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R 5021 RESOLUTION NO. 5021 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARROYO GRANDE APPROVING A LICENSE AGREEMENT WITH PEAKWIFI LLC AUTHORIZING INSTALLATION AND OPERATION OF A FREE WIFI SYSTEM AT ELM STREET PARK FOR PURPOSES OF SUPPORTING ONLINE DISTANCE LEARNING DURING THE COVID-19 PANDEMIC WHEREAS, in accordance with Section 8.12.060 of the Arroyo Grande Municipal Code the City Manager, in his capacity as the Director of Emergency Services proclaimed a local emergency on March 17, 2020, regarding the COVID-19 pandemic; and WHEREAS, the City Council has adopted Resolutions declaring a continued local emergency related to the coronavirus (COVID-19) pandemic on April 14, April 28, May 12, May 26, June 9, June 23, and July 14, 2020; and WHEREAS, on July 14, 2020, the Lucia Mar Unified School District (LMUSD) Board of Trustees voted to begin the 2020-2021 academic year using an entirely remote or distance learning platform in light of the COVID-19 pandemic; and WHEREAS, on July 17, 2020, Governor Gavin Newsom and the State Public Health Officer issued an order restricting in-person instruction at school districts located in counties that are on the State's monitoring list, and the County of San Luis Obispo has been on the State's monitoring list since July 13, 2020; and WHEREAS, access to reliable internet services is essential to learning during the COVID- 19 pandemic while in-person instruction is prohibited and education is offered through online distance learning platforms; and WHEREAS, it is estimated that hundreds of households within the LMUSD are without access to adequate internet service in their homes, limiting the educational opportunities afforded to students within those households while in-person instruction is not being offered; and WHEREAS, PeakWiFi has offered to install and operate free public wifi service at parks within the City of Arroyo Grande (City) in order to provide adequate internet access to students during the COVID-19 pandemic at no cost to the City; and WHEREAS, the City Council desires to enter into a License Agreement with PeakWiFi authorizing the installation and operation of a wifi system at Elm Street Park for the benefit of students and their families during the COVID-19 pandemic and to authorize City staff to evaluate the potential for expansion of free wifi service at other City parks depending on the success of the program instituted at Elm Street Park. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Arroyo Grande as follows: RESOLUTION NO. 5021 PAGE 2 1. The License Agreement attached hereto as Exhibit A authorizing PeakWiFi to install and operate a free wifi system at Elm Street Park for purposes of supporting online distance learning during the COVID-19 pandemic is hereby approved. 2. The City Manager shall return to the City Council with a report on the success of the free wifi program at Elm Street Park when the COVID-19 restrictions on in-person educational instruction are lifted by State and/or local officials or if it is recommended that free wifi systems be installed at additional park sites in the City. Upon termination of the COVID-19 restrictions on in-person educational instruction, staff may recommend extending the free wifi services beyond the COVID-19 crisis or terminating the program. 3. The City Manager is authorized to temporarily suspend the free wifi program or terminate the License Agreement if significant safety or other concerns arise. On motion of Council Member George, seconded by Council Member Barneich, and on the following roll call vote, to wit: AYES: Council Members George, Barneich, Paulding, Storton, and Mayor Ray Russom NOES: None ABSENT: None the foregoing Resolution was passed and adopted this 11th day of August, 2020. RESOLUTION NO. 502-1 PAGE 3 PAC* CAREN RAY RU•SO , MAYOR ATTEST: tAhdt&O.A.e_KELLY W'TM/'RE. CITY CLERK APPROVED AS TO CONTENT: catZe. PZei44.61/L BILL ROBESON, ACTING CITY MANAGER APPROVED AS TO FORM: TIMOTH J. CARMEL, CITY ATTORNEY EXHIBIT A LICENSE AGREEMENT Elm Street Park Gazebo This License Agreement ("Agreement") is made and entered into this day of , 2020 by and between the City of Arroyo Grande, a Municipal Corporation (hereinafter referred to as "City") and PeakWiFi LLC (hereinafter referred to as "Licensee"), jointly referred to as "parties." RECITALS WHEREAS, in accordance with Section 8.12.060 of the Arroyo Grande Municipal Code the City Manager, in his capacity as the Director of Emergency Services proclaimed a local emergency on March 17, 2020, regarding the COVID-19 pandemic; and WHEREAS, the City Council has adopted Resolutions declaring a continued local emergency related to the coronavirus (COVID-19) pandemic on April 14, April 28, May 12, May 26, June 9, June 23, and July 14, 2020; and WHEREAS, on July 14, 2020, the Lucia Mar Unified School City (LMUSD) Board of Trustees voted to begin the 2020-2021 academic year using an entirely remote or distance learning platform in light of the COVID-19 pandemic; and WHEREAS, on July 17, 2020, Governor Gavin Newsom and the State Public Health Officer issued an order restricting in-person instruction at schools located in counties that are on the state's monitoring list, and the County of San Luis Obispo has been on the state's monitoring list since July 13, 2020; and WHEREAS, access to reliable Internet services is essential to learning during the COVID- 19 pandemic while in-person instruction is prohibited and education is offered through online distance learning platforms; and WHEREAS, it is estimated that hundreds of households within the LMUSD are without access to adequate internet service in their homes, limiting the educational opportunities afforded to students within those households while in-person instruction is not being offered; and WHEREAS, Licensee has offered to install and operate free wifi service at the Elm Street Park Gazebo (the "Premises") in order to provide adequate internet access to students during the COVID-19 pandemic at no cost to the City or the public; and WHEREAS, the City Council has authorized Licensee to install and operate a public wifi system at the Premises for the benefit of students and families during the COVID-19 pandemic and the City desires to grant a non-exclusive license for the Premises to PeakWiFi, as Licensee, for such use, all pursuant to the terms and conditions of this Agreement. NOW, THEREFORE, the undersigned parties agree as follows: 1. LICENSED PREMISES: City hereby grants Licensee a non-exclusive license to install and maintain equipment within the Elm Street Park Gazebo in order to provide internet service to students and their families, including wireless access points, ISO stations, a power over ethernet (POE) switch, a router/firewall, two weather-proof cabinets, and various cabling and hardware. City agrees to install a new electrical outlet to power the antenna. The outlet will be located on the ceiling of the Gazebo and will not be accessible to the public. In order to address the potential for the wifi system being accessed by non- students, the system will only be operational during daylight hours and will be turned off near sunset each night. In addition, Licensee shall ensure that the system is password protected using login information supplied to LMUSD students, preferably through the LMUSD itself to the extent possible, in order to limit access to those who are affiliated with the School District. It is further understood that the network shall use industry standard security protocols similar to other public wifi systems, such as in an airport or hotel. Security and login will be handled through a standard wifi password provided to LMUSD students, which shall be periodically changed. Licensee shall also require users to acknowledge and accept appropriate terms of service, and such terms of service shall include standard provisions and waivers, which shall include and run in favor of the City.Such terms of service shall be submitted to and approved by the City prior to initiating service under this Agreement. Licensee shall take all necessary steps to ensure the wifi system is isolated from the City's data network. During the term of this Agreement, Licensee may not use the Premises for any other purpose. Licensee shall be fully responsible for the activities of its agents, volunteers and employees on the Premises. Licensee acknowledges that the primary use of the Premises is for City recreation purposes and operations and Licensee's use of the Premises and activities shall not interfere with City's use of the Premises or its intended purpose related to such City operations and functions. City shall have the right to enter upon the Premises at any time to inspect the condition of the Premises and to verify compliance by the Licensee with the provisions hereof. 2. TERM: The term of this Agreement shall commence on August , 2020, and continue on a month-to-month basis until terminated after either party gives thirty (30) days' written notice to the other party. City shall have the right to temporarily suspend the wifi service by providing written notice to Licensee. 3. RENT: No rent or fees shall apply to Licensee's use of the Premises. 4. ASSIGNMENT: Licensee shall not assign this Agreement in whole or in part without the prior written consent of the City. 5. CONDITION, MAINTENANCE AND REPAIR OF PREMISES: Licensee is fully aware of the condition of the Premises and accepts its use of the Premises on an "AS IS" basis. City does not warrant that the Premises are suitable for Licensee's use. Licensee's use of the Premises shall be at its sole cost and expense, and Licensee shall keep, manage and maintain its equipment located on the Premises in good and safe condition and repair. 6. REMOVAL: Upon the expiration of this Agreement, Licensee shall promptly, safely and carefully remove all equipment installed by Licensee upon the Premises and shall return the Premises to the condition in which they existed immediately prior to Licensee's installation, normal wear and tear excepted. 7. HAZARDOUS SUBSTANCES: Licensee, its agents, employees or contractors shall not cause or permit any hazardous substance to be used, stored, generated or disposed of on or about the Premises. If Licensee causes or permits the presence of any hazardous substance on the Premises that results in contamination, Licensee shall promptly, at its sole expense, take any and all necessary action to return the Premises to the condition existing prior to the presence of any such hazardous substance on the Premises. Licensee shall first obtain City's approval for any such remedial action. 8. RELEASE: City shall not be responsible to Licensee for any loss of property from the Premises, however occurring. Licensee also waives any and all claims against City for damages to any property of Licensee from any cause arising at any time, except for the willful misconduct of the City. 9. INDEMNIFICATION: a) Licensee shall indemnify, hold harmless and defend City and its employees and agents from and against all claims, damages, losses and expenses, including attorneys' fees, resulting from any negligent act, misconduct or omission on the part of Licensee, its employees, agents, assigns or contractors. b) City shall indemnify, hold harmless and defend Licensee and its employees and agents from and against all claims, damages, losses and expenses, including attorneys' fees, resulting from any negligent act, misconduct or omission on the part of City, its employees, agents, assigns or contractors. 10. INSURANCE: Licensee shall, at its sole cost and expense, procure and maintain during the entire term of this Agreement public liability and property damage insurance in accordance with the requirements of Exhibit "A," attached hereto and incorporated herein by this reference. Proof of insurance shall be submitted to the City prior to any use of the Premises by Licensee. Licensee shall cause City to be a named additional insured. 11. WAIVER: Waiver of any default by either party to this Agreement shall not be deemed to be waiver of any subsequent default. Waiver or breach of any provision of this Agreement shall not be deemed to be a waiver of any other or subsequent breach, and shall not be construed to be a modification of the terms of this Agreement unless this Agreement is modified or amended as provided herein. 12. AMENDMENT: This Agreement may be modified, amended, changed, added to or subtracted from by the mutual consent of the parties hereto if such amendment or change is in written form and executed by the Licensee and by the City. 13. ENTIRE AGREEMENT: This Agreement supersedes any and all other agreements, either oral or in writing, between and of the parties herein with respect to the subject matter hereof and contains all the agreements between the parties with respect to such matter. Each party acknowledges that no representations, inducements, promises or agreements, oral or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement or promise not contained in this Agreement shall be valid or binding. 14. ADVICE OF ATTORNEY: Each party warrants and represents that in executing this Agreement, it has received independent legal advice from its attorneys or the opportunity to seek such advice. 15. CONSTRUCTION: Headings or captions to the provisions of this Agreement are solely for the convenience of the parties, are not part of this Agreement, and shall not be used to interpret or determine the validity of this Agreement. Any ambiguity in this Agreement shall not be construed against the drafter, but rather the terms and provisions hereof shall be given a reasonable interpretation as if both parties had, in fact, drafted this Agreement. 16. GOVERNING LAW AND VENUE: This Agreement shall be deemed to be made under, and shall be governed by and construed in accordance with, the laws of the State of California. Any action brought to enforce the terms or provisions of this Agreement shall have venue in San Luis Obispo County, State of California. 17. ATTORNEY'S FEES: In any action or proceeding whatsoever arising from rights or obligations established hereunder, including, but not limited to, actions for damages resulting from a breach or threatened breach of this Agreement or actions for specific performance hereof, the prevailing party shall be entitled to recover such reasonable sums for its attorney's fees and costs as shall be fixed by the Court, either in the subject action or in a separate action. 18. NOTICES: Unless otherwise provided, all notices required herein shall be in writing, and delivered in person or sent by certified United States mail, postage prepaid. Notices required to be given shall be addressed as follows: CITY: City of Arroyo Grande 300 E. Branch Street Arroyo Grande, CA 93420 LICENSEE: PeakWiFi LLC PO Box 1810 Pismo Beach, CA 93448 Such notice shall be deemed to be received within forty-eight (48) hours from the time of mailing, if mailed as provided for in this paragraph. Either party may change its address by notice in writing to the other party and thereafter notices shall be addressed and transmitted to the new address. IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first hereinabove written. CITY OF ARROYO GRANDE: PEAKWIFI LLC: By: Bill Robeson By: Thomas J. Kosta Acting City Manager _ Manager EXHIBIT A INSURANCE REQUIREMENT a. Licensee shall procure and maintain for the duration of the License Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the Licensee's operation and use of the Communications Site. The cost of such insurance shall be borne by the Licensee. Coverage shall be at least as broad as Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001). Licensee shall also maintain Workers' Compensation insurance as required by the State of California and Employer's Liability insurance for any employees of Licensee. Licensee shall maintain general liability insurance limits no less than $1,000,000 per occurrence/$2,000,000 aggregate for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the licensed property or the general aggregate limit shall be twice the required occurrence limit. b. Any deductibles or self-insured retentions must be declared to and approved by the City. At the option of, the City, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects the City, its officers, elected and appointed officials, employees and volunteers; or the Licensee shall procure a bond guaranteeing payment of losses and related investigations and defense expenses in an amount equal to such deductible or self-insured retention. c. The general liability policy shall contain, or be endorsed to contain, the following provisions: 1. The City, its officers, elected and appointed officials, employees and volunteers are to be covered as insureds as respects: liability arising out of premises owned, occupied or used by the Licensee. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officers, elected and appointed officials, employees or volunteers. 2. The Licensee's insurance coverage shall be primary insurance as respects the City, its officers, elected and appointed officials, employees and volunteers. Any insurance or self-insurance maintained by the City, its officers, elected and appointed officials, employees or volunteers shall be in excess of the Licensee's insurance and shall not contribute with it. 3. Each insurance policy required by this section shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, returned receipt requested, has been given to the City. 4. All insurance coverage maintained or procured pursuant to this License shall be endorsed to waive subrogation against City, its elected or appointed officials, agents, officers, employees, and volunteers or shall specifically allow Licensee or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. Licensee hereby waives its own right of recovery against City. 5. Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If the Licensee maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the Licensee. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. d. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII. e. Verification of Coverage. Licensee shall furnish the City with original endorsements effecting coverage required by this clause. The endorsements are to be signed by a person authorized by that insurer to bind coverage on its behalf. The endorsements are to be on forms provided or approved by the City. OFFICIAL CERTIFICATION I, KELLY WETMORE, City Clerk of the City of Arroyo Grande, County of San Luis Obispo, State of California, do hereby certify under penalty of perjury, that the attached Resolution No. 5021 was passed and adopted at a regular meeting of the City Council of the City of Arroyo Grande on the 11th day of August, 2020. WITNESS my hand and the Seal of the City of Arroyo Grande affixed this 13th day of August, 2020. , / / tbial KELLY . ET RE, CITY CLERK