Agenda packet — San Luis Obispo City Council, December 10, 2024 (part 3 of 5)

QUOTE-2687929
(25) M500 + (64) V700 VaaS
Any sales transaction following Motorola's quote is based on and subject to the terms and conditions of the valid and executed written contract between Customer and Motorola (the ""Underlying Agreement"") that authorizes Customer to purchase equipment and/or services or license software (collectively ""Products""). If no Underlying Agreement exists between Motorola and Customer, then Motorola's Standard Terms of Use and Motorola's Standard Terms and Conditions of Sales and Supply shall govern the purchase of the Products.

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WiFi Connectivity. The Customer is responsible for providing all WiFi connectivity to the device.

Removing Customer Data. The Customer is responsible for removing, from the device, any data, video, or other information that the Customer wishes to retain or destroy, prior to sending the device to a Motorola Solutions Repair Center for repair.

Motorola Solutions may provide a Video Evidence Recovery Service for the BWC device, as an additional charge.

Video Evidence Recovery is a best effort service that is dependent on the condition of the device. This service, if applicable, will have a separated Agreement, with Terms and Conditions, outside the scope of this Statement of Work (SOW). Please contact your Motorola Solutions Representative for more information regarding the Video Evidence Recovery Service.

1.5. ESSENTIAL SERVICE LIMITATIONS AND RESTRICTIONS
Customer will incur additional charges at the prevailing rates for any of the following activities, which are not covered under this Agreement:
● Replacement of consumable parts or accessories, as defined by product, including but not limited to batteries, cables, mounts, or clips.
● Repair of problems caused by natural or manmade disasters, including but not limited to fire, theft and floods that would cause internal or external component damage or destruction. ● Repair of problems caused by third parties’ Software, accessories or peripherals not approved in writing by Motorola Solutions for use with the device.
● Repair of problems caused by using the device outside of the product’s operational and environmental specifications, including improper handling, carelessness or reckless use, or repaired by a third party. ● Repair of problems caused by unauthorized alterations or attempted repair. ● Non-remedial work, including but not limited to administration and operator procedures, reprogramming, and operator or user training.
● Problem determination and/or work performed to repair or resolve issues with non-covered products; for example, any hardware or software products not specifically listed on the service order form. ● Any file or video backup or restoration.
● Completion and test of incomplete application programming or system integration if not performed by Motorola Solutions and specifically listed as covered.
● Use of Software or Firmware releases, except as provided for under the responsibilities outlined in this document.
● Accidental damage, chemical or liquid damage, or other damage caused outside of normal device operating specifications, unless the Customer has purchased the optional Essential Service with Accidental Damage and Advanced Replacement package.
● Cosmetic imperfections that do not affect the functionality of the device.

Where a Body Worn Camera device is submitted for repair that is outside the scope of Service, such repair may be quoted by Motorola Solutions for additional cost in accordance with Motorola Solutions’ standard Time and Materials (T&M) rates and terms and conditions. Motorola Solutions will notify the Customer of any incremental charges related to the aforementioned exclusions prior to completing the repair and said repair will be subject to acceptance of the quotation by the Customer.

Software support for unauthorized modifications, or other misuse of the device software, is not covered under this Agreement.

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Access to the software and firmware releases for updating the device under this SOW is available only for the device named in the Agreement. Software updates to any additional devices are expressly excluded and prohibited. Notwithstanding the foregoing, Motorola Solutions may, at its sole discretion, include coverage for other devices.

Any implementation tools not required to support the device software and firmware updates are excluded from coverage.

1.6. MOTOROLA SOLUTIONS IS NOT OBLIGATED TO PROVIDE SUPPORT FOR ANY DEVICE:
● That has been repaired, tampered with, altered or modified (including the unauthorized installation of any software) — except by Motorola Solutions authorized service personnel. ● That has been subjected to unusual physical or electrical stress, abuse, or forces or exposure beyond normal use within the specified operational and environmental parameters set forth in the applicable product specification.
● If Customer fails to comply with the obligations contained in the product purchase agreement and/or the applicable software license agreement and/or Motorola Solutions terms and conditions of service.

1.7. ESSENTIAL SERVICE WITH ACCIDENTAL DAMAGE REPAIR AND ADVANCED REPLACEMENT

1.7.1. Description of Services and Obligations
Accidental Damage coverage is an optional, prepaid service that adds coverage for accidentally damaged BWC devices. Accidental Damage coverage must be purchased together with, or within 90 days of, a qualifying Motorola Solutions device purchase. This three (3) or five (5) year service offer reduces unexpected expenses related to the repair of the device. Accidental Damage and Advanced Replacement coverage includes all services provided under Essential Service, plus additional coverage for Accidental Damage and Advanced Replacement of the damaged device.

Examples of repairs covered under Accidental Damage include:
● Electrical repair for failures caused by accidental water or chemical damage ● Electrical repair for accidental internal damage
● Replacement of accidentally cracked or broken housings. ● Replacement of accidentally cracked or broken camera lens or displays. ● Replacement of accidentally cracked or broken or missing buttons, knobs, or keypads Repair or Replacement. Motorola Solutions will provide repair or replacement of a BWC device, at its option, with a five (5) business day in-house turnaround time, excluding weekends and holidays, provided the device is delivered to the repair center by 9:00 a.m. (local repair center time), and replacement parts, components, and/or devices are available. Repair may include the replacement of parts, or boards with new parts or complete boards or, at Motorola Solutions option, with functionally equivalent, reconditioned parts, boards, or with a new replacement or refurbished device. All replaced parts, boards or devices will become the property of Motorola Solutions. Turnaround time represents the time a product spends in the repair process; it does not include time in transit, including customs clearance.

Serial Numbers. If the Accidental Damage Service is purchased with the device, in the same order, using Motorola Solutions’ Partner Hub Portal, OCc, or CPQ when ordering, the hardware serial number(s) are

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automatically captured and included in the Service Agreement. If Accidental Damage Service is purchased within 90 days of device shipment, the Customer must provide a complete list, preferably in electronic format, or by completing a Service Order Form (SOF), of all hardware serial numbers to be covered under the Agreement.

Initiating Repair. When initiating a repair, the Customer must contact Motorola Solutions to obtain a Return Material Authorization (RMA) number for each faulty BWC device. The Customer can submit a repair, and request an RMA, via the Partner Hub Portal, or by contacting the Motorola Solutions’ Service Desk. If two-way shipping is included, the customer can generate a shipping label via Partner Hub, or by contacting the Motorola Solutions Service Desk. The Return Material Authorization (RMA) must be included with the device when shipped to the Authorized Motorola Repair Center.
● Only the BWC device should be returned for repair. The battery must be removed before shipping the device to a Motorola Solutions Repair Center.
● Device accessories should not be included when returning a device to a Motorola Solutions Repair Center for repair. Accessories include batteries, chargers or charging stations, cables, mounts, and clips. ● The SIM card must remain in the device, and intact, when the device is shipped to a Motorola Solutions Repair Center. If the SIM card is removed, or if any evidence of SIM card tampering is found, including disassembling of the device, the warranty will be null and void.

Motorola Solutions is not responsible for any accessories, or device batteries, that are shipped with the device for repair.

Advanced Replacement. Under Accidental Damage and Advanced Replacement Service, Motorola Solutions will provide Advanced Replacement for the damaged device. Motorola Solutions will ship a new or refurbished replacement device to the Customer within two (2) business days of receiving the Customer repair request, subject to availability of replacement devices. Business days do not include weekends or holidays.

The Customer must return the defective or damaged device to a Motorola Solutions Repair Center within 60 days after receiving the replacement device. Failure to return the damaged device to Motorola Solutions will result in an additional Customer charge for the replacement device.

When returning a device for Advanced Replacement, device accessories should not be included. Accessories include batteries, chargers or charging stations, cables, mounts, and clips.

Motorola Solutions is not responsible for any accessories that are shipped with the device.

1.8. ACCIDENTAL DAMAGE AND ADVANCED REPLACEMENT LIMITATIONS AND RESTRICTIONS Customer will incur additional charges at the prevailing rates for any of the following activities, which are not covered under this Agreement:
● Replacement of consumable parts or accessories, as defined by product, including but not limited to batteries, chargers, charging stations, mounts, and clips.
● Repair of problems caused by natural or manmade disasters, including but not limited to fire, theft and floods that would cause internal or external component damage or destruction. ● Repair of problems caused by third parties’ Software, accessories or peripherals not approved in writing by Motorola Solutions for use with the device.
● Repair of problems caused by using the device outside of the product’s operational and environmental specifications, including improper handling, carelessness or reckless use, or repair by a third party.

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● Repair of problems caused by unauthorized alterations or attempted repair. ● Non-remedial work, including but not limited to administration and operator procedures, reprogramming, and operator or user training.
● Problem determination and/or work performed to repair or resolve issues with non-covered products; for example, any hardware or software products not specifically listed on the service order form. ● Any file or video backup or restoration.
● Completion and test of incomplete application programming or system integration if not performed by Motorola Solutions and specifically listed as covered.
● Use of Software or Firmware releases except as provided for under the responsibilities outlined in this document.

There is a maximum limit of one (1) Body Worn Camera device repair, per contract year, for Essential Service with Accidental Damage and Advanced Replacement.

Where ongoing “Accidental Damage” repair is deemed by Motorola Solutions to be excessive, systemic, or the result of device mishandling, the Customer may be subject to an additional charge. Should the accidental damage continue unabated, the Customer will incur repair charges at Motorola Solutions’ discretion and prevailing charges for devices deemed by Motorola Solutions to have been damaged through improper handling, carelessness or reckless use.

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042021-MOT
Rev. 10/2020 1
Solicitation Number: RFP #042021

CONTRACT
This Contract is between Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 (Sourcewell) and Motorola Solutions, Inc., 500 W. Monroe, Chicago, IL 60661 (Vendor).

Sourcewell is a State of Minnesota local government agency and service cooperative created under the laws of the State of Minnesota (Minnesota Statutes Section 123A.21) that offers cooperative procurement solutions to government entities. Participation is open to federal, state/province, and municipal governmental entities, higher education, K-12 education, nonprofit, tribal government, and other public entities located in the United States and Canada.

Sourcewell issued a public solicitation for Public Safety Communications Technology and Hardware Solutions from which Vendor was awarded a contract.

Vendor desires to contract with Sourcewell to provide equipment, products, or services to Sourcewell and the entities that access Sourcewell’s cooperative purchasing contracts (Participating Entities).

1. TERM OF CONTRACT
A. EFFECTIVE DATE. This Contract is effective upon the date of the final signature below.

B. EXPIRATION DATE AND EXTENSION. This Contract expires June 23, 2025, unless it is cancelled sooner pursuant to Article 22. This Contract may be extended up to one additional one-year period upon request of Sourcewell and with written agreement by Vendor.

C. SURVIVAL OF TERMS. Articles 11 through 14 survive the expiration or cancellation of this Contract.

2. EQUIPMENT, PRODUCTS, OR SERVICES
A. EQUIPMENT, PRODUCTS, OR SERVICES. Vendor will provide the Equipment, Products, or Services as stated in its Proposal submitted under the Solicitation Number listed above.

Vendor’s Equipment, Products, or Services Proposal (Proposal) is attached and incorporated into this Contract.

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All Equipment and Products provided under this Contract must be new/current model. Vendor may offer close-out or refurbished Equipment or Products if they are clearly indicated in Vendor’s product and pricing list. Unless agreed to by the Participating Entities in advance, Equipment or Products must be delivered as operational to the Participating Entity’s site.

This Contract offers an indefinite quantity of sales, and while substantial volume is anticipated, sales and sales volume are not guaranteed.

B. WARRANTY. Vendor warranties for Equipment, Products, and Services furnished are set forth in Vendor’s then-current Communication, Systems & Services Agreement, which will be made available to Participating Entities at the time of purchase. Vendor’s dealers and distributors must agree to assist the Participating Entity in reaching a resolution in any dispute over warranty terms with the manufacturer. Any manufacturer’s warranty that is effective past the expiration of the Vendor’s warranty will be passed on to the Participating Entity.

C. DEALERS, DISTRIBUTORS, AND/OR RESELLERS. Upon Contract execution, Vendor will make available to Sourcewell a means to validate or authenticate Vendor’s authorized dealers, distributors, and/or resellers relative to the Equipment, Products, and Services related to this Contract. This list may be updated from time-to-time and is incorporated into this Contract by reference. It is the Vendor’s responsibility to ensure Sourcewell receives the most current version of this list.

3. PRICING
All Equipment, Products, or Services under this Contract will be priced as stated in Vendor’s Proposal.

When providing pricing quotes to Participating Entities, all pricing quoted must reflect a Participating Entity’s total cost of acquisition. This means that the quoted cost is for delivered Equipment, Products, and Services that are operational for their intended purpose, and includes all costs to the Participating Entity’s requested delivery location.

Regardless of the payment method chosen by the Participating Entity, the total cost associated with any purchase option of the Equipment, Products, or Services must always be disclosed in the pricing quote to the applicable Participating Entity at the time of purchase.

A. SHIPPING AND SHIPPING COSTS. All delivered Equipment and Products must be properly packaged. Damaged Equipment and Products may be rejected. If the damage is not readily apparent at the time of delivery, Vendor must permit the Equipment and Products to be returned within a reasonable time at no cost to Sourcewell or its Participating Entities.

Participating Entities reserve the right to inspect the Equipment and Products at a reasonable time after delivery where circumstances or conditions prevent effective inspection of the Equipment and Products at the time of delivery.

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Vendor must arrange for and pay for the return shipment on Equipment and Products that arrive in a defective or inoperable condition.

Sourcewell may declare the Vendor in breach of this Contract if the Vendor intentionally delivers substandard or inferior Equipment or Products. In the event of the delivery of nonconforming Equipment and Products, the Participating Entity will notify the Vendor as soon as possible and the Vendor will replace nonconforming Equipment and Products with conforming Equipment and Products that are acceptable to the Participating Entity.

Freight, title and risk of loss terms will be as set forth in Vendor’s then-current Communication, Systems & Services Agreement, which will be made available to Participating Entities at the time of purchase.

B. SALES TAX. Each Participating Entity is responsible for supplying the Vendor with valid taxexemption certification(s). When ordering, a Participating Entity must indicate if it is a taxexempt entity.

C. HOT LIST PRICING. At any time during this Contract, Vendor may offer a specific selection of Equipment, Products, or Services at discounts greater than those listed in the Contract.

When Vendor determines it will offer Hot List Pricing, it must be submitted electronically to Sourcewell in a line-item format. Equipment, Products, or Services may be added or removed from the Hot List at any time through a Sourcewell Price and Product Change Form as defined in Article 4 below.

Hot List program and pricing may also be used to discount and liquidate close-out and discontinued Equipment and Products as long as those close-out and discontinued items are clearly identified as such. Current ordering process and administrative fees apply. Hot List Pricing must be published and made available to all Participating Entities.

4. PRODUCT AND PRICING CHANGE REQUESTS
Vendor may request Equipment, Product, or Service changes, additions, or deletions at any time. All requests must be made in writing by submitting a signed Sourcewell Price and Product Change Request Form to the assigned Sourcewell Contract Administrator. This form is available from the assigned Sourcewell Contract Administrator. At a minimum, the request must:
x Identify the applicable Sourcewell contract number;
x Clearly specify the requested change;
x Provide sufficient detail to justify the requested change; x Individually list all Equipment, Products, or Services affected by the requested change, along with the requested change (e.g., addition, deletion, price change); and

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x Include a complete restatement of pricing documentation in Microsoft Excel with the effective date of the modified pricing, or product addition or deletion. The new pricing restatement must include all Equipment, Products, and Services offered, even for those items where pricing remains unchanged.

A fully executed Sourcewell Price and Product Request Form will become an amendment to this Contract and be incorporated by reference.

5. PARTICIPATION, CONTRACT ACCESS, AND PARTICIPATING ENTITY REQUIREMENTS

A. PARTICIPATION. Sourcewell’s cooperative contracts are available and open to public and nonprofit entities across the United States and Canada; such as federal, state/province, municipal, K-12 and higher education, tribal government, and other public entities.

The benefits of this Contract should be available to all Participating Entities that can legally access the Equipment, Products, or Services under this Contract in the United States. A Participating Entity’s authority to access this Contract is determined through its cooperative purchasing, interlocal, or joint powers laws. Any entity accessing benefits of this Contract will be considered a Service Member of Sourcewell during such time of access. Vendor understands that a Participating Entity’s use of this Contract is at the Participating Entity’s sole convenience and Participating Entities reserve the right to obtain like Equipment, Products, or Services from any other source.

Vendor is responsible for familiarizing its sales and service forces with Sourcewell contract use eligibility requirements and documentation and will encourage potential participating entities to join Sourcewell. Sourcewell reserves the right to add and remove Participating Entities to its roster during the term of this Contract.

B. PUBLIC FACILITIES. Vendor’s employees may be required to perform work at governmentowned facilities, including schools. Vendor’s employees and agents must conduct themselves in a professional manner while on the premises, and in accordance with Participating Entity policies and procedures, and all applicable laws.

6. PARTICIPATING ENTITY USE AND PURCHASING
A. ORDERS AND PAYMENT. To access the contracted Equipment, Products, or Services under this Contract, a Participating Entity must clearly indicate to Vendor that it intends to access this Contract; however, order flow and procedure will be developed jointly between Sourcewell and Vendor. Typically, a Participating Entity will issue an order directly to Vendor. If a Participating Entity issues a purchase order, it may use its own forms, but the purchase order should clearly note the applicable Sourcewell contract number. All Participating Entity orders under this Contract must be issued prior to expiration of this Contract; however, Vendor performance,

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Participating Entity payment, and any applicable warranty periods or other Vendor or Participating Entity obligations may extend beyond the term of this Contract.

Vendor’s acceptable forms of payment are included in Attachment A. Participating Entities will be solely responsible for payment and Sourcewell will have no liability for any unpaid invoice of any Participating Entity.

B. ADDITIONAL TERMS AND CONDITIONS/PARTICIPATING ADDENDUM. Additional terms and conditions to a purchase order, or other required transaction documentation, may be negotiated between a Participating Entity and Vendor, such as job or industry-specific requirements, legal requirements (e.g., affirmative action or immigration status requirements), or specific local policy requirements. Some Participating Entitles may require the use of a Participating Addendum; the terms of which will be worked out directly between the Participating Entity and the Vendor. Vendor will require the use of Vendor’s then-current Communication, Systems & Services Agreement (“CCSA”) and Exhibits, Subscription Services Addendum (“SSA”), Maintenance and Support Addendum (“MSA”), and Telecommunication Carrier Addendums (“TCA”). Any negotiated additional terms and conditions must never be less favorable to the Participating Entity than what is contained in this Contract.

C. SPECIALIZED SERVICE REQUIREMENTS. In the event that the Participating Entity requires service or specialized performance requirements (such as e-commerce specifications, specialized delivery requirements, or other specifications and requirements) not addressed in this Contract, the Participating Entity and the Vendor may enter into a separate, standalone agreement, apart from this Contract. Sourcewell, including its agents and employees, will not be made a party to a claim for breach of such agreement.

D. TERMINATION OF ORDERS. Participating Entities may terminate an order, in whole or in part, immediately upon notice to Vendor in the event of any of the following events:

1. The Participating Entity fails to receive funding or appropriation from its governing body at levels sufficient to pay for the goods to be purchased;

2. Federal or state laws or regulations prohibit the purchase or change the Participating Entity’s requirements; or

3. Vendor commits any material breach of this Contract or the additional terms agreed to between the Vendor and a Participating Entity, after receipt of notice from Sourcewell or the Participating Entity, and fails to correct such breach within thirty days.

In the event of termination under this subsection 6. D., the Participating Entity will remain liable for contract amounts due and attributable to Equipment, Products, and Services delivered or performed on or before the date of the termination.

E. GOVERNING LAW AND VENUE. The governing law and venue for any action related to a Participating Entity’s order will be determined by the Participating Entity making the purchase.

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7. CUSTOMER SERVICE
A. PRIMARY ACCOUNT REPRESENTATIVE. Vendor will assign an Account Representative to Sourcewell for this Contract and must provide prompt notice to Sourcewell if that person is changed. The Account Representative will be responsible for:

x Maintenance and management of this Contract;
x Timely response to all Sourcewell and Participating Entity inquiries; and x Business reviews to Sourcewell and Participating Entities, if applicable.

B. BUSINESS REVIEWS. Vendor must perform a minimum of one business review with Sourcewell per contract year. The business review will cover sales to Participating Entities, pricing and contract terms, administrative fees, supply issues, customer issues, and any other necessary information.

8. REPORT ON CONTRACT SALES ACTIVITY AND ADMINISTRATIVE FEE PAYMENT A. CONTRACT SALES ACTIVITY REPORT. Each calendar quarter, Vendor must provide a contract sales activity report (Report) to the Sourcewell Contract Administrator assigned to this Contract. A Report must be provided regardless of the number or amount of sales during that quarter (i.e., if there are no sales, Vendor must submit a report indicating no sales were made).

The Report must contain the following fields:
x Customer Name (e.g., City of Staples Highway Department); x Customer Physical Street Address;
x Customer City;
x Customer State/Province;
x Customer Zip Code;
x Customer Contact Name;
x Customer Contact Email Address;
x Customer Contact Telephone Number;
x Sourcewell Assigned Entity/Participating Entity Number; x Item Purchased Description;
x Item Purchased Price;
x Sourcewell Administrative Fee Applied; and
x Date Purchase was invoiced/sale was recognized as revenue by Vendor.

B. ADMINISTRATIVE FEE. In consideration for the support and services provided by Sourcewell, the Vendor will pay an administrative fee to Sourcewell on all Equipment, Products, and Services provided to Participating Entities. The Administrative Fee must be included in, and not

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added to, the pricing. Vendor may not charge Participating Entities more than the contracted price to offset the Administrative Fee.

The Vendor will submit payment to Sourcewell for the percentage of administrative fee stated in the Proposal multiplied by the total sales of all Equipment, Products, and Services purchased by Participating Entities under this Contract during each calendar quarter. Payments should note the Vendor’s name and Sourcewell-assigned contract number in the memo; and must be mailed to the address above “Attn: Accounts Receivable” or remitted electronically to Sourcewell’s banking institution per Sourcewell’s Finance department instructions. Payments must be received no later than 45 calendar days after the end of each calendar quarter.

Vendor agrees to cooperate with Sourcewell in auditing transactions under this Contract to ensure that the administrative fee is paid on all items purchased under this Contract.

In the event the Vendor is delinquent in any undisputed administrative fees, Sourcewell reserves the right to cancel this Contract and reject any proposal submitted by the Vendor in any subsequent solicitation. In the event this Contract is cancelled by either party prior to the Contract’s expiration date, the administrative fee payment will be due no more than 30 days from the cancellation date.

9. AUTHORIZED REPRESENTATIVE
Sourcewell's Authorized Representative is its Chief Procurement Officer.

Vendor’s Authorized Representative is the person named in the Vendor’s Proposal. If Vendor’s Authorized Representative changes at any time during this Contract, Vendor must promptly notify Sourcewell in writing.

10. AUDIT, ASSIGNMENT, AMENDMENTS, WAIVER, AND CONTRACT COMPLETE A. AUDIT. Pursuant to Minnesota Statutes Section 16C.05, subdivision 5, the books, records, documents, and accounting procedures and practices relevant this Agreement are subject to examination by Sourcewell or the Minnesota State Auditor for a minimum of six years from the end of this Contract. This clause extends to Participating Entities as it relates to business conducted by that Participating Entity under this Contract.

B. ASSIGNMENT. Neither the Vendor nor Sourcewell may assign or transfer any rights or obligations under this Contract without the prior consent of the parties and a fully executed assignment agreement. Such consent will not be unreasonably withheld.

C. AMENDMENTS. Any amendment to this Contract must be in writing and will not be effective until it has been fully executed by the parties.

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D. WAIVER. If either party fails to enforce any provision of this Contract, that failure does not waive the provision or the right to enforce it.

E. CONTRACT COMPLETE. This Contract contains all negotiations and agreements between Sourcewell and Vendor. No other understanding regarding this Contract, whether written or oral, may be used to bind either party. For any conflict between the attached Proposal and the terms set out in Articles 1-22, the terms of Articles 1-22 will govern.

F. RELATIONSHIP OF THE PARTIES. The relationship of the parties is one of independent contractors, each free to exercise judgment and discretion with regard to the conduct of their respective businesses. This Contract does not create a partnership, joint venture, or any other relationship such as master-servant, or principal-agent.

11. LIABILITY

Vendor must indemnify, save, and hold Sourcewell, including their agents and employees, harmless from any claims or causes of action, including attorneys’ fees, arising out of the performance of this Contract by the Vendor or its agents or employees. Sourcewell will provide prompt written notice to Vendor of any claim or suit, and will cooperate with Vendor in its defense or settlement of the claim or suit. Vendor’s maximum liability for damages caused by failure to perform its obligations under this Contract is limited to proven direct damages for all claims arising out of this Contract not to exceed the total net payments of Administrative Fees paid under any twenty-four (24) month period during the Term. Vendor’s indemnification obligations under the Contract are excluded from this provision. VENDOR WILL NOT BE LIABLE

FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT OR TORT. CONSEQUENTIAL, INCIDENTAL, AND INDIRECT DAMAGES

INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES, AND LOSS OF BUSINESS

OPPORTUNITY, WHETHER OR NOT THE OTHER PARTY WAS AWARE OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES.

Vendor’s obligations to indemnify or hold harmless Participating Entities will be as set forth in Vendor’s Communication, Systems & Services Agreement.

12. GOVERNMENT DATA PRACTICES
Vendor and Sourcewell must comply with the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13, as it applies to all data provided by or provided to Sourcewell under this Contract and as it applies to all data created, collected, received, stored, used, maintained, or disseminated by the Vendor under this Contract.

If the Vendor receives a request to release the data referred to in this article, the Vendor must immediately notify Sourcewell and Sourcewell will assist with how the Vendor should respond to the request.

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13. INTELLECTUAL PROPERTY, PUBLICITY, MARKETING, AND ENDORSEMENT A. INTELLECTUAL PROPERTY

1. Grant of License. During the term of this Contract:
a. Sourcewell grants to Vendor a royalty-free, worldwide, non-exclusive right and license to use theTrademark(s) provided to Vendor by Sourcewell in advertising and promotional materials for the purpose of marketing Sourcewell’s relationship with Vendor.
b. Vendor grants to Sourcewell a royalty-free, worldwide, non-exclusive right and license to use Vendor’s Trademarks in advertising and promotional materials for the purpose of marketing Vendor’s relationship with Sourcewell.

2. Limited Right of Sublicense. The right and license granted herein includes a limited right of each party to grant sublicenses to its and their respective distributors, marketing representatives, and agents (collectively “Permitted Sublicensees”) in advertising and promotional materials for the purpose of marketing the Parties’ relationship to Participating Entities. Any sublicense granted will be subject to the terms and conditions of this Article.

Each party will be responsible for any breach of this Article by any of their respective sublicensees.

3. Use; Quality Control.
a. Sourcewell must not alter Vendor’s Trademarks from the form provided by Vendor and must comply with Vendor’s removal requests as to specific uses of its trademarks or logos.
b. Vendor must not alter Sourcewell’s Trademarks from the form provided by Sourcewell and must comply with Sourcewell’s removal requests as to specific uses of its trademarks or logos.
c. Each party agrees to use, and to cause its Permitted Sublicensees to use, the other party’s Trademarks only in good faith and in a dignified manner consistent with such party’s use of the Trademarks. Upon written notice to the breaching party, the breaching party has 30 days of the date of the written notice to cure the breach or the license will be terminated.

4. As applicable, Vendor agrees to indemnify and hold harmless Sourcewell against any and all suits, claims, judgments, and costs instituted or recovered against Sourcewell by any person on account of the use of any Equipment or Products by Sourcewell or its Participating Entities supplied by Vendor in violation of applicable United States patent or copyright laws. Vendor’s obligations to indemnify or hold harmless Participating Entities for intellectual property infringement will be as set forth in Vendor’s then-current Communication, Systems & Services Agreement.

5. Termination. Upon the termination of this Contract for any reason, each party, including Permitted Sublicensees, will have 30 days to remove all Trademarks from signage, websites, and the like bearing the other party’s name or logo (excepting Sourcewell’s pre-printed catalog of vendors which may be used until the next printing). Vendor must return all

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marketing and promotional materials, including signage, provided by Sourcewell, or dispose of it according to Sourcewell’s written directions.

B. PUBLICITY. Any publicity regarding the subject matter of this Contract must not be released without prior written approval from the Authorized Representatives. Publicity includes notices, informational pamphlets, press releases, research, reports, signs, and similar public notices prepared by or for the Vendor individually or jointly with others, or any subcontractors, with respect to the program, publications, or services provided resulting from this Contract.

C. MARKETING. Any direct advertising, marketing, or offers with Participating Entities must be approved by Sourcewell. Materials should be sent to the Sourcewell Contract Administrator assigned to this Contract.

D. ENDORSEMENT. The Vendor must not claim that Sourcewell endorses its Equipment, Products, or Services.

14. GOVERNING LAW, JURISDICTION, AND VENUE
Minnesota law governs this Contract. Venue for all legal proceedings out of this Contract, or its breach, must be in the appropriate state court in Todd County or federal court in Fergus Falls, Minnesota.

15. FORCE MAJEURE
Neither party to this Contract will be held responsible for delay or default caused by acts of God or other conditions that are beyond that party’s reasonable control. A party defaulting under this provision must provide the other party prompt written notice of the default.

16. SEVERABILITY
If any provision of this Contract is found to be illegal, unenforceable, or void then both Sourcewell and Vendor will be relieved of all obligations arising under such provisions. If the remainder of this Contract is capable of performance, it will not be affected by such declaration or finding and must be fully performed.

17. PERFORMANCE, DEFAULT, AND REMEDIES
A. PERFORMANCE. During the term of this Contract, the parties will monitor performance and address unresolved contract issues as follows:

1. Notification. The parties must promptly notify each other of any known dispute and work in good faith to resolve such dispute within a reasonable period of time. If necessary,

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Sourcewell and the Vendor will jointly develop a short briefing document that describes the issue(s), relevant impact, and positions of both parties.

2. Escalation. If parties are unable to resolve the issue in a timely manner, as specified above, either Sourcewell or Vendor may escalate the resolution of the issue to a higher level of management. The Vendor will have 30 calendar days to cure an outstanding issue.

3. Performance while Dispute is Pending. Notwithstanding the existence of a dispute, the Vendor must continue without delay to carry out all of its responsibilities under the Contract that are not affected by the dispute. If the Vendor fails to continue without delay to perform its responsibilities under the Contract, in the accomplishment of all undisputed work, any additional costs incurred by Sourcewell and/or its Participating Entities as a result of such failure to proceed will be borne by the Vendor.

B. DEFAULT AND REMEDIES. Either of the following constitutes cause to declare this Contract, or any Participating Entity order under this Contract, in default (unless a force majeure causes the default):

1. Nonperformance of contractual requirements, or

2. A material breach of any term or condition of this Contract.

Written notice of default and a 30 day opportunity to cure must be issued by the party claiming default. Time allowed for cure will not diminish or eliminate any liability for liquidated or other damages. If the default remains after the opportunity for cure, the non-defaulting party may:
x Exercise any remedy provided by law or equity, or
x Terminate the Contract or any portion thereof, including any orders issued against the Contract.

18. INSURANCE

A. REQUIREMENTS. At its own expense, Vendor must maintain insurance policy(ies) in effect at all times during the performance of this Contract with insurance company(ies) licensed or authorized to do business in the State of Minnesota having an “AM BEST” rating of A- or better, with coverage and limits of insurance in accordance with the following:

1. Workers’ Compensation and Employer’s Liability.

Workers’ Compensation: As required by any applicable law or regulation.

Employer's Liability Insurance: must be provided in amounts listed below:

Limits:
$1,000,000 each accident for bodily injury by accident
$1,000,000 policy limit for bodily injury by disease
$1,000,000 each employee for bodily injury by disease

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2. Commercial General Liability Insurance. Vendor will maintain insurance covering its operations, with coverage on an occurrence basis. At a minimum, coverage must include liability arising from premises, operations, bodily injury and property damage, independent contractors, products-completed operations including construction defect, contractual liability, blanket contractual liability, and personal injury and advertising injury. All required limits, terms and conditions of coverage must be maintained during the term of this Contract.

Limits:
$3,000,000 each occurrence Bodily Injury and Property Damage $3,000,000 Personal and Advertising Injury
$5,000,000 aggregate for Products-Completed operations
$5,000,000 general aggregate

3. Commercial Automobile Liability Insurance. During the term of this Contract, Vendor will maintain insurance covering all owned, hired, and non-owned automobiles in limits of liability not less than indicated below.

Limits:
$2,000,000 each accident, combined single limit

4. Network Security and Privacy Liability Insurance. During the term of this Contract, Vendor will maintain coverage for network security and privacy liability. The coverage may be endorsed on another form of liability coverage or written on a standalone policy. The insurance must cover claims which may arise from failure of Vendor’s security resulting in, but not limited to, computer attacks, unauthorized access, disclosure of not public data – including but not limited to, confidential or private information, transmission of a computer virus, or denial of service.

Limits:
$2,000,000 per occurrence
$2,000,000 annual aggregate
Failure of Vendor to maintain the required insurance will constitute a material breach entitling Sourcewell to immediately terminate this Contract for default.

B. CERTIFICATES OF INSURANCE. Prior to commencing under this Contract, Vendor must furnish to Sourcewell a certificate of insurance, as evidence of the insurance required under this Contract. Prior to expiration of the policy(ies), renewal certificates must be mailed to Sourcewell, 202 12th Street Northeast, P.O. Box 219, Staples, MN 56479 or sent to the Sourcewell Contract Administrator assigned to this Contract. The certificates must be signed by a person authorized by the insurer(s) to bind coverage on their behalf.

Failure to request certificates of insurance by Sourcewell, or failure of Vendor to provide certificates of insurance, in no way limits or relieves Vendor of its duties and responsibilities in this Contract.

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C. ADDITIONAL INSURED ENDORSEMENT AND PRIMARY AND NON-CONTRIBUTORY INSURANCE CLAUSE. Vendor agrees to list Sourcewell and its Participating Entities, including their officers, agents, and employees, as an additional insured under the Vendor’s commercial general liability insurance policy with respect to liability arising out of activities, “operations,” or “work” performed by or on behalf of Vendor, and products and completed operations of Vendor. The policy provision(s) or endorsement(s) must further provide that coverage is primary and not excess over or contributory with any other valid, applicable, and collectible insurance or self-insurance in force for the additional insureds.

D. WAIVER OF SUBROGATION. Vendor waives and must require (by endorsement or otherwise) its workers compensation, commercial general liability, and automobile liability insurers to waive subrogation rights against Sourcewell and other additional insureds for losses paid under the workers compensation, commercial general liability, and automobile liability insurance policies required by this Contract or other insurance applicable to the Vendor or its subcontractors. The waiver must apply to all deductibles and/or self-insured retentions. Where permitted by law, Vendor must require similar written express waivers of subrogation and insurance clauses from each of its subcontractors.

E. UMBRELLA/EXCESS LIABILITY/SELF-INSURED RETENTION. The limits required by this Contract can be met by either providing a primary policy or in combination with umbrella/excess liability policy(ies), or self-insured retention.

19. COMPLIANCE
A. LAWS AND REGULATIONS. All Equipment, Products, or Services provided under this Contract must comply fully with applicable federal laws and regulations, and with the laws in the states and provinces in which the Equipment, Products, or Services are sold.

B. LICENSES. Vendor must maintain a valid and current status on all required federal, state/provincial, and local licenses, bonds, and permits required for the operation of the business that the Vendor conducts with Sourcewell and Participating Entities.

20. BANKRUPTCY, DEBARMENT, OR SUSPENSION CERTIFICATION
Vendor certifies and warrants that it is not in bankruptcy or that it has previously disclosed in writing certain information to Sourcewell related to bankruptcy actions. If at any time during this Contract Vendor declares bankruptcy, Vendor must immediately notify Sourcewell in writing.

Vendor certifies and warrants that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from programs operated by the State of Minnesota; the United States federal government or the Canadian

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government, as applicable; or any Participating Entity. Vendor certifies and warrants that neither it nor its principals have been convicted of a criminal offense related to the subject matter of this Contract. Vendor further warrants that it will provide immediate written notice to Sourcewell if this certification changes at any time.

21. PROVISIONS FOR NON-UNITED STATES FEDERAL ENTITY PROCUREMENTS UNDER

UNITED STATES FEDERAL AWARDS OR OTHER AWARDS
Participating Entities that use United States federal grant or FEMA funds to purchase goods or services from this Contract may be subject to additional requirements including the procurement standards of the Uniform Administrative Requirements, Cost Principles and Audit Requirements for Federal Awards, 2 C.F.R. § 200. Participating Entities may also require additional requirements based on specific funding specifications. Within this Article, all references to “federal” should be interpreted to mean the United States federal government.

The following list only applies when a Participating Entity accesses Vendor’s Equipment, Products, or Services with United States federal funds.

A. EQUAL EMPLOYMENT OPPORTUNITY. Except as otherwise provided under 41 C.F.R. § 60, all contracts that meet the definition of “federally assisted construction contract” in 41 C.F.R. § 60-

1.3 must include the equal opportunity clause provided under 41 C.F.R. §60-1.4(b), in accordance with Executive Order 11246, “Equal Employment Opportunity” (30 FR 12319, 12935, 3 C.F.R. §, 1964-1965 Comp., p. 339), as amended by Executive Order 11375, “Amending Executive Order 11246 Relating to Equal Employment Opportunity,” and implementing regulations at 41 C.F.R. § 60, “Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor.” The equal opportunity clause is incorporated herein by reference.

B. DAVIS-BACON ACT, AS AMENDED (40 U.S.C. § 3141-3148). When required by federal program legislation, all prime construction contracts in excess of $2,000 awarded by nonfederal entities must include a provision for compliance with the Davis-Bacon Act (40 U.S.C. § 3141-3144, and 3146-3148) as supplemented by Department of Labor regulations (29 C.F.R. § 5, “Labor Standards Provisions Applicable to Contracts Covering Federally Financed and Assisted Construction”). In accordance with the statute, contractors must be required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of Labor. In addition, contractors must be required to pay wages not less than once a week. The non-federal entity must place a copy of the current prevailing wage determination issued by the Department of Labor in each solicitation. The decision to award a contract or subcontract must be conditioned upon the acceptance of the wage determination. The non-federal entity must report all suspected or reported violations to the federal awarding agency. The contracts must also include a provision for compliance with the Copeland “Anti-Kickback” Act (40 U.S.C. § 3145), as supplemented by Department of Labor regulations (29 C.F.R. § 3, “Contractors and Subcontractors on Public Building or Public Work Financed in Whole or in Part by Loans or Grants from the United States”). The Act provides that

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each contractor or subrecipient must be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public work, to give up any part of the compensation to which he or she is otherwise entitled. The non-federal entity must report all suspected or reported violations to the federal awarding agency. Vendor must be in compliance with all applicable Davis-Bacon Act provisions.

C. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT (40 U.S.C. § 3701-3708). Where applicable, all contracts awarded by the non-federal entity in excess of $100,000 that involve the employment of mechanics or laborers must include a provision for compliance with 40 U.S.C. §§ 3702 and 3704, as supplemented by Department of Labor regulations (29 C.F.R. § 5).

Under 40 U.S.C. § 3702 of the Act, each contractor must be required to compute the wages of every mechanic and laborer on the basis of a standard work week of 40 hours. Work in excess of the standard work week is permissible provided that the worker is compensated at a rate of not less than one and a half times the basic rate of pay for all hours worked in excess of 40 hours in the work week. The requirements of 40 U.S.C. § 3704 are applicable to construction work and provide that no laborer or mechanic must be required to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous. These requirements do not apply to the purchases of supplies or materials or articles ordinarily available on the open market, or contracts for transportation or transmission of intelligence. This provision is hereby incorporated by reference into this Contract. Vendor certifies that during the term of an award for all contracts by Sourcewell resulting from this procurement process, Vendor must comply with applicable requirements as referenced above.

D. RIGHTS TO INVENTIONS MADE UNDER A CONTRACT OR AGREEMENT. Intentionally Omitted.

E. CLEAN AIR ACT (42 U.S.C. § 7401-7671Q.) AND THE FEDERAL WATER POLLUTION CONTROL ACT (33 U.S.C. § 1251-1387). Contracts and subgrants of amounts in excess of $150,000 require the non-federal award to agree to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 U.S.C. § 7401- 7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. § 1251- 1387). Violations must be reported to the Federal awarding agency and the Regional Office of the Environmental Protection Agency (EPA). Vendor certifies that during the term of this Contract will comply with applicable requirements as referenced above.

F. DEBARMENT AND SUSPENSION (EXECUTIVE ORDERS 12549 AND 12689). A contract award (see 2 C.F.R. § 180.220) must not be made to parties listed on the government wide exclusions in the System for Award Management (SAM), in accordance with the OMB guidelines at 2 C.F.R. §180 that implement Executive Orders 12549 (3 C.F.R. § 1986 Comp., p. 189) and 12689 (3 C.F.R. § 1989 Comp., p. 235), “Debarment and Suspension.” SAM Exclusions contains the names of parties debarred, suspended, or otherwise excluded by agencies, as well as parties declared ineligible under statutory or regulatory authority other than Executive Order 12549. Vendor certifies that neither it nor its principals are presently debarred, suspended, proposed for

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debarment, declared ineligible, or voluntarily excluded from participation by any federal department or agency.

G. BYRD ANTI-LOBBYING AMENDMENT, AS AMENDED (31 U.S.C. § 1352). Vendors must file any required certifications. Vendors must not have used federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any federal contract, grant, or any other award covered by 31 U.S.C. § 1352. Vendors must disclose any lobbying with non-federal funds that takes place in connection with obtaining any federal award. Such disclosures are forwarded from tier to tier up to the non-federal award. Vendors must file all certifications and disclosures required by, and otherwise comply with, the Byrd Anti-Lobbying Amendment (31 U.S.C. § 1352).

H. RECORD RETENTION REQUIREMENTS. To the extent applicable, Vendor must comply with the record retention requirements detailed in 2 C.F.R. § 200.333. The Vendor further certifies that it will retain all records as required by 2 C.F.R. § 200.333 for a period of 3 years after grantees or subgrantees submit final expenditure reports or quarterly or annual financial reports, as applicable, and all other pending matters are closed.

I. ENERGY POLICY AND CONSERVATION ACT COMPLIANCE. To the extent applicable, Vendor must comply with the mandatory standards and policies relating to energy efficiency which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act.

J. BUY AMERICAN PROVISIONS COMPLIANCE. To the extent applicable, Vendor must comply with all applicable provisions of the Buy American Act. Purchases made in accordance with the Buy American Act must follow the applicable procurement rules calling for free and open competition.

K. ACCESS TO RECORDS (2 C.F.R. § 200.336). Vendor agrees that duly authorized representatives of a federal agency must have access to any books, documents, papers and records of Vendor that are directly pertinent to Vendor’s discharge of its obligations under this Contract for the purpose of making audits, examinations, excerpts, and transcriptions. The right also includes timely and reasonable access to Vendor’s personnel for the purpose of interview and discussion relating to such documents.

L. PROCUREMENT OF RECOVERED MATERIALS (2 C.F.R. § 200.322). A non-federal entity that is a state agency or agency of a political subdivision of a state and its contractors must comply with Section 6002 of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act. The requirements of Section 6002 include procuring only items designated in guidelines of the Environmental Protection Agency (EPA) at 40 C.F.R. § 247 that contain the highest percentage of recovered materials practicable, consistent with maintaining a

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satisfactory level of competition, where the purchase price of the item exceeds $10,000 or the value of the quantity acquired during the preceding fiscal year exceeded $10,000; procuring solid waste management services in a manner that maximizes energy and resource recovery; and establishing an affirmative procurement program for procurement of recovered materials identified in the EPA guidelines.

22. CANCELLATION
Sourcewell or Vendor may cancel this Contract at any time, with or without cause, upon 60 days’ written notice to the other party. However, Sourcewell may cancel this Contract immediately upon discovery of a material defect in any certification made in Vendor’s Proposal.

Cancellation of this Contract does not relieve either party of financial, product, or service obligations incurred or accrued prior to cancellation.

Sourcewell Motorola Solutions, Inc.

By: __________________________ By: __________________________ Jeremy Schwartz Carrie Hemmen
Title: Chief Procurement Officer Title: MSSSI Territory Vice President & Director of Sales
Date: ________________________ Date: ________________________ Approved:

By: __________________________
Chad Coauette
Title: Executive Director/CEO
Date: ________________________

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Bid Number: RFP 042021 Vendor Name: Motorola Solutions, Inc.

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Bid Number: RFP 042021 Vendor Name: Motorola Solutions, Inc.

Table 148: Depth and 8readth of Offered Equipment Products and Services Indicate below if the listed types or classes of equipment, products, and services are offered within your proposal. Provide additional comments in the text box provided, as necessary.

Line
Item Category or Type Offered * Comments
67 Fire or EMS station alerting
or paging systems
Yes
No
Yes. We partner with Mach Alert to provide Fire Station Alerting solutions. * 68 Connectivity and
interoperability devices,
hardware and equipment
Yes
No
Yes. We are offering Critical Connect as our system to system interoperability solution, as well as control station radios to tie in legacy frequencies to current radio systems.
*
69 Airborne, marine, and
underwater communication
systems
Yes
No
No.
*
70 Services related to lines 67,
68 and 69 above
Yes
No
Yes. We have included the necessary services to implement and maintain the solutions mentioned in lines 67 & 68. *
Table 15: Industry Specific Questions
Line
Item Question Response *
71 Describe the interoperability of
your products and services with
other equipment, software, and
systems, as applicable
Because we follow industry standards across our portfolio, our products are fully interoperable with other systems/devices that follow the definition in the specific standard in question. The standards the our products and solutions follow are listed in Line Item 73. Additionally, our services providers maintain certifications required within each solution (certifications are detailed in Line Item 14). *
72 Describe how your products
and services integrate with
other communications and
technology components (e.g.,
CAD, RMS, LMR, etc.)
Aside from meeting what the applicable standard defines for its interoperability requirements, Motorola Solutions has created an end-to-end platform that integrates our solutions from the time someone picks up the phone to dial 911 until case closure. These solutions include, but are not limited to Radio, 911 call handling, CAD, Records Management, Body Worn and In-Vehicle Cameras, Digital Evidence Management, Video Security, License Plate Recognition, Situational Awareness, and Broadband Communications. Because these are all solutions that we develop, we are creating integrations and are not limited to interfacing different solution together. Interfacing typically limits the communication between two solutions because it uses the least common denominator of the information that can pass between to solutions from different vendors. The integrations that we have, and continue, to develop are allowing for greater efficiencies as our customers do their jobs.

We have also created a solution called CommandCentral Aware that allows for our radio system to integrate with other vendors CAD and Video solutions to create situational awareness for our customers as the approach a scene.
73 Describe how your products
and services conform to
applicable industry standards
and required specifications.

The systems and equipment included in this response fully comply with one of the following standards; Project 25 (P25) - http://www.project25.org/, Digital Mobile Radio (DMR) - https://www.dmrassociation.org/dmr-standards.html, and Citizens Broadband Radio Service (CBRS) standards - https://www.ecfr.gov/cgi-bin/text-idx?
SID=960a62ced28f9e89c169ed12daafa030&mc=true&node=pt47.5.96&rgn=div5. 74 Describe your use of
installation or service partners,
if applicable.

Motorola Solutions utilizes both certified internal employees as well as our certified service partner shops to do installs and maintenance. Deciding which we utilize on each opportunity is dependent on the customer, if they have a preference, and the type of project.

Exceptions to Terms, Conditions, or Specifications Form Only those Proposer Exceptions to Terms, Conditions, or Specifications that have been accepted by Sourcewell have been incorporated into the contract text.

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Bid Number: RFP 042021 Vendor Name: Motorola Solutions, Inc.

Documents
Ensure your submission document(s) conforms to the following:

1. Documents in PDF format are preferred. Documents in Word, Excel, or compatible formats may also be provided.

2. Documents should NOT have a security password, as Sourcewell may not be able to open the file. It is your sole responsibility to ensure that the uploaded document(s) are not either defective, corrupted or blank and that the documents can be opened and viewed by Sourcewell.

3. Sourcewell may reject any response where any document(s) cannot be opened and viewed by Sourcewell.

4. If you need to upload more than one (1) document for a single item, you should combine the documents into one zipped file. If the zipped file contains more than one (1) document, ensure each document is named, in relation to the submission format item responding to. For example, if responding to the Marketing Plan category save the document as "Marketing Plan." Financial Strength and Stability (optional)
Marketing Plan/Samples (optional)
WMBE/MBE/SBE or Related Certificates (optional)
Warranty Information (optional)
Pricing - Sourcewell RFP 042021 Pricing.pdf - Monday April 19, 2021 18:16:04 Upload Additional Document - Sourcewell RFP 042021 Proposal Document.pdf - Monday April 19, 2021 18:19:49

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Bid Number: RFP 042021 Vendor Name: Motorola Solutions, Inc.

Page 321 of 671 ends

Page 322 of 671 ends

City of San Luis Obispo, Council Memorandum
City of San Luis Obispo
Council Agenda Correspondence
DATE: December 10, 2024
TO: Mayor and Council
FROM: Greg Herman, Deputy City Manager
Prepared
by: Robert Hill, Sustainability & Natural Resources Official VIA: Whitney McDonald, City Manager
SUBJECT: ITEM 6A – SAN LUIS OBISPO REPERTORY THEATRE LEASE

AGREEMENT
Staff received the following questions from a Council Member regarding the Council Agenda Report and draft San Luis Obispo Repertory Theatre Lease Agreement that is being presented to Council for consideration of approval. The questions are below with staff’s response shown in italics:

1. What other leases does the City have with not-for-profit organizations? Are the terms with SLO REP typical for 99-year leases?
Over the years, the City has entered into numerous long-term leases of City-owned facilities with not-for-profit community partner organizations for rent of $1 per year where the Council has recognized the public benefits that accrue to the community from those relationships. These leases have different terms and conditions based on the particular characteristics of the site or building facility and the needs of the City and community partner at the time those leases were entered into. These lease agreements also have a range of duration and lease term lengths. At present, the City has $1 per year lease agreements with the San Luis Obispo Repertory Theatre (for the existing “Little Theatre” site), the History Center of San Luis Obispo County, the San Luis Obispo Museum of Art, the San Luis Obispo Children’s Museum, the San Luis Obispo Railroad Museum, City Farm SLO, and the YMCA.

2. What happens if SLO REP were to close or cease as an organization? What happens to the building?
The draft Lease Agreement contains clear language for instances that would constitute a breach of contract at paragraph 34. If SLO REP were to close, cease to exist as an organization, or fail to maintain its non-profit corporate status in good standing, the building and land interest would revert back to the City of San Luis Obispo (following the specified noticing and administrative remedy procedures). In that case, the City would have discretion to identify another tenant and / or use for the building. The draft Lease Agreement also contains other possible options; with City Council approval and at the City Council’s sole discretion, SLO REP could propose operating as a for-profit organization and rent would then be at market

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San Luis Obispo Repertory Theatre Lease Agreement Page 2 rate, and SLO REP could also propose an assignment of the leasehold interest to another organization.

3. Did the City consider any other alternatives for use of the site? The City Council first agreed to work with SLO REP in the 1990s to locate a site for a new downtown theatre and identified this particular site in the early 2000s.

On March 7, 2000, the City Council conceptually approved moving the San Luis Obispo Little Theatre (as it was known at that time) to the subject site and directed staff to negotiate a Memorandum of Understanding. City staff and current and past City Councils have continued to honor this direction and understanding since that time. The use is also consistent with the Downtown Concept Plan (2017) – see Figure 3.1 and Table 3.1, Block 10.

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Item 6a
Department: Administration
Cost Center: 1005
For Agenda of: 12/10/2024
Placement: Public Hearing
Estimated Time: 20 minutes
FROM: Greg Hermann, Deputy City Manager
Prepared By: Robert Hill, Sustainability & Natural Resources Official SUBJECT: SAN LUIS OBISPO REPERTORY THEATRE LEASE AGREEMENT

RECOMMENDATION
Adopt a Draft Resolution entitled, “A Resolution of the City Council of the City of San Luis Obispo, California, finding that a Lease Agreement with San Luis Obispo Repertory Theatre for certain real property owned by the City located at 610 and 614 Monterey Street, a portion of 972 Nipomo Street, and a portion of City Parking Lot No. 14 is of Public Benefit in accordance with California Government Code Section 53078 and approving the Lease Agreement” to:

1. Find that a 99-year lease serves the public interest of the City of San Luis Obispo by advancing arts and culture, economic development, and other public benefits, in accordance with California Government Code Section 53083; and

2. Approve a 99-year Lease Agreement between the City of San Luis Obispo and the San Luis Obispo Repertory Theatre and authorize the City Manager to execute the agreement.

POLICY CONTEXT
SLO REP’s long-standing plans for construction of a new Downtown Theatre project (the “Downtown Theatre”) are consistent with the plans for the Cultural Arts District identified in the City’s Downtown Concept Plan (2017) and the “Economic Resiliency, Cultural Vitality and Fiscal Sustainability” Major City Goal, Strategic Approach 1.4(a), “Continue to work with our community partners to ensure the Cultural Vitality of the City,” as specified in the City’s 2023-25 Financial Plan. The City’s policies for long-term leases of City-owned property are found at Section 475 of the Financial Management Manual, as adopted by City Council (Resolution No. 10175 (2010 Series)).

DISCUSSION
Background
The San Luis Obispo Repertory Theatre (“SLO REP”), previously known as the San Luis Obispo Little Theatre, has been a long-standing tenant of the City’s old library property at 888 Morro Street located next door to City Hall. SLO REP first began to set forth a vision for a new 300-seat community theatre in the early 1990s. In March 2000, the City Council identified several options for such a theatre within what would become known as the Cultural Arts District Parking Structure site located at the corner of Palm and Nipomo Streets and committed to working with SLO REP.

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SLO REP is a strong community partner and local non-profit, including a sound Board and governance structure, professional staff and theatre offerings, and implementation of a significant capital campaign in anticipation of the design, construction, and operating costs associated with the planned move to a new location.

On May 22, 2019, the City and SLO REP entered into an Exclusive Negotiating Agreement (“ENA”) to set the parameters and conditions for SLO REP’s long-term use of a portion of the City property for construction and operation of a new Downtown Theatre where the Cultural Arts District Parking Structure will also be located (Attachment C).

On January 25, 2022, SLO REP submitted to the City Council a formal “Challenge Grant” request for funding in the amount of $3.94 million towards construction of the Downtown Theatre project. At its regularly scheduled meeting on February 15, 2022, the City Council appropriated the requested funding as part of the FY 2021-2022 Mid-Year Budget Review. On April 21, 2022, the City and SLP REP entered into a Grant Agreement for funding in the aggregate amount of $3.94 million (Attachment D).

On January 23, 2024, the City Council made findings pursuant to the California Surplus Land Act, declaring the subject property surplus exempt under California Government Code sections 54221 and 54234 (Resolution No. 11471 (2024 Series)).

On May 22, 2024, the City and SLO REP entered into Amendment No. 1 to the Exclusive Negotiating Agreement to extend the term for an additional one-year term in total, with additional provisions that require a written document that demonstrates an operating reserve of 20% for the first year of operating the Downtown Theatre and a three-year operating plan, including the establishment of a fund for building and facilities maintenance and repair. It was anticipated that the ENA would be replaced by a longterm lease with a term not-to-exceed 99 years when SLO REP can demonstrate that all conditions of the ENA, as amended, have been met (Attachment E).

On May 30, 2024, the City Council received from SLO REP an update to their Challenge Grant request (Attachment F). In making its request for additional funding, SLO REP’s letter describes the following investment rationale:

1. Direct economic impact of more than $4 million annually once fully operational.

2. Attraction of 50,000 people annually to the downtown area.

3. Consistency with Major City Goals for arts and culture, as well as relevant DEI activities through multi-cultural programming, diverse casting, theatre offerings, and support of other local non-profits / community-based organizations.

4. Activation of “Theatre in the Park” events to reach new audiences at no-cost or low-cost at staged outdoor venues such as Mission Plaza or Mitchell Park.

On June 4, 2024, the City Council adopted Resolution No. 11501 (2024 Series) approving the Fiscal Year 2024-25 Budget, including a commitment to providing an additional $2.76 million in grant funding to SLO REP towards the project from the City’s Infrastructure Investment Fund.

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On October 1, 2024, the City Council approved Amendment No. 1 to Grant Agreement, which contractually added the $2.76 million in additional grant funds for a total, combined amount of $6.7 million, and also clarified reporting requirements by SLO REP during the course of construction of the Downtown Theatre that will be due to the City for review (Attachment G).

On October 24, 2024, SLO REP submitted a memorandum to City staff detailing how SLO REP has met and exceeded all applicable fundraising milestones and other applicable conditions precedent to entering into a lease agreement (Attachment B) with the City, per the Exclusive Negotiating Agreement and Amendment No. 1 to the ENA. At this time, SLO REP has provided evidence that it has assembled approximately $14.1 million that can be used towards total project costs (including design, construction, contingency, fees, and operating reserve) of the approximately $17.8 million that is estimated to be needed, or 79% of the overall total (Attachment H). SLO REP reports that additional funding has been secured since their October 24, 2024, memorandum and they reasonably anticipate successfully completing their capital campaign efforts, including a broad-based public campaign, prior to occupancy and construction, as required by the draft Lease Agreement.

Key Highlights of the Lease Agreement
The draft Lease Agreement was developed by both staff from the City and SLO REP, together with each party’s respective legal counsel, and includes the following key deal points and structure, consistent with the Exclusive Negotiating Agreement, as amended, and prior direction from the City Council:

1. The term of the lease is 99 years in accordance with Government Code Section 37380 (see further discussion regarding this statute in the sub-section, below).

2. SLO REP shall pay rent of $1/year.

3. SLO REP shall commence construction of the Downtown Theatre no later than one year after delivery of the premises from the City (upon completion of the Cultural Arts District Parking Structure) and must complete construction within three years thereafter. To commence construction, SLO REP must demonstrate that it has all of the funds necessary to complete the project, including a 15% construction contingency, a 20% operating reserve for the first year, and a threeyear plan to establish a building and facilities maintenance and repair fund.

4. Construction of the Downtown Theatre shall be in accordance with the approved Final Environmental Impact Report for the project, as well as conditions of approval for the architectural designs and improvements and all pertinent building permit requirements.

5. SLO REP shall use the Downtown Theatre primarily for live performances that will serve the cultural, educational and recreational needs of the community and visitors, and may also provide activities and events such as festivals, workshops, public speakers, educational outreach programs, and special events. Admission fees are SLO REP’s discretion. The City shall have a right to make use of the Downtown Theatre on two occasions per year with advance, reasonable notification.

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6. Utilities, maintenance, and ownership of improvements are the responsibility of SLO REP, and the lease also includes provisions for insurance requirements, indemnification, and taxes.

7. SLO REP may only assign the lease with City Council approval, sublet a portion of the leased premises with City Manager approval, and may enter into shortterm rentals up to 30-days in duration at its discretion.

Requirements for Local Government Leases
99-Year Lease Term
Under California Government Code Section 37380, cities are typically allowed to lease property owned by it for a term not to exceed 55 years. However, a city may lease property owned by it for a period exceeding 55 years but not exceeding 99 years if certain conditions set forth in Section 37380 are met. Specifically, a charter city, such as San Luis Obispo, may enter a 99-year lease if the lease is “subject to periodic review by the city [taking] into consideration the then current market conditions. The local legislative body may, prior to final execution of the lease, establish the lease provisions which will be periodically reviewed, and determine when those provisions are to be reviewed.” (Cal.

Gov. Code § 37380(b)(1).) Charter cities are exempt from satisfying the other conditions listed in Section 37380 and instead “…may utilize a procedure as specified by charter or adopted by ordinance in accordance with its charter.” (Id.) Pursuant to Section 37380(b)(1), the draft lease agreement provides that the lease consideration (paragraph 5) and insurance requirements (paragraph 15) shall be subject to review every twenty years to take into consideration then current market conditions and industry standards.

Furthermore, Section 906 of the City’s charter provides that “the City Council, by ordinance or resolution, shall adopt policies and procedures that shall be applicable to the sale of lease of City property." Such policies and procedures are set forth in the City’s Financial Management Manual, which was adopted by Resolution 10052 (2009 Series).

The City’s lease of the land to SLO REP has complied with such policies.

Surplus Land Act
The California Surplus Land Act requires local agencies to prioritize affordable housing, as well as parks and open space, when disposing of “surplus land” (which includes leasing). However, on January 23, 2024, the City Council adopted Resolution No. 11471 (2024 Series) declaring that the proposed lease area is not necessary for the City’s use and is therefore “exempt surplus” land pursuant to California Government Code sections 54221 and 54234. The City’s resolution was forwarded to the California Department of Housing and Community Development for review in accordance with state law and received their concurrence.

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Item 6a
Economic Development Subsidy
Under California Government Code Section 53083, the City is required to provide specified information in written form available to the public, through its website, for any economic development subsidy within its jurisdiction and to provide public notice and a hearing regarding the subsidy. An “economic development subsidy” is defined in relevant part under the Government Code as “any expenditure of public funds or loss of revenue to a local agency in the amount of one hundred thousand dollars ($100,000) or more, for the purpose of stimulating economic development within the jurisdiction of a local agency, including, but not limited to . . . grants . . . [and] land price subsidies.” (Cal. Gov. Code § 53083(g)(1)). The City Council has committed $6,700,000 in grant funding toward the Downtown Theatre and the land lease is being offered at a discounted rate due to the long-standing community partnership with SLO REP and the anticipated public benefit the Downtown Theatre will provide. As such, the grant and lease agreement constitute an “economic development subsidy” and disclosure of the following information and a public hearing are required, as follows (shown in italics):
(1) The name and address of all corporations or any other business entities, except for sole proprietorships, that are the beneficiary of the economic development subsidy, if applicable.

San Luis Obispo Repertory Theatre, A California Non-Profit.

P.O. Box 122
San Luis Obispo, CA 93406
(2) The start and end dates and schedule, if applicable, for the economic development subsidy.

The start date is upon commencement of possession of the leased premises, anticipated in 2026. City of San Luis Obispo grant funding would be expended within three years following commencement of construction. Rent of $1.00 per year is for a 99-year term.
(3) A description of the economic development subsidy, including the estimated total amount of the expenditure of public funds by, or of revenue lost to, the local agency as a result of the economic development subsidy.

The total amount of direct expenditures of public funds is $6,700,000.00. The leased premises is currently vacant land that does not produce revenue. (4) A statement of the public purposes for the economic development subsidy.

The public purpose for the economic development subsidy is to support arts and cultural activities in the downtown area of San Luis Obispo, which is expected to generate direct and indirect local economic impact benefits.

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(5) Projected tax revenue to the local agency as a result of the economic development subsidy.

Projected tax revenue, whether sales tax or property tax, is not yet known.

According to data provided by SLO REP and Americans for the Arts: Arts and Economic Prosperity 6 Survey (January 2024), the operation of the new Downtown Theatre will generate $4 million in economic activity on an annual basis. SLO REP will be subject to possessory interest property tax, however as the Downtown Theatre is not yet constructed, it is not yet known what the assessment and taxing rate will be.
(6) Estimated number of jobs created by the economic development subsidy, broken down by full-time, part-time, and temporary positions.

According to data provided by SLO REP, the operation of the new Downtown Theatre will generate 7 full time positions and 5 full time equivalent positions.

Show-specific artist contracts will generate 16.73 full time equivalent positions, for a total of 28.73 full time equivalent positions comprised of 277 positions hired.

Public Engagement
SLO REP’s Updated Challenge Grant Request was considered as part of the FY 2024- 2025 Supplemental Budget Review at the City Council’s regularly scheduled and noticed meeting. Council considered both public testimony and written correspondence submitted by SLO REP and its supporters detailing their current anticipated budget and necessary funding required to complete the new Downtown Theatre building.

The contractual arrangements specified in the Lease Agreement are considered a matter of routine City business in order to carry out City Council’s priorities; however, any member of the public may provide written comments or in-person testimony addressing this item.

CONCURRENCE
SLO REP’s Board of Directors reviewed the draft Lease Agreement at their Annual Meeting on November 2, 2024, and voted to authorize entering into the Lease Agreement.

The City’s Public Works Department and Community Development Department have also offered their concurrence with the recommended action.

ENVIRONMENTAL REVIEW
Entering into the subject Lease Agreement is not considered a project, in and of itself, under CEQA Guidelines Section 15378. However, the City completed environmental review as lead agency for both its Parking Structure and the Downtown Theatre and certified a Final Environmental Impact Report by Resolution No. 10923 (2018 Series).

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Item 6a

FISCAL IMPACT
Budgeted: Yes Budget Year: 2024-25
Funding Identified: Yes
Fiscal Analysis:

Funding
Sources
Total Budget
Available
Current
Funding
Request
Remaining
Balance
Annual
Ongoing
Cost
General Fund $6,700,000
State
Federal
Fees
Other:

Total $6,700,000 N/A N/A
It is anticipated that the recommended actions of this Council Agenda Report will lead to future fiscal outcomes affecting the City. First, it is important to note the previously approved Grant Agreement and Amendment No. 1 to Grant Agreement represent, collectively, a $6.7 million capital investment in the new Downtown Theatre project by the City, in addition to the provision of the subject land lease at $1 per year. The 99-year lease term also represents a long-term commitment by the City to oversee and attend to the terms and provisions of the lease agreement, though this represents a modest amount of staff time expended on an as-needed and annual basis. Second, these investments are made in reasonable anticipation that the Downtown Theatre will generate $4 million per year in direct economic impact, bring 50,000 patrons to the downtown area annually, advance City Council goals to support arts and culture, multi-cultural programming and education, support other nonprofits and community organizations, and launch a new downtown activation of outdoor theatre offerings.

ALTERNATIVES

1. Council may direct modifications to the draft Lease Agreement to incorporate different terms or requirements.

2. Council could direct staff to make modifications to the draft Lease Agreement and bring it back as an item for future reconsideration. Should Council choose this alternative, it is recommended that a “date certain” be identified, as the term of the existing Exclusive Negotiating Agreement, as amended, is due to expire in May 2025.

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Item 6a

ATTACHMENTS
A - Draft Resolution approving a Lease Agreement with SLO Rep B - Draft Lease Agreement
C - Exclusive Negotiating Agreement 2019
D - Grant Agreement 2022
E - Amendment No. 1 to Exclusive Negotiating Agreement 2024 F - SLO REP “Challenge Grant” letter correspondence 2024 G - Amendment No. 1 to Grant Agreement 2024
H - SLO REP “ENA Requirements” memorandum 2024

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R ______
RESOLUTION NO. _____ (2024 SERIES)

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN LUIS

OBISPO, CALIFORNIA, FINDING THAT A LEASE AGREEMENT WITH

SAN LUIS OBISPO REPERTORY THEATRE FOR CERTAIN REAL
PROPERTY OWNED BY THE CITY LOCATED AT 610 AND 614
MONTEREY STREET, A PORTION OF 972 NIPOMO STREET, AND A
PORTION OF CITY PARKING LOT NO. 14 IS OF PUBLIC BENEFIT IN

ACCORDANCE WITH CALIFORNIA GOVERNMENT CODE SECTION
53078 AND APPROVING THE LEASE AGREEMENT
WHEREAS, the City of San Luis Obispo (“City”) is the owner in fee simple of that certain real property located at 610 and 614 Monterey Street, a portion of 972 Nipomo Street, and a portion of City Parking Lot No. 14 identified as Assessor’s Parcel Nos. 002- 412-011, 002-412-012, 002-412-002 (portion) and 002-412-004 (portion) (collectively, the “Property”); and
WHEREAS, the San Luis Obispo Repertory Theatre (“SLO REP”) has been a longstanding tenant of the City’s property at 888 Morro Street located next door to City Hall.

SLO REP first began to set forth a vision for a new 300-seat community theatre in the early 1990s. In March 2000, the City Council identified several options for such a theatre within what would become known as the Cultural Arts District Parking Structure site located at the corner of Palm and Nipomo Streets and committed to working with SLO REP; and
WHEREAS, on May 22, 2019, the City and SLO REP entered into an Exclusive Negotiating Agreement (“ENA”) to set the parameters and conditions for SLO REP’s longterm use of a portion of the City property for construction and operation of a new Downtown Theatre where the Cultural Arts District Parking Structure will also be located; and
WHEREAS, on January 25, 2022, SLO REP submitted to the City Council a formal “Challenge Grant” request for funding in the amount of $3,940,000 towards construction of the Downtown Theatre project. At its regularly scheduled meeting on February 15, 2022, the City Council appropriated the requested funding as part of the FY 2021-2022 Mid-Year Budget Review. On April 21, 2022, the City and SLP REP entered into a Grant Agreement for funding in the aggregate amount of $3,940,000; and WHEREAS, on January 23, 2024, the City Council made findings pursuant to the California Surplus Land Act, declaring the subject property surplus exempt under California Government Code sections 54221 and 54234 (Resolution No. 11471 (2024 Series)); and

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Resolution No. _____ (2024 Series) Page 2
R ______
WHEREAS, on May 22, 2024, the City and SLO REP entered into Amendment No. 1 to the Exclusive Negotiating Agreement to extend the term for up to a one-year term in total, with additional provisions that require a written document that demonstrates an operating reserve of 20% for the first year of operating the Downtown Theatre and a three-year operating plan, including the establishment of a fund for building and facilities maintenance and repair. The ENA, as amended, anticipates a long-term lease with a term not-to-exceed 99 years when SLO REP can demonstrate that all conditions of the ENA, as amended, have been met; and
WHEREAS, on May 30, 2024, the City Council received from SLO REP an update to their Challenge Grant request. In making its request for additional funding, SLO REP’s letter describes the following investment rationale:

1. Direct economic impact of more than $4 million annually once fully operational.

2. Attraction of 50,000 people annually to the downtown area.

4. Activation of “Theatre in the Park” events to reach new audiences at no-cost or low-cost at staged outdoor venues such as Mission Plaza or Mitchell Park.

WHEREAS, on June 4, 2024, the City Council adopted Resolution No. 11501 (2024 Series) approving the Fiscal Year 2024-25 Budget, including an additional $2.76 million in grant funding to SLO REP towards the project; and WHEREAS, on October 1, 2024, the City Council approved Amendment No. 1 to Grant Agreement, which contractually added the $2.76 million in additional grant funds for a total, combined amount of $6,700,000, and also clarified reporting requirements by SLO REP during the course of construction of the Downtown Theatre that will be due to the City for review; and
WHEREAS, October 24, 2024, SLO REP submitted a memorandum to City staff detailing how SLO REP has met and exceeded all applicable fundraising milestones and other applicable conditions precedent to entering into a lease agreement with the City, per the Exclusive Negotiating Agreement and Amendment No. 1 to the ENA. At this time, SLO REP has provided evidence that it has assembled approximately $14.1 million that can be used towards total project costs (including design, construction, contingency, fees, and operating reserve) of the approximately $17.8 million that is estimated to be needed, or 79% of the overall total; and
WHEREAS, the lease agreement for the Property has been developed by both staff from the City and SLO REP, together with each party’s respective legal counsel, in a manner consistent with the Exclusive Negotiating Agreement, as amended, and prior direction from the City Council (the “Lease Agreement”).

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Resolution No. _____ (2024 Series) Page 3
R ______
NOW, THEREFORE, BE IT RESOLVED by the Council of the City of San Luis Obispo as follows:

SECTION 1. The above recitals are true and correct and are a substantive part of this Resolution.

SECTION 2. Findings.

1. The Lease Agreement set forth in Attachment 1 is hereby approved by the Council of the City of San Luis Obispo and the City Manager is authorized to execute the Lease Agreement upon the effective date of this Resolution.

2. The Lease Agreement serves a public purpose by furthering the City Council’s goal of supporting arts and culture and advancing a Cultural Arts District along lower Monterey Street, as well as the associated economic development benefits that will accrue to the downtown area.

3. The City is authorized to enter into a 99-year term for the Lease Agreement pursuant to California Government Code Section 37380. Paragraph 5 (Consideration) and Paragraph 15 (Insurance Requirements) will be reviewed every twenty years to take into consideration then current market conditions and industry standards.

4. The City has committed $6,700,000 in grant funding toward the Downtown Theatre and rent required under the Lease Agreement is being offered at a discounted rate due to the long-standing community partnership with SLO REP and the anticipated public benefit the Downtown Theatre will provide.

As such, terms included in the Grant Agreement as amended, and the Lease Agreement constitute an “economic development subsidy” as defined by California Government Code Section 53083 and disclosure of the following information and a public hearing are required, as follows (shown in italics):
(1) The name and address of all corporations or any other business entities, except for sole proprietorships, that are the beneficiary of the economic development subsidy, if applicable.

San Luis Obispo Repertory Theatre, A California Non-Profit P.O. Box 122
San Luis Obispo, CA 93406
(2) The start and end dates and schedule, if applicable, for the economic development subsidy.

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Resolution No. _____ (2024 Series) Page 4
R ______
(3) A description of the economic development subsidy, including the estimated total amount of the expenditure of public funds by, or of revenue lost to, the local agency as a result of the economic development subsidy.

The total amount of direct expenditures of public funds is $6,700,000.00. The leased premises is currently vacant land that does not produce revenue.
(4) A statement of the public purposes for the economic development subsidy.

The public purpose for the economic development subsidy is to support arts and cultural activities in the downtown area of San Luis Obispo, which is expected to also generate direct and indirect economic impact benefits.
(5) Projected tax revenue to the local agency as a result of the economic development subsidy.

Projected tax revenue, whether sales tax or property tax, is not yet known. According to data provided by SLO REP and Americans for the Arts: Arts and Economic Prosperity 6 Survey (January 2024), the operation of the new Downtown Theatre will generate $4 million in economic activity on an annual basis. SLO REP will be subject to possessory interest property tax, however as the Downtown Theatre is not yet constructed, it is not yet known what the assessment and taxing rate will be.
(6) Estimated number of jobs created by the economic development subsidy, broken down by full-time, part-time, and temporary positions.

According to data provided by SLO REP, the operation of the new Downtown Theatre will generate 7 full time positions and 5 full time equivalent positions. Show-specific artist contracts will generate 16.73 full time equivalent positions, for a total of 28.73 full time equivalent positions comprised of 277 positions hired.

The public hearing and disclosure of economic development subsidy contained herein have been duly noticed and carried out in accordance with the requirements of California Government Code Section 53083.

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Resolution No. _____ (2024 Series) Page 5
R ______
SECTION 3. Environmental Review. The passage of this resolution will not cause a direct physical change in the environment in and of itself. However, it is reasonably foreseeable that the approval of the Lease Agreement will lead to a physical change in the environment through implementation of the Project described and evaluated in the Final Environmental Impact Report (“FEIR”) that was certified by the City Council by Resolution No. 10923 (2018 Series) pursuant to the requirements of the California Environmental Quality Act
SECTION 4. Lease Agreement. City staff are hereby authorized to execute the Lease Agreement in the form and manner approved by the City Attorney and to duly oversee and carry out the terms and conditions of the Lease Agreement.

Upon motion of Council Member ___________, seconded by Council Member ___________, and on the following roll call vote:

AYES:

NOES:

ABSENT:

The foregoing resolution was adopted this _____ day of _______________ 2024. ___________________________
Mayor Erica A. Stewart
ATTEST:
______________________
Teresa Purrington
City Clerk
APPROVED AS TO FORM:
______________________
J. Christine Dietrick
City Attorney
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Luis Obispo, California, on ______________________. ___________________________
Teresa Purrington
City Clerk

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- 1 -

LEASE AGREEMENT
City of San Luis Obispo and San Luis Obispo Repertory Theatre THIS LEASE AGREEMENT (the “Lease”) is entered into between the City of San Luis Obispo a political subdivision of the State of California (hereinafter referred to as “City” or “Lessor”) and San Luis Obispo Repertory Theatre, Inc., a California non-profit corporation (hereinafter referred to as “Lessee” or “SLO REP”) and will replace and supersede all previous agreements between City and Lessee with respect to the Premises hereinafter described.

RECITALS
WHEREAS, the City owns certain real property located at the corner of Palm and Nipomo Streets in the City of San Luis Obispo, as shown on Exhibit “A” attached hereto and incorporated herein by reference (hereinafter referred to as the “Premises”); and WHEREAS, Lessee is a 501(c)(3) non-profit corporation whose mission is to strengthen theatre’s cultural influence and enrich the Central Coast by producing professional theatre, nurturing artists and providing theatre education for children and adults; and WHEREAS, the location of the Premises is ideal for the development of a new live performance theatre contiguous with the City’s planned Cultural Arts District Parking Structure; and
WHEREAS, development of the Premises in accordance with Lessee’s existing conceptual plan into a premiere live performance venue (the “Downtown Theatre”) will require substantial grant and private donor funding; and
WHEREAS, a stable Lease with a 99-year term will help to ensure the longevity of the Downtown Theatre and will provide the opportunity for the Downtown Theatre to qualify for a broader array of funding; and
WHEREAS, the City recognizes the public benefit associated with the development of the Downtown Theatre; and
WHEREAS, on the City completed environmental review as lead agency for both its Cultural Arts District Parking Structure and the Downtown Theatre and certified a Final Environmental Impact Report by Resolution No. 10923 (2018 Series) and subsequently approved the architectural designs and related improvements, with conditions, made by Resolution No. 11059 (2019 Series); and
WHEREAS, on May 22, 2019, the City and SLO REP entered into an Exclusive Negotiating Agreement (“ENA”) to set the parameters and conditions for SLO REP’s long-term use of a portion of the City property for construction and operation of a new live performance venue where the Cultural Arts District Parking Structure will also be located; and WHEREAS, on January 25, 2022, SLO REP submitted to the City Council a formal

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“Challenge Grant” request for funding in the amount of $ 3,940,000 towards construction of the Downtown Theatre project. At its regularly scheduled meeting on February 15, 2022, the City Council appropriated the requested funding as part of the FY 2021-2022 Mid-Year Budget Review. On April 21, 2022, the City and SLO REP entered into a Grant Agreement for funding in the aggregate amount of $3,940,000; and
WHEREAS, on January 23, 2024, the City Council made findings pursuant to the California Surplus Land Act, declaring the subject property surplus exempt under California Government Code sections 54221 and 54234 (Resolution No. 11471 (2024 Series); and WHEREAS, on May 22, 2024, the City and SLO REP entered into Amendment No. 1 to the Exclusive Negotiating Agreement to extend the term for up to a one-year term in total, with additional provisions that require a written document that demonstrates an operating reserve of 20% for the first year of operating the new theatre and a three-year operating plan, including the establishment of a fund for building and facilities maintenance and repair; and WHEREAS, on May 30, 2024, the City Council received from SLO REP an update to their Challenge Grant request. In making its request for additional funding, SLO REP’s letter describes the following investment rationale:

1. Direct economic impact of more than $4 million annually once fully operational.

2. Attraction of 50,000 people annually to the downtown area.

4. Activation of “Theatre in the Park” events to reach new audiences at no-cost or low-cost at staged outdoor venues such as Mission Plaza or Mitchell Park.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows:

1. Recitals. Each and every recital above is true and correct and hereby incorporated into this Lease.

2. Premises: City hereby leases to Lessee, and Lessee hereby hires and takes from City, for the term and upon the conditions hereinafter set forth, the Premises which shall be vacant and unimproved as of the commencement of the term. Any objection by Lessee to the

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condition, improvements, or prior occupancy of the Premises shall be deemed waived if not made within sixty (60) days following the City’s delivery of possession of the Premises to Lessee following completion of the construction of the Cultural Arts District Parking Structure (“Completion of the City Project.”)

3. Quiet Possession: City shall place Lessee in quiet possession of the Premises following Completion of the City Project, and subject to Lessee performing and observing all applicable conditions and covenants as contained in this Lease, City shall secure to Lessee the quiet possession of the Premises during the term hereof against all persons claiming the same.

4. Term: The term of this Lease shall be for a period of ninety-nine (99) years, unless earlier terminated pursuant to the provisions of this Lease. The term shall commence upon Completion of the City Project and delivery of the Premises to Lessee following the execution of this Lease by the San Luis Obispo City Manager and shall terminate ninety-nine (99) years thereafter. In accordance with California Government Code Section 37380, as may be amended from time to time, Sections 5 and 15 of this Lease shall be subject to review every twenty (20) years by the City and shall take into consideration the then current market conditions and industry standards.

5. Consideration: As consideration for the use and occupancy of the Premises, Lessee shall establish, construct and hereafter maintain a venue for live performances. In further consideration for the use and occupancy of the Premises as identified in Paragraph 7 herein, the use of said Premises shall be for the benefit of the public and shall serve the cultural, educational, and recreational needs of the City’s residents, their families and out-oftown visitors. Lessee shall pay rent of $1.00/year, which in the event of a material and uncured breach by Lessee, at City’s option, City may increase to an amount equal to the fair market rental value of the improved Premises as determined by averaging a qualified appraiser's appraisal selected by City with such appraisal selected by Lessee, or at the City’s option, the City may pursue termination of the Lease for such material breach pursuant to Section 34. In further consideration of City’s grant funds awarded towards construction of the Downtown Theatre, Lessee has offered to conduct new “Theatre in the Park” events at staged, outdoor venues, the terms and conditions of which shall be documented under separate agreement between Lessee and City.

6. Construction of Theatre: Lessee shall commence construction of the Downtown Theatre no later than one (1) year after delivery of possession of the Premises to Lessee and following the completion of the Cultural Arts District Parking Structure and Lessee shall complete construction of the Downtown Theatre within the three (3) years thereafter, unless extended by mutual agreement in writing by the parties, notwithstanding any conflicting prior term agreed upon by the parties. Lessee shall not commence construction of the Downtown Theatre unless Lessee demonstrates, to the City’s Finance Director’s reasonable satisfaction prior to commencement of construction, that Lessee has all of the funds necessary to design and construct the Theatre, plus a 15% construction contingency, available in cash or approved financing (the “Required Funds”), and Lessee shall also submit to the City Manager (or their delegate) a written document that demonstrates a 20% operating reserve for the first year of operating the Downtown Theatre together with a three year operating plan including the establishment of a building and facilities maintenance and repair reserve fund. Lessee’s failure

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to comply with this term upon requisite notice and opportunity to cure as stated in Section 34 would be considered a material breach of the Lease.

7. Use of Premises: The Premises shall be used for the primary purpose of establishing, constructing, managing, operating, and maintaining facilities for live performances that will serve the cultural, educational and recreational needs of local residents and out- of-town visitors and guests. Lessee shall also have the right to conduct and/or provide other related activities and events such as festivals, workshops, public speakers, educational outreach programs and special events (e.g., festivals, concerts, weddings, comedy nights, fund raisers, etc.), provided such uses are consistent with applicable City ordinances and regulations and Lessee complies with all applicable City permit requirements and processes, including but not limited to special event and use permitting requirements. Activities beyond those described above are subject to the prior written approval of the City Manager or their designee (hereinafter collectively referred to as “City Manager”). In the event that any activity or special event causes or creates an objective concern for life, health, safety or compatibility with the surrounding City facilities and adjacent private and public properties, City shall have the right to terminate authorization for such activity or event.

8. Admission Fees: Lessee shall have the right to charge admission or other fees for access to, and use of, the Premises as may from time to time be determined by Lessee. All admission, access and use fees charged by Lessee shall be retained by Lessee to offset operating and maintenance costs, or for such other purposes as may from time to time be designated by Lessee in the sole discretion of Lessee. City shall have a right to make use of the Downtown Theatre on two (2) one (1) day occasions per year with advance, reasonable notification and accommodation of SLO REP’s then existing scheduling and calendar of events, at no cost to City.

9. Utilities: City shall not be required to furnish any service to the Premises, including but not limited to heat, water, electrical, natural gas and garbage disposal, and shall not be liable for any failure of water supply or of any service by any utility. Lessee shall be responsible for establishing all required utilities and all costs relative to the installation and use of such utility services. Lessee shall place all utilities in the name of Lessee, and Lessee agrees to promptly pay all charges for all utilities and services used or charges imposed in or about or supplied to the Premises, and shall defend, indemnify and hold harmless the City against any and all liability on such account.

10. Maintenance: Lessee, at Lessee’s sole cost and expense, shall maintain and keep the Premises and every structural portion thereof, including all interior and exterior features, in a good state of repair during the term of this Lease and shall not, at any time, commit or suffer to be committed any waste, nuisance, or unlawful act thereon. City shall have the right to inspect the Premises at any reasonable time to protect the health, safety and welfare of individuals using the Premises. Lessee shall promptly repair or correct any such maintenance or repair problem(s) identified in writing by the City Manager. Should Lessee fail or neglect to make such repairs as necessary to protect the health, safety or welfare of individuals using the Premises, the City Manager may, after thirty (30) calendar days written notice to Lessee, make said repairs and charge Lessee for same, except in the event that such repairs cannot reasonably be completed within said thirty days, and Lessee timely commences such repairs and diligently

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pursues completion of the same thereafter. Following completion of any such repairs by the City, Lessee shall reimburse City for said costs upon demand. City shall not forfeit any right under this Lease if it does not elect to make said repairs.

11. Signs: Lessee, at its sole cost, shall have the right to place, construct and maintain signs on the Premises, advertising the Theatre, as well as events and performances at the Theatre.

However, no permanent signage, structures, or improvements shall be so placed without the prior written consent of the City Manager. Notwithstanding consent of the City Manager, any sign that Lessee has the right to place, construct, and maintain shall comply with all applicable federal, state and local laws and ordinances, and Lessee shall obtain any approval required by such laws and ordinances prior to such placement or construction. City makes no representation with respect to Lessee’s ability to obtain such approval. Lessee agrees to place signage acknowledging City’s financial contributions to the Downtown Theatre, which may be included with any other acknowledgement of major donors.

12. Construction on Premises: All construction on the premises shall be conducted and carried out in accordance with the certified Final Environmental Impact Report prepared for the Cultural Arts District Parking Structure and the Downtown Theatre approved by City Council Resolution No. 10923 (2018 Series) and the subsequent approval of the architectural designs and related improvements, with conditions, made by Resolution No. 11059 (2019 Series), as has been and may be amended or addended from time to time.

All structural: (i) construction, (ii) capital improvements, or (iii) alteration made to the Premises, other than those that are incident to the maintenance and care of the Premises, or construction activities related solely to specific uses which do not require a building permit, shall be administered as follows:

A. Subject to subsection (C), Lessee shall have the right, at Lessee’s sole cost and expense, to construct structural improvements and/or alterations of the Premises, or any portion thereof, in a manner consistent with the use of the Premises as set forth herein, subject to the prior review and written approval of the City Community Development Department.

B. Prior to such structural construction, improvements, and/or alterations, Lessee shall acquire all necessary building and construction permits including, but not limited to, required permits from the City Community Development Department and other applicable licenses through normal governmental procedures.

C. No such structural construction, improvements or alterations shall be made to the Premises or any portion thereof without the submission to, and prior written approval of, the plans by the City Manager. Lessee shall also submit such other documents, including, but not limited to, specifications, working drawings, and other information required by the City Manager covering the project to be constructed by Lessee. Lessee shall submit the plans to the City Manager at least thirty (30) days in advance of the application for permits for any such projects.

If the City Manager objects to all or any portion of such plans, the City Manager shall state the objections specifically and in writing, and the Lessee shall make the changes specified and resubmit the plans as revised for the City Manager’s approval as herein provided. The approval of any Plans by the City Manager shall constitute an action of the City in its proprietary capacity

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only and shall in no way be construed as an approval of the development or building permit application as required by the Community Development Department or excuse Lessee from complying with any laws, rules, regulations and ordinances regarding the development and use of the Premises.

D. Nothing herein shall be construed to be a waiver of formal City building and land use review procedures and Lessee shall comply fully with same at Lessee’s sole cost and expense.

E. The plans shall comply with industry standards for such construction, alterations, and/or improvements, and shall conform to such rules and regulations necessary to protect the health, safety, and welfare of the public.

F. Any contractor or subcontractor responsible to Lessee shall at all times be in compliance with the insurance requirements specified in Section 15.

13. Ownership of Improvements: The ownership of all approved improvements constructed by the Lessee shall remain vested in Lessee until expiration or sooner termination of the term of this Lease.

At the expiration or earlier termination of this Lease, all alterations, modifications, or improvements upon the Premises (except those “tenant improvements” referenced below), whether made by City or Lessee shall, absent any agreement between the City and Lessee to the contrary, or unless City otherwise elects, which election shall be made by giving a notice in writing not less than fifteen (15) working days prior to the expiration or other termination of this Lease, become the property of City and shall, without compensation to Lessee, become City property free and clear of all claims to or against the improvements by Lessee or any third person. Lessee shall defend, indemnify, and hold harmless the City against all liability and loss arising from such claims or from the City’s exercise of the rights conferred by this paragraph; in the event the City so elects, City shall be responsible for the removal of said improvements after the termination of the expiration of the tenancy.

With respect to Lessee owned tenant improvements (such as signage) or fixtures, at the termination of this Lease, City may notify Lessee to remove any or all of the alterations, additions, fixtures, or tenant improvements made by Lessee. Lessee shall do so, at Lessee’s sole cost and expense, and shall promptly repair any damage caused by such removal in a first-class manner. Removal is to be completed no later than sixty (60) days from the date of said notice or at such further time as City may agree to in writing. In the event Lessee fails to remove any or all of the alterations, additions, fixtures, or tenant improvements required by City, City may remove same and charge Lessee for the cost of such removals and Lessee hereby agrees to pay any and all such costs upon demand.

Notwithstanding the foregoing, City and SLO REP acknowledge that, once the Cultural Arts District Parking Structure and the Downtown Theatre construction is complete, that two (2) subterranean stormwater facilities will be in place below the Premises. One of the stormwater facilities is in service to the Cultural Arts District Parking structure and all maintenance and ownership responsibilities thereof shall be borne by City. The City shall have the right, upon

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reasonable notice to the Lessee, or immediately in emergent situations, to enter the Premises as necessary to access such stormwater facility for annual inspection and maintenance or other legitimate purposes. The other stormwater facility is in service to the Downtown Theatre and all maintenance and ownership responsibilities thereof shall be borne by SLO REP. City's stormwater facility is shown on Exhibit A.

14. Protection on Premises: Lessee agrees to take all reasonable precautions to protect the Premises from damage, theft, vandalism and other such hazards. Reasonable precautions include but are not limited to Lessee consulting with the City of San Luis Obispo Police Department regarding increasing safety through environmental design.

15. Insurance: Lessee shall obtain and maintain for the entire term of this Lease insurance complying with the provisions of this paragraph. Lessee shall furnish to City a certificate from the insurance carrier showing insurance covering this Lease to be in full force and effect as a condition precedent to this Lease becoming effective.

Said policies shall be issued by companies authorized to do business in the State of California, and Lessee shall provide annual updates of its current Certificate of Insurance. Lessee shall provide the following coverage with the following features in accordance with Exhibit B, attached hereto and incorporated by reference. If Lessee fails or refuses to procure or maintain the insurance required by this Lease or fails or refuses to furnish City with the certifications required herein, City shall have the right, at its option, to terminate this Lease in accordance with Section 34.

16. Subordination: The City will not subordinate its interest in the Premises to any Lessee mortgages, deeds of trusts, or other financing that may be recorded against the Premises. Lessee shall not enter into any instrument or agreement purporting to subordinate the City’s interest in the Premises.

17. Mechanic’s Liens: Lessee shall keep the Premises free of mechanics and materialmens’ liens and other liens of like nature other than liens created or claimed by reason of any work done by or at the insistence of the City, pursuant to the City’s ability to do so under Section 10.

18. Indemnification: Lessee shall defend, indemnify and hold harmless the City, its officers, and employees from any and all claims and demands, costs, expenses, judgments, attorney fees or liabilities that may be asserted by any person or entity that arise out of or in connection with the acts or omissions relating to the performance of any obligation or duty provided for or relating (directly or indirectly) to this Lease, the tenancy created under this Lease, or the Premises hereunder. However, this indemnity will not extend to any claims or losses arising out of the gross negligence or willful misconduct of the City, its officers and employees.

Furthermore, any deficiency for which the City is threatened or assessed with respect to the construction of the Downtown Theatre by Lessee, pursuant to Section 1720 of the California Labor Code (or its successor) shall be indemnified, defended, held harmless by Lessee.

The preceding paragraph applies to any theory of recovery relating to said act or omission by the Lessee, or its agents, employees or other independent contractors directly responsible to Lessee, including, but not limited to, the following:

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A. Violation of statute, ordinance, or regulation.

B. Professional malpractice.

C. Willful, intentional or other wrongful acts, or failures to act.

D. Negligence or recklessness.

E. Furnishing of defective or dangerous products.

F. Premises liability.

G. Strict liability.

H. Violation of civil rights.

I. Violation of any federal or state statute, regulation, or ruling resulting in a determination by the Internal Revenue Service, California Franchise Tax Board or any other California public entity responsible for collecting payroll taxes, when the Lessee is not an independent contractor.

It is the intent of the parties to provide the City the fullest indemnification, defense, and hold harmless rights allowed under the law. If any word(s) contained herein are deemed by a court to be in contravention of applicable law, said word(s) shall be severed from this Lease and the remaining language shall be given full force and effect.

19. Taxes: During the term of this Lease, Lessee hereby agrees to pay, prior to delinquency, all taxes and assessments, including both general and special, properly levied or assessed against the Premises and in connection with the Premises and Lessee’s operation thereof, including without limitation, taxes on Lessee’s possessory interest hereunder or in the Premises, and taxes or assessments on all structures, improvements, and fixtures now or hereinafter existing on the Premises, and on any personal property situated in, on, or about the Premises, or in, on or about any structures or improvements thereon. Lessee is hereby informed that a possessory interest subject to property taxation may be created by this Lease and that the party to whom the possessory interest is vested may be subject to the payment of property taxes levied on such interest. Lessee hereby agrees to pay such taxes prior to delinquency.

20. Assignment/Subletting/Short-Term Rental: Except as otherwise herein specifically provided, Lessee shall neither transfer nor execute an assignment of this Lease for the Premises, nor grant any interest or privilege whatsoever in connection with this Lease without the prior written consent of the City Council. An “assignment” or “transfer” is defined herein to mean the complete transfer of the leasehold interest and rental rights from Lessee to a third-party renter. Lessee shall have the right at all times to sublet the Premises to other entities with the consent of the City Manager, for a term not to exceed one (1) year, provided that the subletting entity’s proposed uses comply with the Lessee’s uses as provided herein and that the sublease contains insurance, defense and indemnification in substantial conformance with the terms of this Leases and the City is made an express beneficiary of such provisions. “Sublet” is defined herein to mean the partial transfer of rental rights under this Lease from Lessee to a third-party renter, for a temporary period of more than 30 days and for only a portion of the Premises. Lessee shall have the right, at all times, and in its sole discretion, to rent the Premises to other entities, on a short-term basis not to exceed 30 days, provided Lessee maintains all responsibilities and obligations of this Lease during such short-term rental.

21. Environmental Matters/Covenants Regarding Hazardous Materials: Lessee and

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City shall at all times and in all respects comply with all federal, state and local laws, ordinances and regulations (“Hazardous Materials Laws”) relating to industrial hygiene, environmental protection or the use, analysis, generation, manufacture, storage, disposal or transportation of any oil, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including without limitation, any “hazardous substances,” “hazardous wastes,” “hazardous materials,” or “toxic substances” under such laws, ordinances or regulations (collectively, “Hazardous Materials”).

Lessee shall, except in the event of City’s negligence or intentional wrongdoing, indemnify, defend, protect, and hold City and each of City’s officers, City Manager, employees, agents, attorneys, successors and assigns, free and harmless from and against any and all claims, liabilities, penalties, forfeitures, losses or expenses or death of or injury to any person or damage to any property whatsoever, arising from or caused in whole or in part, directly or indirectly, by:

A. The discharge in or from the Premises of any Hazardous Materials or Lessee’s use, analysis, storage, transportation, disposal, release, threatened release, discharge or generation of Hazardous Materials to, in, on, under, about or from the Premises, or B. Lessee’s failure to comply with any Hazardous Materials Law. Lessee’s obligations hereunder shall include, without limitation, and whether foreseeable or unforeseeable, all costs of any required or necessary repair, cleanup or detoxification or decontamination of the Premises, and the preparation and implementation of any closure, remedial action or other required plans in connection therewith associated with conditions caused by Lessee shall survive the expiration or earlier termination of the term of this Lease. For purposes of the release and indemnity provisions hereof, any acts or omissions of Lessee, or by employees, agents, assignees, contractors or subcontractors of Lessee or others acting for or on behalf of Lessee (whether or not they are negligent, intentional, willful or unlawful) shall be strictly attributable to Lessee.

22. Condemnation: If the whole of the Premises shall be taken or condemned by any competent authority under power of eminent domain for a public or a quasi-public use or purpose, then the leasehold estate hereby created shall cease and terminate as of the date actual physical possession of the Premises is taken by the condemnor. All compensation and damages awarded for such total taking shall belong to and be the sole property of City, provided, however, that Lessee shall be entitled to receive a sum attributable to the taking of: (i) the remaining value of the Premises’ improvements constructed by Lessee, adjusted for depreciation and less total grants provided by the City to Lessee towards construction of the same; and (ii) the damage to Lessee’s equipment, fixtures, or any improvements to the Premises which Lessee would have had, but for the condemnation, the right to remove on expiration or sooner termination of this Lease. Upon termination of the Lease by a total taking all rental and other charges payable by Lessee to or on behalf of City under the provisions of this Lease shall be paid up to the date on which actual physical possession of the leased Premises shall be taken by the condemnor, and the parties hereto shall thereafter be released from all further liability in relation thereto.

In the event that there shall be partial taking of the leased Premises during the lease term under the power of eminent domain, this Lease shall terminate as to the portion of the released premises so taken on the date when actual physical possession of said portion is taken by the

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condemnor. At Lessee’s option, this Lease shall continue in force and effect as to the remainder of the leased Premises. In the event of such partial taking, all compensation and damages for such partial taking shall belong to and be the sole property of City, provided, however, that Lessee shall be entitled to receive any award made for (i) the remaining value of the portion of the Premises’ improvements constructed by Lessee, adjusted for depreciation and less total grants provided by the City to Lessee towards construction of the same; and (ii) the taking of, or damage to, Lessee’s equipment, fixtures, and any improvements made by Lessee to the leased Premises which Lessee would have had, but for the condemnation, the right to remove on expiration or sooner termination of this Lease. In the event that this Lease is retained as to the portion of the leased Premises not condemned, any award made for alteration, modifications or repairs which may be reasonably required in order to place the remaining portion of the leased Premises not taken in a suitable condition for the continuance of Lessee’s tenancy shall belong to and be the sole property of City, but shall be utilized by the City to perform such necessary alterations, modifications and repairs.

23. Destruction of Premises: Should any matter or condition beyond the control of the parties hereto, such as war, public emergency, or calamity, data breach or similar event, fire, earthquake, flood, act of God, strike, pandemic, or any other labor disturbance, prevent performance of this Lease in accordance with the rights and privileges granted herein, this Lease shall, at Lessee’s option, be immediately be terminated and neither party shall be under any further legal obligation to the other by reason of said matter or condition.

Should any aforementioned matter or condition create eligibility for Federal, State, or any other governmental jurisdictional relief assistance and/or aid, both parties agree to take all reasonable steps necessary to procure such assistance and/or aid, in their respective capacities at the time of such application.

24. Law: This Lease has been executed and delivered in the State of California and the validity, enforceability and interpretation of any of the clauses of this Lease shall be determined and governed by the laws of the State of California.

25. Lessee’s Responsibility for Compliance: Lessee shall at all times observe and comply with, and shall cause all their agents, employees and sub-contractors to observe and comply with all present and future laws, statutes, ordinances, regulations, rules, resolutions, or other binding enactments of any governmental authority, now or at any time during this Lease and any extensions thereof. If any future laws, rules, regulations or ordinances are passed by the City and said legislative enactment has any impact fiscal or otherwise on Lessee, and if Lessee does not make a timely objection to City during the course of legislative process, Lessee will be deemed to have waived any right to object at a later time and waives all damages flowing therefrom.

26. Venue: The duties and obligations of the parties created hereunder are performable in San Luis Obispo County, and such County shall be the venue for any action or proceeding that may be brought or arise out of or in connection with or by reason of this Lease.

27. Surrender: Lessee hereby acknowledges that upon expiration of the term of this Lease, neither Lessee or the City shall not be under any obligation to operate the Theatre or

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provide any of the services mentioned in this Lease.

28. Employment Status: Neither Lessee nor any of Lessee’s agents or contractors are or shall be considered to be employees or agents of City in connection with the performance of Lessee’s rights and obligations under this Lease.

29. Non-Discrimination: Lessee and City shall not discriminate against any person or class of persons in violation of the Civil Rights Act of 1964 as amended or any other applicable laws prohibiting discrimination in the use of the Premises.

30. Drug Free Workplace: Lessee and Lessee’s employees shall comply with City’s policy of a drug free workplace. Neither Lessee nor Lessee’s employees shall unlawfully manufacture, distribute, dispense, possess, or use controlled substances, including but not limited to marijuana, heroin, cocaine, methamphetamine, or amphetamines at any of Lessee’s facilities or City facilities or work sites. If any employee of Lessee is found to be under the influence of or in possession of any illegal substance at or on City’s premises, that employee may not return to any of City’s premises. If Lessee becomes aware that any of Lessee’s employees, during the course of their employ with Lessee, are convicted or plead nolo contendere to a criminal substance-abuse statute, Lessee shall be responsible for notifying the City Manager within seventy-two (72) hours of becoming aware of said conviction or plea. Violation of this notification provision shall constitute grounds for termination of this Lease.

31. Americans with Disabilities Act: The Lessee acknowledges the passage of the Americans With Disabilities Act of 1990, 42 U.S.C. sect. 12101 et seq., (“ADA”). Lessee, as required bylaw, hereby agrees and is required to install any and all equipment, perform any and all alterations, improvements or modifications to the Premises such that the Premises are in strict compliance with ADA requirements.

32. Holding Over: In the event that Lessee shall hold over after expiration of the term of this Lease or any extension or renewal thereof, with the consent, express or implied, of City, such holding over shall be deemed merely a tenancy from month-to-month on the terms, covenants, and conditions, so far as applicable, and subject to the same exceptions and reservations, as herein contained, until such tenancy is terminated in a manner prescribed by law.

33. Notices: All notices to Lessee shall be given in writing personally or by depositing the same in the United States mail, postage prepaid, or by certified or registered mail, return receipt requested, and addressed to Lessee at:

San Luis Obispo Repertory Theatre
3533 Empleo Street
San Luis Obispo, California, 93401
Attention: Managing Artistic Director
All notices to City shall be given in writing personally or by depositing the same in the United States mail, postage prepaid, or by certified or registered mail, return receipt requested, and addressed to:

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City of San Luis Obispo
990 Palm Street
San Luis Obispo, California, 93401
Attention: City Manager
Either party can change address by notifying the other party in writing.

34. Breach: Notwithstanding any other provisions contained herein, City may cancel and terminate this Lease or, at the City’s option, raise the rent to fair market rates for neighboring commercial uses if Lessee shall fail, neglect, or refuse to perform and obey any material term or condition set forth in this Lease, including but not limited to, failure to construct and thereafter operate the Premises as a live performance venue for the benefit of the public as herein provided, failure to maintain its non-profit corporate status in good standing or its taxexempt status under applicable state and federal law, and failure to commence and complete construction of the Theatre as specified herein, or failure to comply with paragraph 15, provided the City Manager has given to Lessee written notice of thirty (30) days to do so, unless such failure, neglect, or refusal by nature cannot be remedied within thirty (30) days following said notice and Lessee has within thirty (30) days following the notice commenced and does thereafter continue diligent efforts to remedy such failure, neglect, or refusal. Minor administrative errors, oversights, or omissions related to the performance of this Lease shall not constitute a material breach but shall be subject to a thirty (30) day notice to correct. Any waiver by City of any failure by Lessee to comply with the terms and conditions of this Lease shall not be construed to be a waiver by City of any similar or other failure by Lessee to comply with any other term or condition hereof.

35. Waiver of Claim: Lessee hereby waives any claim against the City, its officers, agents or employees for damage or loss caused by any suit or proceeding directly or indirectly attacking the validity of this Lease, or any part thereof or by any judgment or award in any suit or proceeding declaring this Lease null, void or voidable, or delaying the same or any part thereof from being carried out.

36. Provisions Deemed Covenants and Conditions: The parties hereto agree that all the provisions hereof are to be construed as covenants and conditions as though the words importing such covenants and conditions are used in each instance, and that all of the provisions hereof shall bind and inure to the benefit of the parties hereto and their respective heirs, legal representative, successors and assigns.

37. Severability: The invalidity of any provision of this Lease shall not affect the validity, enforceability of any other provision of this Lease.

38. Entire Agreement and Modifications: This Lease embodies the whole Lease between the parties hereto as it pertains to the subject real property and there are no promised terms, conditions, or obligations referring to the subject matter hereof, other than as contained herein. Any alterations, changes or modifications to this Lease must be in writing and executed by both Lessee and City.

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39. Lessee’s Termination Rights: If, during the term of this Lease, Lessee is no longer financially capable of conducting the agreed uses at the Premises, or the Premises are no longer of a sufficient size for Lessee’s projected agreed use of the Premises, Lessee shall have the right to surrender the Premises to the City upon one hundred and eighty (180) days written notice to the City, and shall thereafter have no further obligations to the City under the terms of this agreement, provided that the Premises are timely surrendered to the City in accordance with the terms of the notice, in a broom clean condition subject only to reasonable wear and tear.

IN WITNESS WHEREOF, the parties hereto have executed this Lease this day of 2024.

CITY OF SAN LUIS OBISPO, A

MUNICIPAL CORPORATION
By: ___________________________
Whitney McDonald, City Manager

SAN LUIS OBISPO REPERTORY

THEATRE, A CALIFORNIA NON- PROFIT

CORPORATION
By: _______________________
Kevin Harris, Managing Artistic Director
APPROVED AS TO FORM:

By: ___________________________
Christine Dietrick, City Attorney

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Exhibit A
Lease Area
Certain real property located at 610 and 614 Monterey Street, a portion of 972 Nipomo Street, and a portion of City Parking Lot No. 14 identified as Assessor’s Parcel Nos. 002-412-011, 002- 412-012, 002-412-002 (portion) and 002-412-004 (portion), as depicted below.

San Luis Obispo Repertory Theatre – Lease Area

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1 EXHIBIT B
Lease Agreement
City of San Luis Obispo and San Luis Obispo Repertory Theatre

INSURANCE REQUIREMENTS
Without limiting San Luis Repertory Theatre’s (“SLO REP”) indemnification of the City of San Luis Obispo (“City”), and prior to commencement of the term of the Lease, SLO REP shall obtain, provide, and maintain at its own expense during the term of this Lease Agreement (“Agreement”), policies of insurance of the type and amounts described below in a form satisfactory to City.

General liability insurance. SLO REP shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted.

Workers’ compensation insurance. SLO REP shall maintain Workers’ Compensation Insurance (Statutory Limits) and Employer’s Liability Insurance (with limits of at least $1,000,000). SLO REP shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers.

Property insurance. Upon commencement of construction of SLO REP’s improvements and betterments, or installation of equipment, with approval of City, SLO REP shall obtain and maintain insurance on SLO REP’s improvements and betterments. Policy shall be provided for replacement value on an “all risk” basis. There shall be no coinsurance penalty provision in any such policy.

Commercial property insurance covering the leased premises, fixtures, equipment, building, all property situated in, on, or constituting a part of the premises and any improvements.

Coverage shall be at least as broad as the Insurance Services Offices broad causes of loss form CP 10 20 and approved of in writing by City. Coverage shall be sufficient to insure 100% of the replacement value and there shall be no coinsurance provisions. The policy shall include an inflation guard endorsement, 100% rents coverage, contents coverage, coverage for personal property of others, ordinance or law and increased cost of construction coverage. City shall be included as an insured and as loss payee on any such insurance. City shall not be liable for any business income or other consequential loss sustained by SLO REP. City shall not be liable for any loss of SLO REP’s personal property even if such loss is caused by negligence of City, City’s employees, or agents.

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2 Proof of insurance. SLO REP shall provide certificates of insurance and required endorsements to City as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of the term of the Lease. Current certification of insurance shall be kept on file with City for the contract period and any additional length of time required thereafter. City reserves the right to require complete, certified copies of all required insurance policies, at any time.

Duration of coverage. SLO REP shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with the performance of the activities allowed by the Lease by SLO REP, their agents, representatives, employees, or subconsultants.

Primary/noncontributing. Coverage provided by SLO REP shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect it as a named insured.

City’s rights of enforcement. In the event any policy of insurance required under this Agreement does not comply with these specifications or is canceled and not replaced, City has the right but not the duty to obtain the insurance it deems necessary, and any premium paid by City will be promptly reimbursed by SLO REP. In the alternative, City may cancel this Agreement.

Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager.

Waiver of subrogation. All insurance coverage maintained or procured pursuant to this agreement shall be endorsed to waive subrogation against City, its elected or appointed officers, agents, officials, employees, and volunteers or shall specifically allow SLO REP or others providing insurance evidence in compliance with these specifications to waive their right of recovery prior to a loss. SLO REP hereby waives its own right of recovery against City and shall require similar written express waivers and insurance clauses from each of its subconsultants.

Enforcement of contract provisions (non estoppel). SLO REP acknowledges and agrees that any actual or alleged failure on the part of the City to inform SLO REP of non-compliance with any

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3 requirement imposes no additional obligations on the City nor does it waive any rights hereunder.

Requirements not limiting. 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 SLO REP maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by the SLO REP.

Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City.

Notice of cancellation. SLO REP agrees to oblige its insurance agent or broker and insurers to provide the City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of the SLO REP’s insurers are unwilling to provide such notice, then SLO REP shall have the responsibility of notifying the City immediately in the event of SLO REP’s failure to renew any of the required insurance coverages or insurer’s cancellation or non-renewal.

Additional insured status. General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies.

Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing.

Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that SLO REP’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions.

Pass-through clause. SLO REP agrees to ensure that its subconsultants, subcontractors, assignees, sublessees, permittees, and any other party who is brought onto or involved in the project/service by SLO REP (hereinafter collectively “subcontractor”), provide the same minimum insurance coverage and endorsements required of SLO REP. SLO REP agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. However, in the event SLO REP’s subcontractor cannot comply with this requirement, which proof must be submitted to the City, SLO REP shall be required to ensure that its subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with subcontractor’s scope of work and services, with limits less than required of the SLO REP, but in all other terms consistent with the SLO REP’s requirements under this agreement. This

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4 provision does not relieve the SLO REP of its contractual obligations under the agreement and/or limit its liability to the amount of insurance coverage provided by its subcontractors.

This provision is intended solely to provide SLO REP with the ability to utilize a subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the SLO REP under this agreement given the limited scope of work or services provided by the subcontractor. SLO REP agrees that upon request, all agreements with subcontractors, and others engaged in the project, will be submitted to City for review.

City’s right to revise specifications. The City reserves the right at any time during the term of the contract to change the amounts and types of insurance required by giving SLO REP ninety (90) days advance written notice of such change. Notwithstanding the foregoing, pursuant to the Lease, SLO REP’s insurance obligations as set forth in Section 15 of the Lease and as more fully discussed herein will be subject to review every twenty (20) years by the City taking into account market conditions and industry standards.

Self-insured retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter.

Timely notice of claims. SLO REP shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from SLO REP’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies.

Additional insurance. SLO REP shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection. SLO REP’s personal property, fixtures, equipment, inventory, and vehicles are not insured by City against loss or damage due to fire, theft, vandalism, rain, water, criminal or negligent acts of others, or any other cause.

Verification of Coverage. Contractor shall furnish the City with a certificate of insurance showing maintenance of the required insurance coverage, as well as endorsements effecting general liability coverage. All endorsements are to be received and approved by the City before work commences.

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EXCLUSIVE NEGOTIATING AGREEMENT
This Exclusive Negotiating Agreement (“Agreement”) is entered into this ___day of ______, 2019 (the “Effective Date”), by and between the City of San Luis Obispo, a California charter municipal corporation ("the City'') and San Luis Obispo Repertory Theatre, a California non-profit corporation (“SLO REP”). The City and SLO REP are jointly referred to as the “parties”.

RECITALS
WHEREAS, the City is the legal owner of the property located at 888 Morro Street in San Luis Obispo, California (the “Property”); and
WHEREAS, the City identified a portion of the Property as the site of a proposed public parking structure (“Palm Nipomo Parking Structure”) and anticipates that an estimated 18,000 square foot portion of the Property will not be needed for the Palm Nipomo Parking Structure (“Remainder Property”); and WHEREAS, SLO REP desires to construct a not-for-profit live performance theatre facility and related onsite and off-site (if any) improvements (“Theatre”) on the Remainder Property; and WHEREAS, the parties recognize that the exact location, size and availability of the Remainder Property for the Theatre cannot be determined at this time, and understand that the Remainder Property has development restrictions including maintenance of trees, street setbacks and provision of pedestrian connections/plazas from the Palm Nipomo Parking Structure to Monterey Street that affect the net buildable land; and
WHEREAS, the City wishes to support community-based performing arts groups by encouraging development of a live performance theatre facility in the downtown; and WHEREAS, the City and SLO REP recognize that identifying a location for the Theatre, as well as some of the terms of a future lease, may help SLO REP’s capital fundraising efforts; and WHEREAS, construction of the Palm Nipomo Parking Structure and the Theatre and related rezoning and general plan amendments will require environmental review, and SLO REP must provide certain information about the Theatre before City can conduct the environmental review; and WHEREAS, the City’s Financial Management Manual allows exclusive negotiations for long term lease of City property when the there is a clear link between the proposal and accomplishment of significant City goals, plans or policies; and
WHEREAS, the City considers the development of a not-for-profit live performance theatre on the Remainder Property to be in the public interest and in accordance with the City's goals and the existing and proposed Downtown Concept Plan.

NOW, THEREFORE, in consideration of the mutual covenants, conditions, promises and agreements herein set forth, the parties agree as follows:

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AGREEMENT

1. RECITALS. The above Recitals are true.

2. TERM. This Agreement shall commence upon the Effective Date and shall continue in effect for a period of five (5) years (the “Term”), unless sooner terminated as provided herein. The Parties may extend the Term of this Agreement in writing upon mutual consent.

3. PURPOSE. The purpose of this Agreement is to enable the City to proceed with the Palm Nipomo Parking Structure, and to allow SLO REP to explore the feasibility of SLO REP financing, designing, constructing and operating the Theatre, at its sole cost and expense, on the Remainder Property.

4. CITY’S OBLIGATIONS. The City shall, during the Term of this Agreement:
a. Exclusivity. Negotiate exclusively with SLO REP as the future tenant of the Remainder Property.
b. Initiate Rezoning, General Plan amendments, and Lot Line Adjustment.

Upon City Council authorization, initiate all rezoning, General Plan amendments, and a lot line adjustment necessary to allow the construction of the Palm Nipomo Parking Structure on a portion of the Property and the Theatre on the Remainder Property. The intent of this Agreement is for the Remainder Property to be created as a “finished lot,” although the City legally cannot, and therefore does not, contractually agree as to how it will exercise its legislative authority to rezone or amend the General Plan and its land use authority to complete a lot line adjustment. c. Environmental Review. The City has completed environmental review of the Palm Nipomo Parking Structure and the Theatre and has certified a Final Environmental Impact Report (“FEIR”) by Resolution No. 10923 (2018 Series). If SLO REP makes any changes to the Theatre design or if any of the conditions set forth in CEQA Guidelines § 15162 are triggered, then SLO REP may negotiate the portion of costs it will bear in the event substantial new environmental issues are discovered during construction, or if any project-specific environmental review related to the Theatre is deemed necessary.

5. SLO REP’s OBLIGATIONS. SLO REP shall, during the term of this Agreement:
a. Non-Profit Status. Be a California non-profit corporation in good standing and be exempt from state and federal income taxes under section 501 (c) (3) of the Internal Revenue Code.
b. Proof of Financial Ability. Provide to City’s reasonable satisfaction that it has the financial ability to design, construct and operate the Theatre on the Remainder Property. At a minimum SLO REP shall:

Fundraising Plan. Provide the City with a fundraising plan by December 31, 2019 that is acceptable to, and approved by, the City Manager, whose approval shall not be unreasonably withheld, delayed or conditioned. The fundraising plan shall include a timeline with milestones that shall be met no later than 1 year from the estimated completion of the Palm Nipomo Parking Structure. These DocuSign Envelope ID: 0D5F9552-0A12-4481-A99B-695D14987222

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milestones shall include, at a minimum, prior to commencement of lease negotiations, but no later than one (1) year after City’s award and execution of a contract to construct the Palm Nipomo parking Structure, that SLO REP shall demonstrate, to the City Finance Director’s reasonable satisfaction, that SLO REP has available at least 50% of all the funds necessary to design and construct the Theatre.
i. Preliminary Cost Estimates. Provide the City with preliminary costs estimates by December 31, 2020 to design, construct and operate the Theatre for at least the first two (2) years after completion of construction. Update those estimates as design progresses, but at least every 6 months. SLO REP will include the payment of prevailing wages in its estimates.
ii. Annual Financials. Annually, on or before December 31st of each year, provide the City with a current financial statement, copy of most recent filed state and federal tax returns, and copies of current bank statements, to demonstrate fundraising results for the Theatre.
iii. Formal Development Application. Finalize and submit a formal development application for the Theatre to the City.
iv. Compensation for City Review Costs. Discuss and finalize how City processing and review costs will be funded.
c. Environmental Review Information. Provide the City promptly with all information necessary to conduct any subsequent environmental review of the Theatre that may be necessary. This information includes, but is not limited to, square footage of structure; square footage of various uses such as office, storage, classroom, and theatre; number of seats; maximum number of performances per week, and any other information deemed necessary by City.

6. TERMINATION. Either party may terminate this Agreement without liability to the other party at any time by written notice to the other. This Agreement shall automatically terminate in the event SLO REP fails to secure building permits for the Theatre one year after the completion of the Palm Nipomo parking structure.

7. CONDITIONS PRECEDENT TO LEASE NEGOTIATION AND EXECUTION. All of the following conditions must be met as conditions precedent prior to lease execution for the Remainder Property:
a. Lease negotiation:
i. Rezoning and Lot Line Adjustment. City has rezoned and/or amended the City’s general plan and has perfected a lot line adjustment that will create the Remainder Property as a “finished lot” allowing for construction and its use as the Theatre.
ii. Obligations Met. Both City and SLO REP have met all of their respective obligations under the Agreement.

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b. Availability of Funds for Design, Construction, and Operation of the Theatre Prior to execution of the lease, SLO REP demonstrates to the City Manager’s reasonable satisfaction that SLO REP has met all applicable fundraising milestones in the fundraising plan approved by the City Manager.
c. Non-Profit Status. SLO REP has maintained its non-profit and tax-exempt status under applicable state and federal law.
d. Design and Construction Schedule. Prior to lease execution, provide to the City’s Community Development Director’s reasonable satisfaction, a design and construction schedule, demonstrating, at a minimum, the Theatre will be constructed and completed within 3 years of the completion of the Palm Nipomo Parking Structure. e. Design Coordination. Coordinate design of the Theatre with the City to ensure it is compatible with the Palm Nipomo Parking Structure.

8. GENERAL LEASE TERMS. If the parties enter into the exclusive negotiations, the parties desire that the lease include the following general provisions; provided, the actual language of each provision is subject to further negotiation, and most material terms and provisions of the lease have not yet been discussed. The City shall not lease the land for minimal rent unless the lease is completely acceptable to the City and approved by the City Attorney. Nothing in this paragraph shall be interpreted as an agreement or offer to lease upon the terms, provisions or language set forth below.
a. SLO REP shall commence construction of the Theatre no later than one (1) year after the completion of the Palm Nipomo Parking Structure and shall complete construction of the Theatre within three (3) years after that. SLO REP shall not commence construction of the Theatre unless SLO REP demonstrates, to the City’s Finance Manager’s reasonable satisfaction prior to expiration of the year within which SLO REP is to commence construction, that SLO REP has all of the funds necessary to design and construct, as well as operate for at least one (1) years after completion of construction, the Theatre, plus a 15% contingency, available in cash or approved financing (the “Required Funds”).

If SLO REP does not timely demonstrate that SLO REP has the Required Funds, or if SLO REP fails to timely begin or timely complete construction, SLO REP shall be in substantial default, and the lease shall automatically terminate unless City agrees otherwise in writing. The Theatre shall be deemed complete only upon issuance of a Certificate of Occupancy.
b. Minimum 40-year term with the right of first refusal for additional lease years provided that Theatre is in good standing at the time of the renewal window, which shall open after 35 years and conclude after 37 years unless the window is extended. c. Rent of $1.00 per year provided SLO REP:
i. Is a California non-profit corporation in good standing; and ii. Is a federal and state income tax exempt 501 (c)(3) entity; and uses the Remainder Property solely as a live performance theatre and related City approved community uses.

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iii. SLO REP’s failure to maintain its non-profit corporate status in good standing or its tax-exempt status under applicable state and federal law or to use the Remainder Property for any purpose other than as a live performance theatre and related City approved community uses during the term or any extended term of the lease, shall be a material breach of the lease. In the event any such breach occurs, City may, at its option, either terminate the lease or raise the rent to fair market rates for neighboring commercial uses.
d. SLO REP shall design, construct, operate and maintain the Theatre and all street frontage and landscaping, utility extensions and connections, and other improvements, based on agreed upon and approved plans and specifications, at its sole cost and expense without any assistance from the City.
e. SLO REP shall be responsible for meeting or mitigating all conditions, impacts, mitigations and requirements identified in the environmental review and entitlement processes for issues associated with the SLO REP’s operation of a theatre on the Property, at SLO REP’s sole cost and expense.
f. The design of the Theatre must be compatible with the design of the Palm Nipomo Parking Structure, including the parking structure’s entrance and exiting needs, as determined by the sole discretion of the Public Works Director. g. SLO REP shall take all reasonable efforts to preserve, protect, and maintain the large oak tree on 614 Monterey, along with the tree on the corner of Monterey and Nipomo. h. If the SLO REP is not in material compliance with the Lease or ceases to be financially solvent and to maintain the Property in a commercially reasonable manner, the lease shall contain provisions for the City to declare a default of the Lease, for SLO REP to effect a reasonable cure of the default(s), and for the City to terminate the Lease if the default(s) are not cured pursuant to the terms and conditions of the Lease, and for the Remainder Property to revert to the City.
i. Prevailing wages shall be paid by SLO REP for construction of the Theatre and related improvements, mitigations etc.
j. SLO REP shall pay all applicable parking in lieu fees for a Community Partner, as determined by the sole discretion of the City’s Public Works Director. k. Payment of possessory interest and other taxes by SLO REP. l. Other long-term landlord protection ground lease provisions, such as City standard insurance requirements, indemnity provisions, attorneys’ fees, prohibitions against nuisance, waste, requiring maintenance at SLO REP expense, etc. m. If the City Council does not move ahead with the construction of the Palm/Nipomo structure, a new agreement will need to be negotiated between the parties for a mutually acceptable alternate site or an alternate set of requirements for a portion of the Property. n. The City will not subordinate its interest in the Remainder Property to any financing.

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10. AMENDMENT. This Agreement may be extended or modified with the mutual consent of the parties. Any such extension, amendment, modification or variation from the terms of this Agreement shall be in writing and shall be effective only upon approval by the City Council.

11. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties.

No oral agreement, understanding or representation not reduced to writing and specifically incorporated herein shall be of any force or effect, nor shall any such oral agreement, understanding or representation be binding upon the parties.

12. NOTICE. All notices to the parties shall be in writing and shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows:

City: Derek Johnson
City Manager
990 Palm Street
San Luis Obispo, CA 93401
SLO REP: Kevin Harris
Managing Artistic Director
888 Morro Street
San Luis Obispo, CA 93401

13. AUTHORITY TO EXECUTE AGREEMENT. Both City and SLO REP warrant and represent that each individual executing the Agreement on behalf of each party is a person duly authorized and empowered to execute agreements for such party.

IN WITNESS WHEREOF, the parties execute this Agreement on the day and year first above written.

ATTEST CITY OF SAN LUIS OBISPO
Teresa Purrington
City Clerk
Date Heidi Harmon
Mayor
Date
APPROVED AS TO FORM: SLO REPERTORY THEATRE
J. Christine Dietrick
City Attorney
Date Kevin Harris
Managing Artistic Director
Date
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Council Minutes
City Hall, 990 Palm Street, San Luis Obispo
Tuesday, December 4, 2018
Regular Meeting of the City Council

CALL TO ORDER
A Regular Meeting of the San Luis Obispo City Council was called to order on Tuesday, December 4, 2018 at 6: 00 p.m. in the Council Hearing Room, located at 990 Palm Street, San Luis Obispo, California, by Mayor Harmon.

ROLL CALL
Council Members

Present: Council Members Carlyn Christianson Aaron Gomez, Erica A Stewart, Vice Mayor Andy Pease, and Mayor Heidi Harmon.

Council Members

Absent: None
City Staff

Present: Derek Johnson, City Manager; Christine Dietrick, City Attorney; and Teresa Purrington, City Clerk; were present at Roll Call. Other staff members presented reports or responded to questions as indicated in the minutes.

PLEDGE OF ALLEGIANCE
Vice Chair Pease led the Pledge of Allegiance.

APPOINTMENTS

1. APPOINTMENTS TO THE ZONE 9 ADVISORY COMMITTEE
City Clerk Purrington presented the contents of the report.

Public Comments:

None
End of Public Comments ---
ACTION: MOTION BY VICE CHAIR PEASE, SECOND BY COUNCIL MEMBER CHRISTIANSON, CARRIED 5- 0 to:

San Luis Obispo Page I
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San Luis Obispo City Council Minutes of December 4, 20] 8 Page 2 Make appointments to the Zone 9 Advisory Committee, effective December 31, 2018, and recommend the County Board of Supervisors confirm, as follows:

1. Appoint Christine Mulholland to serve as public member to represent the City of San Luis Obispo on the Zone 9 Advisory Committee for a term to expire on December 31, 2022; and

2. Appoint Dave Romero to serve as the alternate member to represent the City of San Luis Obispo on the Zone 9 Advisory Committee for a term to expire on December 31, 2022; and

3. Appoint Matt Horn, City Engineer, to serve as the staff representative on the Zone 9 Advisory Committee; and

4. Appoint Brian Nelson, Supervising Civil Engineer, to serve as the alternate staff representative on the Zone 9 Advisory Committee for a term to expire on December 31, 2022.

2. APPOINTMENTS TO THE CITIZENS' REVENUE ENHANCEMENT OVERSIGHT COMMISSION, JACK HOUSE COMMITTEE, AND MASS_ TRANSPORTATION

COMMITTEE
City Clerk Purrington presented the contents of the report.

Public Comments:

Tom Tyran Kincaid
End ofPublic Comments ---
ACTION: MOTION BY COUNCIL MEMBER CHRISTIANSON, SECOND BY COUNCIL MEMBER GOMEZ, CARRIED 5- 0 to:

1. Confirm the appointment of Winston Newland to the Citizens' Revenue Enhancement Oversight Commission, to complete an unexpired term through June 30, 2019.

2. Confirm the appointment of Julie Moore, as the representative of the San Luis Obispo County History Center, to the Jack House Committee effective December 4, 2018; and

3. Confirm the appointment of Ryan Hund, as the ASI student representative, to the Mass Transportation Committee, to complete an unexpired term through March 31, 2019.

INTRODUCTION

3. INTRODUCTION OF ERIC HAGEN CHIEF BUILDING OFFICIAL
Community Development Director Michael Codron introduced Eric Hagen as the new Chief Building Official.

PRESENTATIONS

4. PROCLAMATION - RECOGNITION OF SERVICE - CARRIE MATTINGLY City Manager Derek Johnson presented a proclamation to retiring Utilities Director Carrie Mattingly, in recognition of her service.

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San Luis Obispo City Council Minutes of December 4- 2018 Pabe 3

PUBLIC COMMENT ON ITEMS NOT ON THE AGENDA
None
End of Public Comment ---

CONSENT AGENDA
ACTION: MOTION BY COUNCIL MEMBER CHRISTIANSON, SECOND BY VICE CHAIR PEASE, CARRIED 5- 0 to approve Consent Calendar Items 5 thru 12.

Public Comment
Lea Brooks — 8
Myron Amerine — 8
Kevin Harris — 10
Myron Amerine — 12
End ofPublic Comment ---

5. WAIVE READING IN FULL OF ALL RESOLUTIONS AND ORDINANCES CARRIED 5- 0, to waive reading of all resolutions and ordinances as appropriate.

6. SCHEDULE OF CITY COUNCIL MEETINGS FOR 2019
CARRIED 5- 0, to adopt the proposed 2019 regular City Council meeting schedule with meetings normally held the first and third Tuesday of every month, with the following exceptions:

1. Reschedule the Regular City Council meeting of January 1 to January 8, 2019, and

2. Cancel the Regular City Council meetings ofAugust 6 and December 17, 2019.

7. APPROVAL OF THE FINAL MAP FOR TRACT 3089 PHASE 1, AVILA RANCH, 175 VENTURE DRIVE (SBDV2042- 2015)
CARRIED 5- 0, to adopt a Resolution entitled, " A Resolution of the City Council of the City of San Luis Obispo, California, approving the final map for Tract 3089 Phase 1 Avila Ranch ( 175 Venture Drive, SBDV-2042-2015)," and authorizing the Mayor to execute the easements, agreements, and associated fee offers, including the recommended changes in the staffagenda correspondence.

8. PLANS AND SPECIFICATIONS FOR BUCHON TRAFFIC CALMING
CARRIED 5- 0, to

1. Approve Plans and Specifications for Buchon Traffic Calming Measures; and

2. Authorize staff to advertise for bids and the City Manager to award the contract if the lowest responsible bid is within the Engineer' s Estimate of $160,000; and

3. Authorize the use and transfer of $ 142,000 from the City' s Neighborhood Traffic Calming budget and $ 18, 000 from the City' s Traffic Safety & Operations Budget to the project account.

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San Luis Obispo City Council Minutes ofDeceniber 4. 2018 Page 4

9. ADJUSTMENTS TO SUPPLEMENTAL SALARY SCHEDULE AND POLICY AS A

RESULT OF MINIMUM WAGE INCREASES
CARRIED 5- 0, to

1. Adopt a Resolution entitled, " A Resolution of the City Council of the City of San Luis Obispo, California, establishing and adopting a supplemental employee salary schedule and superseding previous resolutions in conflict," as necessary to comply with California Fair Wage Act of 2016 requiring a minimum wage of $ 12. 00 per hour effective January 1, 2019; and

2. Adopt the revised Supplemental Employee Policy.

10. SAN LUIS OBISPO REPERTORY THEATRE EXCLUSIVE NEGOTIATING

AGREEMENT
CARRIED 5- 0, to
Authorize the Mayor to sign an Exclusive Negotiating Agreement with the San Luis Obispo Repertory Theatre, SLO REP, for long-term use of a portion of the Palm/ Nipomo Parking Structure site to construct and operate a new theatre, based on parameters previously set forth by the City Council.

11. REPEALING AND REPLACING RESOLUTION NO. 10894 TO REFLECT

UPDATED ZONING REGULATION SECTION FOR PROPERTY MAINTENANCE

STANDARDS
CARRIED 5- 0, to Adopt a Resolution entitled, " A Resolution of the City Council of the City of San Luis Obispo, California, repealing and replacing Resolution No. 10894 ( 2018) to reflect updated zoning regulation sections."

12. ACQUISITION OF EASEMENTS FOR THE RAMONA DRIVE TO FOOTHILL BOULEVARD CLASS 1 PATH
CARRIED 5- 0, to Authorize the Mayor to execute easement and deed agreements in a total amount not to exceed $ 423, 700 including title and escrow charges in a form subject to the approval of the City Attorney.

PUBLIC HEARING ITEMS AND BUSINESS ITEMS

13. WATER RESOURCE RECOVERY FACILITY PROJECT - AUTHORIZATION TO BID
Utilities Director Carrie Mattingly and Deputy Director Dave Hix provided an in-depth staff report and responded to Council questions.

Public Comments:

Autumn Brown
Rosemary Wrenn
Scott Zimmerman
Daniel Mora
Richard Van Humbeck
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San Luis Obispo City Council_ Minutes of December 4, 2018 Pie 5, Jesse Brooks
Quinn Brady
Tony Skinner
Sean Perry
Dave Baldwin
David Gilliland
Nick Andre
End of Public Comment ---
ACTION: MOTION BY MAYOR HARMON SECOND BY COUNCIL MEMBER CHRISTIANSON, CARRIED 5- 0 to:

1. Approve plans and specifications for the Water Resource Recovery Facility ( WRRF) Project, Specification No. 91620; and

2. Authorize staff to advertise for construction bids pending City Engineer' s approval of the bid set; and

3. Authorize the City Manager to award the contract if the lowest responsible bid is within the project construction budget of $111, 600,000; and

4. Approve amended WRRF Project -specific Construction Contract Change Order policy and authorize the Utilities Director to be responsible for construction contract change orders ( CCOs) for the WRRF Project in any amount with the limitation that the sum total of all CCOs not exceed the contingency budget amount of $13, 390,000; and

5. Incorporate the Community Workforce Agreement into WRRF Project Spec. No 91620 as approved by signatory Craft Councils and Unions affiliates and the Tri -Counties Building and Construction Trades Council, AFL- CIO as included in the Council agenda packetfor the November 13, 2018 Meeting.

STUDY SESSION ITEMS

14. BOB JONES TRAIL ( CALLE JOAQUIN TO OCEANAIRE) PREI+ERREI)

ALTERNATIVE SELECTION
Public Works Director Daryl Grigsby, Transportation Manager Jake Hudson and Active Transportation Manager Adam Fukushima provided an in-depth staff report and responded to Council questions.

Public Comments:

Myron Amerine
Lea Brooks
Ken Kienow
End of Public Comment ---
ACTION: By consensus, Council directed staff to evaluate other route alternatives which are not consistent with the Bicycle Transportation Plan as part of the planning of the forthcoming Active Transportation Plan.

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San Luis Obis o City Council Minutes of December 4 2018 Parc 6 RECESS
Council recessed at 8: 35 p.m. and reconvened at 8: 50 p.m., with all Council Members present.

PUBLIC HEARING ITEMS AND BUSINESS ITEMS

15. 2019- 21 FINANCIAL PLAN PROCESS: ECONOMIC OUTLOOK BUDGET

POLICIES AND CAPITAL IMPROVEMENT PLAN REVIEW
Finance Director Brigitte Elke and Budget Manager Alex Ferreira provided an in-depth staff report and responded to Council questions.

Public Comments:

None
End of Public Comment ---
ACTION: By consensus, the Council reviewed and approved the 2019- 21 Financial Plan Goal Setting Process.

COUNCIL COMMUNICATIONS AND LIAISON REPORTS
Vice Mayor Pease invited the public to the Police Department Community Meeting and Station tour on Thursday, December 6, 2018 and also indicated that the City Council would be participating in the annual holiday parade on Friday, December 7, 2018.

ADJOURNMENT
The meeting was adjourned at 10: 02 p.m. The next Rescheduled Regular City Council Meeting is scheduled for Tuesday, January 8, 2019 at 6: 00 p.m., in the Council Chamber, 990 Palm Street, San Luis Obispo, California.
l
Teresa Purrington
City Clerk
APPROVED BY COUNCIL: 01/ 08/ 2019
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GRANT AGREEMENT

SAN LUIS OBISPO

REPERTORY THEATRE
This agreement dated ____________________________ is between SAN LUIS OBISPO REPERTORY THEATRE, a California non-profit corporation (“SLO REP”) and CITY OF SAN LUIS OBISPO, a California Municipal Corporation and Charter City (“CITY”) (the “Grant Agreement”) with reference to the following:

WHEREAS, SLO REP and CITY previously entered into an Exclusive Negotiating Agreement (the “ENA”) on May 22, 2019, that identified a mutual interest in the development of a new theatre site, to be leased by SLO REP, and a new City parking structure to be located on CITY property, together with obligations to be performed by both CITY and SLO REP and recitation of conditions precedent for purposes of SLO REP entering into a long-term lease with CITY for a portion of CITY’s property; and
WHEREAS, SLO REP issued a written Challenge Grant Request to the City Council dated January 25, 2022, that set forth a rationale and basis for SLO REP’s request of CITY to contribute to the construction of its new downtown theatre project (the “Downtown Theatre”), to be located at the corner of Palm Street and Nipomo Street, San Luis Obispo, and contiguous with CITY’s planned Cultural Arts District Parking Structure (“Parking Structure”); and WHEREAS, at its regularly scheduled meeting on February 15, 2022, the City Council appropriated $3.94 million, as requested by SLO REP, as part of its approval of the FY 2021-2022 Mid-Year Budget Review; and
WHEREAS, CITY’s financial support towards construction of the Downtown Theatre to be leased and used by SLO REP is intended to be a challenge grant that will serve to motivate and catalyze other funders and donors in furtherance of SLO REP’s overall capital campaign and fundraising goals for the construction of the Downtown Theatre site development; and WHEREAS, the new Downtown Theatre will ultimately be available to both residents of the City and visitors alike, thereby serving public purposes in furtherance of CITY’s goals for facilitating both arts and cultural amenities, as well as contributing to a thriving and prosperous downtown area through economic development activities, and
WHEREAS, SLO REP’s long-standing plans for construction of a new Downtown Theatre are consistent with CITY’s Downtown Concept Plan (2017) and its “Economic Recovery, Resiliency & Fiscal Sustainability” Major City Goal specified in the 2021-23 Financial Plan, and WHEREAS, CITY completed environmental review as lead agency for both the development of the Parking Structure and the Downtown Theatre and certified a Final Environmental Impact Report by Resolution No. 10923 (2018 Series).

NOW, THEREFORE, CITY and SLO REP for and in consideration of the mutual benefits, promises and agreements set forth herein, do agree as follows:

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1. Construction of the Downtown Theatre
On or before the date that is ten (10) years following the execution of this Grant Agreement, SLO REP shall complete construction of the Downtown Theatre. SLO REP’s failure to comply with this term may result in amendment, provided substantial progress or extenuating circumstances can be documented, or termination of this Agreement as provided herein.

2. Grant Amount and Allowed Expenses
City agrees to pay SLO REP a one-time only grant in installments as provided in Section 4, the aggregate sum of $3,940,000 (“Grant Funds”), to be used towards the construction of the Downtown Theatre, subject to the conditions set forth herein. The Grant Funds shall only be used for Eligible Costs directly related to construction of the Downtown Theatre as specified below.

CITY’s Grant Funds may only be used for direct construction costs defined as contractor expenses for labor, project management, material, equipment, utilities and other direct construction costs ("Eligible Costs"). Payments for “soft” costs are not Eligible Costs and shall not be paid from CITY Grant Funds. “Soft” costs are expense items that are not considered direct construction costs such as architectural and engineering expenses or project fees associated with the project. If there is a dispute about whether a project cost is an Eligible Cost, CITY shall have final determination of whether the cost is an Eligible Cost.

SLO REP acknowledges that construction of the Downtown Theater is subject to payment of prevailing wages on the entirety of the project due to the City’s contribution of funding to the project and that such obligation will be expressly conveyed by SLO REP to and will be binding on any covered contractor engaged to perform work on the Downtown Theatre project.

3. Conditions Precedent to Funding
SLO REP shall satisfy the following required conditions prior to any disbursement of Grant Funds by CITY. With respect to any requested reimbursement, SLO REP shall:
a. Maintain its 501(c)(3) non-profit status.
b. Shall secure all other grant funds, donations, pledges, or financing necessary to complete construction of the Downtown Theatre, inclusive of the amount of Grant Funds provided by the CITY pursuant to this Grant Agreement, and shall first utilize (or provide for first utilizing) all other grant funds, donations, or financing then available (collectively “Other Available Funding”) for the construction of the Downtown Theatre prior to any request for reimbursement from CITY. However, SLO REP’s initial reimbursement request for Grant Funds may be made prior to complete exhaustion of Other Available Funding, as necessary, to ensure continued availability of funding to complete construction of the Downtown Theatre in conformance with the construction schedule to be provided under Section 3(e) and the schedule of values to be provided under Section 3(f). However, in no instance shall reimbursement requests for CITY’s Grant Funds exceed the estimated value of completed improvements.

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c. Continue to adhere to all of the requirements of the ENA, attached hereto as Exhibit A and hereby incorporated by reference, until such time as a long-term lease is entered into with CITY, as contemplated by the ENA. Once the long-term lease is in place, SLO REP shall abide by all lease terms and conditions. d. Have secured all necessary project entitlements and building permit(s) for construction of the Downtown Theatre that may be applicable as further described in Paragraph 6, below.
e. Have submitted to the Public Works Director’s reasonable satisfaction a critical path construction schedule that includes all Downtown Theatre project-related tasks, and thereafter update this critical path construction schedule and furnish the same to the City on a quarterly basis (4 times a year) until construction is complete and a certificate of occupancy for the Downtown Theatre is furnished. f. Submit to the Public Works Director's reasonable satisfaction a “schedule of values” for items of work the general contractor will thereafter be completing. Identify in the schedule of values each of the items that are proposed to be funded, and when, by CITY Grant Funds.

4. Reimbursement Requests
Upon satisfaction of the conditions identified in Section 3, reimbursement paymentrequests for Eligible Costs identified in the construction schedule required pursuant to Section 3(e) shall be submitted to CITY’s Deputy City Manager. Reimbursement payment requests shall include supporting documentation including contractor invoices and the most current building inspection documentation available at that time, as well as a statement that the construction work progress has been accepted by SLO REP. Reimbursement payment requests may be submitted on a bi-monthly (twice per month) basis and will be reviewed and approved for reimbursement by the CITY in a timely manner, and CITY will make best efforts to process and pay reimbursement requests within fifteen (15) business days from the date of such payment request, provided that sufficient documentation supporting the reimbursement request is provided to CITY. Sufficiency of payment documentation shall be in the sole but reasonable discretion of the CITY and CITY reserves the right to request and receive additional reasonable documentation to support SLO REP’s reimbursement requests and as may be appropriate to aid in City’s determination of whether the requested reimbursement payment is for an Eligible Cost.

5. Construction at Other Sites
If SLO REP determines that construction of the Downtown Theatre at the specified site is impractical or inadvisable for any reason, then SLO REP may not use the Grant Funds for any other purpose without prior written approval of the City Council.

6. Permits
SLO REP shall apply for and obtain all necessary building and other related permits and project entitlements necessary to construct the Downtown Theatre in conformance with local, state, and federal laws. This Grant Agreement does not authorize the construction of the Downtown Theatre or otherwise alter or impact the exercise of the City’s independent regulatory and land use authority.

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7. Funding Source Recognition
SLO REP will ensure recognition of the role of CITY in providing funding through this Grant Agreement. CITY shall be identified as a funding source in all applicable publications, press releases, social media outreach and similar fundraising promotions.

8. Amendments
CITY and SLO REP may amend this Agreement at any time provided that such amendments make specific reference to this Grant Agreement, and are executed in writing, signed by a duly authorized representative of each organization, and approved by the City Council. Such amendments will not invalidate this Agreement, nor relieve or release either CITY or SLO REP from its obligations under this Grant Agreement, except as expressly provided in writing in any such duly executed amendments.

9. Quarterly Reports and Financial Assurance
The SLO REP shall provide quarterly reports on both Downtown Theatre construction project progress including the use of CITY Grant Funds. These reports shall be due at the end of the first month after the end of the calendar quarter (i.e. January, April, July, and September) and submitted to the Deputy City Manager. The quarterly reports should include percentage of construction completion, other available funding on hand or then receivable, and work anticipated to be completed in the following quarter. CITY reserves the right to request and receive copies of invoices, account statements, or audits of SLO REP’s financial records pertinent to the Downtown Theatre’s construction and in CITY’s sole discretion, to withhold reimbursement payments until satisfactory reports and supporting documentation are received.

10. Assignability
The SLO REP shall not assign or transfer any interest in this Grant Agreement without the prior written consent of the City Council.

11. Conflict of Interest
No member of the CITY’s governing body and no other public official of such locality, who exercises any functions or responsibilities in connection with the planning or carrying out of the Downtown Theatre project, will have any personal financial interest, direct or indirect, in this Grant Agreement; and the SLO REP will take appropriate steps to assure compliance.

SLO REP agrees to abide by the provisions of 24 CFR 84.42 and 570.611, which require in part, that SLO REP to maintain a written code or standards of conduct that will govern the performance of its officers, employees or agents engaged in the award and administration of contracts supported by Federal funds.

12. Severability
If any provision of this Grant Agreement is held invalid, the remainder of the Grant Agreement will not be affected thereby and all other parts of this Grant Agreement will nevertheless remain in full force and effect.

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13. Entire Agreement
This Agreement constitutes the entire agreement between CITY and SLO REP for the use of funds received under this Grant Agreement and shall supersede all prior communications and proposals, whether electronic, oral, or written between CITY and SLO REP with respect to this Grant Agreement.

14.No Agency or Employment
The SLO REP is solely responsible for all activities supported by this Grant Agreement.

Nothing in this Grant Agreement creates a partnership, agency, joint venture, employment, or any other type of relationship between SLO REP and CITY. SLO REP shall not represent itself as an agent of CITY for any purpose, and has no authority to bind CITY in any manner whatsoever. SLO REP and all of its agents, representatives, or participants in any manner in the performance of its obligations and duties hereunder, shall be employees, independent contractors, or volunteers solely of SLO REP. They shall not for any purpose be considered employees or agents of CITY.

15.Indemnification
The SLO REP agrees, to the fullest extent permitted by law, to defend, indemnify, and hold harmless CITY its officers, directors, affiliates, employees, and agents (“City Indemnitees”), from and against any and all claims, liabilities, losses and expenses (including reasonable attorney’s fees) directly, indirectly, wholly or partially arising from or in connection with any act or omission of SLO REP, its employees or agents, in applying for, accepting, or use of the Grant Funds, or in carrying out the Downtown Theatre project as set forth. In the event the City Indemnitees are made a party to any action, lawsuit, or other adversarial proceeding arising from SLO REP’s performance under this Grant Agreement, SLO REP shall provide a defense to the City Indemnitees or at the City’s option, reimburse the City Indemnitees their costs of defense, including reasonable legal fees, incurred in defense of such claims.

16.Termination
The City Manager may, within his or her reasonable discretion, initiate termination of this Grant Agreement in the event of any material breach of the terms of this Grant Agreement by SLO REP. Material breach includes breach of Sections 1-7, 9 and 15 of this Grant Agreement, but does not include minor delays in reporting or other delays in obligations set forth herein caused through no fault of SLO REP as well as administrative or clerical errors made in good faith. Upon the City Manager’s written notice of breach, SLO REP shall have forty-five (45) calendar days to cure any such breach (the “Notice of Breach”). Should SLO REP fail to cure, or provide documentation of substantial progress towards curing such breach within forty-five (45) calendar days of the date of the Notice of Breach, the City Manager shall provide written notice of termination of this Grant Agreement (the “Notice of Termination”). Said termination shall be effective thirty (30) calendar days after the City Manager mails the Notice of Termination to SLO REP. Any remaining Grant Funds in excess of then unpaid Eligible Costs, as defined in Section 2, actually incurred as of the date of notice of termination shall revert to CITY upon the effective date of termination.

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17.Notices
For purposes of notice under this agreement, all notices shall be considered effective upon being sent by certified mail to the following addresses:

CITY:

City of San Luis Obispo
990 Palm Street
San Luis Obispo, CA 93401
Attn: City Manager
SLO REP:

San Luis Obispo Repertory Theatre
888 Morro Street
San Luis Obispo, CA 93401
Attn: Managing Artistic Director

CITY OF SAN LUIS OBISPO, A MUNICIPAL CORPORATION
By:

Derek Johnson, City Manager

SAN LUIS OBISPO REPERTORY THEATRE, A CALIFORNIA NON-PROFIT

CORPORATION
By: ___________ Kevin Harris, Managing Artistic Director APPROVED AS TO FORM:

By:

J. Christine Dietrick, City Attorney
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AMENDMENT NO. 1 TO EXCLUSIVE NEGOTIATING AGREEMENT
THIS AMENDMENT NO. 1 TO EXCLUSIVE NEGOTIATING AGREEMENT is made and entered in the City of San Luis Obispo on _______________________________________, by and between the City of San Luis Obispo, a charter municipal corporation (“the City”) and San Luis Obispo Repertory Theatre, a California non-profit organization (“SLO REP”). The City and SLO REP are jointly referred to as the “Parties”.

WITNESSETH:

WHEREAS, on May 22, 2019, the City and SLO REP entered into an Exclusive Negotiating Agreement (“ENA”) that set forth certain parameters, conditions, milestones, and conditions precedent to entering into a long-term lease for SLO REP to use of a portion of City property to construct and operate a new theatre building adjacent to the City’s Cultural Arts District Parking Structure, and WHEREAS, the ENA has a five-year term that may be extended by mutual agreement of the Parties and both the City and SLO REP have a desire to continue working together towards the construction and long-term operation of a new theatre building; and
WHEREAS, both the City and SLO REP have completed and will continue to maintain their respective obligations specified in the ENA, as well as satisfy the necessary conditions precedent to lease negotiations and execution (paragraphs 5, 6, and 8), and the Parties are presently working together to move towards the preparation of a mutually agreeable lease agreement.

NOW THEREFORE, in consideration of their mutual promises, obligations, and covenants hereinafter contained, the parties hereto agree as follows:

1. The Exclusive Negotiating Agreement is hereby amended as follows:
i. The term shall be extended for a period of six (6) months from the date of this Amendment No. 1, provided that SLO REP shall disclose to City other sites or options, if any, that it may be considering for the theatre. The ENA may be extended for an additional six (6) month period thereafter with approval by the City Manager. The additional six (6) month extension may only be considered upon SLO REP delivering a written notice of intent to proceed with final lease negotiations with the City.

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ii. Paragraph 8a., General Lease Terms, shall be amended as follows: “SLO REP shall commence construction of the Theatre no later than one (1) year after the completion of the Palm Nipomo Cultural Arts District Parking Structure and shall complete construction of the Theatre within three (3) years after that.

SLO REP shall not commence construction of the Theatre unless SLO REP demonstrates, to the City’s Finance Manager Director’sreasonable satisfaction prior to expiration of the year within which SLO REP is to commencement of construction, that SLO REP has all of the funds necessary to design and construct, as well as operate for at least one (1) years after completion of construction, the Theatre, plus a 15% construction contingency, available in cash or approved financing (the “Required Funds”), and SLO REP shall also submit to the City Manager (or their delegate) a written document that demonstrates an operating reserve of 20% for the first year of operating the new theatre and three year operating plan including the establishment of a fund for building and facilities maintenance and repair.”
iii. Paragraph 8b., General Lease Terms, shall be replaced as follows: “A lease term not-to-exceed ninety-nine (99) years.”

2. All other terms and conditions of the Exclusive Negotiating Agreement remain in full force and effect.

IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first written above.

CITY OF SAN LUIS OBISPO SLO REPERTORY THEATRE
_________________________________ ________________________________ Erica A. Stewart, Mayor Kevin Harris, Managing Artistic Director ATTEST
_________________________________
Teresa Purrington, City Clerk

APPROVED AS TO FORM
_________________________________
J. Christine Dietrick, City Attorney
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SAN LUIS OBISPO REPERTORY THEATRE CHALLENGE GRANT REQUEST

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APPENDIX A: SLO REP ECONOMIC IMPACT REPORT

DOWNTOWN CORE ACTIVATION
SLO REP’s audience drawing power is often underestimated, its full impact often lost amid the fanfare accorded other performing arts events. Other arts organizations have several big events during the year that, rightfully so, command attention in the local media. SLO REP, on the other hand, provides a steady, yearround calendar of programming. We are like the great TV show that people tune into weekly, in relatively large numbers, versus the summer blockbuster that people rush to see before it’s gone.

For perspective:

In SLO REP’s current 100-seat venue, nearly 20,000 patrons buy tickets to attend SLO REP’s annual 200 performances. These totals are greater than the total audiences for San Luis Obispo Symphony, Opera SLO, Festival Mozaic, and the Civic Ballet combined.

The most popular national touring shows at the PAC rarely sell out two performances, totaling a maximum of 2,572 patrons. SLO REP’s annual gala and season musical productions regularly bring in 3,000 patrons over the course of the run.

In the new venue, SLO REP plans to produce 324 performances each season, Wednesday- Sunday, on 176 days of the year. These performance and audience projections do not include foot traffic from our year-round Academy of Creative Theatre education program or special, non-season events throughout the year.

AN EFFICIENT CATALYST
By bringing hundreds of patrons downtown on nearly half the days of the year, SLO REP provides an efficient and significant catalyst activating the downtown core. SLO REP will prove to be a bright shining beacon, attracting new visitors and residents alike to San Luis Obispo who want to experience distinctivelive performances available nowhere else in the frequency and quality than can be seen on SLO REP’s new stage.

ECONOMIC IMPACT
In projecting SLO REP’s economic impact, we drew
from the most recent research on San Luis Obispo
County arts patrons’ spending conducted by
Americans for the Arts (January, 2024).

In our planned new venue, SLO REP will produce
324 individual performances during our first full
season (FY 29), potentially bringing 53,600 patrons
to the downtown core in our 210-seat mainstage
theatre, and our 100-seat black box theatre.

In addition to our 324 regular performances, SLO REP is planning 24 "Cabaret" performances throughout the year to activate the downtown core during late-night hours.

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APPENDIX A: SLO REP ECONOMIC IMPACT REPORT

EMPLOYMENT
Based on our current calendars, SLO REP projects the following payroll breakdowns for our yearround Exempt and Non-Exempt employees in FY 29:

F/ T
Exempt)
Total
Employee Position FTE
P/ T (NonExempt) P/ Y ( NonExempt) Total Emp.

Payroll
20 hrs/ wk < 20 hrs/ wk
Artistic Director 95,000 1
Managing Director $ 70,000 1
Development Director $ 70,000 1
Development Assistant $ 25,000 0.5
Marketing Director $ 60,000 1
Education Director $ 60,000 1
Education Assistant/ Outreach $ 25,000 0.5
Production Manager $ 60,000 1
Technical Director $ 60,000 1
Assistant Technical Director $ 12,500 0.25
Volunteer Director/ House Mgr $ 27,500 0.75
Box Office Manager $ 20,000 0.5
Facilities Director $ 12,500 0.25
Costume Shop Coordinator $ 7,500 0.25
Assistant House Manager 1 $ 5,500 0.25
Assistant House Manager 2 $ 5,500 0.25
Assistant House Manager 3 $ 5,500 0.25
Assistant House Manager 4 $ 5,500 0.25
Box Office Staff 1 $ 4,000 0.25
Box Office Staff 2 $ 4,000 0.25
Scene Shop Crew 1 $ 10,000 0.25
Scene Shop Crew 2 $ 10,000 0.25
TOTALS $ 475,000 $ 97,500 $ 82,500 12 $ 655,000

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APPENDIX A: SLO REP ECONOMIC IMPACT REPORT
Based on our current calendars, SLO REP projects the following payroll breakdowns for our show- specific artist contracts in FY 29:

Artist Position Average # of
Contracts
Total Total FTE
Contract
Total
Each
Season
Payroll Hours
Director ( Mainstage) $ 3,500 8 $ 28,000 1,200 0.58
Director (Black Box) $ 2,750 5 $ 13,750 750 0.36
Director ( ACT Show) $ 2,800 2 $ 5,600 400 0.19
Director (Staged Reading) $ 300 5 $ 1,500 175 0.08
Actor ( Mainstage) $ 2,500 50 $ 125,000 11,250 5.41
Actor (Black Box) $ 2,000 30 $ 60,000 6750 3.25
Musical Director $ 2,500 8 $ 20,000 400 0.19
Choreographer ( Mainstage) $ 2,500 4 $ 10,000 200 0.10
Choreographer ( Black Box) $ 2,250 2 $ 4,500 100 0.05
Choreographer ( ACT) $ 1,750 1 $ 1,750 75 0.04
Tech Crew ( Mainstage) $ 750 40 $ 30,000 5000 2.40
Tech Crew (Black Box) $ 500 26 $ 13,000 3250 1.56
Lighting Designer ( Mainstage) $ 2,250 8 $ 18,000 320 0.15 Lighting Designer ( Black Box) $ 1,500 5 $ 7,500 200 0.10 Lighting Designer ( ACT) $ 750 2 $ 1,500 80 0.04
Costume Designer ( Mainstage) $ 1,750 8 $ 14,000 1200 0.58 Costume Designer ( Black Box) $ 1,250 5 $ 6,250 500 0.24 Costume Designer ( ACT) $ 500 2 $ 1,000 150 0.07
Sound Designer ( Mainstage) $ 800 8 $ 6,400 400 0.19
Sound Designer ( Black Box) $ 600 5 $ 3,000 250 0.12
Sound Designer ( ACT) $ 500 2 $ 1,000 100 0.05
Musicians ( Mainstage) $ 1,750 5 $ 8,750 875 0.42
Musicians ( Black Box) $ 1,500 3 $ 4,500 525 0.25
Props Design (all) $ 300 16 $ 4,800 640 0.31
TOTALS $ 37,550 250 $ 389,800 34,790 16.73
The total estimated employment impact for our 2028-29 inaugural season:

Total number of positions hired: 277
Total payroll: $1,044,800
Total FTE per year: 28.7

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APPENDIX A: SLO REP ECONOMIC IMPACT REPORT

AMERICANS FOR THE ARTS
ARTS AND ECONOMIC PROSPERITY 6 SURVEY RESULTS
January, 2024)
SLO REP – ECONOMIC IMPACT FY 2019 AND FY 2029 (no parking revenue) Annual Economic Impact $ 3,868,783
Parking Revenue (next page) $ 316,651
TOTAL $ 4,185,434

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APPENDIX A: SLO REP ECONOMIC IMPACT REPORT
SLO REP PARKING REVENUE – FY 2029
Based on:
2024 parking structure fees ($3/hr.)
Average time spent at performance/lobby pre-show: 2.75 hrs.

Average time spent at pre-show meal/drinks/downtown: 2.25 hrs. 95% capacity in venue
2 patrons per car
According to a 2014 survey of SLO REP patrons:
67% of SLO REP audiences go to dinner/drinks before or after a show (5 hrs. in structure) 28% of SLO REP audiences only attend the performance ( 2 hrs. in structure) 5% of SLO REP audiences use alternate transportation/free parking

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AMENDMENT NO. 1 TO GRANT AGREEMENT

SAN LUIS OBISPO

REPERTORY THEATRE
THIS AMENDMENT NO. 1 TO GRANT AGREEMENT is made and entered in the City of San Luis Obispo on _____________________________________, by and between the City of San Luis Obispo, a California Municipal Corporation and Charter City (“the City”) and San Luis Obispo Repertory Theatre, a California non-profit organization (“SLO REP”). The City and SLO REP are jointly referred to as the “Parties”.

WITNESSETH:

WHEREAS, on May 22, 2019, the City and SLO REP entered into an Exclusive Negotiating Agreement (“ENA”), and on May 22, 2024 entered into Amendment No. 1 to the Exclusive Negotiating Agreement, which together set forth the current parameters, conditions, milestones, and conditions precedent to entering into a long-term lease for SLO REP to use a portion of City property to construct and operate a new theatre building adjacent to the City’s Cultural Arts District Parking Structure, and
WHEREAS, on April 21, 2022, the City and SLO REP entered into a Grant Agreement that set forth certain parameters, conditions, milestones, and conditions precedent to the City providing one-time only grant funding to SLO REP to be paid in installments not-to-exceed the aggregate sum of $3,940,000 for reimbursement of direct construction costs incurred for the new theatre building, and
WHEREAS, on June 4, 2024, the City Council adopted Resolution No. 11501 (2024 Series) approving the Fiscal Year 2024-25 Budget and, upon consideration of public testimony and written correspondence submitted by SLO REP detailing their current anticipated budget and necessary funding required to complete the new theatre building, included an additional $2,760,000 million in grant funding to SLO REP towards the project, for a total in grant funding towards the project, by the City of San Luis Obispo, in the amount of $6,700,000.

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NOW THEREFORE, in consideration of their mutual promises, obligations, and covenants hereinafter contained, the parties hereto agree as follows:

1. The Grant Agreement is hereby amended as follows:
i. The sum of grant funding shall be increased by the amount of $2,760,000.00 for a total of $6,700,000.00.
ii. The Exclusive Negotiating Agreement and Amendment No. 1 to the Exclusive Negotiating Agreement are hereby incorporated by reference, and attached hereto collectively as Exhibit A.
iii. Item 9 in the Grant Agreement is amended as follows:

9. Quarterly Reports and Financial Assurance
Quarterly Reports and Financial Assurance. The SLO REP shall provide quarterly reports on both Downtown Theatre
construction project progress including the use of CITY Grant Funds. These reports shall begin when construction commences and be due at the end of the first month after the end of the calendar quarter (i.e. January, April, July, and September) and submitted to the Deputy City Manager. The quarterly reports should include percentage of construction completion, other available funding on hand or then receivable, and work
anticipated to be completed in the following quarter. CITY reserves the right to request and receive copies of invoices, account statements, or audits of SLO REP’s financial records pertinent to the Downtown Theatre’s construction and in CITY’s sole discretion, to withhold reimbursement payments until satisfactory reports and supporting documentation are received.

2. All other terms and conditions of the Grant Agreement shall remain in full force and effect.

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IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed the day and year first written above.

CITY OF SAN LUIS OBISPO SLO REPERTORY THEATRE
_________________________________ ____________________________________ Erica A. Stewart, Mayor Kevin Harris, Managing Artistic Director ATTEST
_________________________________
Teresa Purrington, City Clerk

APPROVED AS TO FORM
_________________________________
J. Christine Dietrick, City Attorney
Docusign Envelope ID: 21730E0C-C636-4AA1-BD52-F77E51602650

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NOW, THEREFORE, in consideration of the mutual covenants, conditions, promises and agreements herein set forth, the parties agree as follows:

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AGREEMENT

1. RECITALS. The above Recitals are true.

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11. COMPLETE AGREEMENT. This written Agreement, including all writings specifically incorporated herein by reference, shall constitute the complete agreement between the parties.

12. NOTICE. All notices to the parties shall be in writing and shall be sent by United States mail, postage prepaid by registered or certified mail addressed as follows:

City: Derek Johnson
City Manager
990 Palm Street
San Luis Obispo, CA 93401
SLO REP: Kevin Harris
Managing Artistic Director
888 Morro Street
San Luis Obispo, CA 93401

IN WITNESS WHEREOF, the parties execute this Agreement on the day and year first above written.

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San Luis Obispo City CouncilDecember 10, 2024

San Luis Obispo City Council
December 10, 2024