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HomeMy WebLinkAbout25A - WIRELESS COMMUNICATION CONSULTING SRVCSREQUEST COUNCIL FOR ACTION CITY COUNCIL MEETING DATE: MARCH 2, 2009 TITLE: AGREEMENT WITH TELECOM PARTNERS GROUP CORP, dba AT5 COMMUNICATIONS FOR WIRELESS COMMUNICATION CONSULTING SERVICES CIT M AGER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: APPROVED ^ As Recommended ^ As Amended ^ Ordinance on 151 Reading ^ Ordinance on 2nd Reading ^ Implementing Resolution ^ Set Public Hearing For CONTINUED TO FILE NUMBER Authorize the City Manager and Clerk of the Council to execute the attached Amended and Restated Agreement with ATS Communications to provide wireless communication consulting services for a two-year term on a commission basis, subject to non-substantive changes approved by the City Manager and City Attorney. DISCUSSION In January 2006 the City entered into a three-year agreement with ATS Communications to provide wireless communication consulting services on a commission basis. Pursuant to the agreement, which expired on December 31, 2008, ATS developed a wireless facilities master plan in an effort to maximize wireless communications while minimizing the number of wireless facilities. In addition, ATS has served as the City's agent in effectively coordinating the placement of new facilities on City- owned properties, and has worked with City staff and wireless carriers to facilitate co-location of multiple transmitters on single towers wherever possible. With the completion of the wireless master plan, ATS has marketed potential sites to the five wireless service providers in the Santa Ana market. Over the last three years, ATS has worked on 19 potential sites. Of those, lease agreements for six sites have been completed or are close to completion, and several remain in process. In addition, ATS has worked with the City to develop a master lease agreement in an effort to streamline and simplify the negotiations process. Under the agreement, ATS will continue its exclusive right to market City-owned land for lease to wireless service providers for the next two years, with the same terms and conditions of the original agreement. ATS will continue to maintain the City's wireless facilities master plan, and assist staff in managing all wireless facility leases, including design, installation and ongoing management. 25A-1 AGREEMENT WITH ATS COMMUNICATIONS March 2, 2009 Page 2 As compensation, ATS will receive 20 percent of the lease revenues associated with each site it negotiates on behalf of the City. All decisions to lease any city sites will be made by the City Council on a project specific basis. The agreement does not guarantee any leases to be approved under the master plan without City Council approval. FISCAL IMPACT Funds to pay for services provided by ATS will be paid solely from rents received on leases negotiated by ATS. 25A-2 AMENDED AND RESTATED AGREEMENT FOR CELLULAR TOWER CONSULTANT SERVICES THIS AGREEMENT, made and entered into this 2°d day of March, 2009 ("Effective Date") by and between Telecom Partners Group Corp, dba ATS Communications, aCalifornia corporation (hereinafter "Consultant"), and the City of Santa Ana, a charter city and municipal corporation organized and existing under the Constitution and laws of the State of California (hereinafter "City"). RECITALS A. The City desires to retain a consultant having special skill and knowledge in the field of wireless communication technology to assist the City in marketing and facilitating the development of cell towers on City owned property to provide a wireless communication network throughout the City of Santa Ana. B. On January 1, 2006, City and Consultant entered into an agreement for such wireless communications network marketing services (the "Original Agreement"). C. Since the execution of the Original Agreement communications technologies have advanced and wireless communications providers are looking for sites to complete coverage of their systems and implement the new technologies. D. In undertaking the performance of this Agreement, the Consultant represents that it is knowledgeable in its field and that any services performed by Consultant will be performed in compliance with such standards as may reasonably be expected from a professional consulting firm in the field. E. In approving this Agreement, the City Council finds that Consultant has unique qualifications and skills not otherwise available in the marketplace, and is therefore exempt from competitive bidding. NOW THEREFORE, in consideration of the mutual and respective promises, and subject to the terms and conditions hereinafter set forth, the parties agree as follows: 1. SCOPE OF SERVICES (a) Consultant shall maintain and update the City's wireless communications master plan ("Wireless Master Plan") which identifies current wireless facilities located within the City (on public and private land), other City property available for location of cell towers, and future needs of wireless communications providers in the City including, without limitation, providers of cellular, PCS, radio or television transmissions or services, (collectively, including any successor technologies, frequencies or spectrums "Wireless Services"). 25A-3 (b) Pursuant to the Wireless Master Plan process, Consultant shall identify priority City Properties providing the greatest potential demand/revenue opportunity for New Leases (the "Priority Sites"). During the duration of this Agreement, Consultant shall have the exclusive right and authority to (1) contact wireless providers and market the City Properties as potential sites for New Leases (defined below); (2) accept submissions for proposals for New Leases and negotiate with wireless providers with respect to the terms and conditions of such New Leases; and (3) represent itself as the City's exclusive consultant with respect to such New Leases and the services being provided hereunder. The Consultant shall have no authority to bind the City and all proposals for New Leases shall be subject to City approval. The City agrees that it will forward all requests or inquiries regarding potential New Leases to the Consultant, for the Consultant to negotiate and coordinate before the proposal is formally submitted to the City. The City will use its best efforts to expedite the review of proposed New Leases that conform to the Form Lease Agreements and provide any comments within 30 days of such submission. The City further agrees to use reasonable efforts to expedite and facilitate the approval and execution of New Leases for the Priority Sites. Said grant of rights is specifically subject to City's reservation to itself of the absolute discretion to approve /disapprove, for any reason, any location and/or provision of any lease agreement recommended by Consultant. (c) Consultant shall inform City regarding new Wireless Services as they are developed by the industry and, at the request of the City Manager or his designated representative, assist the City in implementing a Wireless Services siting ordinance to regulate Wireless Services located in City right-of--way. Such assistance shall include providing information regarding space, height and frequency requirements of current and developing technologies, the ability of the technologies to be stealthed and/or undergrounded, and legal restrictions imposed on municipalities. 2. COMPENSATION City shall pay to Consultant, and Consultant shall accept from City, compensation for services under this agreement as follows: (a) Twenty Percent (20%) of the revenue from each New Lease (defined below) over the life of the New Lease, including any renewals or extensions (all such New Lease revenue payable to Consultant, including fees set forth in Section S(c) below, is referred to collectively herein as the "Consultant Lease Fees"). Consultant shalt only be entitled to the Consultant Lease Fees to the extent actually paid by a Wireless Provider; if a Wireless Provider fails to pay the amounts due under the New Lease, City shall have no obligation to compensate Consultant, unless and until such amounts are recovered by the City. For purposes of this Agreement, "New Lease" means any lease approved by the City Council during the term of this Agreement (or where lease negotiations or the initial 2 5A-4 process for a lease has begun during the term of this Agreement and such lease is executed after the expiration or termination of this Agreement) for any portion of a City Property between the City and a third party relating to the construction, lease or maintenance of wireless transmission towers or the provision or transmission of any Wireless Services (and shall include any and all amendments, modifications or extensions of such leases). New Leases shall contain a provision requiring notice to Consultant of any change or modification in the terms of such New Leases. Consultant shall not be entitled to any revenues from any lease approved by the City Council prior to the Effective Date (an "Existing Lease"), except as set forth in Section 2(b) below. (b) If any Existing Lease is amended or modified after the Effective Date, where such modification results in the co-location of additional equipment or the inclusion of additional wireless providers at any existing site, Consultant shall receive twenty percent (20%) of the incremental lease revenue over the life of the lease attributable to such modification. (c) All New Leases shall contain provisions stating that any and all payments under such New Leases shall be paid into athird-party escrow or lockbox account (the "Lockbox Account") provided such a process is consistent with governmental accounting and finance practices and standards. In such case, Consultant shall be responsible for selecting the third-party to provide the Lockbox Account, subject to the City's reasonable approval of such third party, and Consultant shall pay all fees and expenses associated with opening and maintaining the Lockbox Account. The City and the Consultant shall execute instructions to the party providing the Lockbox Account (the "Holder"), instructing the Holder to distribute the Consultant Lease Fees directly to Consultant and the remaining funds directly to the City within 5 business days of receipt of such funds into the Lockbox Account, or such other commercially reasonable terms the parties may agree upon from time to time. (d). Upon termination of this Agreement, or upon the exercise of any option periods in a lease, the City, at its option, may "buy out" the remaining Consultant Lease Fees by paying the net present value of such remaining obligation utilizing a discount rate of 10%. (e) For purposes of calculating the Consultant Lease Fee, in-kind consideration such as public improvement, plus sales taxes, real estate or personal property tax reimbursement and insurance reimbursement, if applicable, shall be excluded from the New Lease revenues. The Holder shall provide Consultant a monthly report including a statement of account detailing transactions, and showing all amounts collected and uncollected from New Leases. 3. TERM The initial term of this Agreement shall be two (2) years commencing on January 1, 2009, unless terminated earlier in accordance with Section 12, below. The term of this Agreement maybe extended at the option of the City Council in its sole and absolute 25A-5 discretion for an additional two-year term. Any extensions thereafter shall be at the discretion of the City Council. 4. INDEPENDENT CONTRACTOR/EXCLUSIVITY Consultant shall, during the entire term of this Agreement, be construed to be an independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the professional manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. The City Manager shall designate a Staff Contact who shall be responsible for all coordination/supervision of Consultant. Consultant and Consultant's employees, and sub consultants and subcontractors shall communicate solely with the Staff Contact and any other City staff or official only if approved by the Staff Contact. Consultant and Staff Contact shall cooperate in selecting viable sites to be marketed to wireless providers. Final approval of each site and the terms of each lease are subject to recommendation by the Staff Contact and approval by the City Council. This agreement shall not be construed to impose upon the City, Staff Contact and/or City Council any obligation other than to consider recommended sites for leasing in good faith, and the City Council reserves its absolute discretion to approve, disapprove or modify the terms of any lease agreement. The failure of the City Council to approve any recommended wireless site lease shall not be a basis for breach of the City's obligations hereunder or entitle Consultant to damages therefor. City agrees it shall not negotiate or enter into any leases with wireless providers on City-owned land other than through Consultant at any time during the term of this Agreement. Any leases entered into in violation of this provision shall be deemed New Leases and subject to payment of the Consultant Lease Fees. 5. INSURANCE Prior to undertaking performance of work under this Agreement, Consultant shall maintain and shall require its subcontractors, if any, to obtain and maintain insurance as described below: a. Commercial General Liability Insurance. Consultant shall maintain commercial general liability insurance naming the City, its officers, employees, agents, volunteers and representatives as additional insureds) and shall include, but not be limited to protection against claims arising from bodily and personal injury, including death resulting therefrom and damage to property, resulting from any act or occurrence 25A-6 arising out of Consultant's operations in the performance of this Agreement, including, without limitation, acts involving vehicles. The amounts of insurance shall be not less than the following: single limit coverage applying to bodily and personal injury, including death resulting therefrom, and property damage, in the total amount of $1,000,000 per occurrence. Consultant shall supply City with a fully executed additional insured endorsement in substantially the form attached hereto as Exhibit B upon execution of this Agreement and shall be approved in form by the City Attorney. b. Business automobile liability insurance, or equivalent form, with a combined single limit of not less than $1,000,000 per occurrence. Such insurance shall include coverage for owned, hired and non-owned automobiles. c. Worker's Compensation Insurance. In accordance with the provisions of Section 3300 of the Labor Code, Consultant, if Consultant has any employees, is required to be insured against liability for worker's compensation or to undertake self-insurance. Prior to commencing the performance of the work under this Agreement, Consultant agrees to obtain and maintain any employer's liability insurance with limits not less than $1,000,000 per accident. d. The following requirements apply to the insurance to be provided by Consultant pursuant to this section: (i) Consultant shall maintain all insurance required above in full force and effect for the entire period covered by this Agreement, (ii) Certificates of insurance shall be furnished to the City upon execution of this Agreement and shall be approved in form by the City Attorney. (iii) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the City. e. If Consultant fails or refuses to produce or maintain the insurance required by this section or fails or refuses to furnish the City with required proof that insurance has been procured and is in force and paid for, the City shall have the right, at the City's election, to forthwith terminate this Agreement after 30 days notice to Consultant and opportunity to cure. Such termination shall not affect Consultant's right to be paid (i) for its time and materials expended prior to notification of termination and (ii) the ongoing Consultant Lease Fees in accordance with Section 2 for any New Leases. Consultant waives the right to receive compensation and agrees to indemnify the City for any work performed prior to approval of insurance by the City. 6. INDEMNIFICATION (a) Consultant agrees to and shall indemnify and hold harmless the City, its officers, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the gross negligence or willful misconduct of the Consultant or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. 25A-7 (b) City agrees to and shall indemnify and hold harmless the Consultant, its officers, directors, agents, employees, consultants, special counsel, and representatives from liability for personal injury, damages, just compensation, restitution, judicial or equitable relief arising out of claims for personal injury, including health, and claims for property damage, which may arise from the gross negligence or willful misconduct of the City or its contractors, subcontractors, agents, employees, or other persons acting on their behalf which relates to the services described in section 1 of this Agreement. 7. CONFIDENTIALITY If Consultant receives from the City information which due to the nature of such information is reasonably understood to be confidential and/or proprietary, Consultant agrees that it shall not use or disclose such information except in the performance of this Agreement, and further agrees to exercise the same degree of care it uses to protect its own information of like importance, but in no event less than reasonable care. "Confidential Information" shall include all nonpublic information. Confidential information includes not only written information, but also information transferred orally, visually, electronically, or by other means. Confidential information disclosed to either party by any subsidiary and/or agent of the other party is covered by this Agreement. The foregoing obligations of non-use and nondisclosure shall not apply to any information that (a) has been disclosed in publicly available sources; (b) is, through no fault of the Consultant disclosed in a publicly available source; (c) is in rightful possession of the Consultant without an obligation of confidentiality; (d) is required to be disclosed by operation of law; or (e) is independently developed by the Consultant without reference to information disclosed by the City. 8. CONFLICT OF INTEREST CLAUSE Consultant covenants that it presently has no interests and shall not have interests, direct or indirect, which would conflict in any manner with performance of services specified under this Agreement. City acknowledges and agrees that Consultant (i) designs, develops and builds transmission towers for Wireless Services and (ii) offers consulting services similar to those to be performed under this Agreement to other cities and government entities, as well as private parties, and such activities shall not be deemed a conflict or interest. 9. NOTICE Any notice, tender, demand, delivery, or other communication pursuant to this Agreement shall be in writing and shall be deemed to be properly given if delivered in person or mailed by first class or certified mail, postage prepaid, or sent by telefacsimile or other telegraphic communication in the manner provided in this Section, to the following persons: To City: Clerk of the City Council City of Santa Ana 25A-8 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Telefacsimile (714) 647-6956 With courtesy copies to: City Manager City of Santa Ana 20 Civic Center Plaza (M-31) P.O. Box 1988 and Santa Ana, California 92702 Telefacsimile (714) 647-6954 City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, California 92702 Telefacsimile (714) 647-6515 To Consultant: ATS Communications 22651 Lambert Street, Suite IOIA Lake Forest, California 92630 Telefacsimile (949) 768-6984 A party may change its address by giving notice in writing to the other party. Thereafter, any communication shall be addressed and transmitted to the new address. If sent by mail, shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. 10. ENTIRE AGREEMENT This Agreement represents the complete and total statement between the City and Consultant, and supersedes any and all other agreements, oral or written, between the parties. In the event of a conflict between the terms of this Agreement and any attachments hereto, the terms of this Agreement shall prevail. This Agreement may not be modified except by written instrument signed by the City and by an authorized representative of Consultant. The parties agree that any terms or conditions of any purchase order or other instrument that are inconsistent with, or in addition to, the terms and conditions hereof, shall not bind or obligate Consultant or the City. Each party to this Agreement acknowledges that no representations, inducements, promises or agreements, 25A-9 orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which is not embodied herein. 11. ASSIGNMENT Inasmuch as this Agreement is intended to secure the specialized services of Consultant, Consultant may not assign, transfer, delegate, or subcontract any interest herein without the prior written consent of the City and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. In granting or denying such approval, the City shall consider the professional, technical and financial ability of the assignee to perform the services required of the Consultant. Notwithstanding the foregoing, (i) Consultant may assign, hypothecate, and/or factor the Consultant Lease Fees for the purpose of financing Consultant's business without the consent of the City provided that any terms of such assignments shall not in any way affect or restrict the City's rights and obligations regarding payment of the Consultant Lease Fees, and, (ii) Consultant may use assistants, sub-contractors and sub-consultants, under its direct supervision to perform some of the services under this Agreement subject to reasonable approval by the Staff Contact and at Consultants own cost. 12. TERMINATION This Agreement maybe terminated by either party upon thirty (30) days written notice for anon-cured material breach by the other party or a reasonable period of time to cure if the breach cannot reasonably be cured within 30 days. In the event of any termination, Consultant shall be entitled to continue to receive the Consultant Lease Fees for the duration of the New Leases as set forth in Section 2 and the Lockbox Account provisions of Section 2(c) shall survive any such termination, subject to the City's buy-out rights in Section 2 (d) above. 13. NON-DISCRIMINATION Consultant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Consultant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. 14. JURISDICTION -VENUE This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or 25A-10 proceeding that may be brought or arise out of, in connection with or by reason of this Agreement. 15. PROFESSIONAL LICENSES Consultant shall, throughout the term of this Agreement, maintain all necessary licenses, permits, approvals, waivers, and exemptions necessary for the provision of the services hereunder and required by the laws and regulations of the United States, the State of California, the City of Santa Ana and all other governmental agencies. Consultant shall notify the City immediately and in writing of its inability to obtain or maintain such permits, licenses, approvals, waivers, and exemptions. Said inability shall be cause for termination of this Agreement. 16. MISCELLANEOUS PROVISIONS a. Each undersigned represents and warrants that its signature hereinbelow has the power, authority and right to bind their respective parties to each of the terms of this Agreement, and shall indemnify City fully, including reasonable costs and attorney's fees, for any injuries or damages to City in the event that such authority or power is not, in fact, held by the signatory or is withdrawn. b. All Exhibits referenced herein and attached hereto shall be incorporated as if fully set forth in the body of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA PATRICIA E. HEALY DAVID N. REAM Clerk of the Council City Manager APPROVED AS TO FORM: JOSEPH W. FLETCHER TELECOM PARTNERS GROUP City Attorney CORP dba ATS COMMUNICATIONS TONY INGEGNERI President 25A-11 EXHIBIT A SCOPE OF SERVICES Consultant shall maintain and update the Citywide Wireless Communications Master Plan designed to: • Reduce the number of wireless antennas necessary to provide service throughout the City. • Reduce the blight of communication antennas through an effective equipment screening process. • Create good wireless reception throughout the city. • Generate additional revenues for the City. Consultant will perform the following tasks in order to develop and implement the master plan: • Analyze existing facilities located within, and adjacent to, the City of Santa Ana, estimating projections of future demand for facilities in Santa Ana. • Meet with wireless providers in Southern California to assess and determine anticipated future network requirements. • Identify City owned property suitable for development of wireless communications towers to meet anticipated future needs. • Act as the City's exclusive agent to lease identified City property to wireless communications providers and facilitate lease negotiations, including terms relating to the development of additional improvements on City property in exchange for a portion of the lease value and • Oversee design and implementation of wireless facilities. Consultant shall coordinate the design and location of wireless communication facilities and stealth antenna with City staff to minimize impact to the City site and programs. Consultant shall review wireless radio signals to ensure wireless communications services will not impact any emergency services, safety personnel radio service, etc. • Consultant shall provide and manage a construction schedule for the City staff, assist in the verification of permits, and verify improvements to the satisfaction of City staff prior to the release of electrical service to the site. • Consultant shall inform City staff of new Wireless Services technologies as they are developed by the industry, and assist in implementing policies and procedures regarding the permitting and siting of those technologies in the City. City has provided Consultant information regarding the location of existing telecommunications facilities within the City, the location of any planned facilities within the next 12-month period and a list of all frequencies presently utilized at all existing sites (transmit and receive). 25A-12 EXHIBIT B ADDITIONAL INSURED ENDORSEMENT FOR COMMERCIAL GENERAL LIABILITY POLICY Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701; its officers, employees, agents, volunteers and representatives are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be cancelled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92701. (Completion of the following, including countersignature, is required to make this endorsement effective.) Effective Policy # _ Issued to this endorsement form as a part of Named Insured Countersigned by Authorized Representative 25A-13 25A-14