HomeMy WebLinkAbout03-02-2021 Contract with Cal Poly for Radio Shelter and Tower on KVEC HillDocuSign Envelope ID: 1 F5EC470-D91 D-41 D3-82FF-931 F6D68BE82
City of San Luis Obispo and
California Polytechnic State University
CONTRACT FOR
RADIO SHELTER AND TOWER ON KVEC HILL
The Parties, the City of San Luis Obispo (City) and the Board of Trustees of the California State University
through its campus, California Polytechnic State University, San Luis Obispo (Cal Poly) through this
contract, desire to create a working relationship between the two public entities which will enable the
construction of a mutually beneficial radio communication shelter and installation of a new communications
tower at Cal Poly's KVEC Hill.
Whereas, the City needs to make improvements or find an alternative to the Fire Station #2 radio
communication shelter to mitigate impacts of buildings being built in close proximity to Fire Station 2, with
a building height over 35 feet, including a property development located at 790 Foothill in San Luis Obispo;
Whereas, the City has an existing funding source to make improvements or build alternatives to the Fire
Station #2 radio communication shelter which serve the northern area of the City, including the Cal Poly
campus; and
Whereas, the City provides fire services to Cal Poly; and
Whereas, current radio coverage is inadequate on Cal Poly's campus; and
Whereas, relocating City radio equipment, including City Fire radio equipment, would be mutually
beneficial to both the City and Cal Poly by significantly improving radio coverage of the Cal Poly campus;
Whereas, relocating to KVEC would also significantly improve radio coverage for all City departments in
the northern area of the City; and
Whereas, Cal Poly continues to grow and construct new facilities on their campus and have an increased
need for enhanced radio coverage; and
Whereas, Cal Poly's current radio shelter and tower facilities are inadequate for this purpose; and
Therefore, in consideration of the mutual agreements contained herein, the Parties agree as follows:
1. Responsibilities
1.1. The City shall:
A. Authorize Cal Poly to act as the primary contact to complete the design of the radio
shelter, tower, and backup power facilities. Specifications for these facilities are to be
agreed upon by both parties within 60 days of signing of the contract. Should the
Parties fail to agree upon specification, including project costs, prior to the beginning
of construction, this contract shall be null and void with no further obligations to either
Party.
B. Pay sixty percent of the total project costs, such share not to exceed $520,000. Payment
for this work shall be made by the City to Cal Poly. An initial payment of $135,000
will be made within 30 days of signing of the contract. The remainder of the payments
will be made based on project milestones to be agreed upon within 90 days of signing
of the contract.
Contract for Radio Shelter and Tower on KVEC Hill
DocuSign Envelope ID: 1 F5EC470-D91 D-41 D3-82FF-931 F6D68BE82
1.2. Cal Poly shall:
A. Design, furnish, install, and construct the radio shelter, tower, and backup power
facilities at the KVEC Hill Site, either directly or through the use of contractors.
B. Be responsible for forty percent of the total project costs, not to exceed $346,000.
1.3. In the event that project costs are projected to exceed $866,000, the City and Cal Poly shall
meet to discuss project scope and estimated cost overruns. Any changes to the costs or changes to
scope to address cost changes shall be agreed upon by both the City and Cal Poly. Should projected
costs exceed the agreed -upon maximum costs due to unforeseen construction conditions
encountered after construction has commenced, and should the parties be unable to reach an
agreement concerning these costs, a Party may, at its own risk, fund the excess itself and seek
equitable reimbursement for the reasonable amount thereof.
2. Scope of Work
In general, the new radio shelter and tower will provide increased radio coverage for both the City and Cal
Poly. The shelter will house eight communication racks (five racks for the City and three racks for Cal
Poly). The racks assigned to each entity will be used as deemed necessary by the assigned entity. The
communications tower should be a minimum of 60' tall, unless radio studies offer compelling evidence that
a shorter tower will accommodate both parties Public Safety needs and the change is approved by both
parties.
Cal Poly shall be responsible for the construction portion of the Radio Shelter and Tower Project.
3. Term
The term of this contract shall commence on the date the contract is signed by both parties and shall extend
for an initial period of 25 years (Term), with such rights of termination hereinafter set forth. The contract
may be renewed or extended upon mutual agreement of the Parties.
4. Termination
The Parties may terminate this contract upon:
A. Mutual agreement of the Parties prior to the intended termination date; or
B. Urgent necessity in the event of a State or national emergency, as determined by Cal Poly or
the City; or
C. A material breach of any substantial provision of this contract, which breach remains uncured
for 60 days after the breaching Party's receipt of written notice of the breach from the other
Party; except that if the breach cannot, in a practicable manner, be cured within such 60-day
period, the breaching Party shall have such additional time as is reasonably necessary to cure
the breach.
D. In the event construction costs exceed available resources, this contract may be terminated by
either party without penalty of any kind prior to construction or within 30 days of full execution
of this contract.
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Contract for Radio Shelter and Tower on KVEC Hill
DocuSign Envelope ID: 1 F5EC470-D91 D-41 D3-82FF-931 F6D68BE82
E. If the tower or shelter substantially interferes with Cal Poly's operations, Cal Poly may
terminate this contract, subject to the requirement to provide a refund to the City for the
remaining term as set forth below.
If this contract is unilaterally terminated by Cal Poly after construction has begun and before expiration of
the agreed upon original term, Cal Poly will refund the City 4% of the final amount paid by the City toward
the construction of the project for every year remaining on the original term. The City will be responsible
to remove their radio equipment within 120 days of terminating the contract.
If this contract is terminated by the City or if it expires and is not renewed, the City will be responsible for
removing its radio equipment within 30 days of termination or expiration of the contract.
5. OwnershiD and Licenses
Cal Poly agrees to provide to the City the license to use the communication shelter and tower to for City
communication purposes for the Term of this contract and City agrees that its use of Cal Poly's radio shelter
and tower must not interfere with the operations of Cal Poly. The radio shelter and tower are and shall
remain the property of Cal Poly for the Term of this contract and after its expiration. Termination of the
contract by either Party would result in revocation of the City's license to use the communication shelter
and tower.
6. Maintenance and Restoration
6. L City's Responsibilities:
For the duration of this contract and any extensions thereof and at no cost to Cal Poly, City agrees to:
A. Maintain the integrity of communication shelter.
B. Maintain and perform HVAC system maintenance and repair at communication shelter
per manufacturer's specifications.
C. Maintain and perform Emergency Backup Generator maintenance and repair at
communication shelter site per manufacturer's specifications.
D. Maintain and perform tower maintenance and repair per manufacturer's specifications.
E. Maintain City equipment in City racks.
6.2. Cal Poly's Responsibilities:
For the duration of this contract and any extensions thereof and at no additional cost to City, Cal Poly agrees
to:
A. Maintain Cal Poly equipment in Cal Poly racks.
B. Maintain infrastructure to the facility (e.g., power, fiber communication, copper
communications). Fiber communications infrastructure will be subject to the existing
Memorandum of Understanding Educational Redundant Loop (ERL) agreement
between the City and Cal Poly.
C. Maintain and manage road access to the KVEC Hill radio site.
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Contract for Radio Shelter and Tower on KVEC Hill
DocuSign Envelope ID: 1 F5EC470-D91 D-41 D3-82FF-931 F6D68BE82
D. Maintain property surrounding the shelter according to regulations.
E. Provide and maintain high-speed Internet and communication access to City facilities
with Cal Poly Fiber, not to exceed two Strands, in accordance with all applicable law.
(Cal Poly has no obligation to provide or maintain active electronic devices at the City
site of connectivity.)
F. Provide temporary space within Cal Poly's existing radio shelter infrastructure on
KVEC Hill if the project is not completed before development of the 790 Foothill
property reaches a vertical height of 25'.
The Parties shall be responsible for performing, by themselves or with subcontractors reasonably acceptable
to both Parties, all construction, maintenance and repairs as delineated above. Such maintenance and repairs
shall be performed in a good and workmanlike manner in accordance with the National Electrical Safety
Code, the National Electrical Code, applicable industry standards and regulations of applicable
Governmental Authorities.
The Parties agree to develop a mutually agreeable written Operational Management Plan to address issues
including scheduled maintenance, expected service levels, length of outages, unscheduled outages, and
commitments to restoration in accordance with the timeframe set forth in section 2.2 (B).
7. Access
The Parties and their subcontractor(s) shall have access to the Communication Shelter on a 24-hours per
day, 7-days per week basis as necessary for the proper maintenance and/or restoration. Before beginning
any non -emergency, maintenance, each Party or its subcontractor shall give the other Parties at least 24
hours advance notice. Failure to provide such notice may result in denial of access if the work would result
in interference to the other Party.
8. Additions and Changes
In the event that a Party seeks changes in, additions to, or deletions from the Scope of Work in Section 3,
the Party seeking changes, additions or deletions shall promptly notify the other Party of (i) the proposed
changes, additions, or deletions.
(ii) the estimated cost of the proposed changes, additions, or deletions; (iii) the effect, if any, of the proposed
changes, additions, or deletions upon the scheduled completion of the Work; (iv) whether additional
Authorizations are required as a result of the proposed changes, additions, or deletions; and (v) the effect
of the proposed changes, additions or deletions upon the other Party's share of Project Costs. If both Parties
agree in writing to the proposed changes, additions or deletions, the Parties shall promptly proceed with the
performance of the work as so modified. The Project Costs and time for performance of the work shall be
equitably adjusted as necessary to reflect the impact of the agreed upon changes, additions or deletions on
the work and/or any Scope of Work.
9. Taxes
If applicable, each Party shall pay its respective share of any present or future taxes, fees, charges or
assessments that either Party is required or obligated to pay by reason of the construction, installation or
operation of the Radio Shelter and Tower on KVEC Hill.
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Contract for Radio Shelter and Tower on KVEC Hill
DocuSign Envelope ID: 1 F5EC470-D91 D-41 D3-82FF-931 F6D68BE82
10. Condemnation
Upon receipt of a formal notice of condemnation or other taking by eminent domain, each Party shall notify
the other Party immediately of any such proceeding threatened or filed against any portion of the Radio
Shelter and Tower on KVEC Hill. In the event and to the extent of any condemnation or other taking by
eminent domain of all or any part of the Radio Shelter and Tower on KVEC Hill, or any property or rights
relating thereto, then the proceeds thereof shall be equitably apportioned between the Parties.
11. Waiver of Compliance
Failure of either Party to enforce or insist upon compliance with any of the terms or conditions of this
contract shall not constitute a waiver or relinquishment of any such terms or conditions. To the contrary,
the same shall remain at all times in full force and effect.
12. Assienment
Either Party may assign this contract to another governmental agency with a consistent mission of that Party
without the prior written consent of the other. However, either Party must give the other Party thirty (30)
days prior written notice of any such assignment. The terms and provisions of this contract shall extend to
and be binding upon and inure to the benefit of the successors and assigns of the respective Parties hereto.
13. Amendments
Any amendment, modification, or variation from the terms of this Agreement, including but not limited to
a change in costs or project scope, shall be in writing and shall be effective only upon approval by the City
Manager, or his or her designee. Further, any references to "approval by the City" in this Agreement means
approval by the City Manager, or his or her designee.
14. Sublease
The parties reserve the right to lease, sublease, license, sell, or utilize its respective portion of the Radio
Tower and Shelter space assigned to the parties, subject to this contract. Sublessees must serve a Public
Safety interest and will require approval by both the City and Cal Poly. All sublessees and licensees shall
use the Radio Tower and Shelter space in a manner consistent with this contract and the agreement between
such Party and the proposed subtenant or licensee (which agreement is hereinafter referred to as the "Lease",
the said subtenant or licensee being hereinafter referred to as "Lessee") shall in all respects be subject to
the terms and conditions of this contract. For purposes of this contract, all acts and omissions of the Lessee
shall be deemed acts and omissions of the Party who is the lessor. Notwithstanding the foregoing, the rights
of the Parties to grant Leases shall be subject to the restrictions, contractual or otherwise, imposed by any
governmental authority or other third Party which owns or controls the real property rights of way upon
which the relevant portion of the Radio Shelter and Tower is constructed.
15. Relationship of Parties
City and the agents and employees of City in the performance of this contract shall act in an independent
capacity and not as officers or employees or agents of Cal Poly and/or the CSU, except as expressly
provided by Cal Poly and/or the CSU. The employees of Cal Poly and/or the CSU who participate in the
performance of this contract are not agents of the City.
Contract for Radio Shelter and Tower on KVEC Hill
DocuSign Envelope ID: 1 F5EC470-D91 D-41 D3-82FF-931 F6D68BE82
16. Severability
If any one or more of the terms, provisions, covenants or conditions of this contract shall to any extent be
declared invalid, unenforceable, void or voidable for any reason by a court of competent jurisdiction, the
finding or order or decree of which becomes final, none of the remaining terms, provisions, covenants
or conditions of this contract shall be affected thereby, and each provision of this contract shall be valid
and enforceable to the fullest extent permitted by law.
17. Notices
All notices herein which are to be given or which may be given by either Party to the other, shall be in
writing and shall be deemed to have been given three (3) business days after deposit in the United States
Mail, certified and postage prepaid, return receipt requested and addressed as follows:
To City:
City Clerk, City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
To Cal Poly:
California Polytechnic State University
Attn: Strategic Business Services
1 Grand Avenue
San Luis Obispo, CA 93407
Nothing herein contained shall preclude the giving of any such written notice by personal service, in which
event notice shall be deemed given when actually received. The address to which notices shall be mailed
as aforesaid to either Party may be changed by written notice given by such Party to the other as herein
above provided.
18. Indemnity
City shall defend, indemnify and hold harmless California State University and each of their trustees,
officers, employees, agents and volunteers from and against any and all liability, loss, expense, or claims
for injury or damages arising out of, resulting from, or in connection with the performance of this contract,
but only in proportion to and to the extent of such liability, loss, expense, or claims for injury or damages
are caused by or result from the negligence or intentional acts or omissions of City, its officers,
subcontractors, assignees, appointees, agents or employees.
Cal Poly shall defend, indemnify and hold harmless City and each of their officers, employees, agents and
volunteers from and against any and all liability, loss, expense, or claims for injury or damages arising out
of, resulting from, or in connection with the performance of this contract, but only in proportion to and to
the extent of such liability, loss, expense, or claims for injury or damages are caused by or result from the
negligence or intentional acts or omissions of Cal Poly, its officers, subcontractors, assignees, appointees,
agents or employees.
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Contract for Radio Shelter and Tower on KVEC Hill
DocuSign Envelope ID: 1 F5EC470-D91 D-41 D3-82FF-931 F6D68BE82
In the event a written request for indemnification and defense is made against a Party hereto, the Party
requesting indemnification and or defense shall promptly notify the other Party. The Party who owes
indemnification shall assume the indemnification and defense, including the employment of legal counsel
and payment of all related expenses. Once a Party has been notified that the other Party has accepted tender,
and it shall be indemnified and defended under this paragraph, it shall have the right to employ separate
legal counsel and to participate in the defense of any legal action or proceeding, but the indemnifying and
or defending Party shall not be required to pay the fees or expenses of such separate legal counsel. Nothing
in this section precludes a Party from employing legal counsel and defending itself against any claim prior
to receiving written notification from the Party from whom indemnification and defense is sought that it
shall be indemnified and defended, but no legal costs encumbered prior to notification shall be, or become,
the responsibility of the notified Party.
As of the date of execution of this contract, the Parties agree and represent they each maintain self-insurance
programs deemed suitable for purposes of this contract. Should either Party make material changes to their
program during the term of this contract, they will notify the other of the nature and extent of such changes.
19. Contractor's Indemnification of City
Cal Poly agrees to include in any construction contract that it enters into pursuant to this contract a provision
which requires the contractor to indemnify and name the City as an additional insured, as a third -party
beneficiary of that contract, on the same terms and conditions that the contractor agrees to indemnify Cal
Poly.
20. Dispute Resolution
Any dispute arising under the terms of this contract that is not resolved within a reasonable period of time
by authorized representatives of the City and Cal Poly shall be brought to the attention of the City Manager
(or designated representative) of the City and the Vice President for Administration and Finance (or
designee) of Cal Poly for joint resolution. At the request of either Party, the CSU shall provide a forum for
discussion of the disputed item(s), at which time the Vice Chancellor, Business and Finance (or designated
representative) of the CSU shall be available to assist in the resolution by providing advice to both Parties.
If resolution of the dispute through these means is pursued without success, either Party may seek resolution
employing whatever remedies exist in law or equity beyond this contract. Despite an unresolved dispute,
the Parties shall continue without delay to perform their respective responsibilities under this contract.
21. Compliance with Laws
The Parties will comply with all applicable laws and regulations in performing their obligations hereunder.
22. Governing Law and Venue
This contract is to be performed in San Luis Obispo County and shall be governed exclusively by the
provisions hereof and by the laws of the State of California. Any action brought to enforce the contract or
in connection with this contract shall be brought in a court of competent jurisdiction in San Luis Obispo
County, California.
23. Whole Agreement and Amendments
This contract contains the entire agreement between the Parties and shall not be modified, amended or
supplemented, or any rights herein waived, unless such amendment or modification to this contract is (i) in
writing; (ii) refers to this contract; and (iii) executed by an authorized representative of each Party. This
contract supersedes any and all previous agreements, whether written or oral, between the Parties
concerning the subject matter of this contract.
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Contract for Radio Shelter and Tower on KVEC Hill
DocuSign Envelope ID: 1 F5EC470-D91 D-41 D3-82FF-931 F6D68BE82
24. Joint Work Product
This contract is the joint work product of both Parties hereto, accordingly, in the event of ambiguity no
presumption shall be imposed against either Party by reason of document preparation.
25. Force Majeure
Neither Party shall be liable to the other for any failure of performance under this contract due to causes
beyond its control, including, but not limited to: acts of God, fire, flood, pandemic or other catastrophes;
adverse weather conditions; material or facility shortages or unavailability not resulting from such Party's
failure to timely place orders therefor; lack of transportation; the imposition of any governmental codes,
ordinances, laws, rules, regulations or restrictions; national emergencies; insurrections; riots, wars; or
strikes, lock -outs, work stoppages or other labor difficulties; provided however, that said time period shall
be extended for only the actual amount of time said Party is so delayed. An act or omission shall not be
deemed to be "beyond its control" if committed, omitted, or caused by such Party, or its employees, officers,
agents, or affiliates, or by any corporation or other business entity that holds a controlling interest in said
Party, whether held directly or indirectly.
26. Warranty of Authority
The persons executing below on behalf of the respective parties to this contract represent and warrant that
each of them are able and fully empowered to sign for their party principal and, as agents for the parties,
have full authority to commit their principals to the terms and conditions of this contract
By signing below the duly authorized Parties to this contract agree to these terms and conditions and agree
to act in good faith. This contract is not meant to circumvent any law or requirement for either Party.
This contract is executed this 2nd day of March, 2021, in the City of San Luis Obispo, State of California.
CITY OF SAN LUIS OBISPO THE BOARD OF TRUSTEES OF THE
CALIFORNIA STATE UNIVERSITY, THROUGH
ITS CAMPUS, CALIFORNIA POLYTECHNIC
STATE UNIVERISTY SAN LUIS OBISPO
By: By:
Derek Johnson Dru Zachmeyer
Title: city Manager Title: AVP Admin. and Finance
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Contract for Radio Shelter and Tower on KVEC Hill