HomeMy WebLinkAbout09-19-2017 Item 11 - Proposed Professional Services with 5 BARS Communities, a DBA of XG Communities LLC for Wireless Consulting Services Meeting Date: 9/19/2017
FROM: Derek Johnson, Assistant City Manager
Prepared By: Steve Schmidt, Information Technology Manager
SUBJECT: PROPOSED PROFESSIONAL SERVICES WITH 5 BARS COMMUNITIES, A
DBA OF XG COMMUNITIES, LLC FOR WIRELESS CONSULTING
SERVICES
RECOMMENDATION
Authorize the City Manager or designee to enter a contract with 5 Bars Communities, a dba of
XG Communities, LLC for wireless consulting and management services.
REPORT-IN-BRIEF
This report is requesting Council approval to contract with a wireless facilities marketing/leasing
agent, 5 Bars Communities, a dba of XG Communities, LLC, which will position the City to deal
with the ramifications of pending California Senate Bill #649. SB 649 will limit local control
over small wireless communications facilities or cellular sites. This legislation, if approved, will
directly limit a city’s ability to control its public infrastructure, specifically street lights and
traffic signal lights. SB 649 will grant telecommunications companies the right to install wireless
communications facilities or cell sites on public infrastructure and effectively takes away a city’s
ability to object over the time, place and manner of the cellular site installation. SB 649 will also
establish a $200 annual monetary limit per site/pole that local agencies can charge
telecommunications companies. This limit is substantially low as compared to other
municipalities annual rate of $2,000 - $3,000 per site/pole. In addition, the City would not
recoup costs associated with the number of staff hours that will be required to issue permits and
inspect wireless facilities being installed and limits the ongoing revenue to use the City’s public
infrastructure.
DISCUSSION
In February 2016, the City of Sacramento released a Request for Qualifications (RFQ) for a
wireless system marketing agreement and subsequent contract, 5 Bars LLC was chosen due to its
unique business proposal. The agreement between the City Sacramento and 5 Bars includes a
cooperative purchasing section that allows other public agencies to piggyback and enter into a
similar agreement with 5 Bars. 5 Bars LLC was acquired by XG Communities, LLC. A
subsidiary of XG Communities is now doing business as 5 Bars Communities. (“5 BARS”).
Numerous California cities have already entered or are in the process of entering into agreements
with 5 BARS to prepare for the Senate Bill. If approved, the City can use the City of
Sacramento’s contract and negotiate an independent contract with 5 BARS. The City’s Financial
Management Manual permits the use of piggy back purchases for fleet or specialized units, based
on competitive procurements conducted by the state or other local public agencies, but does not
address the use of piggybacking on other agencies’ request for qualifications process. In this
instance, piggybacking on the City of Sacramento’s qualification would save the City both time
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and money.
The proposed agreement will result in the implementation of a marketing program where 5
BARS will market the City’s assets for lease/license at no cost to the City and keep a negotiated
amount to be retained by 5 BARS for this service. This effort will result in a new source of
revenue for the City as well as maintaining the City’s right to control what equipment wireless
carriers install on City facilities and keep revenue rates consistent with past rates. The goals of
this endeavor are:
• Increase Connectivity for the City
• Enhanced Wireless Coverage
• Minimize/Close the Digital Divide
• Improve 911 Services
• Address Smart City Initiatives
• Generate Revenue to the City
• Drive local Economic Development
• Maintain Local Control
The following is a comparison of SB649 versus 5 BARS:
SB649 vs 5 BARS
Number of Sites x $ amount per site $ Amount Comparison
SB649
100 sites x $200/year = $20,000 for the City
5 BARS
(Fee split 65% City/35% 5Bars)
100 sites x $1,200/year = $120,000 x 65% $78,000 for the City
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 100 of the
City’s assets via 5 BARS at a rate of $100 per pole per month ($1200 per year) will bring an
estimated $390,000 in revenue to the City over 5 years. The City has 200+ street light and
traffic signal poles that cellular companies could use for micro cell sites. This could potentially
generate a revenue up to $156,000 per year. However, this agreement will exclude existing
macro cell leases and a right of way license agreement (if approved by the Council) proposed
by Crown Castle NG West LLC on 6 poles downtown. The Crown Castle proposal has been in
process for over a year.
The initial term of the Agreement is five (5) years, with up to four additional five year terms for
a maximum of 25 years’ total.
5 BARS will develop a highly-detailed project plan for the City. The goal is to lay out the
strategy of anticipated processes to be used during the project and act as a primary source of
information of the project as it is planned, executed, monitored controlled and completed. Key
tasks will include:
• Master License Agreement (MLA). Negotiate and execute a Master License
Agreement (MLA) to represent the City with the major carriers and third party operators.
• Technology Roadmap/Planning. Provide planning for the City to serve as a roadmap
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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 the C ity to achieve
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 C ity 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 C ity assets in a GIS platform including street
lights, traffic signals, 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 C it y . 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 work 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 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 C ity P lanners to ensure 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 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 per 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
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such as the Internet of Things (IOT), analytics, sensor technologies and other
communication platforms to address smart city initiatives.
5 BARS has an extensive background in telecommunications and wireless experience in
planning, marketing, implementing, deploying, maintain and managing wireless networks and
complex technical solutions. They have established strong relationships with the carriers and
service providers at key levels and possess an extensive background and experience in
legislative, regulatory and corporation communication with public policy, corporate strategy,
external affairs and strategic partnerships. 5 BARS has established relationships and
agreements with AT&T, Verizon, Sprint and T-Mobile.
CONCURRENCES
Administration and IT Department staff, City Attorney’s Office and Purchasing Analyst concur
with this recommendation
ENVIRONMENTAL REVIEW
The approval of this agreement is not a project for the purposes of the California Environmental
Quality Act. Individual cell facilities are subject to the California Environmental Quality Act.
FISCAL IMPACT
No funds shall be expended for this purchase. Working with 5 Bars, staff has estimated that the
City could realize an estimated $78,000 per year from this contract. Actual amounts may adjust
as a result of negotiations with 5 Bars.
ALTERNATIVES
Do not enter into a relationship with 5 Bars This is not recommended due to the potential
ramifications of Senate Bill 649 that would likely mean that City assets would be forced to be
leased at sub market rates and the City’s discretion to determine design and location would be
significantly curtailed.
Attachments:
a - 5 BARS Contract Options - XG
b - Modified Form of Agreement - 5 BARS
c - General Terms and Conditions
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POPULATION
50,000
50 SMALL CELL SITES 250 SMALL CELL SITES
APPROXIMATE CITY REVENUE
$60,000*
APPROXIMATE CITY REVENUE
$300,000*
POPULATION
250,000
* Estimated potential revenue per year to the City, with no out
of pocket costs. 5 Bars operates on a revenue share model.
* Estimated potential revenue per year to the City, with no out
of pocket costs. 5 Bars operates on a revenue share model.
5 BARS CONTRACT OPTIONS
Contract Details
Options
AGREEMENT
An Agreement with 5 Bars to
proactively market underutilized
city-owned asset to wireless
carriers, negotiate market driven
lease rates, and increase wireless
coverage and capacity in your City
with no cost to the City.
At Will Agreement
CONTRACT DETAILS
Initial five (5) year
marketing agreement from
June 2016 through June
2021
Option to renew for four (4)
additional five (5) year
periods
REVENUE SHARE
BASE PRICE: $0*
REVENUE SHARE:
City 65%
5 Bars 35%
*5 Bars will recover its investment and
program costs solely through revenue
sharing generated from wireless carrier
marketing program.
City of Sacramento Cooperative Piggyback
National IPA Purchasing Group
Formal RFP completed March 26th, 2016
BID #Q16071011005
Agreement and staff report available (cut & paste for rationale)
5 Bars Stand-alone
See agreement attached
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WIRELESS MARKETING AGREEMENT BETWEEN
THE CITY OF SAN LUIS OBISPO AND 5 BARS COMMUNITIES
This Wireless Marketing Agreement (“AGREEMENT”) is made and entered into on ______, 2017
(the “Effective Date”) between the City of San Luis Obispo (“CITY”) and 5 Bars Communities a dba of
XG Communities, LLC a Delaware limited liability company (“5 BARS”) (each a “PARTY” and
collectively the “PARTIES”), with reference to the following facts and -circumstances, which the
PARTIES represent by their signatures below 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 a dba of XG Communities, LLC is a limited liability company formed pursuant to 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 current and anticipated wireless coverage needs.
D. 5 BARS provides planning tools to assist subscribing municipal corporations with accessing relevant
information and identifying intelligent options and solutions for the processing of applications for
wireless telecommunications facilities on a real time basis.
E. CITY desires to engage 5 BARS to provide wireless consulting, management and development services
related to the planning and implementing a marketing plan for Wireless Telecommunications Facilities
(as that term is defined in Section 2, below), as further described herein.
F. CITY desires to engage 5 BARS to proactively market existing CITY-owned and 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:
1. Term and Termination. 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, and shall renew automatically for up to four (4)
additional five year terms, renewals subject to the written mutual consent of the PARTIES. The full potential
term of the Agreement is twenty five (25) years (“Agreement Term”). However, this Agreement may be
terminated by either PARTY, for any reason, with or without cause, following written notice by the
terminating party served upon the other PARTY a minimum of sixty (60) calendar days prior to the noticed
termination date. Both PARTIES expressly waive any and all damages, expenses, costs, cost recovery, loss
of income/profit, or any other claim or liability of this Agreement. In the event of termination of this
Agreement, ownership, rights and responsibilities relating to administration of any sublicense agreement
shall automatically be transferred to CITY, unless otherwise mutually agreed upon in writing prior to the
expiration or termination of the sublicense agreement.
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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 other City
owned 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 and/or facilitating wireless communication of telephone or data or
any other media (“Wireless Telecommunications Facilities”). CITY in its sole discretion shall identify a
list of City Assets (“Asset List”) 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 analysis(“RF”), 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 telcommunications and 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 tasks 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”. 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/losses and provider
plans, and on an annual basis, ongoing and updated RF analysis with reports, feasibility analysis,
pricing and fee recommendations, form factor and aesthetic policy development reports and
recommendations, technology refresh and advancement updates, and other consultation specific to
wireless broadband service providers, unless 5 BARS and CITY mutually waive, in writing,the
annual ongoing study,. 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 City site(s) included in the Master Plan. CITY
grants 5 BARS the exclusive right to market, and after approval of a license agreement with 5 BARS,
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. In the event that multiple wireless service providers apply for access to the same
physical site, 5 BARS shall consult with CITY, and thereafter give preference to the wireless service
provider that provides any CITY requested services at the site.
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., CITY shall notify 5 BARS of its determination on the request in writing, and, if approved,
shall offer to enter into a license with 5 BARS,in a form approved by the City Manager and City
Attorney. 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
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Wireless Telecommunications Facilities) in accordance with the terms of this Agreement. A license
agreemen tshall be executed for each designated City Asset (provided, however, that a single license
agreement may be utilized for multiple sites that are the subject of this Agreement). 5 BARS
understands and acknowledges that CITY shall have the sole and final authorityas to whether to
enter into a license or an amendment to any such license and/or other agreement for any existing
City structure (e.g., rooftop, existing CITY owned tower, etc.). 5 BARS further understands and
acknowledges that it must comply (or cause compliance) with and receive (or cause receip t of) all
necessary entitlements and permits from CITY, including but not limited to complying (or causing
compliance) with the City’s charter, all City Ordinances and regulations,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. 5 BARS shall not sublicense or
construct Wireless Telecommunications Facilities on City Assets until a master license agreement,
in a form approved by the City Manager and City Attorney, covering the respective City Assets, is
entered into between the PARTIES.
d. Exclusions.
i. 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 .
ii. City Assets not currently leased as macro-cell sites or as a telecommunications facility that
are intended for direct-marketing by the City for macro-cell site development may be
identified in writing by the City (“City Marketed Assets” from time to time). 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.
iii. 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 CITY’s authority with respect to said
Excluded Services.
iv. City Property that is currently leased as macro cell sites or subject to a telecommunications
facility lease is excluded from this Agreement. City reserves the right to market such assets
directly, or by granting, delegating or contracting with a third party to do so.
v. A Right of Way License Agreement with Crown Castle NG West LLC, if approved by
CITY, is excluded from this Agreement; provided, if that Right of Way License Agreement
is terminated or expires, this Agreement shall cover those locations previously covered by
the Right of Way License Agreement.
3. Telecommunications Ordinance Revision. Within one hundred eighty (180) days after the Effective Date,
CITY shall reasonably consider revisions to its telecommunications ordinance (San Luis Obispo Municipal
Code Section 17.16.120 et seq) to specify that the CITY’s review of Wireless Telecommunications Facilities
that are (i) on City Assets, and not excluded by this Agreement, and (ii) subject to a license agreement 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
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designated by CITY for 5 BARS’ intended use. CITY and 5 BARS shall enter into a Right of Entry
Agreement, in a form approved by the City Manager and City Attorney, 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 (“Due 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 time as set
forth in the Right of Entry Agreement.
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 , or as otherwise
specifically excluded, 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. 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, or as otherwise specifically excluded, 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 percent (65%) of
recurring gross payments that are:
i. Received by 5 BARS from sublicensees or any source on new Wireless
Telecommunications Facilities located 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 percent (75%) of
recurring gross payments that are:
i. Received by 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. Payment. 5 BARS shall pay to CITY monthly, CITY’s share of the revenues generated from City
Assets, together with a detailed report identifying the amount of revenue from each identified site.
d. Reports. 5 BARS shall provide CITY with annual reports reflecting the revenue generated City
Assets, by each site, and CITY’s share of that revenue, within sixty (60) days of the close of 5
BARS’ fiscal year.
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
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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.5
BARS shall require furnish and install, or require its sublicensees to furnish and install, at its or their sole
cost and expense, a City approved electrical meter or submeter to measure the electricity used by 5 BARS
or its sublicensees on City Assets.
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 other 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. Subject to and without limiting the foregoing, the PARTIES agree that a failure by 5
BARS to diligently market the Master Plan in accordance with Paragraph 2(b), above, shall constitute a
material default under this Paragraph 8;
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 obtain sublicenses as
such records, books, papers and documents that are maintained 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 The provisions of this Section shall survive
termination or expiration of this Agreement.
11. Insurance And City General Provisions. At the time 5 BARS signs and delivers this Agreement to CITY,
as well as at all times during the Agreement Term, 5 BARS shall maintain, at a minimum, the required
insurance as set forth in the attached Exhibit “A”: 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 ti me be less
than the amounts required set forth in the attached Exhibit “A” to this Agreement. This Agreement's
insurance provisions shall be separate and independent from the indemnification and defense provisions of
this Agreement and shall not in any way limit the applicability, scope or obligations of the indemnification
provisions
12. City’s General Provisions Incorporated. City’sContract Performance Terms, set forth in the attached
Exhibit “A,” are incorporated into this Agreement.
13. 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”).
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14. 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, and tracking, the development and/or 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,and subject to other exclusions specified in Section 2 of this Agreement . 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.
15. Governing Law and Venue. This Agreement shall be governed by the laws of the State of California. Venue
for purposes of the filing of any action relating to the enforcement or interpretation of this agreement, and
any rights and duties hereunder, shall be San Luis Obispo County, California.
16. General Provisions.
a. Independent Contractor. 5 BARS shall, during the Agreement Term, be construed as an independent
contractor and not an employee of CITY. As an independent contractor, neither 5 BARS, nor any
of its employees or sublicensees, is entitled to the benefits or protections available to CITY
employees. 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 this Agreement and 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.
Authorizations. All individuals executing this Agreement on behalf of the respective PARTIES
certify and warrant that they have the capacity, and have been duly authorized to so execute this
Agreement on behalf of the entity so indicated.
17. 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.
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18. 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 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.
19. Good Faith. The PARTIES agree to exercise their reasonable best efforts and utmost good faith to effectuate
all the terms and conditions of this Agreement, and to execute such further instruments and documents as
are necessary or appropriate to abide by all of the terms and conditions of this Agreement.
20. Assignment. This Agreement, and any interest in this Agreement, is not transferable or assignable by either
PARTY, However, CITY may, in its sole discretion, and subject to CITY’s prior written consent with such
conditions as CITY sees fit, permit 5 BARS to assign or transfer this Agreement, or any interest in this
Agreement,, to a person or entity with demonstrated capacity to carry out 5 BARS’ obligations under this
Agreement Conditions may include, but are not limited to, CITY’s receipt of a portion of the proceeds
received or to be received by 5 BARS as a result of the transfer or assignment, if the assignment is proposed
in the initial term or prior to substantial performance of 5 BARS services, or prior to significant sublicensing
of City Assets, or prior to CITY’s receipt of substantial revenues 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.
21. 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.
22. 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 fifth
(5th) 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 (1) 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: _____________
With a copy to:
City Attorney
990 Palm Street
San Luis Obispo, CA 93401
Phone: 805-781-7140
Fax: 805-________
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5 BARS: Kevin Muldoon, VP & General Counsel
5 Bars Communities
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
Any PARTY may change its address by giving the other PARTIES written notice of its new address as provided above.
23. Successors. This Agreement shall be binding on and shall inure to the benefit of the PARTIES and their
respective successors.
24. 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.
25. Confidential Information and Ownership of Documents.
a. Any reports, information, or other data prepared or assembled by 5 BARS pursuant to this Agreement
shall not be made available available to any individual or organization by 5 BARS without the prior
written approval of the CITY. During the term of this agreement and thereafter, 5 BARS shall not,
without prior written authorization consent of CITY, disclose to anyone any Confidential
Information. The term Confidential Information for the purposes of this Agreement shall include all
proprietrary and Confidential Iinformation of the CITY, including but not limited to business plans,
marketing plans, financial information, materials, compilations, documents, instruments, models,
source or object codes, public safety communications equipment locations, and other information
disclosed or submitted, orally, in writing, or by any other medium or media. All Confidential
Information shall be and remain confidential and proprietary in the City.
b. Any and all writings and documents prepared or provided by 5 BARS pursuant to this Agreement
are the property of the City at the time of preparation and shall be turned over to the CITY promptly,
and upon request by CITY, and upon expiration or termination of the Agreement. 5 BARS shall
not permit the reproduction or use therof by any other person o r business, except as otherwise
expressly provided herein.
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c. If 5 BARS should subcontract all or any portion of the services to be perreformed under this
Agreement, 5 BARS shall be responsible for ensuring that each subcontractor shall also comply
with the requirements of this section.
d. 5 BARS understands and by signing this Agreement expressly acknowledges that the CITY is a
municipality and as a local government agency it is required to provide certain information to the
public, upon request. To the extent that any records, communications, Agreements, or other
information relating to the business relationship between 5 BARS and the CITY is deemed to be
subject to the National Freedom of Information Act or the California Public Records Act, 5 BARS
understands and acknowledges that said information must and will be turned over to requesting
members of the public by the CITY. CITY warrants and hereby expressly agrees not to publicly
disclose any information relating to 5 BARS other than that required by law.
e. This section shall survive expiration or termination of this Agreement.
“CITY”
The City of San Luis Obispo
Date: __________________ By: ________________________________
Title: Heidi Harmon, Mayor
ATTEST:
__________________________
Carrie Gallagher, City Clerk
APPROVED AS TO FORM:
__________________________
J.Christine Dietrick, City Attorney
“5 BARS”
5 BARS COMMUNITIES A DBA OF XG
COMMUNITIES, LLC
Date: __________________ By: ________________________________
Title: _______________________________
APPROVED AS TO FORM:
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__________________________
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EXHIBIT A
CONTRACT PERFORMANCE TERMS
1. Business Tax. Contractor must have a valid City of San Luis Obispo business tax certificate prior to execution of
the contract. Additional information regarding the City's business tax program may be obtained by calling (805)
781-7134.
2. Ability to Perform. Contractor warrants that it possesses, or has arranged through subcontracts, all capital and
other equipment, labor, materials, and licenses necessary to carry out and complete the work hereunder in
compliance with any and all federal, state, county, city, and special district laws, ordinances, and regulations.
3. Warranties. Contractor warrants that all goods delivered will be free from defects in workmanship, material and
manufacture; are new (not refurbished or reconditioned) unless otherwise stated in this Order; are of merchantable
quality and fit for the purpose intended by the City to the extent that purpose has been disclosed to Contractor;
complies with the requirements of this Order; and complies with all applicable laws and regulations. Contractor
also warrants that all services performed under this Order shall be rendered in a good and workmanlike manner by
skilled personnel in compliance with all applicable laws and regulations.
4. Laws to be Observed. Contractor shall keep itself fully informed of and shall observe and comply with all
applicable state and federal laws and county and City of San Luis Obispo ordinances, regulations and adopted codes
during its performance of the work.
5. Payment of Taxes. The contract prices shall include full compensation for all taxes that Contractor is required to
pay.
6. Permits and Licenses. Contractor shall procure all permits and licenses, pay all charges and fees, and give all
notices necessary.
7. Safety Provisions. Contractor shall conform to the rules and regulations pertaining to safety established by OSHA
and the California Division of Industrial Safety.
8. Public and Employee Safety. Whenever Contractor's operations create a condition hazardous to the public or City
employees, it shall, at its expense and without cost to the City, furnish, erect and maintain such fences, temporary
railings, barricades, lights, signs and other devices and take such other protective measures as are necessary to
prevent accidents or damage or injury to the public and employees.
9. Preservation of City Property. Contractor shall provide and install suitable safeguards, approved by the City, to
protect City property from injury or damage. If City property is injured or damaged as a result of Contractor's
operations, it shall be replaced or restored at Contractor's expense. The facilities shall be replaced or restored to a
condition as good as when the Contractor began work.
10. Immigration Act of 1986. Contractor warrants on behalf of itself and all sub-contractors engaged for the
performance of this work that only persons authorized to work in the United States pursuant to the Immigration
Reform and Control Act of 1986 and other applicable laws shall be employed in the performance of the work
hereunder.
11. Contractor Non-Discrimination. In the performance of this work, Contractor agrees that it will not engage in,
nor permit such sub-contractors as it may employ, to engage in discrimination in employment of persons because
of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of such persons.
12. Data Security. Contractor shall comply with Data Safeguards. Data Safegaurds means industry-
standard safeguards against the destruction, loss, misuse, unauthorized disclosure, or alteration of the
City’s data or confidential information, and such other related safeguards that are set forth in
applicable laws, a statement of work or pursuant to the City’s policies or procedures. Contractor
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personnel and any subcontractors shall not attempt to access, and shall not allow access, to the City’s
data and other confidential information that is not required for providing the ordered goods or
services.
13. Work Delays. Should Contractor be obstructed or delayed in the work required to be done hereunder by changes
in the work or by any default, act, or omission of the City, or by strikes, fire, earthquake, or any other Act of God,
or by the inability to obtain materials, equipment, or labor due to federal government restrictions arising out of
defense or war programs, then the time of completion may, at the City's sole option, be extended for such periods
as may be agreed upon by the City and the Contractor.
14. Inspection. Contractor shall furnish City with every reasonable opportunity for City to ascertain t hat the services
of Contractor are being performed in accordance with the requirements and intentions of this contract. All work
done and all materials furnished, if any, shall be subject to the City's inspection and approval. The inspection of
such work shall not relieve Contractor of any of its obligations to fulfill its contract requirements.
15. Audit. The City shall have the option of inspecting and/or auditing all records and other written materials used by
Contractor in preparing its invoices to City as a condition precedent to any payment to Contractor.
16. Interests of Contractor. Contractor covenants that it presently has no interest, and shall not acquire any interest
direct or indirect or otherwise, which would conflict in any manner or degree with the performance of the work
hereunder. Contractor further covenants that, in the performance of this work, no sub-contractor or person having
such an interest shall be employed. Contractor certifies that no one who has or will have any financial interes t in
performing this work is an officer or employee of the City. It is hereby expressly agreed that, in the performance
of the work hereunder, Contractor shall at all times be deemed an independent contractor and not an agent or
employee of the City.
17. Hold Harmless and Indemnification. Contractor shall indemnify, defend, and hold harmless the City, and its
officials, officers, employees, agents and volunteers (“City indemnitees”), from and against any and all causes
of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels’ fees and
costs of litigation (“claims”), arising out of the Contractor’s performance of its obligations under this agreement
or out of the operations conducted by Contractor, including the City’s active or passive negligence, except for
such loss or damage arising from the sole negligence or willful misconduct of the City. In the event the City
indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from Contractor’s
performance of this agreement the Contractor shall provide a defense to the City indemnitees or at the City’s
option reimburse the City indemnitees their costs of defense, including reasonable legal counsels’ fees, incurred
in defense of such claims.
18. Ownership of Materials. All original drawings, plan documents and other materials prepared by or in possession
of Contractor as part of the work or services under these specifications shall become the permanent property of the
City, and shall be delivered to the City upon demand.
19. Release of Reports and Information. Any reports, information, data, or other material given to, prepared by or
assembled by Contractor as part of the work or services under these specifications shall be the property of City,
and shall not be made available to any individual or organization by Contractor without the prior written approval
of the City.
20. Copies of Reports and Information. If the City requests additional copies of reports, drawings, specifications, or
any other material in addition to what Contractor is required to furnish in limited quantities as part of the work or
services under these specifications, Contractor shall provide such additional copies as are requested, and City shall
compensate Contractor for the costs of duplicating of such copies at the Contractor's direct expense.
21. Insurance. Without limiting the Contractor’s indemnification of the City, and prior to the commencement of
Work, Contractor shall procure and maintain at its own expense for the duration of the contract insurance against
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claims for injuries to persons or damages to property that may arise from or in connection with the performance of
the work hereunder by Contractor, its agents, representatives, employees or sub-contractors.
a. Minimum scope of insurance. Coverage shall be at least as broad as:
• Insurance Services Office Commercial General Liability coverage (form CG 00 01).
• Insurance Services Office form number CA 00 01 covering Automobile Liability, code 1 (any
auto) or if Contractor has no owned autos, hired, (Code 8) and non-owned autos (Code 9).
• Workers' Compensation insurance as required by the State of California, with Statutory Limits,
and Employer's Liability Insurance.
• Errors and Omissions Liability insurance as appropriate to Contractor’s profession.
b. Minimum limits of insurance. Contractor shall maintain limits no less than:
• General Liability: $2,000,000 per occurrence for bodily injury, personal injury and property
damage. If Commercial General Liability 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. The policy must include contractual
liability that has not been amended. Any endorsement restricting standard ISO “insured contract”
language will not be accepted.
• Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
• Employer's Liability: $1,000,000 per accident for bodily injury or disease.
If the contractor maintains broader coverage and/or higher limits than the minimums shown above, the
Entity requires and shall be entitled to the broader coverage and/or the higher limits maintained by the
contractor. Any available insurance proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to the Entity.
c. Deductibles and self-insured retentions. Any deductibles or self-insured retentions must be declared to
and approved by the City. At City may require, either: the insurer shall reduce or eliminate such
deductibles or self-insured retentions as respects the City, its officers, officials, employees and volunteers;
or Contractor shall procure a bond guaranteeing payment of losses and related investigations, claim
administration and defense expenses.
d. Other insurance provisions. Policies are to contain, or be endorsed to contain, the following provisions:
• Additional Insured Status. The City, its officers, officials, employees, agents and volunteers are
to be covered as additional insureds on the CGL policy with respect to liability arising out of work
or operations performed by or on behalf of the Contractor including materials, parts, or equipment
furnished in connection with such work or operations. General liability coverage can be provided
in the form of an endorsement to the Contractor’s insurance (at least as broad as ISO Form CG 20
10 11 85 or if not available, through the addition of both CG 20 10, CG 20 26, CG 20 33, or CG
20 38; and CG 20 37 if a later edition is used). This provision shall also apply to any
excess/umbrella liability, Auto Liability policies. The coverage shall contain no special limitations
on the scope of protection afforded to the City, its officers, officials, employees, agents or
volunteers.
• Primary Coverage. For any claims related to this contract, the Contractor's insurance coverage
shall be primary coverage as respects the City, its officers, officials, employees, agents and
volunteers. Any insurance or self-insurance maintained by the City, its officers, officials,
employees, agents or volunteers shall be excess of Contractor's insurance and shall not contribute
with it.
• Waiver of Subrogation. Contractor hereby grants to the City a waiver of any right to subrogation
which any insurer of said Contractor may acquire against the Entity by virtue of the payment of
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any loss under such insurance. Contractor agrees to obtain any endorsement that may be necessary
to affect this waiver of subrogation, but this provision applies regardless of whether or not the
Entity has received a waiver of subrogation endorsement from the insurer.
• Separation of Insureds. 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.
The policy(ies) shall not contain any cross-liability exclusions.
• Pass Through Clause. Contractor agrees to ensure that its sub-consultants, sub-contractors, and
any other party involved with the project who is brought onto or involved in the project by
Contractor, provide the same minimum insurance coverage and endorsements required of
Contractor. Contractor 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. Contractor agrees that upon request, all agreements with consultants, subcontractors,
and others engaged in the project will be submitted to City for review.
• Notice of Cancellation or Change. 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 (except for nonpayment for which ten (10) day notice
is required).
• Special Risks or Circumstances. The City reserves the right to modify these requirements,
including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special
circumstances.
• Claims Made Policies (Applicable only to Professional Liability). If any of the required policies
provide claims-made coverage: (1) The Retroactive Date must be shown, and must be before the
date of the contract or the beginning of contract work, (2) Insurance must be maintained and
evidence of insurance must be provided for at least five (5) years after completion of the contract
work. (3) If coverage is canceled or non-renewed, and not replaced with another claims-made
policy form with a Retroactive Date prior to the contract effective date, the Contractor must
purchase “extended reporting” coverage for a minimum of five (5) years after completion of work.
• 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, agents
or volunteers.
e. Acceptability of insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no
less than A:VII.
f. Verification of coverage. Contractor shall furnish the Entity with original Certificates of Insurance
including all required amendatory endorsements (or copies of the applicable policy language effecting
coverage required by this clause) and a copy of the Declarations and Endorsement Page of the CGL policy
listing all policy endorsements to Entity before work begins. However, failure to obtain the required
documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The
Entity reserves the right to require complete, certified copies of all required insurance policies, including
endorsements required by these specifications, at any time. The endorsements are to be signed by a person
authorized by that insurer to bind coverage on its behalf.
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1. Business Tax. The Contrator must have a valid City of San Luis Obispo business tax certificate
before execution of the contract. Additional information regarding the City's business tax program
may be obtained by calling (805) 781-7134.
2. Ability to Perform. The Contrator warrants that it possesses, or has arranged through
subcontracts, all capital and other equipment, labor, materials, and licenses necessary to carry out
and complete the work hereunder in compliance with any and all federal, state, count y, city, and
special district laws, ordinances, and regulations.
3. Laws to be Observed. The Contrator shall keep itself fully informed of and shall observe and
comply with all applicable state and federal laws and county and City of San Luis Obispo
ordinances, regulations and adopted codes during its performance of the work.
4. Payment of Taxes. The contract prices shall include full compensation for all taxes that the
Contrator is required to pay.
5. Permits and Licenses. The Contrator shall procure all permits and licenses, pay all charges and
fees, and give all notices necessary.
6. Safety Provisions. The Contrator shall conform to the rules and regulations pertaining to safety
established by OSHA and the California Division of Industrial Safety.
7. Public and Employee Safety. Whenever the Contrator's operations create a condition hazardous
to the public or City employees, it shall, at its expense and without cost to the City, furnish, erect
and maintain such fences, temporary railings, barricades, lights, signs and other devices and take
such other protective measures as are necessary to prevent accidents or damage or injury to the
public and employees.
8. Preservation of City Property. The Contrator shall provide and install suitable safeguards,
approved by the City, to protect City property from injury or damage. If City property is injured or
damaged resulting from the Contrator's operations, it shall be replaced or restored at the Contrator's
expense. The facilities shall be replaced or restored to a condition as good as when the Contrator
began work.
9. Immigration Act of 1986. The Contrator warrants on behalf of itself and all sub-Contrators
engaged for the performance of this work that only persons authorized to work in the United States
pursuant to the Immigration Reform and Control Act of 1986 and other applicable laws shall be
employed in the performance of the work hereunder.
10. Contrator Non-Discrimination. In the performance of this work, the Contrator agrees that it will
not engage in, nor permit such sub- Contrators as it may employ, to engage in discrimination in
employment of persons because of age, race, color, sex, national origin or ancestry, sexual
orientation, or religion of such persons.
11. Work Delays. Should the Contrator be obstructed or delayed in the work required to be done
hereunder by changes in the work or by any default, act, or omission of the City, or by strikes, fire,
earthquake, or any other Act of God, or by the inability to obtain materials, equipment, or labor due
to federal government restrictions arising out of defense or war programs, then the time of
completion may, at the City's sole option, be extended for such periods as may be agreed upon by
the City and the Contrator.
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12. Payment Terms. The City's payment terms are 30 days from the receipt of an original invoice and
acceptance by the City of the materials, supplies, equipment or services provided by the Contrator
(Net 30).
13. Inspection. The Contrator shall furnish City with every reasonable opportunity for City to
ascertain that the services of the Contrator are being performed in accordance with the
requirements and intentions of this contract. All work done and all materials furnished, if any,
shall be subject to the City's inspection and approval. The inspection of su ch work shall not relieve
Contrator of any of its obligations to fulfill its contract requirements.
14. Audit. The City shall have the option of inspecting and/or auditing all records and other written
materials used by Contrator in preparing its invoices to City as a condition precedent to any
payment to Contrator.
15. Interests of Contrator. The Contrator covenants that it presently has no interest, and shall not
acquire any interest—direct, indirect or otherwise—that would conflict in any manner or degree
with the performance of the work hereunder. The Contrator further covenants that, in the
performance of this work, no sub-Contrator or person having such an interest shall be employed.
The Contrator certifies that no one who has or will have any financial interest in performing this
work is an officer or employee of the City. It is hereby expressly agreed that, in the performance of
the work hereunder, the Contrator shall at all times be deemed an independent Contrator and not an
agent or employee of the City.
16. Indemnification for Professional Liability. To the fullest extent permitted by law, the Contrator
shall indemnify, protect, defend and hold harmless the City and any and all of its officials,
employees and agents (“Indemnified Parties”) from and against any and all losses, liabilities,
damages, costs and expenses, including attorney’s fees and cost which arise out of, pertain to, or
relate to the negligence, recklessness, or willful misconduct of the Contrator.
17. Contract Assignment. The Contrator shall not assign, transfer, convey or otherwise dispose of the
contract, or its right, title or interest, or its power to execute such a contract to any individual or
business entity of any kind without the previous written consent of the City.
18. Termination. If, during the term of the contract, the City determines that the Contrator is not
faithfully abiding by any term or condition contained herein, the City may notify the Contrator in
writing of such defect or failure to perform. This notice must give the Contrator a 10 (ten) calendar
day notice of time thereafter in which to perform said work or cure the deficiency.
If the Contrator has not performed the work or cured the deficiency within the ten days specified in
the notice, such shall constitute a breach of the contract and the City may terminate the contract
immediately by written notice to the Contrator to said effect. Thereafter, neither party shall have
any further duties, obligations, responsibilities, or rights under the contract except, however, any
and all obligations of the Contrator's surety shall remain in full force and effect, and shall not be
extinguished, reduced, or in any manner waived by the termination thereof.
In said event, the Contrator shall be entitled to the reasonable value of its services performed from
the beginning date in which the breach occurs up to the day it received the City's Notice of
Termination, minus any offset from such payment representing the City's damages from such
breach. "Reasonable value" includes fees or charges for goods or services as of the last milestone
or task satisfactorily delivered or completed by the Contrator as may be set forth in the Proposal;
compensation for any other work, services or goods performed or provided by the Contrator shall
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be based solely on the City's assessment of the value of the work-in-progress in completing the
overall workscope.
The City reserves the right to delay any such payment until completion or confirmed abandonment
of the project, as may be determined in the City's sole discretion, so as to permit a full and
complete accounting of costs. In no event, however, shall the Contrator be entitled to receive in
excess of the compensation quoted in its proposal.
19. Ownership of Materials. All original drawings, plan documents and other materials prepared by
or in possession of the Contrator as part of the work or services under these specifications shall
become the permanent property of the City, and shall be delivered to the City upon demand.
20. Release of Reports and Information. Any reports, information, data, or other material given to,
prepared by or assembled by the Contrator as part of the work or services under these
specifications shall be the property of City and shall not be made available to any individual or
organization by the Contrator without the prior written approval of the City.
21. Copies of Reports and Information. If the City requests additional copies of reports, drawings,
specifications, or any other material in addition to what the Contrator is required to furnish in
limited quantities as part of the work or services under these specifications, the Contrator shall
provide such additional copies as are requested, and City shall compensate the Contrator for the
costs of duplicating of such copies at the Contrator's direct expense.
22. Required Deliverable Products. The Contrator will be required to provide:
2 hard copies of the draft or electronic copy (Adobe Acrobat format)
2 hard copies of the final project report, and 1 electronic copy (Acrobat Adobe format) of the final
report.
City staff will review any documents or materials provided by the Contrator and, where necessary,
the Contrator will be required to respond to staff comments and make such changes as deemed
appropriate.
Computer files must be on 3½", high-density, write-protected diskettes or CD’s formatted for use
on IBM-compatible systems. Each diskette must be clearly labeled and have a printed copy of the
directory. Alternatively, files may be emailed to the City.
23. Amendments. Any amendment, modification or variation from the terms of this Agreement shall
be in writing and shall be effective only upon approval by the City Engineer of the City.
24. Complete Agreement. These Purchase Order Conditions and Contrators proposal shall constitute
the complete agreement between the parties hereto. No oral agreement, understanding or
representation not reduced to writing and specifically incorporated herein shall be of any force or
effect, nor shall any such oral agreement, understanding or representation be binding upon the
parties hereto.
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25. Insurance Requirements. The Contrator shall provide proof of insurance in the form, coverages
and amounts specified in these conditions as a precondition to contract execution. The Contrator
shall procure and maintain for the duration of the contract 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 Contrator, its agents, representatives, employees or sub-Contrators.
Minimum Scope of Insurance. Coverage shall be at least as broad as:
1. Insurance Services Office Commercial General Liability coverage (occurrence form CG 20 10
Prior to 1993 or CG 20 10 07 04 with CG 20 37 10 01 or the exact equivalent as determined by the
City).
2. Insurance Services Office form number CA 0001 (Ed. 1/87) covering Automobile Liability, code 1
(any auto).
3. Workers' Compensation insurance as required by the State of California and Employer's Liability
Insurance.
4. Errors and Omissions Liability insurance as appropriate to the Contrator's profession.
Minimum Limits of Insurance. Contrator shall maintain limits no less than:
1. General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property
damage. If Commercial General Liability 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.
2. Automobile Liability: $1,000,000 per accident for bodily injury and property damage.
3. Employer's Liability: $1,000,000 per accident for bodily injury or disease.
4. Errors and Omissions Liability: $1,000,000 per occurrence.
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 Contrator shall procure a bond guaranteeing payment of losses and related investigations, claim
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, officials, employees, agents and volunteers are to be covered as insureds as
respects: liability arising out of activities performed by or on behalf of the Contrator; products and
completed operations of the Contrator; premises owned, occupied or used by the Contrator; or
automobiles owned, leased, hired or borrowed by the Contrator. The coverage shall contain no
special limitations on the scope of protection afforded to the City, its officers, official, employees,
agents or volunteers.
2. For any claims related to this project, the Contrator's insurance coverage shall be primary insurance
as respects the City, its officers, officials, employees, agents and volunteers. Any insurance or self-
insurance maintained by the City, its officers, officials, employees, agents or volunteers shall be
excess of the Contrator's insurance and shall not contribute with it.
3. The Contrator'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.
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4. 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 of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no
less than A:VII.
Verification of Coverage. Contrator shall furnish the City with a certificate of insurance showing
maintenance of the required insurance coverage. Original endorsements effecting general liability and
automobile liability coverage required by this clause must also be provided. The endorsements are to be
signed by a person authorized by that insurer to bind coverage on its behalf. All endorsements are to be
received and approved by the City before work commences.
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