's goals of ensuring that the city agencies, local businesses, CAIs, and residents have access to affordable, market-leading broadband services and capabilities that can easily and inexpensively t a5 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 scale to provide higher-speed services as demand for bandwidth increases. The City seeks input from potential entrants regarding the terms and conditions under which they would participate in such a project. The City encourages respondents to share their expertise, which may be used to shape the direction and form of the network. Respondents may work together to respond to this RFQ. The City is open to creative solutions that will maximize investment while providing reliable and high-quality services to meet its citizens' needs. The City welcomes the responses of all legally-qualified respondents, including incumbent service providers, as well as competitive providers, nonprofit organizations, public cooperatives, and entities that are not traditional Internet service providers (ISPs) but are interested in offering service under innovative business models. Non-traditional providers may respond as part of a partnership with an ISP or may provide separate responses outlining their approaches. The City will review responses based on the respondents' experience, how well the responses address the City's objectives, how the proposed business model balances and shares risks and rewards, and other factors. The City may provide more detailed information on available City assets to one or more respondents. Following the evaluation of responses, the City may begin negotiations with preferred RFQ respondent(s), issue a more detailed Request for Proposal (RFP) relating to the City-initiated project, issue an RFP to selected RFQ respondents, cancel or delay this initiative, or choose another option that it deems to be in the City's best interest. Nothing in this RFQ should be construed as creating an RFP or a contract for procurement under applicable California laws. Nothing in this RFQ will preclude the City from obtaining relevant information from other sources or through other processes. Responding to the RFQ is not a guarantee of a contract award. Further, there is no guarantee an RFP will be developed as a result of this RFQ. While the City informally refers to the relationship that it seeks as a "partnership," it does not intend to establish a legally formal association, partnership, or joint venture with any respondent or other entity. The RFQ and subsequent responses by respondents do not create a binding obligation on the part of the City to enter into any form of agreement with the respondents, for the development of a network, or otherwise. The City also reserves the right to withdraw the RFQ or any subsequent RFP, to decline to award a contract, or reject any submissions. All respondents must follow the instructions and provide all requested material. Failure to follow instructions may be grounds for rejection of the response. All respondents must complete the attached responsibility matrix (Appendix A) and financial 2G City of Fresno RFQ for Wireless or Fiber/Wireless Partnership I October 2016 responsibilities questions (Appendix B), and submit each in the format (structure and page limitations) specified in the RFQ instructions in Section VI. 11. The City's Vision Across the country, fiber broadband networks and, increasingly, high-capacity wireless networks, are becoming drivers and enablers of robust economic development and global competitiveness, fostering educational opportunities, creating access to more affordable modern healthcare, and addressing the digital divide. These networks simultaneously support sophisticated new manufacturing technologies, data-driven companies, intelligent transportation systems, smart electric grids, and many more high- bandwidth applications. The City of Fresno believes that acquiring such a network is critical to its continued growth and prosperity as a manufacturing, research, and technology hub in California. The City views broadband as an important factor in lowering business costs, attracting and retaining highly skilled residents, and creating sustainable new jobs in an entrepreneurial economy based on innovation and creativity. A high-capacity broadband network can empower and enable Fresno's citizens and local businesses to be network economy producers—not just consumers of network information and data services—ultimately advancing the City's standing in the regional and global economy. Robust residential and institutional connectivity will also expand opportunities for local students in K-12 and beyond, and enable more open government and civic engagement. One of the City's important goals is to ensure that low-income families and individuals will benefit from high-capacity broadband services and capabilities. This may require free or discounted services, support for neighborhoods participating in City revitalization programs, and other targeted programs. The City also seeks free services for the City's governmental purposes in exchange for use of the City's assets. The City expects respondents to this RFQ to be sensitive to these goals. This initiative may also entail the City's Partner sharing some of the costs and risks associated with providing low- cost or no-charge services. The City is open to creative ideas with regard to construction, operation, and ownership models for the network. The City and the respondent will together determine the most mutually beneficial collaborative structure. The City is open to creative and innovative ideas about cost-sharing, infrastructure leasing, and profit-sharing arrangements. The City seeks recommendations and ideas regarding various business models, which could include, but are not limited to, the following scenarios: 3 817 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October2016 • Private provisioning of services over infrastructure that is constructed and owned by the public sector, including the City's current assets, but operated and maintained by the private Partner; • Private provisioning of services over infrastructure that is constructed, owned, operated, and maintained by the public sector; • Publicly or privately constructed open-access infrastructure that allows other qualified providers to offer service over the network; or • Private provisioning of services over infrastructure that is constructed, owned, operated, and maintained by the private sector.' The City will also consider any combination of these models as well as alternative suggestions proposed by respondents. III. Background: The City of Fresno The City of Fresno comprises over 112 square miles in the San Joaquin Valley and is situated at the geographic center of the state. Fresno's estimated population of 520,000 makes it the fifth largest city in California and the 34th largest city in the nation, with a steadily expanding population.2 It is expected to realize a 6.9% population growth over the next five years making it one of the fastest growing regions in the United States. Fresno serves as the economic hub of California's Central Valley, with surrounding cities predominantly tied to large-scale agricultural production. The Central Valley region is the largest and most productive agricultural area in the world, feeding one-third of the world's population with $26 billion in agricultural production annually. Fresno is also home to a growing tech community. According to the Progressive Policy Institute in July 2015, Fresno is the fourth fastest tech-job creating city in California with a 20% increase in tech jobs since 2011.3 This growth is evidenced by the expansion of Bitwise Industries, a private business incubator for software companies. In addition to its growing tech community, Fresno's export-oriented economy is anchored by: • The largest and most productive agricultural region in the world; • 150 food and beverage manufacturers within the city limits and dozens more in the surrounding region; Respondents should clearly indicate how this approach achieves the City's partnership and connectivity goals. z "Fresno Quick Facts" United States Census Bureau, available at: https://google/vbZZvh. 3 Dr. Michael Mandel, The California Tech/into Boom: How It Is Spreading Across the State, Progressive Policy Institute(July 2015)google/WohEUn. 4 88 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 • An expansive health and medical services industry that serves a five-county region and includes the UC San Francisco-Fresno medical residency program and accompanying research; and • The financial, legal, and professional services industry that serves Central California. Significant private employers in the area include: • The GAP Distribution Center • Kraft Foods • Community Hospitals of Central • Beverly Health Care California • UCSF Medical Schneider Electric (Clovis) • Veteran's Hospital • Kaiser Permanente • Saint Agnes Hospital • Quinn Group, Inc. • Internal Revenue Service 0 AT&T • Sun-Maid Growers • Zacky Farms, LLC • Foster Farms Poultry • Producer's Dairy • Aetna 0 Bitwise The Fresno Unified School District is the 4th largest school district in California, with 11,062 employees serving more than 73,000 students across 66 elementary schools, 15 middle schools, 9 high schools, 4 alternative schools, and 3 special education schools.4 The District recently launched a technology initiative in cooperation with AT&T, Microsoft, ASUS, and Cisco, deploying 15,000 tablets with keyboards to grades K-12 across the district; providing 1,400 new laptops to teachers with aging computers and to new teachers; and installing 3,200 wireless access points across the district so that access to the network and Internet is available everywhere at every schools The District's technology initiative also includes daily text messages to parents on attendance and grades; dashboards for staff to quickly examine student attendance, grades, behavior and other key indicators; and a new system for professional learning to help teachers be the best they can be. The proposed broadband network would enable students to take these services out of the classroom and into their homes. The Fresno area is also home to a number of educational institutions whose populations would benefit from broadband. There are also nearly two dozen public and private community colleges and universities in the Greater Fresno Region, which support over 4 Fresno Unified School District, Fact Sheet: "District at a Glance," available at: https://google/T1 osDa. s Fresno Unified School District, Technology Services Fact Sheet, available at: https://goog le/E9CNTL. 5 89 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 80,000 students. These include California State University, Fresno, which has an enrollment of nearly 25,000 undergraduate and graduate students. California's second largest community college district, State Center Community College District, is headquartered in Fresno and encompasses three campuses and two centers with an enrollment of nearly 40,000 students. Other educational institutions in the Fresno Area include Fresno Pacific University, University of California San Francisco-Fresno medical residency program, and the University of California Kearney Agricultural Research Station. The City has a thriving arts and cultural scene. Significant cultural attractions include the Fresno Art Museum, Arte Americas, the Fresno Arts Council, the Fresno Film Commission, and a number of private galleries. Events such as Art Hop, which attracts thousands each month, promote local artists at multiple venues across the City. The City has its own Philharmonic Orchestra as well as the Fresno Grand Opera, and both have seasonal programs for the enjoyment of the population. The City has several venues for cultural events, concerts, and sporting events and offers hundreds of live entertainment events each year. Significant facilities include the Fresno Convention Center, the Saroyan Theatre, the Selland Arena, and a 16,000- person venue for performing arts. Both the City's minor league baseball team, the Fresno Grizzlies, and soccer team, the Fresno Fuego play at Chukchansi Park, a City- owned arena with a seating capacity of 12,500. Other prominent sporting venues include Selland Arena (capacity 10,220), the Save Mart Center on Fresno State's campus (capacity 16,182), and Bulldog Stadium (capacity 40,031). At the physical center of California, it is easy to reach other destinations from Fresno. Los Angeles, Sacramento and San Francisco are all approximately 3 hours by car. The Central Coast can be reached in 2.5 hours and the mountains can be reached in about one hour. Fresno provides easy access to mountain biking, hiking; water skiing, snow skiing as well as other outdoor activities, and the mild weather make it a great place for year-round outdoor interests. The City is close to three national parks (Yosemite, Sequoia and Kings Canyon), which draw a combined 6-million guests annually. Several initiatives are underway that would boost the economy, as well as increase subscribership for this network. The City is implementing a Bus Rapid Transit system that will travel down two major arteries in the City. In addition, as part of the California High Speed Rail (HSR) project, the nation's first HSR station will be constructed in Downtown Fresno, which will provide a 45-minute commute to San Jose by 2025. The first segment of HSR is under construction and is already catalyzing increased real estate investment in Downtown Fresno, along with increased interest from Bay Area companies looking to relocate "spill over" business functions in a lower cost, less 6 00 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 congested region of California. Along with private investment, the City is investing substantially in public infrastructure and housing in the Downtown area, including returning two-way traffic to a former pedestrian mall that runs along the length of the City's historic main street and supporting the construction of approximately 1,000 new housing units over the last ten years. The City is also implementing a $600-million- dollar water infrastructure capital program over the next three years, which will "drought proof' the City making Fresno one of the most "water competitive" cities on the West Coast. Combined, these investments make Fresno an increasingly desirable place to live and work. IV. Project Goals Respondents to this RFQ should indicate whether and how their proposals will serve the following City goals: 1. Attract an ultra high-speed wireless or wired/fiber broadband network that will stimulate the City's economic growth and global competitiveness, drive job creation, foster innovation, enhance healthcare delivery, improve education, and serve multiple new areas of development in the community; 2. Make broadband connectivity at symmetrical speeds of at least 1 Gigabit per second (Gbps) available to residents on an affordable basis throughout the City; 3. Make broadband connectivity at symmetrical speeds of at least 10-100 Gbps available to businesses and institutions on an affordable basis throughout the City; 4. Introduce competitive choice to ensure that businesses, institutions, and residents have access to the services of their choice from the service providers of their choice; 5. Consider innovative models, including, but not limited to: a. Leasing City-built and -owned dark fiber and other assets as available as part of a network to provide services; b. Working with the City to construct and operate a fiber-to-the-premises (FTTP) network; c. Fostering private investment and innovation; 6. Lay the foundation for the network to scale over time and expand to other areas of the region; 7 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 7. Offer services at favorable terms to the school district and/or other public and non-profit facilities that provide educational services to students; 8. Provide cost-effective services for price-sensitive customers and flexible pricing plans to help narrow the digital divide and ensure access to all City residents; 9. Offer free service in public spaces and popular gathering places; and 10. Offer free services to the City for its employees while performing City functions. Such services may include, but are not limited to: a. Mobile work force (field inspectors, code enforcement, police officers, fire fighters, etc.), b. Public Safety (shot spotter, video policing, fire inspectors, mobile fleet, etc.), and c. Transit, traffic operations and signal synchronization. At this stage, the City has no firm preference as to technology or business model and is willing to consider any approach that will enable it to obtain high-quality, gigabit-level services and capabilities for households, businesses, educational institutions and other agencies in the City. For the network to have the intended economic and quality-of-life impacts, the City also considers cost and availability of service to be important. As a result, the City encourages responses that address both to maximize adoption of service. All respondents must fully complete Appendix A and fully comply with the instructions in Section VI. V. Available Infrastructure, Facilities, and Services The City is flexible about the role that it will play to achieve the project goals and is willing to consider various levels of involvement. As indicated, the City will consider making certain infrastructure, facilities, and services available to a Partner for the purposes of this initiative. To the extent required by law, the City will make these assets available on a non-discriminatory basis. In doing so, however, the City will take into account the unique benefits that the provider will bring to the City. 8 � z City of Fresno I RFQ for Wireless or FiberMireless Partnership I October 2016 A. City Point of Contact At a minimum, the City anticipates that it may be necessary to assign a single point of contact (SPOC) for each Respondent and/or its contractor(s), and commits to providing services to help prevent or lessen conflicts in the Respondent's construction schedule. City staff will be prepared to assist the respondent(s) in navigating necessary permitting to streamline planning and construction efforts. Once the City has selected its Respondent(s), it will be prepared to move forward. The City will work with its Respondent(s) to facilitate the smoothest possible access for construction and installation of the network. B. Access to Information Regarding City Infrastructure For the selected Respondent(s), the City will provide access to non-public resources that identify City infrastructure and, where available, access to existing conduit infrastructure. Such information includes but is not limited to traffic, sewer, water, and storm-drainage facilities. At the City's discretion, the City may allow a requesting proposer to review data regarding City assets after signing a non-disclosure agreement, as appropriate. C. Fiber The City is willing to offer the use of its existing fiber network and to consider installing new fiber where it does not exist and where doing so makes sense for the City. The City has approximately 90 route miles of fiber deployed throughout the City, which it installed primarily to support the City's Intelligent Transportation System (ITS). The system is well designed and is suitable for broader use, with more than 96 fiber strands installed along the majority of these routes. It is already being utilized in conjunction with the City's eGov initiative as a network connecting multiple agencies within the region. The City has implemented a Dig Once policy for fiber to be installed whenever there is an open trench. Fiber that is installed in conjunction with the Dig Once policy is generally not associated with the City's ITS fiber network, but it can also be used for the purposes of this initiative. The City has already begun deploying fiber because of this policy and plans to continue to do so in the future. A current map of the City's current and planned fiber can be found in Appendix C. D. Conduit The City has approximately 104 route miles of underground communications conduit. Much of this supports the City's existing fiber optic infrastructure, but contains 9 93 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 substantial spare capacity with four or more 1.5-inch diameter (or larger) conduits along most segments. Underground vaults and handholes provide access to conduit at intervals averaging approximately 1,000 feet. A current map of the City's current and planned conduit can be found in Appendix C. E. Streetlights and Towers The City owns a vast number of physical assets capable of supporting wireless communications infrastructure, including communications towers, streetlights, video surveillance camera poles, and even air raid siren structures, each of which is supplied with electrical power and maintained by the City. It should be noted that air raid sirens are adjacent to power and should be investigated for structural integrity. Most notably, this includes a total of 29,678 non-wooden street light poles that it could make available to a Respondent. Streetlights are primarily constructed of metal or concrete, are separated by between 75 to 275 feet, and range from 12 to more than 30 feet tall. Proposed attachments to the City's street light poles are subject to height, weight, placement, and aesthetic considerations. Equipment may be subject to permitting. The City's street light poles are powered in accordance with an agreement between the City and Pacific Gas & Electric (PG&E). The City intends to execute a power agreement with PG&E and/or work in good faith to secure an agreement for power with the Respondent and PG&E, or both. Additionally, the City owns three communications towers ranging in height from 140 feet to 250 feet, 127 video surveillance camera poles located along key roadways, each 35 feet in height; and eight air raid siren towers. F. Building/Real Property The City owns many buildings and other real property that may be suitable for placement of wireless equipment or other infrastructure. The use of the property or buildings (depending on the use proposed) will need to be evaluated on a site-by-site basis and may require some discretionary land use approval, such as site plan review or conditional use permits, and will require appropriate investigation to ensure that the structures proposed are consistent with the safe continued use of the structure, and otherwise in accordance with law and the City's permitting process (which shall be streamlined as part of this initiative). This space may exist at substations, tower sites, fire stations, municipal buildings, or other locations. The City is also willing to consider leasing towers, rooftops, and other aerial spaces. 10 94 City of Fresno i RFQ for Wireless or Fiber/Wireless Partnership I October 2016 G. Streamlined Permitting Process The City of Fresno has recently implemented a streamlined planning and building process as part of the City's Business Friendly Fresno program. The City would leverage this process to help reduce its Respondent's time and effort in planning for the deployment of major telecommunications projects. Additionally, the City has taken steps to classify the wireless and fiber installations as minor utilities. As a part of this initiative, the City intends to make the permitting process as fast and efficient as reasonably possible. That is, if accurate plans are presented at the beginning of the project, the effort can be treated as a single project, or sets of projects, that are subject to streamlined standards established during the initial phases of the project. It should be noted that, wherever it is indicated that permits are required within this RFQ, those permits will be subject to this streamlined process. Permit fees may also be reduced or waived at the City's discretion. As indicated, the City may also provide a SPOC that will help to coordinate the activities, answer questions, and ease the burden of implementation. The City is willing to entertain a master licensing or franchise agreement with the selected Partner(s) in accordance with the City Charter. H. Identification of Broadband Deployment Assistance While the City has identified certain specific steps designed to speed deployment of advanced infrastructure, the City will work with selected Respondent(s) to identify and take advantage of other opportunities to speed broadband deployment. For example, the City may be willing to assist selected Respondent(s) in applying for grants designed to secure deployment of broadband to low-income housing. The City is committed to creating an environment in which selected Respondent(s) may quickly enter and have a fair opportunity to succeed in the marketplace. I. Confidentiality Where applicable, respondents should identify material that is confidential or proprietary as such. Any confidential information of the City's that is sought after shall be released only upon a signed non-disclosure agreement. Throughout this process, the City intends to keep the discussions confidential according to the City's Purchasing process and applicable laws. If an award is made, agreements will require the approval of the City Council, which will then become public record. If the City does not select a respondent, it does not intend on disclosing information, discussions or both, with the public. Under no circumstances shall the City be held liable for any disclosure of any information submitted if such disclosure is inadvertent or required by any applicable law. 11 95 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 J. Other Respondents should also identify any existing assets they may have in the Fresno area and how they intend to leverage those for this project. Respondent(s) may be asked to pay franchise fees to the City and pole attachment fees to the appropriate utility. Respondents should consider whether they propose to offset the fees with in-kind contributions, including conduit and dark fiber. The City will work with the selected entity or entities to facilitate conversations and collaboration with pole owners such as PG&E and other entities. VI. RFQ Response Requirements The City of Fresno requests the following information—in as much detail as is practicable—from respondents. All responses must adhere to the following response requirements and page limitations. All responses must follow the exact order below and use the appropriate response headers. Start a new page for each response header. Failure to follow these instructions may result in rejection of the response. 1. Cover letter: Please include company name, address of corporate headquarters, address of nearest local office, contact name for response, and that person's contact information (address, phone, cell, email). Keep response to one (1) page. 2. Business Model Summary: Summarize the business model you intend to use for the partnership. This should be a concise explanation of the key components of your business model, including but not limited to the division of network and operations responsibility and ownership. Keep response to two (2) pages. 3. Affirmation: Affirm that you are interested in this partnership and address the core project goals listed above (Sections IV). List each goal with a brief statement of how you will comply. If you cannot meet any of those requirements, indicate the requirements to which you take exception, and provide an explanation of the exceptions. Keep response to three (3) pages. 4. Experience: Provide a statement of experience discussing past performance, capabilities, and qualifications. Identify other networks your firm has designed, built, maintained, or operated; include the levels of broadband speed, availability, and adoption among different categories of end users and unique capabilities or attributes. Discuss partnerships with other service providers, government, or nonprofit entities you have 12 g6 City of Fresno ( RFQ for Wireless or Fiber/Wireless Partnership I October 2016 undertaken, particularly any involving dark fiber leasing. Describe the nature of the projects and your firm's role. For entities currently providing communication services in or near Fresno, describe your current service footprint in the City, including a description of the type of infrastructure and services you currently offer and the technology platform(s) used. Explain how your firm is a suitable Partner for this project. Keep response to two (2) pages. 5. Technical and Operations: At a high level, summarize the technological and operational approach you would use for this project. a. How would you use technology to meet the City's goals? Keep response to one (1) page. b. What approach would you use to interconnect with the Internet and other public networks? Keep response to one (1) page. c. How would you perform network management? Keep response to one (1) page. d. Under what scenarios would you require route diversity or other special features in the City fiber? At what sort of facility (or facilities) would you place network electronics? Keep response to one (1) page. e. Provide a proposed network diagram. Keep response to one (1) page. 6. Business Structure: Summarize the business approach you would use for the project. How would your business plan help to meet the City's goals? What are the key assumptions? What are your main areas of risk, and how can the City help reduce the risks? What are the City's main areas of risk, and how will you reduce the risk to the City? Keep response to three (3) pages. Also complete Appendices A and B to clarify areas of responsibility. 7. Schedule: Describe your proposed schedule for implementing service. Offer a timeline with key milestones. Would you be able to begin service before the entire network is constructed? Are there areas of the City you would recommend be constructed first? Keep response to two (2) pages (one for response, one for schedule). 8. Maintenance: If you are proposing to perform fiber network maintenance, describe your ability to perform maintenance on an ongoing and as- needed basis. Provide estimates of the operating cost of maintaining the fiber optic outside plant for a citywide fiber network and include your main 13 97 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 assumptions. If you are not performing maintenance, who is? Keep response to one (1) page. 9. Privacy: Describe your ability to provide secure network service or infrastructure that complies with public safety and other security and privacy regulations and requirements. Keep response to one (1) page. 10. Financing and Funding: List any requirements the City must meet for you to work with the City on this project by completing Appendix B — Financial Responsibilities Questions. Please also provide a one-page flow chart that shows the flow of funds between all parties in your response. Include all sources and uses of funds. If you do not address this question, it will be assumed that you are interested in the RFQ but have no financial requirements whatsoever of the City. Appendix B must be submitted electronically in its native PDF format. Please keep response to the guidelines of the separately attached PDF, plus the one-page flowchart. 11. Services: Describe the service options you plan to offer over this network (for example, data only; voice and data; a triple play of voice, data, and cable television; etc.). What download/upload or symmetrical speeds would you offer and guarantee to end users? How will your residential and business offerings differ? What types of service level agreements (for lit services: availability and packet delivery; for dark fiber: repair time) would you be prepared to offer? Keep response to two (2) pages. 12. Pricing: Provide your approach to pricing the proposed services. For managed services, please describe factors impacting non-recurring costs (estimated fiber path distances, equipment redundancy, etc.); recurring costs for varying capacity levels; and any key technical assumptions upon which prices are based. For dark fiber offerings, please describe desired pricing models. Keep response to two (2) pages. 13. Local Participation and Economic Development: Provide a statement of how your proposed participation would help the City's economic development goals. Describe your interests and plans to hire local contractors and providers in the City of Fresno, and how your participation would help local job creation. Describe your relationships with local businesses in the City, if any, as well as your interest and plans to engage them in this project. Keep response to one (1) page. 14 � $ City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 14. References: Provide a minimum of three (3) references, including contact information, from previous contracts or partnerships. Keep response to two (1) page. Following the response above, please include your completed Appendices A and B. Keep Appendix A in its native Microsoft Excel format. Keep Appendix B in its native PDF format. VIL Selection Process Submittals in response to this RFQ will be evaluated by City staff. The evaluation team will review and evaluate responses to the RFQ and make a list of eligible Respondents. Selection will be made in conformance with City policy. The City reserves the right to accept or reject any or all RFQ proposals and may select and negotiate with one or more Respondents concurrently. Based on the RFQ evaluations, the City may begin negotiations with one or more eligible firms/companies; invite selected firms/companies to submit a RFP for further consideration and final selection; or invite selected firms/companies to be listed as a qualified firm/company should the City choose to go forward with this initiative. The City reserves the right to make the selection of a respondent based on any or all factors of best value, whether quantitatively identifiable or not, including, but not limited to, the anticipated initiative and ability of the proposer to perform the services set forth in this RFQ. The RFQ evaluation will be based on the following: • Thoroughness and clarity of the proposer's response to this RFQ; • Ability to fulfill the project goals and project purpose; • History of successfully completing similar sized wireless and/or fiber broadband projects; Quality of previous work performance, including public-private work; • Quality of the technical and operational approach; • Ability to meet key milestones; • Allocation of operational and financial responsibilities; • Three (3) relevant professional project references; • Ability to enter into a City contract and meet and maintain insurance requirements for the duration of the project; • Signature authorization as evidenced in a resolution/minute order/agreement to enter into a City contract. As previously stated, this RFQ and subsequent responses by respondents do not create a binding obligation on the part of the City to enter into any form of agreement with the 15 99 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 respondents for the development of a network, or otherwise. The City also reserves the right to withdraw the RFQ or any subsequent RFP, or to decline to award a contract. Local Preference Fresno Municipal Code Section 4-109, LOCAL PREFERENCE IN CONTRACTING FOR SERVICES, provides for a local preference. Portions pertinent to this Contract are paraphrased as follows: Except for those contracts funded by the federal or state government when such funding would be jeopardized because of this preference, the City of Fresno shall, in contracting for professional services, other than consulting service, extend a five percent (5%) preference for a local firm in evaluating proposals for award. The amount of the preference shall be equal to the amount of the percentage applied to the lowest proposal price from a firm other than a local firm, if the Respondent submitting the lowest proposal price is not a local firm. The Respondent shall certify, under penalty of perjury, that the Respondent qualifies as a local firm. The preference is waived if the certification does not appear on the proposal. "Local firm" shall mean a firm with a fixed primary or branch office within a twenty-five mile radius of Fresno City Hall, located at 2600 Fresno Street in the City of Fresno, and a majority of the work on the project will be performed by employees who are permanently assigned to such office prior to the city requesting proposals for the project and whose regular duties would include local work on other than city projects. Respondents shall submit the form CERTIFICATION FOR LOCAL PREFERENCE with their proposal if they seek the benefit of local preference. Questions, Clarifications and Concerns The Specifications describing this project have been carefully prepared. Any questions or concerns relating to these Specifications shall be directed in writing to the Designated Buyer of the Purchasing Division (see cover page) and shall be sent by email (Purchasing@fresno.gov) or facsimile to (559) 488 1069. A Question Form for this purpose has been included as page 8. Questions will be accepted only up to Monday, November 21, 2016 to allow the City, if necessary, to issue an addendum to all Respondents stating revisions, deletions, or additions to be made to the Specifications as a result of any questions. If questions arise after the deadline, please contact the Designated Buyer of the Purchasing 16 100 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 Division, Bob Callistro (Purchasing@ Fresno.gov), but the City will not guarantee a response. The City will not be responsible for verbal responses made by parties other than the Purchasing Manager or her/his designee. Contacts with City Staff Before an award is made, any contact with City staff, other than the Purchasing Manager or his/her designee(s), without prior written authorization is strictly prohibited and may render the Respondent non-responsible. Regulated Communications in City Procurement Process Ordinance The Regulated Communications in City Procurement Process Ordinance (Article 6, Chapter 4 of the Fresno Municipal Code) became effective May 7, 2004. With certain specified exceptions, the Ordinance provides that no Respondent, Bidder, Respondent (as the case may be) shall initiate, engage in, or continue any communication to or with any-City elected official concerning or touching upon any matter which is the subject of this competitive procurement process. Any Respondent, Bidder, Respondent or elected official (as the case may be) who initiates, engages in, continues in, or receives any regulated communication shall file the written disclosure required by the Regulated Communications in City Procurement Process Ordinance. Any Respondent, Bidder, or Respondent violating the Regulated Communications in City Procurement Process Ordinance may be disqualified from participating in this procurement process and/or determined to be non-responsible. Additionally, the City may set aside the award of a contract, prior to its execution, to a party found to have violated the Ordinance. Note: The full text of Fresno Municipal Code, Chapter 4, Article 6 may be viewed on the City's website at, http://www.fresno.gov. Under Government, "City Clerk" - Fresno Municipal Code- Or view the Fresno Municipal Code directly at http://www.municode.com/Resources/gateway.asp?pid=14478&sid=5 Outreach to Small Business Enterprises in Subcontracting The City of Fresno hereby notifies all Respondents that it is the City's policy to provide all small business enterprises, including minority, women, and disabled veteran business enterprises, equal access and opportunity for participation in the performance of all construction contracts, professional service contracts, procurement of supplies, equipment and other services. Therefore, the City requests that a Respondent who 17 101 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 intends to subcontract a portion of the work seek out small business enterprises that are potential subcontractors, suppliers, or consultants, and actively solicit their interest, capability and prices. VI11. Response Process Consistent with California state law, all correspondence regarding this RFQ should be directed to: Bob Callistro, PurchasingCa,Fresno.gov or on the City's Planet Bids portal: https://www.planetbids.com/portal/portal.cfm?CompanvlD=14769. The City cannot guarantee that correspondence directed to other City staff or departments will be received or considered. Letter of Intent/interest All interested respondents are asked to submit a letter of interest via email, online (Planet Bids) or mail by Monday, November 14, 2016 to Bob Callistro at Purchasingea.fresno.gov. A letter of interest is the minimum requirement for this RFQ. Questions Questions related to this RFQ should be submitted online (Planet Bids) or emailed to Bob Callistro at Purchasing fresno.gov no later than 4:00 PM PST on Monday, November, 21, 2016. The City responses to questions shall be continuous throughout the process. Response Deadline Final RFQ submissions must be either delivered electronically, online (Planet Bids) or received by mail no later than 4:00 PM PST on Wednesday, November 30, 2016. Please deliver or mail the final RFQ and the completed required Appendix in a sealed envelope to the following address: Attn: Bob Callistro Purchasing Manager City of Fresno 2600 Fresno Street, Room 2156 Fresno, CA 93721 Late responses will not be considered. Please identify any proprietary and/or confidential information as such. Summary of RFQ Process Deadlines The following is the schedule for responding to this RFQ. The schedule is subject to change: Friday, October 21, 2016 — RFQ issued 18 102 City of Fresno I RFQ for Wireless or Fiber/Wireless Partnership I October 2016 Monday, November 14, 2016— Deadline for submitting letter of interest to respond to RFQ Monday, November 21, 2016 — Deadline for submitting questions Wednesday, November 30, 2016 — RFQ responses due The City of Fresno thanks you in advance for your thoughtful response. IX. Personal Presentations At its discretion, the City may request that vendors and other parties who provide a timely response to this RFQ make an individual and personal presentation to better explain information or solutions identified in the response. These presentations, if requested by the City, shall be held at a time and place of mutual convenience. Appendix A: Responsibility Matrix Appendix A is included as a separate file. Note that Appendix A must be submitted in its native Microsoft Excel format. Failure to follow submission instructions may result in rejection of the response. Appendix B: Financial Responsibilities Questions Appendix B is included as a separate file. Note that Appendix B must be submitted in its native PDF format. Failure to follow submission instructions may result in rejection of the response. Appendix C: Current and Planned Fiber/Conduit Map 19 103 Appendix A: Responsibility Matrix 104 Appendix A Operational& Funding Responsibility City of Fresno, CA Respondent: T$D Do you propose to act as a RETAIL Internet service provider(ISP)?(Choose from drop-down menu at right) Use drop-down mean Do you propose to allow multiple RETAIL Internet service providers(ISP)?(Choose from drop-down menu at right) Use drop-down menu Instructions 1.For each lack,please indicate with an X'which parry will have the primary 2.Add any clerificmions in the"Comments/Exceptions"section.Please keep response to fewer than 50 words. 3.See definitions in sheet"Definitions" Operational Responsibilities Funding Responsibilities City Respondent Retail ISP Responsibility ISP ity(it not City Respondent Comments Functional Area Tasks/Rcipunsibililies Responsibility Responsibility respondent) Comments/Exceptions Responsibility Responsibility Responsibility(if not Exceptions rex laden) F IA P Network(fiber) FFfP Electronics Debt Service Payments Customer Drop&NID Entry from NID&In-Premises Wiring CPE(ON r) FTTP Nerivork(fiber) F'TTP Electronics Provide Security for Customer Drop&NID Financing Entry from NID&In-Premises Wiring CPE FTTP Network(Fiber) Ftl P Electronics Customer Drop&NID Ownership Entry from NID&In-Premises Wiring CPE.(ONT) Customer Ownership Outside Plant(OSP) Drop and the NID Insurance Network F,leclronics Entry Cable,CPE&hi-Premises Wiring CPF,'s(ONTs) Replenishments OLTs&Other Subscriber Electronics Core Electronics OSF&other federal tariffs and fees Taxes Sales(state,county,municipal) PILOT Pole allaehments ROW fees(backbone,middle-mile,and last-mile) ROW fees(drops) CD G'1 Operational Responsibilities Funding Responsibilities City Respondent Retail iSP Responsibility(if not Comments/ City Respondent Retail ISP Comments Functional Area Tasks/Responsibilities Responsibility tyResponsibility respondent) Exceptions Responsibility ty Responsibility Responsibility(it not res andentl Exceptions ROW fees(drops) Locates Trouble ticket processing Fiber maintenance—material Fiber maintenance—labor Strand Management Maintain Inventory Outside Plant Real estate for active network equipment in field Facilities(warehouse,crew.etc.) NOC for OSP(lease) Design Construction Oversite Network engineering-Ober(last mile) Network engineering-fiber(backbone&middle mile) Fiber drop installation(network demarcation to buildingcnlry) Maintain inventory(optical network elements) Network operations center—facilities Network operations center—staffing 24x7 Facilities,(start) Facilities(warehouse&staging) Provide DIA Network engineeringclectronics(last mile) Network Operations Network engineeringclectronics(backbone& middle mile) In-building wiring Customer installation(an-premises) Customer activation and provisioning Maintain inventory(active network elements) Rardwme and support maintenance lees(vendor charges) Contract Management(retail]Spa) Contract Management(customer) Billing and invoicing Bad debt(customer) Collections Customer Service Tier I suppon 240(basic customer issues) Tier 2 support 240(basic technical support) Tier 3 support 240(advanced technical support) �.r Q Operational Responsitliliiirx Funding Responsibilities Functional Area Takal Responsibilities cityRppoxdeat Retail lSP Responsibility(if not Comments/ city Retail ISP Respondent Comments/ P Responsibility Responsibility respondent) Exceptions Responsibility Responsibility Responsibility(if not Exceptions respondent) Prepare and manage SLAB Branding Marketing Sales Customer acquisition(sales)and retention Saks Marketing Service performance objectives & Service catalog Monitor pricing Set pricing(based on contract conditions) Develop and manage customer contracts Execute customer contracts Provide City subscription records Provide City invoice and payment status(payments) Provide partner network status information(for tier l support) Reporting Provide partner network status information(for tier 2 support) Provide partner network status information(for tier 3 support) Provide partner with network status(uptime, outages,etc.) Provide monthly sales and leads reports f� Appendix B: Financial Responsibilities Questions 108 City of Fresno RFQ—Appendix B: Financial Responsibilities Appendix B: Financial Responsibilities Questions The purpose of these additional questions is to garner a more complete understanding of your plan for the collaborative relationship with the City of Fresno. Our goal is to get a sense of your approach to this relationship, including any financial element you anticipate for the City itself, through informative yet brief responses to the questions below. Unless otherwise noted, please keep all responses to under one-half page, consistent with the text boxes allotted for each question. Financing is any borrowing required or any investments provided. Funding is resources that can include subscriber revenues, taxes, or other sources that are used to cover operations, maintenance, debt service, and other expenses. (1) What, if any, financial requirements do you have of the City in order to enter into a partnership? 109 City of Fresno RFQ—Appendix B: Financial Responsibilities (2) How do you propose to finance the network build-out? (3) How do you propose the financing be secured? By whom and with what guarantees? 110 City of Fresno RFQ—Appendix B: Financial Responsibilities (4) Will the City be required to make any service payments to you, your partmer(s), a separate limited liability company(LLC) created for the partnership,or any other entity that is part or could become part of your proposal? Yes No 4a. If"Yes," will these payments be subject to a consumer price index (CPI) increase? Yes [:]No ❑N/ A 4b. If"Yes," what are the conditions of payment obligations from the City? (If"No," please enter "N/A" for Question 4b.) (5) Will you, your partner(s),your LLC, or any other entity contemplated as part of your proposal be required to make any service payments directly to the City? ®Yes [:]No 5a. If"Yes,"will these payments be subject to a CPI increase? []Yes []No []N/A li City of Fresno RFQ—Appendix B: Financial Responsibilities (6) How is the project funded? (7) If subscriber revenues are projected to fund the project: 7a. Are these subject to CPI in your financial projections? ©Yes E]No (If"No," please enter "N/A" for Questions 7a through 7e.) []N/A (If"N/A," please enter "N/A" for Questions 7a through 7e.) 7b. What is your marketing approach to reach subscriber revenue projections? 112 City of Fresno RFQ—Appendix B: Financial Responsibilities 7c. What would be your sales objectives (in subscribers) in years 1, 2, and3? 7d. What take rate do your projections assume? 7e. What are the key themes of a marketing strategy you would implement in the partnership? � i� City of Fresno RFQ—Appendix B: Financial Responsibilities (8) Do you propose a basic free service? ❑Yes rl No(If"No," please enter "N/A" for Questions 8a and 8b.) 8a. If yes, who is required to support the operating expenses of delivering the service? 8b. How are funds for support of the free service generated? 114 Appendix C: Current and Planned Fiber/Conduit Map 115 CIftCAL%\u�•V- 9-nF-:=1: ,0 Project Overview a o Active Fiber z m Empty Conduit 41 LL i E u a u n a 9 iIIIIIIIIIIIIIIIIIIII,Conditional Use Fiber —Conditional Use Conduit w z —Planned Construction w COPPER Y Veterans Blvd U INTERNATIONALa w Sphere Of Influence g w = y m BEHYMER m W aa Fire Stations C o a a i g p PERRIN Police Stations -Parrs SHEPHERD Schools J TEAGUE NEES .. �. lu`r-' NEES ALLUVIAL ALLUVIAL HERNDON HERNDON SIERRA SIERRA BOLLARD BOLLARD BARSTOWBARSTOW 1 SHAW a SHAW ■ GETTYSBURG s ■ ■ ■ GETTYSBURG ASHCAN ASHCAN OAKOTA V Ir- ,. I DAKOTA i L SHIELDS - �--- SHIELDS CLINTON i,..._ ., ■ CLINTON MCKINLEV I �_. MCKINLEY OLIVE OLIVE BELMONT - BELMONT _. NIELSEN TULARE WHAESBRIDGE KINGSCANYON KEARNEY _ BUTLER CALIFORNIA v CALIFORNIA CHURCH `J I I+P i _._ .CHURCH JENSEN I ! . JENSEN ANNADALE • 3 ANNADALE NORTH NORTH MUSCAT MUSCAT CENTRAL CENTRAL 2 a W 1 W y W m j J K N m q J g U $ W m U MALAGA 0 �' a u w 2$ m x W LL ? w a q z O a z q g z z u} �i ¢ a p MALAOA ' m 6 w F 5 x AMERICAN m m ¢ x S C O i a i z a a m > U z N E F AMERICAN m W a ATTACHMENT 5 OF FR 2600 Fresno Street Fsy City of Fresno Fresno,CA93721 U O www.fresno.gov RAI�°^ Legislation Details (With Text) File#: ID17-766 Version: 1 Name: Type: Action Item Status: Passed File created: 5/18/2017 In control: City Council On agenda: 5/25/2017 Final action: 5/25/2017 Title: Approve the Wireless Marketing Agreement with 5 Bars Communities a dba of XG Communities, LLC allowing 5 Bars to actively market wireless service infrastructure for City designated sites and authorize the City Manager or his designee to execute related documents. Sponsors: Information Services Department Indexes: Code sections: Attachments: 1. 5 Bars XG Communities Wireless Marketing and License Agreement.pdf Date Ver. Action By Action Result 5/25/2017 1 City Council approved as amended Pass REPORT TO THE CITY COUNCIL May 25, 2017 FROM: BRUCE RUDD, City Manager BY: BRYON HORN, Chief Information Officer Information Services Department SUBJECT Approve the Wireless Marketing Agreement with 5 Bars Communities a dba of XG Communities, LLC allowing 5 Bars to actively market wireless service infrastructure for City designated sites and authorize the City Manager or his designee to execute related documents. RECOMMENDATION Staff recommends that City Council authorize the City Manager or his designee to sign the Wireless Marketing Agreement between the City of Fresno (City) and 5 Bars Communities a dba of XG Communities, LLC (5 Bars). EXECUTIVE SUMMARY On October, 21, 2016, the City of Fresno released a Request for Qualifications (RFQ) Bid File 3503 for a Gigabit Wireless and/or Wired/Fiber System. The City was soliciting qualified interested parties to recommend solutions on how they would best use the City's assets in providing broadband City of Fresno Page 1 of 4 Printed on 6/2 212 0 1 7 p powEr�d by Lagi�r4 8 i File#: ID17-766, Version: 1 connectivity to the constituents of the City of Fresno. The City received thirteen (13) responses to the RFQ. As a respondent, 5 Bars was chosen due to its unique business proposal. The proposed solution is to develop and implement a marketing program where 5 Bars will market the City's assets for lease/license at no cost to the City. This effort will result in revenue to the City. The goals of this endeavor are to: • Increase Connectivity • Enhance Wireless Coverage • Minimize/Close the Digital Divide • Improve E911 Services • Address Smart City Initiatives • Generate Revenue to the City • Drive Local Economic Development 5 Bars will market to all wireless carriers in the area without discrimination and/or favoritism to any wireless carrier, thereby executing a fair and reasonable process. Leasing the City's assets is projected to generate $2.6 million in revenue to the City over 5 years. 5 Bars will develop a highly detailed project plan for the City. The goal is to lay out the strategy of anticipated processes and tools to be used during the project and act as a primary source of information for the project as it is planned, executed, monitored controlled and completed. Key tasks will include: • Master License Agreement (MLA). Negotiate and execute an MLA to represent the City with the four major carriers and third party operators. • Technology Roadmap/Planning. Provide planning for the City to serve as a roadmap for technology development now and in the future. The 5 Bars team will provide planning for the City that will include carrier marketing, network solutions, inventory of City assets, management and guidance around aesthetic design and development. 5 Bars will create a plan to enhance wireless coverage that allows ubiquitous coverage, which may also 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 will act as an advocate to the City and the agreement will give the City the ability to maintain control of the numerous applications received from carriers due to regulations. • Compile City Assets. Compile available City assets in a GIS platform including fiber, street lights, conduit, street furniture, buildings and align them with gaps in carrier coverage. • Carrier Marketing. Provide advocacy and representation in the implementation of the City's planning and secure funding from the wireless carriers on behalf of the City. 5 Bars will develop a marketing package, generate carrier interest, rationalize assets and host regular meetings with all major carriers. • Carrier Agreements. Negotiate and execute carrier agreements for the initial term of 5 years with the City's option to extend. 5 Bars will provide input, guidance and market data in regards to rates, best practices and carrier interests. • Carrier Site Selection. 5 Bars will engage in carrier site selection in that they will articulate all appropriate steps to the carriers and third party operators as well as sharing access to GIS data in order to select available pre-approved sites. In conjunction with the assets made available to carriers over the GIS database platform, 5 Bars will work with the City to ensure City of Fresno Page 2 of 4 Printed on 6/22/2017 powered by I PO stl-Tl 9 File#: ID17-766, Version: 1 that all locations offered to carriers are pre-approved for placement and in acceptable locations that meet the carriers' network requirements for seamless coverage. 5 Bars will have personnel dedicated to the City in order to ensure all guidelines and requirements are met. • Site Encroachment & Permitting. Coordinate with carriers on behalf of the City for the planning, permitting and management of a seamless municipal wireless system. 5 Bars will streamline permits for all carriers and become a single point of contact for cell site applications. 5 Bars will be the City advisor and advocate, working closely in collaboration with the carriers to increase carrier participation and generate revenue more quickly. The cost -effective model requires no out of pocket cost for the City. 5 Bars will assist with batch permitting applications submitted to the City under the required form factor specifications and pricing. • Technology Construction. Manage site locations to be determined with City approval in coordination with the carriers. Administer the use of public assets through a Site License Agreement according to the terms of the Master License Agreement and provide on-site supervision and coordination with the wireless carriers. Encourage attachments to existing City assets to reduce new pole clutter and increase revenue to the City. City participation will include providing available asset inventory and designating a single point of contact. The City will have final approval of sites, form factors, pricing, permits and guidelines. • Ongoing Marketing and Revenue Generation. Provide ongoing marketing for revenue generating technology, regulation consulting and wireless coverage assessment. 5 Bars will also work with the ecosystem partners to encompass citywide technology strategies such as the Internet of Things (IOT), analytics, sensor technologies and other communication platforms in order to address smart city initiatives. 5 Bars has an extensive background in telecommunications and wireless experience in planning, marketing, implementing, deploying, maintaining and managing wireless networks and complex technical solutions. 5 Bars has established strong relationships with the carriers and service providers at key levels and possess an extensive background and experience in legislative, regulatory and corporate communication with public policy, corporate strategy, external affairs and strategic partnerships. 5 Bars has already established relationships and agreements with AT&T, Verizon, Sprint and T-Mobile. BACKGROUND On October, 21, 2016, the City of Fresno released RFQ Bid File 3503 for a Gigabit Wireless and/or Wired/Fiber System. The City was soliciting qualified interested parties to recommend solutions on how they would best use the City's assets in providing broadband connectivity to the constituents of the City of Fresno. During the process, several respondents submitted various proposals and 5 Bars was chosen as a qualified provider to offer services that would benefit the City as a whole. 5 Bars' response was a unique business model that would produce revenue through the use of the City's assets. ENVIRONMENTAL FINDINGS The approval of this agreement is not a project for the purposes of the California Environmental Quality Act. LOCAL PREFERENCE City of Fresno Page 3 of 4 Printed on 6/22/2017 powered bj e File#: ID17-766, Version: 1 Local preference was not utilized as the Consultant selection is based on the most qualified and not fee based. FISCAL IMPACT No funds shall be expended for this agreement. This project is projected to generate $2.6 million over 5 years. Breakdown is as follows: Year 1 Year 2 Year 3 Year 4 Year 5 Totals Revenue $286,875 $392,063 $482,237 $617,866 $844,417 $2,623,458 These projections are based upon the leasing of assets to carriers for wireless (cell) coverage. Attachments: Wireless Marketing Agreement City of Fresno Page 4 of 4 Printed on 6/22/2017 posered by ff,tI,, ATTACHMENT 6 G2 WIRELESS MARKETING AGREEMENT BETWEEN THE CITY OF PALM SPRINGS AND 5 BARS COMMUNITIES THIS WIRELESS MARKETING AGREEMENT ("Agreement") is entered into, and effective on , 201 , between the CITY OF PALM SPRINGS, a California charter city 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, Page 1 of 24 123 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 (Q16071011005); 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: (1s) the provisions of the Scope of Services (Exhibit "A"); Page 2 of 24 1 �! (2"d) the provisions of the City's Request for Proposal (Exhibit "B"); (3'd) the terms of this Agreement; and, (4th) 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 1 L 5 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 Telecom munciations 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 24 126 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 1 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 "D". 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 I Page 6of24 cs 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 12 9 (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 24 130 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 24 131 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 1132 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 24 133 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 24 134 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 24 135 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 24 136 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 24 137 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 24 133 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 24 139 such County, and Consultant covenants and agrees to submit to the personal jurisdiction of such coup` 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 24 140 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 24 141 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 24 142 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 24 143 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 24 144 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 24 145 IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates stated below. "CITY" 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. "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(Notarized) Signature(Notarized) Printed Name/Title Printed Name/Title Page 24 of 24 146 CALFOOM ALL-PURPOSE ACKNOWLEDGAIFNT CIVIL CODE g 11ee A notary pAft or other aticar owroserg the artifices vidiea or*the i hr ty of the indwdual rM signed the docunsri to which firs certificate b allsdoct and not the truffikkiesa.acara%w rsi3ity of that document. State of Caiforrus ) Comity of ) On before me. Date Nero breed Name and Tills of his Officer pssortally appeared NameN of Sawr(s) who proved to me on the basis of aebefaclM evidartoe In be the personN whose rmun(s) iafare aubacribed to the wrttrrn iratrumard ad acknowledged to me Bid he/aheMey executed the same in hwAw their authorized capacitAwea and that by hialharRhetr signature(s)on the Kwbu nerd the peraar(a), Or the entity upon beheB of which the peraor<a)ceded.executed the ioabionartl_ I OK*order PENALTY OF PERJLRY urder the laws at the ads of Ca k mat that the foregoicg paragraph is true and correct_ WRFESS my hand and official seal. Stg^ultue Signahrre of Notary Pudic Place Notary Seel Above OPTIONAL 7hough this aecbon is opfiormd,oompletbg this irubmta6orr can dater aAarawn of the document or freuddent ceettaclunerd of thin farts to an unintended doaunent. Deacipleom of Atteched Document Idle or Type of Docunerrt Docurnerd Date: Number of Pages: Sigrer(s) Other Than Married Abovs: Capedty(nes)Claimed by Signers) Signer's Name: signer's Name: ❑Corporate Officer—Tdle(e): ❑Carponde Officer—T ): ❑Partrrer— ❑Limrtsd ❑dermal ❑Partrw— ❑Lambert ❑General ❑IndiAdusl ❑AtIormay in Fad ❑kKkwidusi ❑AtMmey in Fact ❑Trustee ❑Guardian or Cumsvalm ❑Trudse ❑Guardian or Conservator ❑OBrer ❑Other Signer Is Repreaenli g: signer Is Rspreset'hrg: ®2014 Nmbo nd Nat3ry Aaaocot m-www.N ry.ug•t-BM,LIS NDTARY(4KXO .Bifldez7) tEem 55907 147 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 2 148 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 AC 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 2of2 149 EXHIBIT "B" CITY OF SACRAMENTO REQUEST FOR PROPOSALS RFQ (Q16071011005) FOLLOWS THIS PAGE 150 EXHIBIT "C" CONSULTANT'S PROPOSAL FOLLOWS THIS PAGE 1J 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. Tahpuitz 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 5 152 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 "Y Page 2 of 5 153 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 5 154 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 Name/Title Printed Name/Title Exhibit "D" Page 4 of 5 155 EXHIBIT 1 TO RIGHT OF ENTRY AGREEMENT CITY ASSET LIST (TO BE COMPLETED) Exhibit "D" Page 5 of 5 156 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 15 157 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 15 158 "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 15 159 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 I G Q 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 5 of 15 1G ' 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 "Access/Utility 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 15 162 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 1 3 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 1G4 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 1615 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, (i) the Rent shall be paid up to the date of such physical dispossession or removal and (ii) 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: (t) terminate the License, vacate the Licensed Premises and be relieved from all further obligations under this Agreement; (ii) 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; (iil) 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 15 166 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 IG7 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 lei $ 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 Name/Title Printed Name/Title Exhibit "E" Page 13 of 15 1G9 EXHIBIT 1 TO LICENSE AGREEMENT LICENSED PREMISES (TO BE COMPLETED) Exhibit "E" Page 14 of 15 170 EXHIBIT 2 TO LICENSE AGREEMENT LICENSOR'S PROPERTIES (TO BE COMPLETED) Exhibit "E" Page 15of15 171