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HomeMy WebLinkAboutdocuments distributed;,ntered Ifp pec, at MCC Mtg.- ,)y. agenda i►em No: WIRELESS MARKF,TING AGREED jr;7;7— THE CITY OF SAN BERNARDINO AND 5&&IMIQRMMUNITIES C4 of San Bemardino This Wireless Marketing Agreement ("AGREEMENT") is made and entered into on , 2017 (the "Effective Date") between the City of San Bernardino ("CITY") and 5 Bars Communities a dba of XG Communities, LLC a Delaware limited liability company ("S BARS'l (each a "PARTY" and collectively the "PARTIES"), with reference to the following facts and intentions, which the PARTIES agree are true and correct to the best of their knowledge and belief: BACKGROUND A. CITY is a municipal corporation formed under the laws of the State of California, operating under its charter. B. 5 BARS a dba of XG Communities, LLC is a limited liability company formed under the laws of Delaware. C. 5 BARS offers master planning services and tools that merge technical expertise on coverage needs with surveys of existing and forecasted wireless coverage conditions. 5 BARS evaluates that information to identify existing municipal assets that can meet wireless coverage needs. D. 5 BARS provides planning tools so that subscribing municipal corporations may access the information and identify intelligent options and solutions for the processing of applications for wireless telecommunications facilities on a real time basis. E. CITY desires to engage 5 BARS to provide wireless consulting, management and development services related to the use of CITY assets for the purpose of planning and implementing a marketing plan for Wireless Telecommunications Facilities (as that term is defined in Section 2, below), as further described herein. F. CITY desires to engage 5 BARS to proactively market CITY -owned underutilized assets on terms that maximize revenue and minimize planning impacts, visual blight, and impacts to public infrastructure. 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. 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 ("Initial Term"). After the Initial Term, the term of this Agreement may be extended for additional successive terms of five years ("Extended Terms") at the option of the Parties. The Parties shall be deemed to have exercised their option for an additional Extended Term automatically at the expiration of the then current term if either Party does not send written notice to the other Party of the Party's intent not to exercise the option at least ninety (90) days prior to the expiration of the then current term. The Initial Term and Extended Terms, if any, are collectively referred to as the "Agreement Term." 2. Scone 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, -1- arid/or operation of certain tower(s), pole(s), building(s), fiber, conduit(s), data room(s), street furniture, and any structure(s) or object(s) of any kind or character not particularly mentioned herein ("City Asset(s)"), which 5 BARS proposes to locate or cause to be located on City Property and within City Right of Way for the purposes of promoting, transmitting or facilitating wireless communication of telephone or data or any other means ("Wireless Telecommunications Facilities"). CITY in its sole discretion shall identify a list ("Asset List") of City Assets to be included in services provided by 5 BARS. CITY may elect to add or remove one or more assets from the Asset List at anytime and notify 5 BARS in writing. a. Consultini Services. 5 BARS shall provide CITY the following consulting services at no cost to CITY: a comprehensive radio frequency ("RF") analysis, which will, among other things, (i) describe, using state-of-the-art metrics, the current state of wireless coverage within CITY's jurisdiction for each major wireless telecommunications carrier, (ii) identify key areas of multiple wireless broadband service provider coverage needs ("Coverage Needs"), (iii) identify available City Assets that would satisfy or partially satisfy Coverage Needs, and (iv) provide RF modeling to show how the selection of additional sites for Wireless Telecommunications Facilities will address Coverage Needs. The items referred to in clauses (i), (ii), and (iii) from the preceding sentence are hereinafter referred to as the "Master Plan," while the items referred to in clauses (i), (ii), (iii), and (iv) in the preceding sentence are hereinafter referred to as the "Consulting Services". For the duration of the Agreement Term, 5 BARS shall also provide, on a quarterly basis, a written update summarizing investments, technology changes, financial gains and provider plans, and on an annual basis, ongoing comprehensive RF analysis with reports, feasibility analysis, pricing and fee recommendations, form factor and aesthetic policy development, technology refresh and advancement updates, and other consultation specific to wireless broadband service providers, unless 5 BARS and CITY mutually waive the annual ongoing study, to ensure CITY is capitalizing on opportunities to improve wireless broadband service to the community. The Consulting Services may be used by CITY for the enhancement and evolution of the Master Plan or any other purpose. b. Marketin! Services. At no cost to CITY, 5 BARS shall market the Master Plan to wireless carriers, cable companies, internet service providers (ISPs), street light providers, and Internet of Things (IoT) companies, ("Wireless Services Providers") to obtain their feedback and interest in locating and/or collocating on any existing and/or proposed site(s) included in the Master Plan. CITY grants 5 BARS the exclusive right to market, license, sublicense, and construct upon, at 5 BAR's sole cost and expense, City Assets for the development of Wireless Telecommunications Facilities. 5 BARS shall market the Master Plan to all Wireless Services Providers equally, and without any discrimination and/or favoritism between Wireless Services Providers, with a goal of ensuring that residents, visitors, and businesses within CITY's jurisdiction receive the maximum benefit of all available services from all existing wireless services providers. c. Management Services. During the Agreement Term. 5 BARS may at any time request in writing that CITY make City Assets available for the development of Wireless Telecommunications Facilities. Upon a determination of approval, CITY shall notify 5 BARS of such determination in writing, and shall offer to enter into a license with 5 BARS, which license shall be in a form that is substantially consistent with the form set forth in Exhibit "A" to this Agreement. Thereafter 5 BARS or an affiliate of 5 BARS, at no cost to CITY, shall construct or cause the construction of the Wireless Telecommunications Facilities, and sublicense the City Assets (either as improved with Wireless Telecommunications Facilities, or subject to improvement with Wireless Telecommunications Facilities) in accordance with the terms of this Agreement and a license agreement to be executed for each designated City Asset (provided, however, that a single license agreement may be utilized for multiple or all sites that are the subject of this Agreement). 5 BARS understands and acknowledges that CITY shall have the final determination as to whether to move forward with the execution of a license and/or other agreement of substantially equivalent purpose (or an amendment to any such license and/or other agreement) for any &A existing 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 receipt of) all necessary entitlements and permits from CITY, including but not limited to complying (or causing compliance) with CITY's ordinance governing Wireless Telecommunications Facilities, all applicable building codes and public works requirements, as well as comply (or cause compliance) with and receive (or cause receipt of) all necessary and applicable permits from any other regulatory agency, before 5 BARS undertakes (or causes the undertaking of) any construction on a City Asset. d. Exclusions. 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 intended for direct -marketing by the City for macro -cell site development are identified in writing by the City ("City Marketed Assets"). City Marketed Assets may be marketed, if at all, directly by the City or in any other manner determined advantageous to the City, including by third parties. 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 the provision of the Excluded Services by CITY. iv. This Agreement expressly excludes properties under the control of the San Bernardino Municipal Water Department. 3. Telecommunications Ordinance Revision. Within one hundred eighty (180) days after the Effective Date, 5 BARS shall submit for CITY consideration revisions to its telecommunications ordinance to specify that the CITY's review of Wireless Telecommunications Facilities that are (i) on City Assets, and (ii) subject to a license agreement that substantially conforms to the form attached as Exhibit "A", will be accomplished exclusively through the licensing process described in this Agreement. 4. Right of EntrN A_oreement. 5 BARS shall have the right to analyze the suitability of the City Property designated by CITY for 5 BARS' intended use. CITY and 5 BARS shall enter into a Right of Entry Agreement for 5 BARS and its employees, agents, contractors, engineers, and surveyors to have the right to enter upon City Property, upon reasonable written notice to CITY, to inspect, conduct, perform and examine soil borings, drainage testing, material sampling, surveys and other geological or engineering tests or studies of City Property, to apply for all licenses and permits required for 5 BARS' use of the designated City Property from all applicable governmental or regulatory entities, and to do those things on or off the designated City Property that, in the sole opinion of 5 BARS, are necessary to determine the physical condition of designated City Property, the environmental history of the designated City Property, and the feasibility or suitability of the designated City Property for 5 BARS' use ("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. The proposed form of Right of Entry Agreement is attached hereto and incorporated by reference herein as Exhibit "B". CITY -Owned Wireless Telecommunications Facilities and CITY Licenses. CITY -3- shall retain ownership of all CITY leases, licenses, and other agreements in existence as of the Effective Date with wireless providers located within CITY's jurisdictional boundaries. CITY shall retain ownership of any Wireless Telecommunications Facilities CITY subsequently develops on property owned or leased by CITY for CITY's own non-commercial use. 5 BARS and/or its sublicensees shall own the Wireless Telecommunications Facilities developed on City Assets pursuant to this Agreement. CITY leases, licenses, and other agreements in existence as of the Effective Date and any CITY owned/developed Wireless Telecommunications Facilities in existence as of the Effective Date shall not be subject to this Agreement and/or any accompanying agreements between CITY and 5 BARS, unless specifically designated otherwise in writing. 6. Compensation a. CITY shall be entitled to sixty-five percent (65%) of recurring gross payments that are received by 5 BARS from sublicensees for each new Wireless Telecommunications Facility that is on City Assets licensed to 5 BARS pursuant to this Agreement. b. CITY shall be entitled to seventy-five percent (75%) of recurring gross payments that are 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. Quarterly reports reflecting the revenue generated to CITY will be provided by 5 BARS. 7. Construction Engineering, and Other Costs: CITY shall have no financial responsibility for planning, construction, and engineering costs associated with the implementation of this Agreement. 5 BARS may recover from Wireless Service Providers construction costs, installation costs, utilities, or other expenses incurred by 5 BARS, to the extent said reimbursement does not reduce the rent to be paid by Wireless Service Providers, and such recovered sums shall not be included in the computation of compensation hereunder. 8. Default/Termination. a. Default. If there is a default by either PARTY to this Agreement, the PARTY claiming a default of any term or condition of this Agreement shall provide the defaulting PARTY with written notice of the default pursuant to the provisions contained in Paragraph 14(x) 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 default under this Paragraph 8; provided, however, that 5 BARS shall have the right to appeal a determination of default for failure to comply with Paragraph 8 to the CITY's Mayor and City Council, in which case (i) the appeal shall be heard within sixty (60) days of the filing of the appeal, and (ii) the determination of default and the obligation to cure shall be stayed while the appeal is pending. -4- b. Termination for Convenience. Either Party may, at its sole option and for its convenience, terminate all or any portion of this Agreement by giving one hundred eighty (180) days' written notice of such termination to the other Party. The termination of the Agreement shall be effective upon receipt of the notice. 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 may or may not exist in the normal course of 5 BARS' business. 10. Indemnification. To the fullest extent permitted by law, 5 BARS shall defend (with legal counsel reasonably acceptable to CITY), indemnify, protect, and hold harmless CITY and its elected officials, officers, employees, agents, and representatives ("Indemnified Parties") from and against any and all claims, losses, costs, damages, injuries (including, without limitation, injury to or death of an employee of 5 BARS or its subcontractors or sublicensees), expense, and liability of every kind, nature and description (including, without limitation, incidental and consequential damages, court costs, and litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the performance of services under this Agreement by 5 BARS, any subcontractor or sublicensee, anyone directly or indirectly employed by any of them, or anyone that any of their control. 5 BAR's duty to defend, indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or willful misconduct of the Indemnified Parties. CITY shall promptly notify 5 BARS of any claim, action or proceeding covered by this Paragraph 10. 11. Insurance. 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 "C"` to this Agreement. CITY shall be entitled to coverage at the maximum policy limits for the required insurance maintained by 5 BARS, which shall at no time be less than the amounts required set forth in the attached Exhibit "C" to this Agreement. This Agreement's insurance provisions shall be separate and independent from the indemnification and defense provisions of Paragraph 10 of this Agreement and shall not in any way limit the applicability, scope or obligations of the indemnification defense provisions in Paragraph 10. 12. Compliance With Local Ordinances. Subject to Paragraph 3 above, 5 BARS shall comply with all CITY ordinances pertaining to Wireless Telecommunications Facilities, and all such additional CITY regulations that are consistent with such ordinances (such ordinances and regulations are collectively referred to hereinafter as the "Ordinance"). 13. Intellectual Pro pe a. Ownership of Services. 5 BARS retains all right, title, and interest in any underlying software subject to the limitations set forth in this Agreement. b. License. 5 BARS hereby grants to CITY a limited, non-exclusive, non- transferable, non-sublicensable license during the term of this Agreement to use the Services for the purposes of offering, promoting, managing, tracking, the development and use of Wireless -5- 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 market City Marketed Assets and excepting properties under the control of the San Bernardino Municipal Water Department. 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 proprietory 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. 14. General Provisions. a. Headings. All headings are for convenience only and shall not affect the interpretation of this Agreement. b. Non -Assignment. 5 BARS may not assign its obligations under this Agreement, whether by express assignment or by sale of the company, nor any monies due or to become due under this Agreement, without City's prior written approval. Any assignment in violation of this paragraph shall constitute a default and is grounds for termination of this Agreement at the City's sole discretion. In no event shall any putative assignment create a contractual relationship between City and any putative assignee. C. Independent Contractors. 5 BARS is an independent contractor. Any provisions of this Agreement that may appear to give City any right to direct 5 BARS concerning the details of performing the services, or to exercise any control over performance of the Agreement, shall mean only that 5 BARS shall follow the direction of City concerning the end results of the performance. d. Subcontractors. 5 BARS shall be responsible to the CITY for the work of all persons assigned to perform any Services under this Agreement, including any subcontractors. e. Covenants and Conditions. All provisions of this Agreement expressed as either covenants or conditions on the part of City or 5 BARS shall be deemed to be both covenants and conditions. f. Com liance with Controlling Law. 5 BARS shall comply with all applicable local, state, and federal laws, regulations, and policies. Consultant's act or omission in violation of applicable local, state, and federal laws, regulations, and policies is grounds for Agreement termination. In addition to all other remedies or damages allowed by law, 5 BARS is liable to City for all damages, including costs for substitute performance, sustained as a result of the violation. g. Governing Law. The Agreement shall be deemed to be made under, construed in accordance with, and governed by the laws of the State of California without regard to the conflicts or choice of law provisions thereof. in h. Venue. The venue for any suit concerning solicitations or the Agreement, the interpretation of application of any of its terms and conditions, or any related disputes shall be in the Superior Court for the State of California, County of San Bernardino. The choice of venue is intended to be mandatory and not permissive. i. Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in force and effect whether or not any parties to the Agreement have been succeeded by another entity, and all rights and obligations created by this Agreement shall be vested and binding on any party's successor in interest. j. No Waiver. No failure of either City or 5 BARS to insist upon the strict performance by the other of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach of such covenant, term or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect without respect to any existing or subsequent breach. k. Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render any other provision of this Agreement unenforceable, invalid, or illegal. 1. Drafting Ambiguities. The parties acknowledge that they have the right to be advised by legal counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether to seek advice of legal counsel with respect to this Agreement is the sole responsibility of each party. This Agreement shall not be construed in favor of or against either party by reason of the extent to which each party participated in the drafting of the Agreement. M. Amendments. Neither this Agreement nor any provision hereof may be changed, modified, amended or waived except by a written agreement executed by duly authorized representatives of City and 5 BARS. Any alleged oral amendments have no force or effect. n. Conflicts Between Terms. If this Agreement conflicts with an applicable local, state, or federal law, regulation, or court order, the applicable local, state, or federal law, regulation, or court order shall control. Varying degrees of stringency among the main body of this Agreement, the exhibits or attachments, and laws, regulations, or orders are not deemed conflicts, and the most stringent requirement shall control. Each party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement. o. Survival of Obligations. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with this Agreement, as well as all continuing obligations indicated in this Agreement, shall survive, completion and acceptance of performance and termination, expiration or completion of the Agreement. P. Insolvency. If 5 BARS enters into proceedings relating to bankruptcy, whether voluntary or involuntary, 5 BARS agrees to furnish, by certified mail or electronic commerce method authorized by the Agreement, written notification of the bankruptcy to the City. This notification shall be furnished within five (5) days of the initiation of the proceedings relating to bankruptcy filing. This notification shall include the date on which the bankruptcy petition was filed, the identity of the court in which the bankruptcy petition was filed, and a listing of City -7- Agreements against which final payment has not been made. This obligation remains in effect until final payment is made under this Agreement. q. No Third PgLty Beneficiaries. Except as may be specifically set forth in this Agreement, none of the provisions of this Agreement are intended to benefit any third party not specifically referenced herein. No party other than City and 5 BARS shall have the right to enforce any of the provisions of this Agreement. r. Actions of Citv in its Governmental Capacity. Nothing in this Agreement shall be interpreted as limiting the rights and obligations of City in its governmental or regulatory capacity. S. Countemarts. This Agreement may be executed in counterparts, which when taken together shall constitute a single signed original as though all Parties had executed the same page. t. Non -Discrimination. 5 BARS shall not discriminate on the basis of race, gender, gender expression, gender identity, religion, national origin, ethnicity, sexual orientation, age, or disability in the solicitation, selection, hiring or treatment of subcontractors, vendors or suppliers. 5 BARS shall provide equal opportunity for subcontractors to participate in subcontracting opportunities. 5 BARS understands and agrees that violation of this clause shall be considered a material breach of the Agreement and may result in Agreement termination. 5 BARS shall ensure that this language is included in Agreements between 5 BARS and any subcontractors, vendors and suppliers. U. Business Registration Certificate. 5 BARS shall obtain a Business Registration Certificate and to provide a copy of its Business Registration Certificate to the City before an Agreement is executed. V. Conflict of Interest Laws. 5 BARS is subject to all federal, state and local conflict of interest laws, regulations, and policies applicable to public contracts and procurement practices including, but not limited to, California Government Code sections 1090, et. seq. and 81000, et. seq. City may determine that 5 BARS must complete one or more statements of economic interest disclosing relevant financial interests. Upon City's request, 5 BARS shall submit the necessary documents to City. 5 BARS is required to establish and make known to its employees and agents appropriate safeguards to prohibit employees from using their positions for a purpose that is, or that gives the appearance of being, motivated by the desire for private gain for themselves or others, particularly those with whom they have family, business or other relationships. W. Hiring Ci1y Officer or Em to ee. This Agreement shall be unilaterally and immediately terminated by City if 5 BARS employs an individual who within the twelve (12) months immediately preceding such employment did in his/her capacity as a City officer or employee participate in negotiations with or otherwise have an influence on the selection of 5 BARS. X. Notices. Unless otherwise specified, in all cases where written notice is required under this Agreement, service shall be deemed sufficient if the notice is personally delivered or deposited in the United States mail, with first class postage paid. Proper notice is effective on the date of personal delivery or five (5) days after deposit in a United States postal mailbox unless provided otherwise in the Agreement. Notices for each party shall be sent to: CITY: Office of the City Manager -8- 290 North "D" Street, 3r1 Floor San Bernardino, CA 92401 With a copy to: Office of the City Attorney 290 North "D" Street, 3rd Floor San Bernardino, CA 92401 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., 10 Floor Costa Mesa, CA 92626 Phone: 714-641-5100 Fax: 714-546-9035 Y. 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 effectuate all of the terms and conditions of this Agreement. Z. Required Modficiation. 5 BARS shall immediately notify CITYin writing of any laws, regulations or restrictions that may or will require 5 BARS to alter the services to be provided. CITY reserves the right to accept any such alteration, including any resulting reasonable price adjustments, or to terminate the Agreement at no expense to the City. aa. Quality Assurance Meetings. Upon City's request, 5 BARS shall schedule one or more quality assurance meetings with City Manager or designee to discuss 5 BAR's performance. If requested, 5 BARS shall schedule the first quality assurance meeting no later than eight (8) weeks from the date of commencement of services under the Agreement. At the quality assurance meeting(s), City Manager or designee will provide 5 BARS with feedback, will note any deficiencies in Agreement performance, and provide 5 BARS with an opportunity to address and correct such deficiencies. The total number of quality assurance meetings that may be required by City will depend upon 5 BARS's performance. bb. Employee Access to Cite Property. 5 BARS shall provide a company photo identification badge to any individual assigned by 5 BARS or subcontractor to perform services on City Property. Such badge must be worn at all times while on City Property. City reserves the right to require 5 BARS to pay fingerprinting fees for personnel assigned to work in sensitive areas. 5 BARS is responsible for maintaining standards of employee competence, conduct, courtesy, appearance, honesty, and integrity satisfactory to the City. 5 BARS's employees and agents shall comply with all City rules and regulations while on City Property. City may request 5 BARS immediately remove from assignment to the City any 5 BARS employee found unfit to perform duties at the City. 5 BARS shall comply with all such requests. cc. Entire Agreement. This scope of the entire agreement between the parties is described in the Agreement Documents. The Agreement Documents are comprised of: this Wireless Marketing Agreement; the License Agreement; any Access/Utility Agreements; including any exhibits to the above referenced agreements. City and 5 BARs agree that the Agreement Documents contain all of the agreements, promises and understandings between City and 5 BARS. No oral agreements, promises or understandings shall be binding upon either City or 5 BARS in any dispute, controversy or proceeding at law. Any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties hereto. IN WITNESS WHEREOF, this Agreement is executed by City and 5 BARS acting by and through their authorized officers. CITY OF SAN BERNARDINO: 5 BARS: Date: / /2017 Date / /2017 Andrea M. Miller, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney I� US Its: -10- EXHI RIT A LICENSE AGREEMENT THIS LICENSE AGREEMENT is made as of the date of the final signature below, by and between the City of San Bernardino, a municipal corporation ("Licensor") and 5 Bars Communities a dba of XG Communities, LLC, a Delaware limited liability company, with an address at 19200 Von Karman Ave, Suite 100, Irvine, CA 92612 ("Licensee"). 1. Definitions. "Agreement" means this License Agreement. "Approvals" means all certificates, permits, licenses and other approvals that Licensee must obtain as required by law in order for Licensee or its agents or sublicensees to use the Licensed Premises for the purpose intended by this Agreement. "Company Facilities" means any and all Wireless Telecommunications Facilities to be developed by Licensee on the Licensed Premises. "City Facilities" means any and all existing facilities, inclusive of but not limited to all buildings and improvements owned by and under the possession and control of Licensor, including but not limited to utility poles, lamp posts, other utility facilities, fences, gates, and all roof tops of all such buildings, facilities and/or improvements excluding facilities owned, operated, and/or controlled by the City acting by and through the San Bernardino Municipal Water Department. "Defaulting Party" means the party to this Agreement that has defaulted as provided for in Section 26 of this Agreement. "Easement" and "Utility Easement" have the meanings set forth in Section 7 of this Agreement. "Harmful Interference" means Interference that endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radio communication service operating in accordance with both International Telecommunications Union Radio Regulations and the regulations of the Federal Communications Commission. "Hazardous Material" means any substance which is (i) designated, defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, as currently in effect or as hereafter amended or enacted, (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) asbestos, (vi) flammable explosives, (vii) infectious materials, or (vii) radioactive materials. "Environmental Law(s)" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101 et seq., and the Clean Water Act, 33 U.S.C. Section 1251 et seq., as said laws have been supplemented or amended to date, the regulations promulgated pursuant to said laws and any other federal, state or local law, statute, rule, regulation or ordinance that regulates or proscribes the use, storage, disposal, presence, clean-up, transportation or release or threatened release into the environment of Hazardous Material. EXHIBIT A -1- "Improvements" means a Wireless Telecommunications Facility(ies). "Interference" means the effect of unwanted energy due to one or a combination of emissions, radiations, or inductions upon reception in a radio communication system, manifested by any performance degradation, misinterpretation, or loss of information. "Licensed Premises" means those portions of Licensor's Property described in the sketches attached hereto as Exhibit "A" "Licensee" means 5 Bars Communities a dba of XG Communitites, LLC, a Delaware limited liability company. "Licensee's Notice Address" means 19200 Von Karman Ave, Suite 100, Irvine CA 92612. "Licensor" means City of San Bernardino, a municipal corporation. "Licensor's Notice Address" means 290 North "D" Street, 3rd Floor, San Bernardino, CA 92401. "Licensor's Properties" means those properties which are the subject of this License Agreement excluding all properties owned, operated, and/or controlled by the City acting by and through the San Bernardino Municipal Water Department.. "Non Defaulting Party" means the parry to this Agreement that has not defaulted as provided for in Paragraph 26 of this Agreement. "Rent" means sixty-five percent (65%) of recurring Sublicense Revenue received by Licensee from Sublicensees on new Wireless Telecommunications Facilities constructed on Licensed Premises under or pursuant to this Agreement. "Sublicense Revenue" means the total amount of rent (excluding any reimbursement from Sublicensee(s) of taxes, construction costs, installation costs, utilities, or other expenses incurred by Licensee to the extent said reimbursement is not an offset of rent to be paid by Sublicensee(s)) paid to Licensee by all Sublicensee(s) or any other occupant of the Licensed Premises, whether pursuant to a license or other similar agreement, as modified, renewed, or assigned. "Sublicensee" means a third party to which Licensee has granted the right to use and/or occupancy of one or more of the Licensed Premises, subject to the terms and conditions contained herein. "Subscription Agreement" means the Wireless Marketing Agreement between Licensor and Licensee, dated , 2017. "Wireless Telecommunications Facilities" means the equipment and associated structures needed to transmit and/or receive electromagnetic signals. A wireless telecommunication facility typically includes antennas, supporting structures, enclosures and/or cabinets housing associated equipment, cable, access roads and other accessory development. 2. Licensor's Cooperation. During the Term of this Agreement, Licensor shall: (i) cooperate with Licensee in its efforts to obtain all of the Approvals and (ii) take no action that would adversely affect any of the Licensed Premises; provided, however, that if Licensor elects to replace infrastructure on the Licensed Premises that is unrelated to the delivery of Wireless Telecommunications services, then such replacement shall be accomplished in a manner calculated to minimize interference with the Wireless Telecommunications EXHIBIT A -2- Facilities on the Licensed Premises. Licensor acknowledges that Licensee's ability to use each of the Licensed Premises is contingent upon Licensee obtaining and maintaining the Approvals. Additionally, Licensor authorizes Licensee and its employees, representatives, agents and consultants to prepare, and submit, file and present on behalf of Licensor building, permitting, zoning or land -use applications with the appropriate local, state and/or federal agencies necessary to obtain land use changes, special exceptions, zoning variances, conditional use permits, special use permits, administrative permits, construction permits, operation permits and/or building permits. Licensor understands that any such application and/or the satisfaction of any requirements thereof may require Licensor's cooperation, which Licensor hereby agrees to provide. Licensor shall not knowingly do or permit anything that will interfere with or negate any Approvals pertaining to the Improvements or Licensed Premises or cause them to be in nonconformance with applicable local, state or federal laws. Licensor agrees to execute such documents as may be necessary to obtain and thereafter maintain the Approvals, and agrees to be named as the applicant for said Approvals. The provisions of this Paragraph shall not apply in the event of any dispute between and/or involving Licensor and Licensee. 3. Subdivision. In the event that a subdivision of Licensor's Property is legally required to license the any of the Licensed Premises to Licensee, Licensor agrees to seek subdivision approval at Licensee's expense. 4. Term. The Term of this Agreement shall commence on _ , 20 ("Commencement n Exhibit "B" Date") and continue until the license for each Licensed Premise listed ihas expired. The term of each License listed in Exhibit "B" shall begin on the commencement date listed for such Licensed Premises on Exhibit "B", and shall continue for a period of ten (10) years with three five (5) year options subject to the written mutual consent of the Licensor and Licensee. At the end of term of the Agreement 5 BARS will hand over the administration of the Agreement to the CITY unless mutually agreed upon by both parties. Rent. a. Rent. From and after the Commencement Date and effective upon Licensee's receipt of Sublicense Revenue, Licensee shall pay Rent for the each of the Licensed Premises quarterly in arrears. b. Sublicenses. Sublicenses, licenses or other occupancy of the Licensed Premises shall be subject to the following: i. Licensee shall make every reasonable effort to ensure that each proposed Wireless Telecommunications Facility will not affect, detract, or impact the operation of existing Licensor facilities, particularly traffic signal control and street lighting devices. ii. Licensee shall ensure that the proposed Wireless Telecommunications Facility is not dependent on the resources dedicated to Licensor facilities. iii. Licensee shall propose new locations for Wireless Telecommunications Facilities to Licensor, and Licensor shall have the final authority to approve or reject said locations in its sole discretion. iv. In the event of damage to a Wireless Telecommunications Facility, Licensor shall not be obligated to repair or restore the Wireless Telecommunications Facility to normal operating conditions unless such damage is caused by the sole negligence or willful misconduct of Licensor. As between Licensee and Licensor, Licensee shall bear all other costs incurred to repair or restore Wireless Telecommunications Facilities; provided, however, the Licensee may allocate its responsibility under this sentence to a third party, including a Sublicensee. EXHIBIT A -3- V. Licensee shall make every reasonable effort to restore Licensor facilities in a safe and efficient manner. vi. Licensee shall give Licensor reasonable notice (no less than fourteen (14) days) prior to impacting Licensor facilities in a manner that is beyond the routine maintenance and operation of Wireless Telecommunications Facilities. vii. Any sublicense agreement shall include the requirement that the Sublicensee must comply with all the terms and conditions of this Agreement. viii. Any sublicense agreement shall include a provision substantially consistent with the following, relating to interference with city facilities and communications systems: Notwithstanding any other provisions this Sublicense Agreement, Sublicensee agrees to operate any and all of its Wireless Telecommunications Faciliites on the Property in full compliance with the technical standards set forth in the Rules and Regulations of the Federal Communications Commission ("FCC') as codified in 47 C.F.R. and upon notice of non-compliance agree to take all steps necessary to bring its operation into full compliance. Licensee and Sublicensee both recognize and stipulate that City's public safety communications systems are vital to the life, health, and safety of the public safety personnel and of members of the general public, and agree that protecting such systems against harmful interference is an integral responsibility of this agreement. Licensee and Sublicensee agree to meet and confer with the City on a case-by- case basis, and at the request of any Party and/or the City, in the event that additions or changes to Wireless Telecommunications Facilities on the property cause incompatibilities with the City's installed communications system(s). Licensee and Sublicensee agree that in the event of harmful interference or degradation to City's public safety radio operations, City may require on a case- by-case basis that the use of the interfering Wireless Telecommunications Facility be suspended upon reasonable notice by the City to Licensee and the applicable Sublicensee pending resolution of the cause and cure of such interference or degradation. The findings of the City's communications engineering representative shall be determinant in declaring harmful interference caused by such non-compliance, and in the event of a dispute the burden of seeking a determination of compliance from the Federal Communications Commissions shall be on the Sublicensee. This procedure shall be used in the City's sole discretion. These provisions shall be binding on Licensee, Sublicensee, and any successor, assignee, or service provider designated by Licensee and/or Sublicensee. ix. Except as specified in this Paragraph 5(b) and Paragraph 28(1), Licensor shall not unreasonably interfere with Licensee's discretion relating to the terms of sublicenses, licenses or the grants of occupancy of the Licensed Premises. EXHIBIT A -4- c. Accounting/Adjustments. The parties hereto acknowledge that all information needed to calculate Rent may, from time to time, not be readily available. Accordingly, the parties agree that Licensee may base Rent on Sublicensee agreements, and later make adjustments if overpayments or underpayments occur. At any time, Licensor may request that Licensee provide an accounting of the Rent in such form and content as Licensor may reasonably request. 6. Construction, Engineering, and Other Costs a. Licensor shall have no financial responsibility for planning, construction, and engineering costs associated with the implementation of this License Agreement. b. Licensee may recover from Sublicensees's taxes, construction costs, installation costs, utilities, or other expenses incurred by Licensee, to the extent said reimbursement is not an offset of rent to be paid by Sublicensee(s), and such recovered sums shall not be included in the computation of Rent. 7. Licensed Premises; Survey. Licensee has provided Licensor with a copy of an "as -built" survey for each Licensed Premises, which shall depict and identify the boundaries of each Licensed Premises and the Easements. The description of the each Licensed Premises set forth in Exhibit "A" shall control in the event of any discrepancies. 8. Access. Conditioned upon and subject to commencement of the License Term, Licensor grants to Licensee and Licensee's employees, agents, contractors, sublicensees, licensees and their employees, agents and contractors access to land located within Licensor's Property to Licensee, for the purpose of constructing, repairing, maintaining, replacing, demolishing and removing the facility to be located upon each Licensed Premises as necessary to obtain or comply with any Approvals (the "Access License"). Licensee may request and Licensor shall not unreasonably deny or withhold the granting of an alternate Utility License either to Licensee or directly to the public utility at no cost and in a location acceptable to Licensee and the public utility. The Access Licenses and Utility Licenses (collectively, the "Access/Utility Licenses") shall be utilized for the purposes provided during the License Term and thereafter for a reasonable period of time necessary for Licensee to remove the Improvements. 9. Use of Property. The Licensed Premises and the Access/Utility Licenses shall be used for the purpose of constructing, maintaining and operating the Improvements and for uses incidental thereto. All Improvements shall be constructed at no expense to Licensor. All Improvements, inclusive of security fences, shall comply with the requirements of the San Bernardino Municipal Code and all other laws and regulations applicable thereto, and Licensee shall obtain all required and necessary governmental agency Approvals and permits. Licensee will maintain the Licensed Premises in a safe condition. It is the intent of the parties that Licensee's Improvements shall not constitute a fixture. 10. Removal of Obstructions. Licensee has the right to remove obstructions from Licensor's Property, as approved by the Licensor, which approval shall be requested in writing by Licensee and shall not be unreasonably withheld, conditioned or delayed by Licensor. Potential obstructions include but are not limited to vegetation, which may encroach upon, interfere with or present a hazard to Licensee's use of the Licensed Premises or the Access/Utility Licenses. Licensee shall dispose of any materials removed. 11. Hazardous Materials. a. Licensee's ObliSration and Indemnity. Licensee shall not (either with or without negligence) cause or permit the escape, disposal or release of any Hazardous Materials on or from the Licensed Premises in any manner prohibited by law. Licensee shall indemnify and hold Licensor harmless from and against any and EXHIBIT A -5- all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, and consultants' and experts' fees) from the release of any Hazardous Materials on the Licensed Premises if caused, in whole or in part, by Licensee or persons acting under Licensee. b. Licensor's Obligation and Indemnity. Licensor shall not (either with or without negligence) cause or permit the escape, disposal or release of any Hazardous Materials on or from the Licensed Premises in any manner prohibited by law. Licensor shall indemnify and hold Licensee harmless from and against any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, and consultants' and experts' fees) from the presence or release of any Hazardous Materials onthe Licensed Premises caused by the sole negligence or willful misconduct of the Licensor. 12. Real Estate Taxes. To the extent that a possessory interest is deemed created, Licensee acknowledges that notice is and was hereby given to Licensee pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any public property may subject the Licensee to possessory interest taxes or other taxes levied against Licensee's right to possession, occupancy or use of any public property. Licensee shall pay all applicable (federal, state, county, city, local) excise, sales, consumer use, possessory interest, or other similar taxes required by law that are levied upon this Agreement or upon Licensee's services under this Agreement. Licensee agrees to reimburse Licensor for any documented increase in real estate or personal property taxes levied against Licensor's Property that are directly attributable to the Improvements. Licensor agrees to provide Licensee any documentation evidencing the increase and how such increase is attributable to Licensee's use. Licensee reserves the right to challenge any such assessment, and Licensor agrees to cooperate with Licensee in connection with any such challenge. 13. Insurance. At all times during the performance of its Due Diligence Investigation and during the License Term, Licensee, at its sole expense, shall obtain and keep in force the required insurance as set forth in the attached Exhibit "C". Licensor shall be entitled to coverage at the maximum policy limits carried by Licensee for the required insurance, which shall at no time be less than the required amounts set forth in the attached Exhibit "C" to this Agreement. The insurance provisions shall be separate and independent from the indemnification and defense provisions between the Licensee and Licensor and shall not in any way limit the applicability, scope or obligations of the indemnification defense provisions in Section 14. 14. Indemnification. a. To the fullest extent permitted by law, Licensee shall defend (with legal counsel reasonably acceptable to Licensor), indemnify, protect, and hold harmless Licensor and its elected officials, officers, employees, agents, and representatives ("Indemnified Parties") from and against any and all claims, losses, costs, damages, injuries (including, without limitation, injury to or death of an employee of Licensee or its subcontractors or sublicensees), expense, and liability of every kind, nature and description (including, without limitation, incidental and consequential damages, court costs, and litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the performance of services under this Agreement by Licensee, any subcontractor or sublicensee, anyone directly or indirectly employed by any of them, or anyone that any of their control. Licensee's duty to defend, indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or willful misconduct of the Indemnified Parties. Licensor shall promptly notify Licensee of any claim, action or proceeding covered by this Paragraph 14(a). EXHIBIT A -6- b. Right to Audit. During the term of this Agreement, Licensee shall maintain originals, or when originals are not available copies, of all records, books, papers and documents relating to this Agreement and all accompanying agreements between Licensee and Sublicensees (subject to Licensee's right to reasonably redact such records, books, papers and documents to the extent they are proprietary, represent confidential information, or constitute trade secrets). At all reasonable times, Licensee shall allow Licensor to have access to, examine, copy, and audit such records, including but not limited to access to and audit of information pertaining to the identities of the Sublicensees whom Licensee has attempted to sublicense the Licensed Premises. 15. Waiver of Claims and Rights of Subrogation. The parties hereby waive any and all rights of action for negligence against the other on account of damage to the Improvements or to the Licensed Premises resulting from any fire or other casualty of the kind covered by property insurance policies with extended coverage, regardless of whether or not, or in what amount, such insurance is carried by the parties. All policies of property insurance carried by either party for the Improvements or the Licensed Premises shall include a clause or endorsement denying to the insurer rights by way of subrogation against the other party to the extent rights have been waived by the insured before the occurrence of injury or loss. 16. Eminent Domain. If Licensor receives notice of a proposed taking by eminent domain of any part of the Licensed Premises or the Access/Utility Licenses, Licensor will notify Licensee of the proposed taking within five (5) days of receiving said notice and Licensee will have the option to: (i) declare this Agreement null and void and thereafter neither party will have any liability or obligation hereunder other than payment of Rent for so long as Licensee remains in physical possession of the Licensed Premises; or (ii) remain in possession of that portion of the Licensed Premises and Access/Utility Licenses that will not be taken, in which event there shall be an equitable adjustment in Rent on account of the portion of the Licensed Premises and Access/Utility Licenses so taken. 17. Right of First Refusal. If, during the License term, Licensor receives an offer to purchase, make a loan, or give any consideration in exchange for any of the following interests in all or a portion of any of the Licensed Premises: (i) fee title, (ii) a perpetual or other easement, (iii) a lease, (iv) any present or future possessory interest, (v) any or all portions of Licensor's interest in this Agreement including rent, or (vi) an option to acquire any of the foregoing, Licensor shall provide written notice to Licensee of said offer ("Licensor's Notice"). Licensor's Notice shall include the prospective buyer's name, the purchase price being offered, any other consideration being offered, the other terms and conditions of the offer, the due diligence period, the proposed closing date and, if a portion of Licensor's Property is to be sold, a description of said portion. Licensee shall have a right of first refusal to purchase, at its election and on the terms and conditions as in Licensor's Notice, a fee simple interest in Licensor's Property or the Licensed Premises or a perpetual easement for the Licensed Premises. If the Licensor's Notice is for more than the Licensed Premises, Licensee shall have the option of purchasing the property subject to Licensor's Notice in its entirety, or in the alternative, negotiating with the proposed purchaser to acquire a perpetual easement in only the Licensed Premises. If Licensee does not exercise its right of first refusal by written notice to Licensor given within thirty (30) days, Licensor may sell the property described in the Licensor's Notice. If Licensee declines to exercise its right of first refusal, then this Agreement shall continue in full force and effect and Licensee's right of first refusal shall survive any such conveyance. 18. Sale of Property. If during the Term of this Agreement, Licensor sells all or part of Licensor's Property, of which the Licensed Premises is a part, then such sale shall be subject to this Agreement. 19. Surrender of Property. Upon expiration or termination of this Agreement, Licensee shall, within a reasonable time, remove all above and below ground Improvements and restore the Licensed Premises EXHIBIT A -7- to its original condition, without, however, being required to replace any trees or other plants removed, or alter the then existing grading. 20. Recording. Licensee shall have the right to record a memorandum of the Agreement with the San Bernardino County Recorder's Office. Licensor shall execute and deliver each such memorandum, for no additional consideration, promptly upon Licensee's request. 21. Licensor's Covenant of Title. Licensor covenants that Licensor holds good and marketable fee simple title to Licensor's Property and each of the Licensed Premises and has full authority to enter into and execute this Agreement. Licensor further covenants that there are no encumbrances or other impediments of title that might interfere with or be adverse to Licensee. 22. Interference with Licensee's Business. Licensee shall have the exclusive right to construct, install and operate Wireless Telecommunications Facilities that emit radio frequencies on Licensor's Property with the exception of property controlled by the San Bernardino Municipal Water Department. Licensor agrees that it will not permit the construction, installation or operation on Licensor's Property of (i) any additional wireless telecommunications facilities or (ii) any equipment or device that interferes with Licensee's use of the Licensed Premises for a Wireless Telecommunications Facility. Each of the covenants made by Licensor in this Section is a covenant running with the land for the benefit of the Licensed Premises. 23. Quiet Enjoyment. Licensor covenants that Licensee, on paying Rent and performing the covenants of this Agreement, shall peaceably and quietly have, hold and enjoy the Licensed Premises and Access/Utihty Licenses. 24. Mortgages. This Agreement, Licensee's interest in the Licensed Premises and the Access/Utility Licenses shall be subordinate to any mortgage given by Licensor which currently encumbers the Licensed Premises, provided that any mortgagee shall recognize the validity of this Agreement in the event of foreclosure. In the event that the Licensed Premises is or shall be encumbered by such a mortgage, Licensor shall obtain and furnish to Licensee a mutually agreed upon non -disturbance agreement for each such mortgage, in recordable form. If Licensor fails to cooperate in providing any Licensee requested non- disturbance agreement, Licensee may withhold and accrue, without interest, the Rent until such time as Licensee receives all such documentation. 25. Title Insurance. Licensee, at Licensee's option, may obtain title insurance on each of the Licensed Premises and Access/Utility Licenses at Licensee's sole cost and expense. Licensor shall cooperate with Licensee's efforts to obtain title insurance by executing documents or obtaining requested documentation as reasonably required by the title insurance company. If Licensor fails to provide the requested documentation reasonably necessary to Licensee for Licensee to obtain title insurance within thirty (30) days of Licensee's request, Licensee, at Licensee's option, may withhold and accrue, without interest, the Rent until such time as Licensee receives all such documentation. 26. Default. a. Notice of Default; Cure Period. If there is a default by Licensor or Licensee (the "Defaulting Party") with respect to any of the provisions of this Agreement or Licensor's or Licensee's obligations under this Agreement, the other party (the "Non -Defaulting Party") shall give the Defaulting Party written notice of such default. After receipt of such written notice, the Defaulting Party shall have thirty (30) days in which to cure any monetary default and sixty (60) days in which to cure any non -monetary default. The Defaulting Party shall have such extended periods as may be required beyond the sixty (60) day cure period to cure any non - monetary default if the nature of the cure is such that it reasonably requires more than sixty (60) days to cure, and the Defaulting Party commences the cure within the sixty (60) day period and thereafter continuously and EXHIBIT A -8- diligently pursues the cure to completion. The Non -Defaulting Party may not maintain any action or effect any remedies for default against the Defaulting Party unless and until the Defaulting Party has failed to cure the same within the time periods provided in this Section. b. Consequences of Licensee's Default. Licensor acknowledges that under the terms of this Agreement, Licensee has the right to terminate this Agreement at any time upon one hundred eighty (180) days' written notice to Licensor. Accordingly, in the event that Licensor maintains any action or effects any remedies for default against Licensee resulting in Licensee's dispossession or removal, (i) the Rent shall be paid up to the date of such physical dispossession or removal and (ii) Licensor shall be entitled to recover from Licensee, in lieu of any other damages, as liquidated, final damages, a sum equal to six months' Rent which shall be calculated at the highest value of the Rent which is in effect on the date of default and for the six month period thereafter. In no event shall Licensee be liable to Licensor for indirect or speculative damages in connection with or arising out of any default. c. Consequences of Licensor's Default. If Licensor is in default beyond the applicable periods set forth above in Paragraph 26(a), Licensee may, at its option, upon written notice: (i) terminate this Agreement, vacate the Licensed Premises and be relieved from all further obligations under this Agreement; or (ii) perform the obligation(s) of Licensor specified in such notice, in which case any expenditures reasonably made by Licensee may set-off from Rent any amount reasonably expended by Licensee as a result of such default. d. Termination for Convenience. Either Party may, at its sole option and for its convenience, terminate all or any portion of this Agreement by giving one hundred eighty (180) days' written notice of such termination to the other Parry. The termination of the Agreement shall be effective upon receipt of the notice. After termination of all or any portion of the Agreement, Licensee shall: (1) immediately notify all Sublicensees of the termination; and (2) commence removal of Improvements from the Licensed Premises. 27. Force Majeure. If an event or condition constituting a "force majeure"—including, but not limited to, an act of God, labor dispute, civil unrest, epidemic, or natural disaster—prevents or delays either the Licensor or the Licensee ("Party") from performing or fulfilling an obligation under this Agreement, said Party is not in Default, under Paragraph 26 of this Agreement, of the obligation. A delay beyond a Party's control automatically extends the time, in an amount equal to the period of the delay, for the Party to perform the obligation under this Agreement. The Licensor and Licensee shall prepare and sign an appropriate document acknowledging any extension of time under this Section. 28. Miscellaneous. a. Entire Agreement. This scope of the entire agreement between the parties is described in the Agreement Documents. The Agreement Documents are comprised of. the Wireless Marketing Agreement; this License Agreement; any Access/Utility Agreements; including any exhibits to the above referenced agreements. Licensor and Licensee agree that the Agreement Documents contain all of the agreements, promises and understandings between Licensor and Licensee with regard to the Licensed Premises. No oral agreements, promises or understandings shall be binding upon either Licensor or Licensee in any dispute, controversy or proceeding at law. Any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties hereto. b. Liens. Licensee shall not permit to be placed against the Licensed Premises, or any part thereof, any mechanics', materialmen's, contractors' or other liens (collectively, the "Liens") arising out of the acts or omissions of the Licensee or its agents, employees, contractors, subcontractors, sublicensees or volunteers hereunder. Licensee hereby indemnifies and agrees to hold the Licensor and the Licensed Premises free and EXHIBIT A -9- harmless from all liability for any and all such Liens, together with all costs and expenses, including, but not limited to, attorneys' fees and court costs reasonably incurred by Licensor in connection therewith. c. Hazardous Substances. Licensee and its agents, employees, contractors, subcontractors, sublicensees and volunteers shall not use, store or transport or allow the use, storage or transportation of any hazardous substances on or onto the Licensed Premises. d. Restoration of the Property. Except to the extent otherwise contemplated by this Agreement, Licensor shall, at its own cost and expense, restore the Licensed Premises to the same condition in which it was prior to this Agreement. e. Indemnification by Licensee. To the fullest extent permitted by law, Licensee shall defend (with legal counsel reasonably acceptable to Licensor), indemnify, protect, and hold harmless Licensor and its elected officials, officers, employees, agents, and representatives ("Indemnified Parties") from and against any and all claims, losses, costs, damages, injuries (including, without limitation, injury to or death of an employee of Licensee or its subcontractors or sublicensee), expense, and liability of every kind, nature and description (including, without limitation, incidental and consequential damages, court costs, and litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the performance of services under this Agreement by Licensee, any subcontractor or sublicensee, anyone directly or indirectly employed by any of them, or anyone that any of them control. Licensee's duty to defend, indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or willful misconduct of the Indemnified Parties. Licensor shall promptly notify Licensee of any claim, action or proceeding covered by this subparagraph 28e. f. Authority to Execute. Licensor warrants and represents to Licensee that it is the sole owner of the Property and may execute and approve this Agreement and no permission or consent of any other person is required to approve this Agreement. g. Entire Agreement. No representations or covenants of any kind other than those expressly contained herein have been made by either party hereto. This Agreement may only be modified or amended by an agreement in writing duly executed and delivered by each of the parties hereto. h. Permits. Prior to beginning any work, Licensee at its sole expense, shall obtain all necessary permits to use the Premises as permitted under this Agreement. i. All Expenses To Be Borne by Licensee. Licensee shall bear any and all costs and expenses associated with the rights granted to Licensee, or any unforeseen costs or expenses incurred by the Licensor relating to the performance of this Agreement. j. Hours of Operation. The Licensee shall be permitted to conduct work on the Licensed Premises between 8 am and 5 pm, Monday through Thursday unless otherwise agreed to in advance by the Licensor. k. Headings. All headings are for convenience only and shall not affect the interpretation of this Agreement. 1. Non -Assignment. Licensee may not assign, sublease, sublicense, or encumber its obligations under this Agreement, whether by express assignment or by sale of the company, nor any monies due or to become due under this Agreement, without Licensor's prior written approval. Any assignment in violation of EXHIBIT A -10- this paragraph shall constitute a default and is grounds for termination of this Agreement at the Licensor's sole discretion. in. Independent Contractors. Licensee is an independent contractor. n. Covenants and Conditions. All provisions of this Agreement expressed as either covenants or conditions on the part of Licensor or Licensee shall be deemed to be both covenants and conditions. o. Compliance with Controlling, Law. Licensee shall comply with all applicable local, state, and federal laws, regulations, and policies. Licensee's act or omission in violation of applicable local, state, and federal laws, regulations, and policies is grounds for Agreement termination. In addition to all other remedies or damages allowed by law, Licensee is liable to Licensor for all damages. p. Governing Law. The Agreement shall be deemed to be made under, construed in accordance with, and governed by the laws of the State of California without regard to the conflicts or choice of law provisions thereof. q. Venue. The venue for any suit concerning solicitations or the Agreement, the interpretation of application of any of its terms and conditions, or any related disputes shall be in the Superior Court for the State of California, County of San Bernardino. The choice of venue is intended to be mandatory and not permissive. r. Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in force and effect whether or not any parties to the Agreement have been succeeded by another entity, and all rights and obligations created by this Agreement shall be vested and binding on any party's successor in interest. s. No Waiver. No failure of either Licensor or Licensee to insist upon the strict performance by the other of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach of such covenant, term or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect without respect to any existing or subsequent breach. t. Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render any other provision of this Agreement unenforceable, invalid, or illegal. u. Drafting Ambiguit_ies. The parties acknowledge that they have the right to be advised by legal counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether to seek advice of legal counsel with respect to this Agreement is the sole responsibility of each party. This Agreement shall not be construed in favor of or against either party by reason of the extent to which each party participated in the drafting of the Agreement. v. Amendments. Neither this Agreement nor any provision hereof may be changed, modified, amended or waived except by a written agreement executed by duly authorized representatives of Licensor and Licensee. Any alleged oral amendments have no force or effect. w. Conflicts Between Terms. If this Agreement conflicts with an applicable local, state, or federal law, regulation, or court order, the applicable local, state, or federal law, regulation, or court order shall control. Varying degrees of stringency among the main body of this Agreement, the exhibits or attachments, and laws, regulations, or orders are not deemed conflicts, and the most stringent requirement shall control. Each party EXHIBIT A -11- shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement. x. Survival of Ob li ations. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with this Agreement, as well as all continuing obligations indicated in this Agreement, shall survive, completion and acceptance of performance and termination, expiration or completion of the Agreement. y. No Third Party Beneficiaries. Except as may be specifically set forth in this Agreement, none of the provisions of this Agreement are intended to benefit any third parry not specifically referenced herein. No party other than Licensor and Licensee shall have the right to enforce any of the provisions of this Agreement. z. Actions of City in its Governmental Ca aci . Nothing in this Agreement shall be interpreted as limiting the rights and obligations of City in its governmental or regulatory capacity. aa. Counterparts. This Agreement may be executed in counterparts, which when taken together shall constitute a single signed original as though all Parties had executed the same page. bb. Notices. Unless otherwise specified, in all cases where written notice is required under this Agreement, service shall be deemed sufficient if the notice is personally delivered or deposited in the United States mail, with first class postage paid. Proper notice is effective on the date of personal delivery or five (5) days after deposit in a United States postal mailbox unless provided otherwise in the Agreement. Notices for each party shall be sent to: Licensor: Office of the City Manager 290 North "D" Street, 3rd Floor San Bernardino, CA 92401 With a copy to: Office of the City Attorney 290 North "D" Street, 3rd Floor San Bernardino, CA 92401 Licensee: 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 EXHIBIT A -12- cc. 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 effectuate all of the terms and conditions of this Agreement. dd. Licensee Access to Licensor Propert} . Licensee shall provide a company photo identification badge to any individual assigned by Licensee to enter upon Licensor Property. Such badge must be worn at all times while on Licensor Property. Licensor reserves the right to require Licensee to pay fingerprinting fees for personnel assigned to work in sensitive areas. Licensee is responsible for maintaining standards of employee competence, conduct, courtesy, appearance, honesty, and integrity satisfactory to the Licensor. Licensee's employees and agents shall comply with all Licensor rules and regulations while on Licensor Property. Licensor may request Licensee immediately remove from assignment to the Licensor Property any Licensee employee found unfit to perform duties at the Licensor Property. Licensee shall comply with all such requests. [Signature Page Follows] /// HI EXHIBIT A -13- IN WITNESS WHEREOF, Licensor and Licensee having read the foregoing and intending to be legally bound hereby, have executed this Agreement as of the day and year this Agreement is fully executed. LICENSOR LICENSEE City of San Bernardino 5 Bars Communities a dba of XG Communities, LLC Date: / / Date: By: ------- - ---- By: Title: Title: ATTEST: Georgeann Hanna, City Clerk By: -- Title: APPROVED AS TO FORM: APPROVED AS TO FORM: Gary D. Saenz, City Attorney By: By: Title: EXHIBIT A -14- EXHIBIT B RIGHT OF ENTRY AGREEMENT This Right of Entry Agreement (this "Agreement") is made as of the date of the final signature below, by and between the City of San Bernardino, a municipal corporation ("Grantor") and 5 Bars Communities a dba of XG Communities, LLC, a Delaware limited liability company, with an address at 19200 Von Karman Ave, Suite 100, Irvine, CA 92612 ("Grantee"). Grantor and Grantee are sometimes collectively referred to as "Parties" or individually as "Party." RECITALS A. Grantor is the fee owner of record of that certain real property (the "Property"). B. Grantor and Grantee have entered into that certain Subscription Agreement Regarding Wireless Master Planning ("Subscription Agreement") pursuant to which Grantee has agreed to provide certain consulting, marketing, and management services relating to the placement of Wireless Telecommunications Facilities on some or all of the Property. C. Pursuant to the Subscription Agreement, Grantor and Grantee have agreed to enter into this Agreeement to that Grantee may enter upon the Property, upon 24 hour written notice to Grantor, to inspect, conduct, perform and examine soil borings, drainage testing, material sampling, surveys and other geological or engineering tests or studies of the Property, to apply for and obtain all licenses and permits required for Grantee's use of the designated Property from all applicable governmental or regulatory entities, and to do those things on or off the designated Property that, in the sole opinion of Grantee, are necessary to detennine the physical condition of designated Property, the environmental history of the designated Property, and the feasibility or suitability of the designated Property for Grantee's use ("Due Diligence Investigation"). NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by each of the Parties, the Parties agree as follows: AGREEMENT 1. Right of Entry. Grantor hereby grants to Grantee and its agents, employees, contractors, subcontractors, and volunteers non-exclusive permission to enter over and across, as well as to use the Property as is reasonable and necessary, for the express purpose of conducting, at Grantee's sole expense, the Due Diligence Investigation. (the above-described activities are collectively referred to hereafter as the "Work"). 2. Term. The Right of Entry granted pursuant to Section 1, above, shall be for a limited term, commencing as of the date of this Agreement and expiring upon the expiration or earlier termination of the Subscription Agreement. 3. Entry at Own Risk; No Duty to Warn. Grantee and its agents, employees, contractors, subcontractors, and volunteers shall access, enter and use the Property at their own risk and peril. Grantor shall have no duty to inspect the Property (or any portion thereof) and no duty to warn of any latent or patent defect, condition or risk which may exist on the Property. 4. Liens. Grantee shall not permit to be placed against the Property, or any part thereof, any mechanics', materialmen's, contractors' or other liens (collectively, the "Liens") arising out of the acts or omissions of the Grantee or its agents, employees, contractors, subcontractors, or volunteers hereunder. Grantee hereby indemnifies and agrees to hold the Grantor and the Property free and harmless from all liability for any and all EXHIBIT B -1- such Liens, together with all costs and expenses, including, but not limited to, attorneys' fees and court costs reasonably incurred by Grantor in connection therewith. 5. Hazardous Substances. Grantee and its agents, employees, contractors, subcontractors, and volunteers shall not use, store or transport or allow the use, storage or transportation of any hazardous substances on or onto the Property. 6. Restoration of the Property. Except to the extent otherwise contemplated by this Agreement, Grantee shall, at its own cost and expense, restore the Property to the same condition in which it was prior to Grantee's entry. 7. Indemnification by Grantee. To the fullest extent permitted by law, Grantee shall defend (with legal counsel reasonably acceptable to Grantor), indemnify, protect, and hold harmless Grantor and its elected officials, officers, employees, agents, and representatives ("Indemnified Parties") from and against any and all claims, losses, costs, damages, injuries (including, without limitation, injury to or death of an employee of Grantee or its subcontractors or sublicensee), expense, and liability of every kind, nature and description (including, without limitation, incidental and consequential damages, court costs, and litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the performance of services under this Agreement by Grantee, any subcontractor or sublicensee, anyone directly or indirectly employed by any of them, or anyone that any of them control. Grantee's duty to defend, indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or willful misconduct of the Indemnified Parties. Grantor shall promptly notify Grantee of any claim, action or proceeding covered by this Paragraph 7. 8. Authority to Execute. Grantor(s) warrants and represents to Grantee that he/she/it/they is/are the sole owner(s) of the Property and may execute and approve this Agreement and no permission or consent of any other person is required to approve this Agreement. 9. Entire Agreement. No representations or covenants of any kind other than those expressly contained herein have been made by either party hereto. This Agreement may only be modified or amended by an agreement in writing duly executed and delivered by each of the parties hereto. 10. Permits. Prior to beginning any work, Grantee at its sole expense, shall obtain all necessary permits to use the Premises as permitted under this Agreement. 11. All Expenses To Be Borne by Grantee. Grantee shall bear any and all costs and expenses associated with the rights granted to Grantee, or any unforeseen costs or expenses incurred by the Grantor relating to the performance of this Agreement. 12. Hours of Operation. The hours of operation that Grantee shall be permitted to conduct its project shall be between 8 am and 5 pm, Monday through Thursday. No weekend work shall be permitted. 13. Headings. All headings are for convenience only and shall not affect the interpretation of this Agreement. 14. Non -Assignment. Grantee may not assign its obligations under this Agreement, whether by express assignment or by sale of the company, nor any monies due or to become due under this Agreement, without Grantor's prior written approval. Any assignment in violation of this paragraph shall constitute a default and is grounds for termination of this Agreement at the Grantor's sole discretion. 15. Independent Contractors. Grantee is an independent contractor. EXHIBIT B -2- 16. Covenants and Conditions. All provisions of this Agreement expressed as either covenants or conditions on the part of Grantor or Grantee shall be deemed to be both covenants and conditions. 17. Compliance with Controlling Law. Grantee shall comply with all applicable local, state, and federal laws, regulations, and policies. Grantee's act or omission in violation of applicable local, state, and federal laws, regulations, and policies is grounds for Agreement termination. In addition to all other remedies or damages allowed by law, Grantee is liable to Grantor for all damages. 18. Governing Law. The Agreement shall be deemed to be made under, construed in accordance with, and governed by the laws of the State of California without regard to the conflicts or choice of law provisions thereof. 19. Venue. The venue for any suit concerning solicitations or the Agreement, the interpretation of application of any of its terms and conditions, or any related disputes shall be in the Superior Court for the State of California, County of San Bernardino. The choice of venue is intended to be mandatory and not permissive. 20. Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in force and effect whether or not any parties to the Agreement have been succeeded by another entity, and all rights and obligations created by this Agreement shall be vested and binding on any party's successor in interest. 21. No Waiver. No failure of either Grantor or Grantee to insist upon the strict performance by the other of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach of such covenant, term or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect without respect to any existing or subsequent breach. 22. Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render any other provision of this Agreement unenforceable, invalid, or illegal. 23. Drafting Ambiguities. The parties acknowledge that they have the right to be advised by legal counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether to seek advice of legal counsel with respect to this Agreement is the sole responsibility of each party. This Agreement shall not be construed in favor of or against either party by reason of the extent to which each party participated in the drafting of the Agreement. 24. Amendments. Neither this Agreement nor any provision hereof may be changed, modified, amended or waived except by a written agreement executed by duly authorized representatives of Grantor and Grantee. Any alleged oral amendments have no force or effect. 25. Conflicts Between Terms. If this Agreement conflicts with an applicable local, state, or federal law, regulation, or court order, the applicable local, state, or federal law, regulation, or court order shall control. Varying degrees of stringency among the main body of this Agreement, the exhibits or attachments, and laws, regulations, or orders are not deemed conflicts, and the most stringent requirement shall control. Each party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement. 26. Survival of Obligations. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with this Agreement, as well as all continuing obligations indicated in this EXHIBIT B -3- Agreement, shall survive, completion and acceptance of performance and termination, expiration or completion of the Agreement. 27. No Third Party Beneficiaries. Except as may be specifically set forth in this Agreement, none of the provisions of this Agreement are intended to benefit any third party not specifically referenced herein. No party other than Grantor and Grantee shall have the right to enforce any of the provisions of this Agreement. 28. Actions of City in its Governmental Capacity. Nothing in this Agreement shall be interpreted as limiting the rights and obligations of City in its governmental or regulatory capacity. 29. Counterparts. This Agreement may be executed in counterparts, which when taken together shall constitute a single signed original as though all Parties had executed the same page. 30. Notices. Unless otherwise specified, in all cases where written notice is required under this Agreement, service shall be deemed sufficient if the notice is personally delivered or deposited in the United States mail, with first class postage paid. Proper notice is effective on the date of personal delivery or five (5) days after deposit in a United States postal mailbox unless provided otherwise in the Agreement. Notices for each party shall be sent to: Grantor: Office of the City Manager 290 North "D" Street, 3rd Floor San Bernardino, CA 92401 With a copy to: Office of the City Attorney 290 North "D" Street, 3rd Floor San Bernardino, CA 92401 Grantee: 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 31. 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 effectuate all of the terms and conditions of this Agreement. 32. Grantee Access to Grantor Property. Grantee shall provide a company photo identification badge to any individual assigned by Grantee to enter upon Grantor Property. Such badge must be worn at all times while EXHIBIT B -4- on Grantor Property. Grantor reserves the right to require Grantee to pay fingerprinting fees for personnel assigned to work in sensitive areas. Grantee is responsible for maintaining standards of employee competence, conduct, courtesy, appearance, honesty, and integrity satisfactory to the Grantor. Grantee's employees and agents shall comply with all Grantor rules and regulations while on Grantor Property. Grantor may request Grantee immediately remove from assignment to the Grantor Property any Grantee employee found unfit to perform duties at the Grantor Property. Grantee shall comply with all such requests. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. Date: ATTEST: Georgeann Hanna, City Clerk APPROVED AS TO FORM: Gary D. Saenz, City Attorney By: Date: APPROVED AS TO FORM: "GRANTOR" City of San Bernardino Andrea M. Miller, City Manager "GRANTEE" 5 BARS COMMUNITIES A DBA OF XG COMMUNITIES, LLC Lo Title: EXHIBIT B -5- EXHIBIT C INSURANCE REQUIREMENTS 5 BARS shall procure and maintain or shall cause a subcontractor and/or sublicensee to procure and maintain (5 BARS, subcontractors, and/or sublicensees shall be referred to hereinafter, as the context dictates, as "Contractor"), for the duration of the the Agreeemnt and any applicable subcontract and/or sublicense entered into under and/or pursuant to the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the 5 BARS, a subcontractor, a sublicensee, its agents, representatives, or employees. Contractor shall not begin any performance under this Agreement until it has (1) provided City insurance certificates and endorsements reflecting evidence of all insurance and endorsements required and described herein; (2) obtained City approval of each insurance company or companies; and (3) confirmed that all policies contain the special provisions required herein. Contractor's liabilities, including but not limited to Contractor's indemnity obligations, under this Agreement, shall not be deemed limited in any way to the insurance coverage required herein. Maintenance of specified insurance coverage is a material element of this Agreement, and Contractor's failure to maintain or renew coverage or to provide evidence of renewal during the term of this Agreement may be treated by City as a material breach of Agreement. City reserves the right to require Contractor to submit copies of any policy upon reasonable request by City. 1. All policies shall include, and the insurance certificates shall reflect, a 30 -day non -cancellation clause that provides thirty (30) days written notice by certified mail to City prior to any material change or cancellation of any of said policies. 2. Contractor shall include all subcontractors and sublicensees as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor or sublicensee. All coverages for subcontractors or sublicensees shall be subject to all of the requirements stated herein. 3. Contractor shall not modify any policy or endorsement thereto which increases City's exposure to loss for the duration of this Agreement. 4. Contractor shall maintain insurance coverage at its own expense as follows: a. Commercial General Liability. Commercial General Liability (CGL) insurance which shall cover liability arising from any and all bodily injury, personal injury, advertising injury or property damage in the amount of $1 million per occurrence and subject to an annual aggregate of $2 million. There shall be no endorsement or modification of the CGL limiting the scope of coverage for either insured claims or contractual liability. All defense costs shall be outside the limits of the policy. b. Commercial Automobile Liability. For all of Contractor's automobiles including owned, hired and non -owned automobiles, Contractor shall keep in full force and effect, automobile insurance providing coverage for bodily injury and property damage for a combined single limit of $1 million per occurrence. The insurance certificate shall reflect coverage for any automobile (any auto). c. Workers' Compensation. For all of Contractor's employees performing under this Agreement and to the extent required by the applicable state or federal law, Contractor shall keep in full force and effect, a Workers' Compensation policy. That policy shall provide a minimum of $1 million of employer's liability coverage, and Contractor shall provide an endorsement that the EXHIBIT C -1- insurer waives the right of subrogation against City and its respective elected officials, officers, employees, agents, and representatives. 5. Deductibles. All deductibles or retentions on any policy shall be the sole responsibility of Contractor and shall be disclosed to City at the time the evidence of insurance is provided. 6. Acceptability of Insurers. Except for the State Compensation Insurance Fund, all insurance required by this Agreement, shall only be carried by insurance companies with a current rating of at least "A-, VI" by A.M. Best Company that are authorized by the California Insurance Commissioner to do business in the State of California, and that have been approved by City. a. City will accept insurance provided by non -admitted, "surplus lines" carriers only if the carrier is authorized to do business in the State of California and is included on the List of Approved Surplus Lines Insurers (LASLI list). All policies of insurance carried by non -admitted carriers are subject to all of the requirements for policies of insurance provided by admitted carriers described herein. 7. Required Endorsements. The following endorsements to the policies of insurance are required to be provided to City before any performance is initiated under this Agreement: a. Commercial General Liability Insurance Endorsements: i. Additional Insured. To the fullest extent allowed by law, including but not limited to California Insurance Code section 11580.04, the policy or policies must be endorsed to include as an insured City of San Bernardino and its respective elected officials, officers, employees, agents and representatives with respect to liability arising out of (a) ongoing operations performed by you or on your behalf, (b) your products, (c) your work, including but not limited to your completed operations performed by you or on your behalf, or (d) premises owned, leased, licensed, controlled or used by you. ii. Primary and Non-contributory Coverage. The policy or policies must be endorsed to provide that the insurance afforded by the Commercial General Liability policy or policies is primary to any insurance or self-insurance of City, its elected officials, officers, employees, agents and representatives as respects operations of the Named Insured. Any insurance maintained by City, its elected officials, officers, employees, agents and representatives shall be in excess of Contractor's insurance and shall not contribute to it. iii. Severability of Interest. The policy or policies must be endorsed to provide that 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 and shall provide cross -liability coverage. b. Automobile Liability Insurance Endorsements: Additional Insured. To the fullest extent allowed by law, including but not limited to California Insurance Code section 11580.04, the policy or policies must be endorsed to include as an insured City of San Bernardino and its respective elected officials, officers, employees, agents and representatives with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of Contractor. EXHIBIT C -2- ii. Primary and Non-contributory Coverage. The policy or policies must be endorsed to provide that the insurance afforded by the Automobile Liability policy or policies is primary to any insurance or self-insurance of City, its elected officials, officers, employees, agents and representatives as respects operations of the Named Insured. Any insurance maintained by City, its elected officials, officers, employees, agents and representatives shall be in excess of Contractor's insurance and shall not contribute to it. iii. Severability of Interest. The policy or policies must be endorsed to provide that 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 and shall provide cross -liability coverage. c. Worker's Compensation Insurance Endorsements: Waiver of Subrogation. The Worker's Compensation policy or policies must be endorsed to provide that the insurer will waive all rights of subrogation against City of San Bernardino, its elected officials, officers, employees, agents and representatives for losses paid under the terms of this policy or these policies which arise from work performed by the Named Insured for City. ii. Reservation of Rights. City reserves the right, from time to time, to review Contractor's insurance coverage, limits, deductible, and self-insured retentions to determine if they are acceptable to City. City will reimburse Contractor for the cost of the additional premium for any coverage requested by City in excess of that required by this Agreement, without overhead, profit, or any other markup. 8. Additional Insurance. Contractor may obtain additional insurance not required by this Agreement. 9. Excess Insurance. All policies providing excess coverage to City shall follow the form of the primary policy or policies including but not limited to all endorsements. EXHIBIT C -3- ATS Mark Scott City Manager City of San Bernardino 290 N. "D" Street, 81h Floor San Bernardino, CA 92418 Dear Mr. Scott: Entered Into Pec. at MC(, by: - Agenda Item MOO �---- by:---- City y:---_- City Clark City of San Be?,AyM,42017 T//&// 17 It has come to my attention that the City of San Bernardino is considering a proposal for wireless consulting services. I respectfully request that if it is the City's desire to obtain such services that you open it up to bidding. The City of Irvine, among several recent cities to inquire about such services, had 8 bidders. My company has provided wireless consulting services to San Bernardino in the past and won the last RFP for such services in 2012. We have created a lot of value for the City in the number of cell sites we were able to get on City property and created an extensive Wireless Master Plan Study for the City. I would hope that our willingness to work with the City during the bankruptcy and our successful past experience with the City would allow its to be a part of the City's consideration for these services. Sincerely, Tony Ingegneri President 28322 Driza, Mission Viejo, CA 92692, Phone: (949) 305-7848 Entad Int_ Rec. at MCC Mtg. by:_ -- 2 Agenda Item Nc,:_- MACKENZIE & AL N LLP 155 SANSOME STREET �j�j Q0 SAN FRANCISCO, CALIFORNi�A 94W Gity f San Bemardino TELEPHONE 415 / 288-4000 FACSIMILE 4151288-4010 August 2, 2017 VIA RMAIL Mayor R. Carey Davis Mayor Pro Tempore Fred Shorett Council Members Virginia Marquez, Benito Barrios, John Valdivia, Henry Nickel, Bessine Richard and James Mulvihill City of San Bernardino 290 North D Street, 8h Floor San Bernardino, California 92418 Re: "Existing Agreements" under SB 649 (Hueso) City Council Agenda Item 14 Au st 2 2017 Dear Honorable Mayor Davis, Mayor Pro Tem Shorett, and City Council Members: We write to you on behalf of Verizon Wireless. Verizon Wireless has been working with Senator Ben Hueso (D—San Diego) on forward -thinking legislation (SB 649) that will expedite the deployment of "small cell" networks in California to expand the coverage and capacity of existing 4G networks and prepare for new high-speed 5G networks. Earlier in the year, as an accommodation to cities that already benefit from master agreements with wireless providers for placement of small cells on their light standards and other vertical infrastructure, an amendment was accepted to the legislation that honors "existing agreements" between wireless providers and local jurisdictions. Unfortunately, certain third -party companies have been encouraging local jurisdictions to rush into purportedly preemptory agreements prior to passage of the legislation to exploit the "existing agreements" amendment to SB 649 and otherwise argue that such agreements will supersede SB 649 on constitutional grounds. These companies have been pressing local jurisdictions to quickly turn over control of city assets with long-term master agreements of their own that will purportedly shield the local jurisdiction from the provisions of SB 649. The agreements generally transfer control of city assets that may be used for wireless facilities, regardless of whether the assets are in current use or proposed for future use as wireless facilities, and regardless of whether the assets would be used for small cells (addressed in SB 649) or other wireless facilities (such as macro cell sites) that are not addressed in SB 649. Further, these third- ;,ntered Ifp pec, at MCC Mtg.- ,)y. agenda i►em No: WIRELESS MARKF,TING AGREED jr;7;7— THE CITY OF SAN BERNARDINO AND 5&&IMIQRMMUNITIES C4 of San Bemardino This Wireless Marketing Agreement ("AGREEMENT") is made and entered into on , 2017 (the "Effective Date") between the City of San Bernardino ("CITY") and 5 Bars Communities a dba of XG Communities, LLC a Delaware limited liability company ("S BARS'l (each a "PARTY" and collectively the "PARTIES"), with reference to the following facts and intentions, which the PARTIES agree are true and correct to the best of their knowledge and belief: BACKGROUND A. CITY is a municipal corporation formed under the laws of the State of California, operating under its charter. B. 5 BARS a dba of XG Communities, LLC is a limited liability company formed under the laws of Delaware. C. 5 BARS offers master planning services and tools that merge technical expertise on coverage needs with surveys of existing and forecasted wireless coverage conditions. 5 BARS evaluates that information to identify existing municipal assets that can meet wireless coverage needs. D. 5 BARS provides planning tools so that subscribing municipal corporations may access the information and identify intelligent options and solutions for the processing of applications for wireless telecommunications facilities on a real time basis. E. CITY desires to engage 5 BARS to provide wireless consulting, management and development services related to the use of CITY assets for the purpose of planning and implementing a marketing plan for Wireless Telecommunications Facilities (as that term is defined in Section 2, below), as further described herein. F. CITY desires to engage 5 BARS to proactively market CITY -owned underutilized assets on terms that maximize revenue and minimize planning impacts, visual blight, and impacts to public infrastructure. 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. 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 ("Initial Term"). After the Initial Term, the term of this Agreement may be extended for additional successive terms of five years ("Extended Terms") at the option of the Parties. The Parties shall be deemed to have exercised their option for an additional Extended Term automatically at the expiration of the then current term if either Party does not send written notice to the other Party of the Party's intent not to exercise the option at least ninety (90) days prior to the expiration of the then current term. The Initial Term and Extended Terms, if any, are collectively referred to as the "Agreement Term." 2. Scone 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, -1- arid/or operation of certain tower(s), pole(s), building(s), fiber, conduit(s), data room(s), street furniture, and any structure(s) or object(s) of any kind or character not particularly mentioned herein ("City Asset(s)"), which 5 BARS proposes to locate or cause to be located on City Property and within City Right of Way for the purposes of promoting, transmitting or facilitating wireless communication of telephone or data or any other means ("Wireless Telecommunications Facilities"). CITY in its sole discretion shall identify a list ("Asset List") of City Assets to be included in services provided by 5 BARS. CITY may elect to add or remove one or more assets from the Asset List at anytime and notify 5 BARS in writing. a. Consultini Services. 5 BARS shall provide CITY the following consulting services at no cost to CITY: a comprehensive radio frequency ("RF") analysis, which will, among other things, (i) describe, using state-of-the-art metrics, the current state of wireless coverage within CITY's jurisdiction for each major wireless telecommunications carrier, (ii) identify key areas of multiple wireless broadband service provider coverage needs ("Coverage Needs"), (iii) identify available City Assets that would satisfy or partially satisfy Coverage Needs, and (iv) provide RF modeling to show how the selection of additional sites for Wireless Telecommunications Facilities will address Coverage Needs. The items referred to in clauses (i), (ii), and (iii) from the preceding sentence are hereinafter referred to as the "Master Plan," while the items referred to in clauses (i), (ii), (iii), and (iv) in the preceding sentence are hereinafter referred to as the "Consulting Services". For the duration of the Agreement Term, 5 BARS shall also provide, on a quarterly basis, a written update summarizing investments, technology changes, financial gains and provider plans, and on an annual basis, ongoing comprehensive RF analysis with reports, feasibility analysis, pricing and fee recommendations, form factor and aesthetic policy development, technology refresh and advancement updates, and other consultation specific to wireless broadband service providers, unless 5 BARS and CITY mutually waive the annual ongoing study, to ensure CITY is capitalizing on opportunities to improve wireless broadband service to the community. The Consulting Services may be used by CITY for the enhancement and evolution of the Master Plan or any other purpose. b. Marketin! Services. At no cost to CITY, 5 BARS shall market the Master Plan to wireless carriers, cable companies, internet service providers (ISPs), street light providers, and Internet of Things (IoT) companies, ("Wireless Services Providers") to obtain their feedback and interest in locating and/or collocating on any existing and/or proposed site(s) included in the Master Plan. CITY grants 5 BARS the exclusive right to market, license, sublicense, and construct upon, at 5 BAR's sole cost and expense, City Assets for the development of Wireless Telecommunications Facilities. 5 BARS shall market the Master Plan to all Wireless Services Providers equally, and without any discrimination and/or favoritism between Wireless Services Providers, with a goal of ensuring that residents, visitors, and businesses within CITY's jurisdiction receive the maximum benefit of all available services from all existing wireless services providers. c. Management Services. During the Agreement Term. 5 BARS may at any time request in writing that CITY make City Assets available for the development of Wireless Telecommunications Facilities. Upon a determination of approval, CITY shall notify 5 BARS of such determination in writing, and shall offer to enter into a license with 5 BARS, which license shall be in a form that is substantially consistent with the form set forth in Exhibit "A" to this Agreement. Thereafter 5 BARS or an affiliate of 5 BARS, at no cost to CITY, shall construct or cause the construction of the Wireless Telecommunications Facilities, and sublicense the City Assets (either as improved with Wireless Telecommunications Facilities, or subject to improvement with Wireless Telecommunications Facilities) in accordance with the terms of this Agreement and a license agreement to be executed for each designated City Asset (provided, however, that a single license agreement may be utilized for multiple or all sites that are the subject of this Agreement). 5 BARS understands and acknowledges that CITY shall have the final determination as to whether to move forward with the execution of a license and/or other agreement of substantially equivalent purpose (or an amendment to any such license and/or other agreement) for any &A existing 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 receipt of) all necessary entitlements and permits from CITY, including but not limited to complying (or causing compliance) with CITY's ordinance governing Wireless Telecommunications Facilities, all applicable building codes and public works requirements, as well as comply (or cause compliance) with and receive (or cause receipt of) all necessary and applicable permits from any other regulatory agency, before 5 BARS undertakes (or causes the undertaking of) any construction on a City Asset. d. Exclusions. 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 intended for direct -marketing by the City for macro -cell site development are identified in writing by the City ("City Marketed Assets"). City Marketed Assets may be marketed, if at all, directly by the City or in any other manner determined advantageous to the City, including by third parties. 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 the provision of the Excluded Services by CITY. iv. This Agreement expressly excludes properties under the control of the San Bernardino Municipal Water Department. 3. Telecommunications Ordinance Revision. Within one hundred eighty (180) days after the Effective Date, 5 BARS shall submit for CITY consideration revisions to its telecommunications ordinance to specify that the CITY's review of Wireless Telecommunications Facilities that are (i) on City Assets, and (ii) subject to a license agreement that substantially conforms to the form attached as Exhibit "A", will be accomplished exclusively through the licensing process described in this Agreement. 4. Right of EntrN A_oreement. 5 BARS shall have the right to analyze the suitability of the City Property designated by CITY for 5 BARS' intended use. CITY and 5 BARS shall enter into a Right of Entry Agreement for 5 BARS and its employees, agents, contractors, engineers, and surveyors to have the right to enter upon City Property, upon reasonable written notice to CITY, to inspect, conduct, perform and examine soil borings, drainage testing, material sampling, surveys and other geological or engineering tests or studies of City Property, to apply for all licenses and permits required for 5 BARS' use of the designated City Property from all applicable governmental or regulatory entities, and to do those things on or off the designated City Property that, in the sole opinion of 5 BARS, are necessary to determine the physical condition of designated City Property, the environmental history of the designated City Property, and the feasibility or suitability of the designated City Property for 5 BARS' use ("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. The proposed form of Right of Entry Agreement is attached hereto and incorporated by reference herein as Exhibit "B". CITY -Owned Wireless Telecommunications Facilities and CITY Licenses. CITY -3- shall retain ownership of all CITY leases, licenses, and other agreements in existence as of the Effective Date with wireless providers located within CITY's jurisdictional boundaries. CITY shall retain ownership of any Wireless Telecommunications Facilities CITY subsequently develops on property owned or leased by CITY for CITY's own non-commercial use. 5 BARS and/or its sublicensees shall own the Wireless Telecommunications Facilities developed on City Assets pursuant to this Agreement. CITY leases, licenses, and other agreements in existence as of the Effective Date and any CITY owned/developed Wireless Telecommunications Facilities in existence as of the Effective Date shall not be subject to this Agreement and/or any accompanying agreements between CITY and 5 BARS, unless specifically designated otherwise in writing. 6. Compensation a. CITY shall be entitled to sixty-five percent (65%) of recurring gross payments that are received by 5 BARS from sublicensees for each new Wireless Telecommunications Facility that is on City Assets licensed to 5 BARS pursuant to this Agreement. b. CITY shall be entitled to seventy-five percent (75%) of recurring gross payments that are 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. Quarterly reports reflecting the revenue generated to CITY will be provided by 5 BARS. 7. Construction Engineering, and Other Costs: CITY shall have no financial responsibility for planning, construction, and engineering costs associated with the implementation of this Agreement. 5 BARS may recover from Wireless Service Providers construction costs, installation costs, utilities, or other expenses incurred by 5 BARS, to the extent said reimbursement does not reduce the rent to be paid by Wireless Service Providers, and such recovered sums shall not be included in the computation of compensation hereunder. 8. Default/Termination. a. Default. If there is a default by either PARTY to this Agreement, the PARTY claiming a default of any term or condition of this Agreement shall provide the defaulting PARTY with written notice of the default pursuant to the provisions contained in Paragraph 14(x) 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 default under this Paragraph 8; provided, however, that 5 BARS shall have the right to appeal a determination of default for failure to comply with Paragraph 8 to the CITY's Mayor and City Council, in which case (i) the appeal shall be heard within sixty (60) days of the filing of the appeal, and (ii) the determination of default and the obligation to cure shall be stayed while the appeal is pending. -4- b. Termination for Convenience. Either Party may, at its sole option and for its convenience, terminate all or any portion of this Agreement by giving one hundred eighty (180) days' written notice of such termination to the other Party. The termination of the Agreement shall be effective upon receipt of the notice. 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 may or may not exist in the normal course of 5 BARS' business. 10. Indemnification. To the fullest extent permitted by law, 5 BARS shall defend (with legal counsel reasonably acceptable to CITY), indemnify, protect, and hold harmless CITY and its elected officials, officers, employees, agents, and representatives ("Indemnified Parties") from and against any and all claims, losses, costs, damages, injuries (including, without limitation, injury to or death of an employee of 5 BARS or its subcontractors or sublicensees), expense, and liability of every kind, nature and description (including, without limitation, incidental and consequential damages, court costs, and litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the performance of services under this Agreement by 5 BARS, any subcontractor or sublicensee, anyone directly or indirectly employed by any of them, or anyone that any of their control. 5 BAR's duty to defend, indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or willful misconduct of the Indemnified Parties. CITY shall promptly notify 5 BARS of any claim, action or proceeding covered by this Paragraph 10. 11. Insurance. 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 "C"` to this Agreement. CITY shall be entitled to coverage at the maximum policy limits for the required insurance maintained by 5 BARS, which shall at no time be less than the amounts required set forth in the attached Exhibit "C" to this Agreement. This Agreement's insurance provisions shall be separate and independent from the indemnification and defense provisions of Paragraph 10 of this Agreement and shall not in any way limit the applicability, scope or obligations of the indemnification defense provisions in Paragraph 10. 12. Compliance With Local Ordinances. Subject to Paragraph 3 above, 5 BARS shall comply with all CITY ordinances pertaining to Wireless Telecommunications Facilities, and all such additional CITY regulations that are consistent with such ordinances (such ordinances and regulations are collectively referred to hereinafter as the "Ordinance"). 13. Intellectual Pro pe a. Ownership of Services. 5 BARS retains all right, title, and interest in any underlying software subject to the limitations set forth in this Agreement. b. License. 5 BARS hereby grants to CITY a limited, non-exclusive, non- transferable, non-sublicensable license during the term of this Agreement to use the Services for the purposes of offering, promoting, managing, tracking, the development and use of Wireless -5- 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 market City Marketed Assets and excepting properties under the control of the San Bernardino Municipal Water Department. 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 proprietory 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. 14. General Provisions. a. Headings. All headings are for convenience only and shall not affect the interpretation of this Agreement. b. Non -Assignment. 5 BARS may not assign its obligations under this Agreement, whether by express assignment or by sale of the company, nor any monies due or to become due under this Agreement, without City's prior written approval. Any assignment in violation of this paragraph shall constitute a default and is grounds for termination of this Agreement at the City's sole discretion. In no event shall any putative assignment create a contractual relationship between City and any putative assignee. C. Independent Contractors. 5 BARS is an independent contractor. Any provisions of this Agreement that may appear to give City any right to direct 5 BARS concerning the details of performing the services, or to exercise any control over performance of the Agreement, shall mean only that 5 BARS shall follow the direction of City concerning the end results of the performance. d. Subcontractors. 5 BARS shall be responsible to the CITY for the work of all persons assigned to perform any Services under this Agreement, including any subcontractors. e. Covenants and Conditions. All provisions of this Agreement expressed as either covenants or conditions on the part of City or 5 BARS shall be deemed to be both covenants and conditions. f. Com liance with Controlling Law. 5 BARS shall comply with all applicable local, state, and federal laws, regulations, and policies. Consultant's act or omission in violation of applicable local, state, and federal laws, regulations, and policies is grounds for Agreement termination. In addition to all other remedies or damages allowed by law, 5 BARS is liable to City for all damages, including costs for substitute performance, sustained as a result of the violation. g. Governing Law. The Agreement shall be deemed to be made under, construed in accordance with, and governed by the laws of the State of California without regard to the conflicts or choice of law provisions thereof. in h. Venue. The venue for any suit concerning solicitations or the Agreement, the interpretation of application of any of its terms and conditions, or any related disputes shall be in the Superior Court for the State of California, County of San Bernardino. The choice of venue is intended to be mandatory and not permissive. i. Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in force and effect whether or not any parties to the Agreement have been succeeded by another entity, and all rights and obligations created by this Agreement shall be vested and binding on any party's successor in interest. j. No Waiver. No failure of either City or 5 BARS to insist upon the strict performance by the other of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach of such covenant, term or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect without respect to any existing or subsequent breach. k. Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render any other provision of this Agreement unenforceable, invalid, or illegal. 1. Drafting Ambiguities. The parties acknowledge that they have the right to be advised by legal counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether to seek advice of legal counsel with respect to this Agreement is the sole responsibility of each party. This Agreement shall not be construed in favor of or against either party by reason of the extent to which each party participated in the drafting of the Agreement. M. Amendments. Neither this Agreement nor any provision hereof may be changed, modified, amended or waived except by a written agreement executed by duly authorized representatives of City and 5 BARS. Any alleged oral amendments have no force or effect. n. Conflicts Between Terms. If this Agreement conflicts with an applicable local, state, or federal law, regulation, or court order, the applicable local, state, or federal law, regulation, or court order shall control. Varying degrees of stringency among the main body of this Agreement, the exhibits or attachments, and laws, regulations, or orders are not deemed conflicts, and the most stringent requirement shall control. Each party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement. o. Survival of Obligations. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with this Agreement, as well as all continuing obligations indicated in this Agreement, shall survive, completion and acceptance of performance and termination, expiration or completion of the Agreement. P. Insolvency. If 5 BARS enters into proceedings relating to bankruptcy, whether voluntary or involuntary, 5 BARS agrees to furnish, by certified mail or electronic commerce method authorized by the Agreement, written notification of the bankruptcy to the City. This notification shall be furnished within five (5) days of the initiation of the proceedings relating to bankruptcy filing. This notification shall include the date on which the bankruptcy petition was filed, the identity of the court in which the bankruptcy petition was filed, and a listing of City -7- Agreements against which final payment has not been made. This obligation remains in effect until final payment is made under this Agreement. q. No Third PgLty Beneficiaries. Except as may be specifically set forth in this Agreement, none of the provisions of this Agreement are intended to benefit any third party not specifically referenced herein. No party other than City and 5 BARS shall have the right to enforce any of the provisions of this Agreement. r. Actions of Citv in its Governmental Capacity. Nothing in this Agreement shall be interpreted as limiting the rights and obligations of City in its governmental or regulatory capacity. S. Countemarts. This Agreement may be executed in counterparts, which when taken together shall constitute a single signed original as though all Parties had executed the same page. t. Non -Discrimination. 5 BARS shall not discriminate on the basis of race, gender, gender expression, gender identity, religion, national origin, ethnicity, sexual orientation, age, or disability in the solicitation, selection, hiring or treatment of subcontractors, vendors or suppliers. 5 BARS shall provide equal opportunity for subcontractors to participate in subcontracting opportunities. 5 BARS understands and agrees that violation of this clause shall be considered a material breach of the Agreement and may result in Agreement termination. 5 BARS shall ensure that this language is included in Agreements between 5 BARS and any subcontractors, vendors and suppliers. U. Business Registration Certificate. 5 BARS shall obtain a Business Registration Certificate and to provide a copy of its Business Registration Certificate to the City before an Agreement is executed. V. Conflict of Interest Laws. 5 BARS is subject to all federal, state and local conflict of interest laws, regulations, and policies applicable to public contracts and procurement practices including, but not limited to, California Government Code sections 1090, et. seq. and 81000, et. seq. City may determine that 5 BARS must complete one or more statements of economic interest disclosing relevant financial interests. Upon City's request, 5 BARS shall submit the necessary documents to City. 5 BARS is required to establish and make known to its employees and agents appropriate safeguards to prohibit employees from using their positions for a purpose that is, or that gives the appearance of being, motivated by the desire for private gain for themselves or others, particularly those with whom they have family, business or other relationships. W. Hiring Ci1y Officer or Em to ee. This Agreement shall be unilaterally and immediately terminated by City if 5 BARS employs an individual who within the twelve (12) months immediately preceding such employment did in his/her capacity as a City officer or employee participate in negotiations with or otherwise have an influence on the selection of 5 BARS. X. Notices. Unless otherwise specified, in all cases where written notice is required under this Agreement, service shall be deemed sufficient if the notice is personally delivered or deposited in the United States mail, with first class postage paid. Proper notice is effective on the date of personal delivery or five (5) days after deposit in a United States postal mailbox unless provided otherwise in the Agreement. Notices for each party shall be sent to: CITY: Office of the City Manager -8- 290 North "D" Street, 3r1 Floor San Bernardino, CA 92401 With a copy to: Office of the City Attorney 290 North "D" Street, 3rd Floor San Bernardino, CA 92401 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., 10 Floor Costa Mesa, CA 92626 Phone: 714-641-5100 Fax: 714-546-9035 Y. 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 effectuate all of the terms and conditions of this Agreement. Z. Required Modficiation. 5 BARS shall immediately notify CITYin writing of any laws, regulations or restrictions that may or will require 5 BARS to alter the services to be provided. CITY reserves the right to accept any such alteration, including any resulting reasonable price adjustments, or to terminate the Agreement at no expense to the City. aa. Quality Assurance Meetings. Upon City's request, 5 BARS shall schedule one or more quality assurance meetings with City Manager or designee to discuss 5 BAR's performance. If requested, 5 BARS shall schedule the first quality assurance meeting no later than eight (8) weeks from the date of commencement of services under the Agreement. At the quality assurance meeting(s), City Manager or designee will provide 5 BARS with feedback, will note any deficiencies in Agreement performance, and provide 5 BARS with an opportunity to address and correct such deficiencies. The total number of quality assurance meetings that may be required by City will depend upon 5 BARS's performance. bb. Employee Access to Cite Property. 5 BARS shall provide a company photo identification badge to any individual assigned by 5 BARS or subcontractor to perform services on City Property. Such badge must be worn at all times while on City Property. City reserves the right to require 5 BARS to pay fingerprinting fees for personnel assigned to work in sensitive areas. 5 BARS is responsible for maintaining standards of employee competence, conduct, courtesy, appearance, honesty, and integrity satisfactory to the City. 5 BARS's employees and agents shall comply with all City rules and regulations while on City Property. City may request 5 BARS immediately remove from assignment to the City any 5 BARS employee found unfit to perform duties at the City. 5 BARS shall comply with all such requests. cc. Entire Agreement. This scope of the entire agreement between the parties is described in the Agreement Documents. The Agreement Documents are comprised of: this Wireless Marketing Agreement; the License Agreement; any Access/Utility Agreements; including any exhibits to the above referenced agreements. City and 5 BARs agree that the Agreement Documents contain all of the agreements, promises and understandings between City and 5 BARS. No oral agreements, promises or understandings shall be binding upon either City or 5 BARS in any dispute, controversy or proceeding at law. Any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties hereto. IN WITNESS WHEREOF, this Agreement is executed by City and 5 BARS acting by and through their authorized officers. CITY OF SAN BERNARDINO: 5 BARS: Date: / /2017 Date / /2017 Andrea M. Miller, City Manager APPROVED AS TO FORM: Gary D. Saenz, City Attorney I� US Its: -10- EXHI RIT A LICENSE AGREEMENT THIS LICENSE AGREEMENT is made as of the date of the final signature below, by and between the City of San Bernardino, a municipal corporation ("Licensor") and 5 Bars Communities a dba of XG Communities, LLC, a Delaware limited liability company, with an address at 19200 Von Karman Ave, Suite 100, Irvine, CA 92612 ("Licensee"). 1. Definitions. "Agreement" means this License Agreement. "Approvals" means all certificates, permits, licenses and other approvals that Licensee must obtain as required by law in order for Licensee or its agents or sublicensees to use the Licensed Premises for the purpose intended by this Agreement. "Company Facilities" means any and all Wireless Telecommunications Facilities to be developed by Licensee on the Licensed Premises. "City Facilities" means any and all existing facilities, inclusive of but not limited to all buildings and improvements owned by and under the possession and control of Licensor, including but not limited to utility poles, lamp posts, other utility facilities, fences, gates, and all roof tops of all such buildings, facilities and/or improvements excluding facilities owned, operated, and/or controlled by the City acting by and through the San Bernardino Municipal Water Department. "Defaulting Party" means the party to this Agreement that has defaulted as provided for in Section 26 of this Agreement. "Easement" and "Utility Easement" have the meanings set forth in Section 7 of this Agreement. "Harmful Interference" means Interference that endangers the functioning of a radio navigation service or of other safety services or seriously degrades, obstructs, or repeatedly interrupts a radio communication service operating in accordance with both International Telecommunications Union Radio Regulations and the regulations of the Federal Communications Commission. "Hazardous Material" means any substance which is (i) designated, defined, classified or regulated as a hazardous substance, hazardous material, hazardous waste, pollutant or contaminant under any Environmental Law, as currently in effect or as hereafter amended or enacted, (ii) a petroleum hydrocarbon, including crude oil or any fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) asbestos, (vi) flammable explosives, (vii) infectious materials, or (vii) radioactive materials. "Environmental Law(s)" means the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq., the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Section 5101 et seq., and the Clean Water Act, 33 U.S.C. Section 1251 et seq., as said laws have been supplemented or amended to date, the regulations promulgated pursuant to said laws and any other federal, state or local law, statute, rule, regulation or ordinance that regulates or proscribes the use, storage, disposal, presence, clean-up, transportation or release or threatened release into the environment of Hazardous Material. EXHIBIT A -1- "Improvements" means a Wireless Telecommunications Facility(ies). "Interference" means the effect of unwanted energy due to one or a combination of emissions, radiations, or inductions upon reception in a radio communication system, manifested by any performance degradation, misinterpretation, or loss of information. "Licensed Premises" means those portions of Licensor's Property described in the sketches attached hereto as Exhibit "A" "Licensee" means 5 Bars Communities a dba of XG Communitites, LLC, a Delaware limited liability company. "Licensee's Notice Address" means 19200 Von Karman Ave, Suite 100, Irvine CA 92612. "Licensor" means City of San Bernardino, a municipal corporation. "Licensor's Notice Address" means 290 North "D" Street, 3rd Floor, San Bernardino, CA 92401. "Licensor's Properties" means those properties which are the subject of this License Agreement excluding all properties owned, operated, and/or controlled by the City acting by and through the San Bernardino Municipal Water Department.. "Non Defaulting Party" means the parry to this Agreement that has not defaulted as provided for in Paragraph 26 of this Agreement. "Rent" means sixty-five percent (65%) of recurring Sublicense Revenue received by Licensee from Sublicensees on new Wireless Telecommunications Facilities constructed on Licensed Premises under or pursuant to this Agreement. "Sublicense Revenue" means the total amount of rent (excluding any reimbursement from Sublicensee(s) of taxes, construction costs, installation costs, utilities, or other expenses incurred by Licensee to the extent said reimbursement is not an offset of rent to be paid by Sublicensee(s)) paid to Licensee by all Sublicensee(s) or any other occupant of the Licensed Premises, whether pursuant to a license or other similar agreement, as modified, renewed, or assigned. "Sublicensee" means a third party to which Licensee has granted the right to use and/or occupancy of one or more of the Licensed Premises, subject to the terms and conditions contained herein. "Subscription Agreement" means the Wireless Marketing Agreement between Licensor and Licensee, dated , 2017. "Wireless Telecommunications Facilities" means the equipment and associated structures needed to transmit and/or receive electromagnetic signals. A wireless telecommunication facility typically includes antennas, supporting structures, enclosures and/or cabinets housing associated equipment, cable, access roads and other accessory development. 2. Licensor's Cooperation. During the Term of this Agreement, Licensor shall: (i) cooperate with Licensee in its efforts to obtain all of the Approvals and (ii) take no action that would adversely affect any of the Licensed Premises; provided, however, that if Licensor elects to replace infrastructure on the Licensed Premises that is unrelated to the delivery of Wireless Telecommunications services, then such replacement shall be accomplished in a manner calculated to minimize interference with the Wireless Telecommunications EXHIBIT A -2- Facilities on the Licensed Premises. Licensor acknowledges that Licensee's ability to use each of the Licensed Premises is contingent upon Licensee obtaining and maintaining the Approvals. Additionally, Licensor authorizes Licensee and its employees, representatives, agents and consultants to prepare, and submit, file and present on behalf of Licensor building, permitting, zoning or land -use applications with the appropriate local, state and/or federal agencies necessary to obtain land use changes, special exceptions, zoning variances, conditional use permits, special use permits, administrative permits, construction permits, operation permits and/or building permits. Licensor understands that any such application and/or the satisfaction of any requirements thereof may require Licensor's cooperation, which Licensor hereby agrees to provide. Licensor shall not knowingly do or permit anything that will interfere with or negate any Approvals pertaining to the Improvements or Licensed Premises or cause them to be in nonconformance with applicable local, state or federal laws. Licensor agrees to execute such documents as may be necessary to obtain and thereafter maintain the Approvals, and agrees to be named as the applicant for said Approvals. The provisions of this Paragraph shall not apply in the event of any dispute between and/or involving Licensor and Licensee. 3. Subdivision. In the event that a subdivision of Licensor's Property is legally required to license the any of the Licensed Premises to Licensee, Licensor agrees to seek subdivision approval at Licensee's expense. 4. Term. The Term of this Agreement shall commence on _ , 20 ("Commencement n Exhibit "B" Date") and continue until the license for each Licensed Premise listed ihas expired. The term of each License listed in Exhibit "B" shall begin on the commencement date listed for such Licensed Premises on Exhibit "B", and shall continue for a period of ten (10) years with three five (5) year options subject to the written mutual consent of the Licensor and Licensee. At the end of term of the Agreement 5 BARS will hand over the administration of the Agreement to the CITY unless mutually agreed upon by both parties. Rent. a. Rent. From and after the Commencement Date and effective upon Licensee's receipt of Sublicense Revenue, Licensee shall pay Rent for the each of the Licensed Premises quarterly in arrears. b. Sublicenses. Sublicenses, licenses or other occupancy of the Licensed Premises shall be subject to the following: i. Licensee shall make every reasonable effort to ensure that each proposed Wireless Telecommunications Facility will not affect, detract, or impact the operation of existing Licensor facilities, particularly traffic signal control and street lighting devices. ii. Licensee shall ensure that the proposed Wireless Telecommunications Facility is not dependent on the resources dedicated to Licensor facilities. iii. Licensee shall propose new locations for Wireless Telecommunications Facilities to Licensor, and Licensor shall have the final authority to approve or reject said locations in its sole discretion. iv. In the event of damage to a Wireless Telecommunications Facility, Licensor shall not be obligated to repair or restore the Wireless Telecommunications Facility to normal operating conditions unless such damage is caused by the sole negligence or willful misconduct of Licensor. As between Licensee and Licensor, Licensee shall bear all other costs incurred to repair or restore Wireless Telecommunications Facilities; provided, however, the Licensee may allocate its responsibility under this sentence to a third party, including a Sublicensee. EXHIBIT A -3- V. Licensee shall make every reasonable effort to restore Licensor facilities in a safe and efficient manner. vi. Licensee shall give Licensor reasonable notice (no less than fourteen (14) days) prior to impacting Licensor facilities in a manner that is beyond the routine maintenance and operation of Wireless Telecommunications Facilities. vii. Any sublicense agreement shall include the requirement that the Sublicensee must comply with all the terms and conditions of this Agreement. viii. Any sublicense agreement shall include a provision substantially consistent with the following, relating to interference with city facilities and communications systems: Notwithstanding any other provisions this Sublicense Agreement, Sublicensee agrees to operate any and all of its Wireless Telecommunications Faciliites on the Property in full compliance with the technical standards set forth in the Rules and Regulations of the Federal Communications Commission ("FCC') as codified in 47 C.F.R. and upon notice of non-compliance agree to take all steps necessary to bring its operation into full compliance. Licensee and Sublicensee both recognize and stipulate that City's public safety communications systems are vital to the life, health, and safety of the public safety personnel and of members of the general public, and agree that protecting such systems against harmful interference is an integral responsibility of this agreement. Licensee and Sublicensee agree to meet and confer with the City on a case-by- case basis, and at the request of any Party and/or the City, in the event that additions or changes to Wireless Telecommunications Facilities on the property cause incompatibilities with the City's installed communications system(s). Licensee and Sublicensee agree that in the event of harmful interference or degradation to City's public safety radio operations, City may require on a case- by-case basis that the use of the interfering Wireless Telecommunications Facility be suspended upon reasonable notice by the City to Licensee and the applicable Sublicensee pending resolution of the cause and cure of such interference or degradation. The findings of the City's communications engineering representative shall be determinant in declaring harmful interference caused by such non-compliance, and in the event of a dispute the burden of seeking a determination of compliance from the Federal Communications Commissions shall be on the Sublicensee. This procedure shall be used in the City's sole discretion. These provisions shall be binding on Licensee, Sublicensee, and any successor, assignee, or service provider designated by Licensee and/or Sublicensee. ix. Except as specified in this Paragraph 5(b) and Paragraph 28(1), Licensor shall not unreasonably interfere with Licensee's discretion relating to the terms of sublicenses, licenses or the grants of occupancy of the Licensed Premises. EXHIBIT A -4- c. Accounting/Adjustments. The parties hereto acknowledge that all information needed to calculate Rent may, from time to time, not be readily available. Accordingly, the parties agree that Licensee may base Rent on Sublicensee agreements, and later make adjustments if overpayments or underpayments occur. At any time, Licensor may request that Licensee provide an accounting of the Rent in such form and content as Licensor may reasonably request. 6. Construction, Engineering, and Other Costs a. Licensor shall have no financial responsibility for planning, construction, and engineering costs associated with the implementation of this License Agreement. b. Licensee may recover from Sublicensees's taxes, construction costs, installation costs, utilities, or other expenses incurred by Licensee, to the extent said reimbursement is not an offset of rent to be paid by Sublicensee(s), and such recovered sums shall not be included in the computation of Rent. 7. Licensed Premises; Survey. Licensee has provided Licensor with a copy of an "as -built" survey for each Licensed Premises, which shall depict and identify the boundaries of each Licensed Premises and the Easements. The description of the each Licensed Premises set forth in Exhibit "A" shall control in the event of any discrepancies. 8. Access. Conditioned upon and subject to commencement of the License Term, Licensor grants to Licensee and Licensee's employees, agents, contractors, sublicensees, licensees and their employees, agents and contractors access to land located within Licensor's Property to Licensee, for the purpose of constructing, repairing, maintaining, replacing, demolishing and removing the facility to be located upon each Licensed Premises as necessary to obtain or comply with any Approvals (the "Access License"). Licensee may request and Licensor shall not unreasonably deny or withhold the granting of an alternate Utility License either to Licensee or directly to the public utility at no cost and in a location acceptable to Licensee and the public utility. The Access Licenses and Utility Licenses (collectively, the "Access/Utility Licenses") shall be utilized for the purposes provided during the License Term and thereafter for a reasonable period of time necessary for Licensee to remove the Improvements. 9. Use of Property. The Licensed Premises and the Access/Utility Licenses shall be used for the purpose of constructing, maintaining and operating the Improvements and for uses incidental thereto. All Improvements shall be constructed at no expense to Licensor. All Improvements, inclusive of security fences, shall comply with the requirements of the San Bernardino Municipal Code and all other laws and regulations applicable thereto, and Licensee shall obtain all required and necessary governmental agency Approvals and permits. Licensee will maintain the Licensed Premises in a safe condition. It is the intent of the parties that Licensee's Improvements shall not constitute a fixture. 10. Removal of Obstructions. Licensee has the right to remove obstructions from Licensor's Property, as approved by the Licensor, which approval shall be requested in writing by Licensee and shall not be unreasonably withheld, conditioned or delayed by Licensor. Potential obstructions include but are not limited to vegetation, which may encroach upon, interfere with or present a hazard to Licensee's use of the Licensed Premises or the Access/Utility Licenses. Licensee shall dispose of any materials removed. 11. Hazardous Materials. a. Licensee's ObliSration and Indemnity. Licensee shall not (either with or without negligence) cause or permit the escape, disposal or release of any Hazardous Materials on or from the Licensed Premises in any manner prohibited by law. Licensee shall indemnify and hold Licensor harmless from and against any and EXHIBIT A -5- all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, and consultants' and experts' fees) from the release of any Hazardous Materials on the Licensed Premises if caused, in whole or in part, by Licensee or persons acting under Licensee. b. Licensor's Obligation and Indemnity. Licensor shall not (either with or without negligence) cause or permit the escape, disposal or release of any Hazardous Materials on or from the Licensed Premises in any manner prohibited by law. Licensor shall indemnify and hold Licensee harmless from and against any and all claims, damages, fines, judgments, penalties, costs, liabilities or losses (including, without limitation, any and all sums paid for settlement of claims, attorneys' fees, and consultants' and experts' fees) from the presence or release of any Hazardous Materials onthe Licensed Premises caused by the sole negligence or willful misconduct of the Licensor. 12. Real Estate Taxes. To the extent that a possessory interest is deemed created, Licensee acknowledges that notice is and was hereby given to Licensee pursuant to California Revenue and Taxation Code Section 107.6 that use or occupancy of any public property may subject the Licensee to possessory interest taxes or other taxes levied against Licensee's right to possession, occupancy or use of any public property. Licensee shall pay all applicable (federal, state, county, city, local) excise, sales, consumer use, possessory interest, or other similar taxes required by law that are levied upon this Agreement or upon Licensee's services under this Agreement. Licensee agrees to reimburse Licensor for any documented increase in real estate or personal property taxes levied against Licensor's Property that are directly attributable to the Improvements. Licensor agrees to provide Licensee any documentation evidencing the increase and how such increase is attributable to Licensee's use. Licensee reserves the right to challenge any such assessment, and Licensor agrees to cooperate with Licensee in connection with any such challenge. 13. Insurance. At all times during the performance of its Due Diligence Investigation and during the License Term, Licensee, at its sole expense, shall obtain and keep in force the required insurance as set forth in the attached Exhibit "C". Licensor shall be entitled to coverage at the maximum policy limits carried by Licensee for the required insurance, which shall at no time be less than the required amounts set forth in the attached Exhibit "C" to this Agreement. The insurance provisions shall be separate and independent from the indemnification and defense provisions between the Licensee and Licensor and shall not in any way limit the applicability, scope or obligations of the indemnification defense provisions in Section 14. 14. Indemnification. a. To the fullest extent permitted by law, Licensee shall defend (with legal counsel reasonably acceptable to Licensor), indemnify, protect, and hold harmless Licensor and its elected officials, officers, employees, agents, and representatives ("Indemnified Parties") from and against any and all claims, losses, costs, damages, injuries (including, without limitation, injury to or death of an employee of Licensee or its subcontractors or sublicensees), expense, and liability of every kind, nature and description (including, without limitation, incidental and consequential damages, court costs, and litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the performance of services under this Agreement by Licensee, any subcontractor or sublicensee, anyone directly or indirectly employed by any of them, or anyone that any of their control. Licensee's duty to defend, indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or willful misconduct of the Indemnified Parties. Licensor shall promptly notify Licensee of any claim, action or proceeding covered by this Paragraph 14(a). EXHIBIT A -6- b. Right to Audit. During the term of this Agreement, Licensee shall maintain originals, or when originals are not available copies, of all records, books, papers and documents relating to this Agreement and all accompanying agreements between Licensee and Sublicensees (subject to Licensee's right to reasonably redact such records, books, papers and documents to the extent they are proprietary, represent confidential information, or constitute trade secrets). At all reasonable times, Licensee shall allow Licensor to have access to, examine, copy, and audit such records, including but not limited to access to and audit of information pertaining to the identities of the Sublicensees whom Licensee has attempted to sublicense the Licensed Premises. 15. Waiver of Claims and Rights of Subrogation. The parties hereby waive any and all rights of action for negligence against the other on account of damage to the Improvements or to the Licensed Premises resulting from any fire or other casualty of the kind covered by property insurance policies with extended coverage, regardless of whether or not, or in what amount, such insurance is carried by the parties. All policies of property insurance carried by either party for the Improvements or the Licensed Premises shall include a clause or endorsement denying to the insurer rights by way of subrogation against the other party to the extent rights have been waived by the insured before the occurrence of injury or loss. 16. Eminent Domain. If Licensor receives notice of a proposed taking by eminent domain of any part of the Licensed Premises or the Access/Utility Licenses, Licensor will notify Licensee of the proposed taking within five (5) days of receiving said notice and Licensee will have the option to: (i) declare this Agreement null and void and thereafter neither party will have any liability or obligation hereunder other than payment of Rent for so long as Licensee remains in physical possession of the Licensed Premises; or (ii) remain in possession of that portion of the Licensed Premises and Access/Utility Licenses that will not be taken, in which event there shall be an equitable adjustment in Rent on account of the portion of the Licensed Premises and Access/Utility Licenses so taken. 17. Right of First Refusal. If, during the License term, Licensor receives an offer to purchase, make a loan, or give any consideration in exchange for any of the following interests in all or a portion of any of the Licensed Premises: (i) fee title, (ii) a perpetual or other easement, (iii) a lease, (iv) any present or future possessory interest, (v) any or all portions of Licensor's interest in this Agreement including rent, or (vi) an option to acquire any of the foregoing, Licensor shall provide written notice to Licensee of said offer ("Licensor's Notice"). Licensor's Notice shall include the prospective buyer's name, the purchase price being offered, any other consideration being offered, the other terms and conditions of the offer, the due diligence period, the proposed closing date and, if a portion of Licensor's Property is to be sold, a description of said portion. Licensee shall have a right of first refusal to purchase, at its election and on the terms and conditions as in Licensor's Notice, a fee simple interest in Licensor's Property or the Licensed Premises or a perpetual easement for the Licensed Premises. If the Licensor's Notice is for more than the Licensed Premises, Licensee shall have the option of purchasing the property subject to Licensor's Notice in its entirety, or in the alternative, negotiating with the proposed purchaser to acquire a perpetual easement in only the Licensed Premises. If Licensee does not exercise its right of first refusal by written notice to Licensor given within thirty (30) days, Licensor may sell the property described in the Licensor's Notice. If Licensee declines to exercise its right of first refusal, then this Agreement shall continue in full force and effect and Licensee's right of first refusal shall survive any such conveyance. 18. Sale of Property. If during the Term of this Agreement, Licensor sells all or part of Licensor's Property, of which the Licensed Premises is a part, then such sale shall be subject to this Agreement. 19. Surrender of Property. Upon expiration or termination of this Agreement, Licensee shall, within a reasonable time, remove all above and below ground Improvements and restore the Licensed Premises EXHIBIT A -7- to its original condition, without, however, being required to replace any trees or other plants removed, or alter the then existing grading. 20. Recording. Licensee shall have the right to record a memorandum of the Agreement with the San Bernardino County Recorder's Office. Licensor shall execute and deliver each such memorandum, for no additional consideration, promptly upon Licensee's request. 21. Licensor's Covenant of Title. Licensor covenants that Licensor holds good and marketable fee simple title to Licensor's Property and each of the Licensed Premises and has full authority to enter into and execute this Agreement. Licensor further covenants that there are no encumbrances or other impediments of title that might interfere with or be adverse to Licensee. 22. Interference with Licensee's Business. Licensee shall have the exclusive right to construct, install and operate Wireless Telecommunications Facilities that emit radio frequencies on Licensor's Property with the exception of property controlled by the San Bernardino Municipal Water Department. Licensor agrees that it will not permit the construction, installation or operation on Licensor's Property of (i) any additional wireless telecommunications facilities or (ii) any equipment or device that interferes with Licensee's use of the Licensed Premises for a Wireless Telecommunications Facility. Each of the covenants made by Licensor in this Section is a covenant running with the land for the benefit of the Licensed Premises. 23. Quiet Enjoyment. Licensor covenants that Licensee, on paying Rent and performing the covenants of this Agreement, shall peaceably and quietly have, hold and enjoy the Licensed Premises and Access/Utihty Licenses. 24. Mortgages. This Agreement, Licensee's interest in the Licensed Premises and the Access/Utility Licenses shall be subordinate to any mortgage given by Licensor which currently encumbers the Licensed Premises, provided that any mortgagee shall recognize the validity of this Agreement in the event of foreclosure. In the event that the Licensed Premises is or shall be encumbered by such a mortgage, Licensor shall obtain and furnish to Licensee a mutually agreed upon non -disturbance agreement for each such mortgage, in recordable form. If Licensor fails to cooperate in providing any Licensee requested non- disturbance agreement, Licensee may withhold and accrue, without interest, the Rent until such time as Licensee receives all such documentation. 25. Title Insurance. Licensee, at Licensee's option, may obtain title insurance on each of the Licensed Premises and Access/Utility Licenses at Licensee's sole cost and expense. Licensor shall cooperate with Licensee's efforts to obtain title insurance by executing documents or obtaining requested documentation as reasonably required by the title insurance company. If Licensor fails to provide the requested documentation reasonably necessary to Licensee for Licensee to obtain title insurance within thirty (30) days of Licensee's request, Licensee, at Licensee's option, may withhold and accrue, without interest, the Rent until such time as Licensee receives all such documentation. 26. Default. a. Notice of Default; Cure Period. If there is a default by Licensor or Licensee (the "Defaulting Party") with respect to any of the provisions of this Agreement or Licensor's or Licensee's obligations under this Agreement, the other party (the "Non -Defaulting Party") shall give the Defaulting Party written notice of such default. After receipt of such written notice, the Defaulting Party shall have thirty (30) days in which to cure any monetary default and sixty (60) days in which to cure any non -monetary default. The Defaulting Party shall have such extended periods as may be required beyond the sixty (60) day cure period to cure any non - monetary default if the nature of the cure is such that it reasonably requires more than sixty (60) days to cure, and the Defaulting Party commences the cure within the sixty (60) day period and thereafter continuously and EXHIBIT A -8- diligently pursues the cure to completion. The Non -Defaulting Party may not maintain any action or effect any remedies for default against the Defaulting Party unless and until the Defaulting Party has failed to cure the same within the time periods provided in this Section. b. Consequences of Licensee's Default. Licensor acknowledges that under the terms of this Agreement, Licensee has the right to terminate this Agreement at any time upon one hundred eighty (180) days' written notice to Licensor. Accordingly, in the event that Licensor maintains any action or effects any remedies for default against Licensee resulting in Licensee's dispossession or removal, (i) the Rent shall be paid up to the date of such physical dispossession or removal and (ii) Licensor shall be entitled to recover from Licensee, in lieu of any other damages, as liquidated, final damages, a sum equal to six months' Rent which shall be calculated at the highest value of the Rent which is in effect on the date of default and for the six month period thereafter. In no event shall Licensee be liable to Licensor for indirect or speculative damages in connection with or arising out of any default. c. Consequences of Licensor's Default. If Licensor is in default beyond the applicable periods set forth above in Paragraph 26(a), Licensee may, at its option, upon written notice: (i) terminate this Agreement, vacate the Licensed Premises and be relieved from all further obligations under this Agreement; or (ii) perform the obligation(s) of Licensor specified in such notice, in which case any expenditures reasonably made by Licensee may set-off from Rent any amount reasonably expended by Licensee as a result of such default. d. Termination for Convenience. Either Party may, at its sole option and for its convenience, terminate all or any portion of this Agreement by giving one hundred eighty (180) days' written notice of such termination to the other Parry. The termination of the Agreement shall be effective upon receipt of the notice. After termination of all or any portion of the Agreement, Licensee shall: (1) immediately notify all Sublicensees of the termination; and (2) commence removal of Improvements from the Licensed Premises. 27. Force Majeure. If an event or condition constituting a "force majeure"—including, but not limited to, an act of God, labor dispute, civil unrest, epidemic, or natural disaster—prevents or delays either the Licensor or the Licensee ("Party") from performing or fulfilling an obligation under this Agreement, said Party is not in Default, under Paragraph 26 of this Agreement, of the obligation. A delay beyond a Party's control automatically extends the time, in an amount equal to the period of the delay, for the Party to perform the obligation under this Agreement. The Licensor and Licensee shall prepare and sign an appropriate document acknowledging any extension of time under this Section. 28. Miscellaneous. a. Entire Agreement. This scope of the entire agreement between the parties is described in the Agreement Documents. The Agreement Documents are comprised of. the Wireless Marketing Agreement; this License Agreement; any Access/Utility Agreements; including any exhibits to the above referenced agreements. Licensor and Licensee agree that the Agreement Documents contain all of the agreements, promises and understandings between Licensor and Licensee with regard to the Licensed Premises. No oral agreements, promises or understandings shall be binding upon either Licensor or Licensee in any dispute, controversy or proceeding at law. Any addition, variation or modification to this Agreement shall be void and ineffective unless made in writing and signed by the parties hereto. b. Liens. Licensee shall not permit to be placed against the Licensed Premises, or any part thereof, any mechanics', materialmen's, contractors' or other liens (collectively, the "Liens") arising out of the acts or omissions of the Licensee or its agents, employees, contractors, subcontractors, sublicensees or volunteers hereunder. Licensee hereby indemnifies and agrees to hold the Licensor and the Licensed Premises free and EXHIBIT A -9- harmless from all liability for any and all such Liens, together with all costs and expenses, including, but not limited to, attorneys' fees and court costs reasonably incurred by Licensor in connection therewith. c. Hazardous Substances. Licensee and its agents, employees, contractors, subcontractors, sublicensees and volunteers shall not use, store or transport or allow the use, storage or transportation of any hazardous substances on or onto the Licensed Premises. d. Restoration of the Property. Except to the extent otherwise contemplated by this Agreement, Licensor shall, at its own cost and expense, restore the Licensed Premises to the same condition in which it was prior to this Agreement. e. Indemnification by Licensee. To the fullest extent permitted by law, Licensee shall defend (with legal counsel reasonably acceptable to Licensor), indemnify, protect, and hold harmless Licensor and its elected officials, officers, employees, agents, and representatives ("Indemnified Parties") from and against any and all claims, losses, costs, damages, injuries (including, without limitation, injury to or death of an employee of Licensee or its subcontractors or sublicensee), expense, and liability of every kind, nature and description (including, without limitation, incidental and consequential damages, court costs, and litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the performance of services under this Agreement by Licensee, any subcontractor or sublicensee, anyone directly or indirectly employed by any of them, or anyone that any of them control. Licensee's duty to defend, indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or willful misconduct of the Indemnified Parties. Licensor shall promptly notify Licensee of any claim, action or proceeding covered by this subparagraph 28e. f. Authority to Execute. Licensor warrants and represents to Licensee that it is the sole owner of the Property and may execute and approve this Agreement and no permission or consent of any other person is required to approve this Agreement. g. Entire Agreement. No representations or covenants of any kind other than those expressly contained herein have been made by either party hereto. This Agreement may only be modified or amended by an agreement in writing duly executed and delivered by each of the parties hereto. h. Permits. Prior to beginning any work, Licensee at its sole expense, shall obtain all necessary permits to use the Premises as permitted under this Agreement. i. All Expenses To Be Borne by Licensee. Licensee shall bear any and all costs and expenses associated with the rights granted to Licensee, or any unforeseen costs or expenses incurred by the Licensor relating to the performance of this Agreement. j. Hours of Operation. The Licensee shall be permitted to conduct work on the Licensed Premises between 8 am and 5 pm, Monday through Thursday unless otherwise agreed to in advance by the Licensor. k. Headings. All headings are for convenience only and shall not affect the interpretation of this Agreement. 1. Non -Assignment. Licensee may not assign, sublease, sublicense, or encumber its obligations under this Agreement, whether by express assignment or by sale of the company, nor any monies due or to become due under this Agreement, without Licensor's prior written approval. Any assignment in violation of EXHIBIT A -10- this paragraph shall constitute a default and is grounds for termination of this Agreement at the Licensor's sole discretion. in. Independent Contractors. Licensee is an independent contractor. n. Covenants and Conditions. All provisions of this Agreement expressed as either covenants or conditions on the part of Licensor or Licensee shall be deemed to be both covenants and conditions. o. Compliance with Controlling, Law. Licensee shall comply with all applicable local, state, and federal laws, regulations, and policies. Licensee's act or omission in violation of applicable local, state, and federal laws, regulations, and policies is grounds for Agreement termination. In addition to all other remedies or damages allowed by law, Licensee is liable to Licensor for all damages. p. Governing Law. The Agreement shall be deemed to be made under, construed in accordance with, and governed by the laws of the State of California without regard to the conflicts or choice of law provisions thereof. q. Venue. The venue for any suit concerning solicitations or the Agreement, the interpretation of application of any of its terms and conditions, or any related disputes shall be in the Superior Court for the State of California, County of San Bernardino. The choice of venue is intended to be mandatory and not permissive. r. Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in force and effect whether or not any parties to the Agreement have been succeeded by another entity, and all rights and obligations created by this Agreement shall be vested and binding on any party's successor in interest. s. No Waiver. No failure of either Licensor or Licensee to insist upon the strict performance by the other of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach of such covenant, term or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect without respect to any existing or subsequent breach. t. Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render any other provision of this Agreement unenforceable, invalid, or illegal. u. Drafting Ambiguit_ies. The parties acknowledge that they have the right to be advised by legal counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether to seek advice of legal counsel with respect to this Agreement is the sole responsibility of each party. This Agreement shall not be construed in favor of or against either party by reason of the extent to which each party participated in the drafting of the Agreement. v. Amendments. Neither this Agreement nor any provision hereof may be changed, modified, amended or waived except by a written agreement executed by duly authorized representatives of Licensor and Licensee. Any alleged oral amendments have no force or effect. w. Conflicts Between Terms. If this Agreement conflicts with an applicable local, state, or federal law, regulation, or court order, the applicable local, state, or federal law, regulation, or court order shall control. Varying degrees of stringency among the main body of this Agreement, the exhibits or attachments, and laws, regulations, or orders are not deemed conflicts, and the most stringent requirement shall control. Each party EXHIBIT A -11- shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement. x. Survival of Ob li ations. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with this Agreement, as well as all continuing obligations indicated in this Agreement, shall survive, completion and acceptance of performance and termination, expiration or completion of the Agreement. y. No Third Party Beneficiaries. Except as may be specifically set forth in this Agreement, none of the provisions of this Agreement are intended to benefit any third parry not specifically referenced herein. No party other than Licensor and Licensee shall have the right to enforce any of the provisions of this Agreement. z. Actions of City in its Governmental Ca aci . Nothing in this Agreement shall be interpreted as limiting the rights and obligations of City in its governmental or regulatory capacity. aa. Counterparts. This Agreement may be executed in counterparts, which when taken together shall constitute a single signed original as though all Parties had executed the same page. bb. Notices. Unless otherwise specified, in all cases where written notice is required under this Agreement, service shall be deemed sufficient if the notice is personally delivered or deposited in the United States mail, with first class postage paid. Proper notice is effective on the date of personal delivery or five (5) days after deposit in a United States postal mailbox unless provided otherwise in the Agreement. Notices for each party shall be sent to: Licensor: Office of the City Manager 290 North "D" Street, 3rd Floor San Bernardino, CA 92401 With a copy to: Office of the City Attorney 290 North "D" Street, 3rd Floor San Bernardino, CA 92401 Licensee: 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 EXHIBIT A -12- cc. 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 effectuate all of the terms and conditions of this Agreement. dd. Licensee Access to Licensor Propert} . Licensee shall provide a company photo identification badge to any individual assigned by Licensee to enter upon Licensor Property. Such badge must be worn at all times while on Licensor Property. Licensor reserves the right to require Licensee to pay fingerprinting fees for personnel assigned to work in sensitive areas. Licensee is responsible for maintaining standards of employee competence, conduct, courtesy, appearance, honesty, and integrity satisfactory to the Licensor. Licensee's employees and agents shall comply with all Licensor rules and regulations while on Licensor Property. Licensor may request Licensee immediately remove from assignment to the Licensor Property any Licensee employee found unfit to perform duties at the Licensor Property. Licensee shall comply with all such requests. [Signature Page Follows] /// HI EXHIBIT A -13- IN WITNESS WHEREOF, Licensor and Licensee having read the foregoing and intending to be legally bound hereby, have executed this Agreement as of the day and year this Agreement is fully executed. LICENSOR LICENSEE City of San Bernardino 5 Bars Communities a dba of XG Communities, LLC Date: / / Date: By: ------- - ---- By: Title: Title: ATTEST: Georgeann Hanna, City Clerk By: -- Title: APPROVED AS TO FORM: APPROVED AS TO FORM: Gary D. Saenz, City Attorney By: By: Title: EXHIBIT A -14- EXHIBIT B RIGHT OF ENTRY AGREEMENT This Right of Entry Agreement (this "Agreement") is made as of the date of the final signature below, by and between the City of San Bernardino, a municipal corporation ("Grantor") and 5 Bars Communities a dba of XG Communities, LLC, a Delaware limited liability company, with an address at 19200 Von Karman Ave, Suite 100, Irvine, CA 92612 ("Grantee"). Grantor and Grantee are sometimes collectively referred to as "Parties" or individually as "Party." RECITALS A. Grantor is the fee owner of record of that certain real property (the "Property"). B. Grantor and Grantee have entered into that certain Subscription Agreement Regarding Wireless Master Planning ("Subscription Agreement") pursuant to which Grantee has agreed to provide certain consulting, marketing, and management services relating to the placement of Wireless Telecommunications Facilities on some or all of the Property. C. Pursuant to the Subscription Agreement, Grantor and Grantee have agreed to enter into this Agreeement to that Grantee may enter upon the Property, upon 24 hour written notice to Grantor, to inspect, conduct, perform and examine soil borings, drainage testing, material sampling, surveys and other geological or engineering tests or studies of the Property, to apply for and obtain all licenses and permits required for Grantee's use of the designated Property from all applicable governmental or regulatory entities, and to do those things on or off the designated Property that, in the sole opinion of Grantee, are necessary to detennine the physical condition of designated Property, the environmental history of the designated Property, and the feasibility or suitability of the designated Property for Grantee's use ("Due Diligence Investigation"). NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions contained herein, and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by each of the Parties, the Parties agree as follows: AGREEMENT 1. Right of Entry. Grantor hereby grants to Grantee and its agents, employees, contractors, subcontractors, and volunteers non-exclusive permission to enter over and across, as well as to use the Property as is reasonable and necessary, for the express purpose of conducting, at Grantee's sole expense, the Due Diligence Investigation. (the above-described activities are collectively referred to hereafter as the "Work"). 2. Term. The Right of Entry granted pursuant to Section 1, above, shall be for a limited term, commencing as of the date of this Agreement and expiring upon the expiration or earlier termination of the Subscription Agreement. 3. Entry at Own Risk; No Duty to Warn. Grantee and its agents, employees, contractors, subcontractors, and volunteers shall access, enter and use the Property at their own risk and peril. Grantor shall have no duty to inspect the Property (or any portion thereof) and no duty to warn of any latent or patent defect, condition or risk which may exist on the Property. 4. Liens. Grantee shall not permit to be placed against the Property, or any part thereof, any mechanics', materialmen's, contractors' or other liens (collectively, the "Liens") arising out of the acts or omissions of the Grantee or its agents, employees, contractors, subcontractors, or volunteers hereunder. Grantee hereby indemnifies and agrees to hold the Grantor and the Property free and harmless from all liability for any and all EXHIBIT B -1- such Liens, together with all costs and expenses, including, but not limited to, attorneys' fees and court costs reasonably incurred by Grantor in connection therewith. 5. Hazardous Substances. Grantee and its agents, employees, contractors, subcontractors, and volunteers shall not use, store or transport or allow the use, storage or transportation of any hazardous substances on or onto the Property. 6. Restoration of the Property. Except to the extent otherwise contemplated by this Agreement, Grantee shall, at its own cost and expense, restore the Property to the same condition in which it was prior to Grantee's entry. 7. Indemnification by Grantee. To the fullest extent permitted by law, Grantee shall defend (with legal counsel reasonably acceptable to Grantor), indemnify, protect, and hold harmless Grantor and its elected officials, officers, employees, agents, and representatives ("Indemnified Parties") from and against any and all claims, losses, costs, damages, injuries (including, without limitation, injury to or death of an employee of Grantee or its subcontractors or sublicensee), expense, and liability of every kind, nature and description (including, without limitation, incidental and consequential damages, court costs, and litigation expenses and fees of expert consultants or expert witnesses incurred in connection therewith and costs of investigation) that arise out of, pertain to, or relate to, directly or indirectly, in whole or in part, the performance of services under this Agreement by Grantee, any subcontractor or sublicensee, anyone directly or indirectly employed by any of them, or anyone that any of them control. Grantee's duty to defend, indemnify, protect and hold harmless shall not include any claims or liabilities arising from the sole negligence or willful misconduct of the Indemnified Parties. Grantor shall promptly notify Grantee of any claim, action or proceeding covered by this Paragraph 7. 8. Authority to Execute. Grantor(s) warrants and represents to Grantee that he/she/it/they is/are the sole owner(s) of the Property and may execute and approve this Agreement and no permission or consent of any other person is required to approve this Agreement. 9. Entire Agreement. No representations or covenants of any kind other than those expressly contained herein have been made by either party hereto. This Agreement may only be modified or amended by an agreement in writing duly executed and delivered by each of the parties hereto. 10. Permits. Prior to beginning any work, Grantee at its sole expense, shall obtain all necessary permits to use the Premises as permitted under this Agreement. 11. All Expenses To Be Borne by Grantee. Grantee shall bear any and all costs and expenses associated with the rights granted to Grantee, or any unforeseen costs or expenses incurred by the Grantor relating to the performance of this Agreement. 12. Hours of Operation. The hours of operation that Grantee shall be permitted to conduct its project shall be between 8 am and 5 pm, Monday through Thursday. No weekend work shall be permitted. 13. Headings. All headings are for convenience only and shall not affect the interpretation of this Agreement. 14. Non -Assignment. Grantee may not assign its obligations under this Agreement, whether by express assignment or by sale of the company, nor any monies due or to become due under this Agreement, without Grantor's prior written approval. Any assignment in violation of this paragraph shall constitute a default and is grounds for termination of this Agreement at the Grantor's sole discretion. 15. Independent Contractors. Grantee is an independent contractor. EXHIBIT B -2- 16. Covenants and Conditions. All provisions of this Agreement expressed as either covenants or conditions on the part of Grantor or Grantee shall be deemed to be both covenants and conditions. 17. Compliance with Controlling Law. Grantee shall comply with all applicable local, state, and federal laws, regulations, and policies. Grantee's act or omission in violation of applicable local, state, and federal laws, regulations, and policies is grounds for Agreement termination. In addition to all other remedies or damages allowed by law, Grantee is liable to Grantor for all damages. 18. Governing Law. The Agreement shall be deemed to be made under, construed in accordance with, and governed by the laws of the State of California without regard to the conflicts or choice of law provisions thereof. 19. Venue. The venue for any suit concerning solicitations or the Agreement, the interpretation of application of any of its terms and conditions, or any related disputes shall be in the Superior Court for the State of California, County of San Bernardino. The choice of venue is intended to be mandatory and not permissive. 20. Successors in Interest. This Agreement and all rights and obligations created by this Agreement shall be in force and effect whether or not any parties to the Agreement have been succeeded by another entity, and all rights and obligations created by this Agreement shall be vested and binding on any party's successor in interest. 21. No Waiver. No failure of either Grantor or Grantee to insist upon the strict performance by the other of any covenant, term or condition of this Agreement, nor any failure to exercise any right or remedy consequent upon a breach of any covenant, term, or condition of this Agreement, shall constitute a waiver of any such breach of such covenant, term or condition. No waiver of any breach shall affect or alter this Agreement, and each and every covenant, condition, and term hereof shall continue in full force and effect without respect to any existing or subsequent breach. 22. Severability. The unenforceability, invalidity, or illegality of any provision of this Agreement shall not render any other provision of this Agreement unenforceable, invalid, or illegal. 23. Drafting Ambiguities. The parties acknowledge that they have the right to be advised by legal counsel with respect to the negotiations, terms and conditions of this Agreement, and the decision of whether to seek advice of legal counsel with respect to this Agreement is the sole responsibility of each party. This Agreement shall not be construed in favor of or against either party by reason of the extent to which each party participated in the drafting of the Agreement. 24. Amendments. Neither this Agreement nor any provision hereof may be changed, modified, amended or waived except by a written agreement executed by duly authorized representatives of Grantor and Grantee. Any alleged oral amendments have no force or effect. 25. Conflicts Between Terms. If this Agreement conflicts with an applicable local, state, or federal law, regulation, or court order, the applicable local, state, or federal law, regulation, or court order shall control. Varying degrees of stringency among the main body of this Agreement, the exhibits or attachments, and laws, regulations, or orders are not deemed conflicts, and the most stringent requirement shall control. Each party shall notify the other immediately upon the identification of any apparent conflict or inconsistency concerning this Agreement. 26. Survival of Obligations. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with this Agreement, as well as all continuing obligations indicated in this EXHIBIT B -3- Agreement, shall survive, completion and acceptance of performance and termination, expiration or completion of the Agreement. 27. No Third Party Beneficiaries. Except as may be specifically set forth in this Agreement, none of the provisions of this Agreement are intended to benefit any third party not specifically referenced herein. No party other than Grantor and Grantee shall have the right to enforce any of the provisions of this Agreement. 28. Actions of City in its Governmental Capacity. Nothing in this Agreement shall be interpreted as limiting the rights and obligations of City in its governmental or regulatory capacity. 29. Counterparts. This Agreement may be executed in counterparts, which when taken together shall constitute a single signed original as though all Parties had executed the same page. 30. Notices. Unless otherwise specified, in all cases where written notice is required under this Agreement, service shall be deemed sufficient if the notice is personally delivered or deposited in the United States mail, with first class postage paid. Proper notice is effective on the date of personal delivery or five (5) days after deposit in a United States postal mailbox unless provided otherwise in the Agreement. Notices for each party shall be sent to: Grantor: Office of the City Manager 290 North "D" Street, 3rd Floor San Bernardino, CA 92401 With a copy to: Office of the City Attorney 290 North "D" Street, 3rd Floor San Bernardino, CA 92401 Grantee: 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 31. 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 effectuate all of the terms and conditions of this Agreement. 32. Grantee Access to Grantor Property. Grantee shall provide a company photo identification badge to any individual assigned by Grantee to enter upon Grantor Property. Such badge must be worn at all times while EXHIBIT B -4- on Grantor Property. Grantor reserves the right to require Grantee to pay fingerprinting fees for personnel assigned to work in sensitive areas. Grantee is responsible for maintaining standards of employee competence, conduct, courtesy, appearance, honesty, and integrity satisfactory to the Grantor. Grantee's employees and agents shall comply with all Grantor rules and regulations while on Grantor Property. Grantor may request Grantee immediately remove from assignment to the Grantor Property any Grantee employee found unfit to perform duties at the Grantor Property. Grantee shall comply with all such requests. IN WITNESS WHEREOF, the parties have executed this Agreement on the date first set forth above. Date: ATTEST: Georgeann Hanna, City Clerk APPROVED AS TO FORM: Gary D. Saenz, City Attorney By: Date: APPROVED AS TO FORM: "GRANTOR" City of San Bernardino Andrea M. Miller, City Manager "GRANTEE" 5 BARS COMMUNITIES A DBA OF XG COMMUNITIES, LLC Lo Title: EXHIBIT B -5- EXHIBIT C INSURANCE REQUIREMENTS 5 BARS shall procure and maintain or shall cause a subcontractor and/or sublicensee to procure and maintain (5 BARS, subcontractors, and/or sublicensees shall be referred to hereinafter, as the context dictates, as "Contractor"), for the duration of the the Agreeemnt and any applicable subcontract and/or sublicense entered into under and/or pursuant to the Agreement, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the 5 BARS, a subcontractor, a sublicensee, its agents, representatives, or employees. Contractor shall not begin any performance under this Agreement until it has (1) provided City insurance certificates and endorsements reflecting evidence of all insurance and endorsements required and described herein; (2) obtained City approval of each insurance company or companies; and (3) confirmed that all policies contain the special provisions required herein. Contractor's liabilities, including but not limited to Contractor's indemnity obligations, under this Agreement, shall not be deemed limited in any way to the insurance coverage required herein. Maintenance of specified insurance coverage is a material element of this Agreement, and Contractor's failure to maintain or renew coverage or to provide evidence of renewal during the term of this Agreement may be treated by City as a material breach of Agreement. City reserves the right to require Contractor to submit copies of any policy upon reasonable request by City. 1. All policies shall include, and the insurance certificates shall reflect, a 30 -day non -cancellation clause that provides thirty (30) days written notice by certified mail to City prior to any material change or cancellation of any of said policies. 2. Contractor shall include all subcontractors and sublicensees as insured under its policies or shall furnish separate certificates and endorsements for each subcontractor or sublicensee. All coverages for subcontractors or sublicensees shall be subject to all of the requirements stated herein. 3. Contractor shall not modify any policy or endorsement thereto which increases City's exposure to loss for the duration of this Agreement. 4. Contractor shall maintain insurance coverage at its own expense as follows: a. Commercial General Liability. Commercial General Liability (CGL) insurance which shall cover liability arising from any and all bodily injury, personal injury, advertising injury or property damage in the amount of $1 million per occurrence and subject to an annual aggregate of $2 million. There shall be no endorsement or modification of the CGL limiting the scope of coverage for either insured claims or contractual liability. All defense costs shall be outside the limits of the policy. b. Commercial Automobile Liability. For all of Contractor's automobiles including owned, hired and non -owned automobiles, Contractor shall keep in full force and effect, automobile insurance providing coverage for bodily injury and property damage for a combined single limit of $1 million per occurrence. The insurance certificate shall reflect coverage for any automobile (any auto). c. Workers' Compensation. For all of Contractor's employees performing under this Agreement and to the extent required by the applicable state or federal law, Contractor shall keep in full force and effect, a Workers' Compensation policy. That policy shall provide a minimum of $1 million of employer's liability coverage, and Contractor shall provide an endorsement that the EXHIBIT C -1- insurer waives the right of subrogation against City and its respective elected officials, officers, employees, agents, and representatives. 5. Deductibles. All deductibles or retentions on any policy shall be the sole responsibility of Contractor and shall be disclosed to City at the time the evidence of insurance is provided. 6. Acceptability of Insurers. Except for the State Compensation Insurance Fund, all insurance required by this Agreement, shall only be carried by insurance companies with a current rating of at least "A-, VI" by A.M. Best Company that are authorized by the California Insurance Commissioner to do business in the State of California, and that have been approved by City. a. City will accept insurance provided by non -admitted, "surplus lines" carriers only if the carrier is authorized to do business in the State of California and is included on the List of Approved Surplus Lines Insurers (LASLI list). All policies of insurance carried by non -admitted carriers are subject to all of the requirements for policies of insurance provided by admitted carriers described herein. 7. Required Endorsements. The following endorsements to the policies of insurance are required to be provided to City before any performance is initiated under this Agreement: a. Commercial General Liability Insurance Endorsements: i. Additional Insured. To the fullest extent allowed by law, including but not limited to California Insurance Code section 11580.04, the policy or policies must be endorsed to include as an insured City of San Bernardino and its respective elected officials, officers, employees, agents and representatives with respect to liability arising out of (a) ongoing operations performed by you or on your behalf, (b) your products, (c) your work, including but not limited to your completed operations performed by you or on your behalf, or (d) premises owned, leased, licensed, controlled or used by you. ii. Primary and Non-contributory Coverage. The policy or policies must be endorsed to provide that the insurance afforded by the Commercial General Liability policy or policies is primary to any insurance or self-insurance of City, its elected officials, officers, employees, agents and representatives as respects operations of the Named Insured. Any insurance maintained by City, its elected officials, officers, employees, agents and representatives shall be in excess of Contractor's insurance and shall not contribute to it. iii. Severability of Interest. The policy or policies must be endorsed to provide that 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 and shall provide cross -liability coverage. b. Automobile Liability Insurance Endorsements: Additional Insured. To the fullest extent allowed by law, including but not limited to California Insurance Code section 11580.04, the policy or policies must be endorsed to include as an insured City of San Bernardino and its respective elected officials, officers, employees, agents and representatives with respect to liability arising out of automobiles owned, leased, hired or borrowed by or on behalf of Contractor. EXHIBIT C -2- ii. Primary and Non-contributory Coverage. The policy or policies must be endorsed to provide that the insurance afforded by the Automobile Liability policy or policies is primary to any insurance or self-insurance of City, its elected officials, officers, employees, agents and representatives as respects operations of the Named Insured. Any insurance maintained by City, its elected officials, officers, employees, agents and representatives shall be in excess of Contractor's insurance and shall not contribute to it. iii. Severability of Interest. The policy or policies must be endorsed to provide that 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 and shall provide cross -liability coverage. c. Worker's Compensation Insurance Endorsements: Waiver of Subrogation. The Worker's Compensation policy or policies must be endorsed to provide that the insurer will waive all rights of subrogation against City of San Bernardino, its elected officials, officers, employees, agents and representatives for losses paid under the terms of this policy or these policies which arise from work performed by the Named Insured for City. ii. Reservation of Rights. City reserves the right, from time to time, to review Contractor's insurance coverage, limits, deductible, and self-insured retentions to determine if they are acceptable to City. City will reimburse Contractor for the cost of the additional premium for any coverage requested by City in excess of that required by this Agreement, without overhead, profit, or any other markup. 8. Additional Insurance. Contractor may obtain additional insurance not required by this Agreement. 9. Excess Insurance. 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