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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
From: Fred Wilsen, City Manager
Subject: Resolution authorizing execution of
a Services Agreement with Telecom Partners
Group Corp, dba ATS Communications to
develop and implement a Wireless Master
Plan for the City of San Bernardino.
Dept: City Manager's Office
Date: April 26, 2007
MCC Date: May 7, 2007
Synopsis of Previous Council Action:
March 28,2007 Recommended for approval at the Special Ways and Means Committee
meeting on March 28,2007.
Recommended Motion:
Adopt Resolution.
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Contact person: Jan Wages, Admin Analyst II Phone: 5122
Supporting data attached: Staff Report, Reso, Agreement Ward(s): All
FUNDING REQUIREMENTS: Amount: None
Source: (Acct. No.)
Acct. Description:
Finance:
Council Notes:
Agenda Item No. --d:l-
5/1/07
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CITY OF SAN BERNARDINO - REQUEST FOR COUNCIL ACTION
STAFF REPORT
Subject:
Resolution of the Mayor and Common Council of the City of San Bernardino authorizing the
City Manager to execute a Services Agreement by and between the City of San Bernardino and
Telecom Partners Group Corp, dba A TS Communications, a California Corporation,
("Consultant") for the development and implementation of a Wireless Master Plan.
Background:
The City recently received a proposal from A TS Communications for the development and
implementation of a Wireless Master Plan for the City of San Bernardino. The purpose of the
plan is to effectively manage the growth and demand for a reliable wireless communication
infrastructure throughout the City.
Mi. Tony Ingegneri, President of ATS Communications was present at the Special Ways and
Means Committee meeting on March 28'\ and apprised the Committee Members of the four
main goals of the program: 1) reduce the number of wireless antenna sites necessary to provide
services throughout the City; 2) mitigate the blight of cell antennas through an effective
equipment screening process; 3) create efficient wireless phone service throughout the City; and
4) generate significant additional revenue for the City through contact with wireless providers
and the marketing of City properties as potential sites for new leases. The Consultant has
successfully negotiated long term leases with wireless providers on behalf of other cities
resulting in significant revenue streams.
The City currently has leases with wireless providers ranging from $660 to $1,700 per month
through the Development Services Department, Real Property Division. The Parks, Recreation
and Community Services Department has two cell tower sites located on park property. One
negotiated agreement netted the department $120,000 up front for a five-year lease; after the
initial five years, monthly lease revenue will be $2,000 month. The initial revenue was dedicated
to a much-needed fencing project at the Nunez Park. The second Agreement, executed in June
2004, was for $60,000 up front for the first five years at the Soccer Complex, earmarked for field
lighting; revenue will be $1,500 month after five years.
The Consultant indicated that in order to accommodate the growing number of customers and
services over the next few years, the number of cell sites in the city is expected to double or
triple. Depending on the number of acceptable City properties, with aggressive marketing by
Consultant, an estimated 10 to 20 of those new cell sites, placed on a minimal number of stealth
towers, could be located on City property.
The attached Agreement provides for the Consultant to perform the following tasks to develop
and implement the master plan: analyze existing facilities located within, and adjacent to, the
City of San Bernardino; estimate projections of future demand for facilities in the City; meet
with wireless providers in Southern California to assess and determine anticipated future network
requirements; identify City owned property suitable for development of wireless
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Staff Report, Continued
communications towers to meet anticipated future needs; and 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.
Further, Consultant will oversee design and implementation of wireless facilities, coordinate the
design and location of wireless communication facilities and stealth antenna with City staff to
minimize impact to the City site and programs, and review wireless radio signals to ensure
wireless communications services will not impact any emergency services, safety personnel
radio service, etc. Consultant will provide and manage a construction schedule for 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.
The initial term of the Agreement is for five years, commencing on June 1,2007. There is no up
front cost to the City under this Agreement. The Consultant shall be compensated with twenty-
five percent of the revenue from each new lease (defined as any lease approved by the City
Council during the term of this Agreement) for the life of the lease, including any renewals or
extensions. Consultant shall not be entitled to any revenues from any lease currently being
negotiated by City staff and / or approved by the City Council prior to the June 1,2007 effective
date.
Financial Impact;
Compensation to Consultant will be determined entirely by the amount of new lease revenue
generated by Consultant, at a rate of25% of new lease revenue. If the wireless provider fails to
pay the amounts due under the new lease, the City shall have no obligation to compensate
consultant.
Recommendation:
Adopt Resolution.
RESOLUTION NO.
RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A SERVICES
AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND
TELECOM PARTNERS GROUP CORP, DBA ATS COMMUNICATIONS, A
CALIFORNIA CORPORATION, ("CONSULTANT") FOR THE DEVELOPMENT
AND IMPLEMENTATION OF A WIRELESS MASTER PLAN PURSUANT TO
MUNICIPAL CODE SECTION 3.04.010B.3.
BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE
CITY OF SAN BERNARDINO AS FOLLOWS:
Section 1: The City Manager of the City of San Bernardino is hereby authorized to
execute on behalf of said City the Services Agreement with A TS Communications, a copy of
which is attached hereto, marked as Exhibit "A", and incorporated herein by reference as fully
as though set forth at length.
Section 2: This purchase is exempt from the formal contract procedures of Section
3.04.010 of the Municipal Code, pursuant to Section 3.04.010.B.3 of said Code "Purchases
approved by the Mayor and Common Council".
Section 3: Telecom Partners Group Corp, dba A TS Communications, is a consultant
having special skill and knowledge in the field of wireless communication technology; and the
City of San Bernardino desires to enter into a Services Agreement with ATS Communications
for the development and implementation of a Wireless Master Plan for the City of San
Bernardino.
Section 4: The authorization to execute the above referenced Services Agreement is
rescinded if the parties to the agreement fail to execute it within sixty (60) days of the passage
of this resolution.
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RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN
BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A SERVICES
AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND
TELECOM ,PARTNERS GROUP CORP, DBA ATS COMMUNICATIONS, A
CALIFORNIA CORPORATION, ("CONSULTANT") FOR THE DEVELOPMENT
AND IMPLEMENTATION OF A WIRELESS MASTER PLAN PURSUANT TO
MUNICIPAL CODE SECTION 3.04.010B.3.
I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor
and Common Council of the City of San Bernardino at a
meeting thereof, held on
the _ day of
,2007, by the following vote, to wit:
Council Members:
AYES
NAYS
ABSTAIN ABSENT
ESTRADA
BAXTER
BRINKER
DERRY
KELLEY
MCCAMMACK
Rachel Clark, City Clerk
The foregoing resolution is hereby approved this
day of
,2007.
Patrick J, Morris, Mayor
City of San Bernardino
Approved as to form:
JAMES F. PENMAN,
City Attorney
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SERVICES AGREEMENT
TH1S AGREEME!,;T, made and entered into this _ day of , 2007
("Effective Date") by and between Telecom Pal1ners Group Corpo~ation, dba A TS Communications.
a California corporation (hereinafter "Consultant"), and the elly of San Bernardino, a municipal
corporation organized under the laws of the State of California (hereinafter "City").
RECIT ALS
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 propel1y owned by the City to provide a wireless communication
network throughout the City of San Bernardino.
B.
the City.
Consultant represents that Consultant is able and willing to provide such services to
C. In undel1aking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this Agreement will
be performed in compliance with such standards as may reasonably be expected from a professional
consulting firm in the field.
0, In approving this Agreement. the Mayor and Common Council finds that Consultant
:1a5 unique qualifications and skills not otherwise av'ailable in the marketplace, and is therefore
ncmpt from competitive bidding,
"'OW THEREFORE. in consideration of the mutual and respective pronllSes. and subject
to the terms and conditions hereinafter set fOl1h. the pal1ies agree as follows:
1. SCOPE OF SERVICES
(a) Consultant shall develop and implement, subject to formal adoption by the Mayor and
Common Council, a wireless communications master plan ("Wireless Master Plan") for the City
which will identify current wireless facilities located within the City (on public and private land),
other City Propel1y 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"). Consultant will have the exclusive right to market
all City owned sites to potential wireless providers and facilitate the placement of wireless
communication cell towers and facilities on City owned property ("City Property") to implement the
Wireless Master Plan, as set forth in Exhibit A, attached hereto. Said grant of rights is specifically
subject to City's reservation to itself of the absolute discretion to approve or disapprove, for any
reason. any location and/or provision of any lease agreement recommended by Consultant. City
Property subject to this Agreement shall not include those public properties (whether City-owned
or otherwise publicly-owned) within or containing a public right-of-way.
EXHIBIT "A"
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(b) Pursuant to the Wireless Master Plan process, Consultant shall develop procedures
to streamline the process for wireless providers to submit lease proposals for Clly Properties,
including:
I. The development of standard application and proposal materials to be used
by wireless prmiders for their proposals for new Wireless Services on City Properties;
11. The development of form lease agreements ("Form Lease Agreements") to
be used with wireless providers eligible to lease City Properties. Form Lease Agreements shall be
subject to approval by the City's City Attorney. All Form Lease Agreements proposed by Consultant
to shall contain. at a minimum, the following provisions:
I. The location, nature and scope of all Wireless Services equipment and
facilities within each City Property shall be subject to City approval;
2. Each lessee shall obtain prior City approval for access for operations
and maintenance;
~ Lessees shall procure labor and material bonds during construction;
the City Property must at all times remain lien-free
4. Lessees shall be responsible for obtaining all utility service. and all
land use. lIntfonn construction and othcr govemmental pemllts and approvals to construct and
operate Wireless Services:
5. Lessees shall comply \\ith all laws, ordinan2es and govemmental
requirements:
6. Lessees shall be solely responsible for. and pay all costs of. obtaining
all required land use entitlements and permits. Lessees shall not acquiesce in any entitlement or
pennll condition without the prior written consent of the Cit\';
7. Lessees shall comply with City security and safety requirements for
City Prope11ies:
8. Lessees shall be responsible for the complete repair of any City
Property or facility damaged by any action of the lessee;
9. City Properties are leased as-is, without any warranty by City, and with
waiver of any claims by lessee against City for damage to such City Properties or facilities thereon;
. .
10. Lessees shall defend and indemnify City, its officials, employees and
agents for any claim, injury or damage arising out of the lease or any lease-related activities, unless
such claim. injury or damage arose out of the sole active negligence or willful misconduct of City
or any of its officials, agents or employees;
EXHIBIT "A"
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II. Insurance coverage (including CGL-type liability coverage and all of
City'> stJndard requirements) in the minimum amount of$1 million per occurrence ancl naming City.
its officials. employees and agents as additional insureds; builder's all risk or similar construction
CJSUJlty. Jndcompleted facilities casualty insurance covering all City Property leased by the wireless
provider; and workers compensation insurance, with no rights of subrogation against City (including
all of City's standard provisions);
12. Lessee acknowledgments that they are subject to possessory interest
taxJtion.
111. The identification of priority City Properties where Consultant believes there
is the most potential demand/revenue opportunity for new leases with wireless providers (the
"Priority Sites''): Priority Sites shall be subject to approval by the City's City Manager or his/her
designee.
(c) During the duration of this agreement, Consultant shall have the exclusive right and
authority to (i) contact wireless providers and market the City Properties as potential sites for New
Leases (defined below), (ii) accept submissions of proposals for New Leases and negotiate with
wireless providers with respect to the terms and conditions of such New Leases and (iii) represent
itself as the City's exclusive Consultant with respect to such New Leases and the services being
pro\'ided hereunder. The Consultant shall have no authority to bind the City and all proposals for
'\e\\ Leases shall be subject to City approval. The City agrees that it will forward all requests or
inquines regardIng potentiJI ~e\\' Leases to the Consultant. for the Consultant to negotiate and
coord1l1ate before the proposal is formally submitted to the City. The CIty further agrees that it shall
use its be,! efforts to expedite the review of proposed '\ew Leases that conform to the Form Lease
,-\greemt'nts and prot ide any comments within 60 d:IYs of such submissIon. The City further agrees
to use reasonable efforts to expedi te and facilitate the approval and execution of \\ew Leases fl'r the
Prionty Sites.
2. COl\lPE:'IiSATION
For the services delineated above, City shall pay to Consultant, and Consultant shall accept
from City, compensation for services under this agreement as follows:
(a) Twenty five Percent (25%) of the revenue from each New Lease (defined below) over
the life of the New Lease. Any renewals or extensions after the first five years shall be paid at a rate
of 25'70 of the revenue received from the lease (all such New Lease revenue payable to Consultant,
including fees set forth in Section 5(c) below, is referred to collectively herein as the "Consultant
Lease Fees"). Consultant shall 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 s'uch amounts are recovered
by the City. For purposes of this Agreement, "New Lease" means any lease approved by the Mayor
and Common Council during the term 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
EXHIBIT "A"
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requiring notice to Consultant and the City's City Manager of any change or modification in the
terms of such New Leases. Consultant shall not be ercttled to any revenues from any lease being
negotiated t)y City Staff and/or approved by the Mayo. and Common 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 equipmentorthe inclusion of additional wireless
pro\'iders at any existing site. Consultant shall receive twenty five percent (25%) of the incremental
lease revenue over the life of the lease attributable to such modification. Any such amendment or
modification of an Existing Lease shall be subject to the City's reasonable written approval.
(c) 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.
(d) As part of approval of the Wireless Master Plan. the City shall consider imposing a
fee to offset the cost of the Consultant reviewing all public and private applications for wireless
faci lities covered by the Wireless Master Plan and otherwise subject to discretionary approval of the
l\layor and Common Council.
.3.
TERl\I; SEVERABILITY.
T.e inttial tern1 of this Agreement shall be for a period of fIve years, commencing on June
L 20m. and terminating on May 31.2012. unless previously modified, amended. or cancelled by
the \\ritten mutual consent of the parties.
This Agreement may be terminated at any time by thirty (30) days written notice by
either pany. The terms of this contract shall remain in force unless mutually amended. The duration
of thIS contract may be extended wllh the written consent of both parties.
4. BUSINESS CERTIFICATE
Consultant shall obtain and maintain during the term of this Agreement, a valid City Business
Registration Certificate pursuant to Title 5 of the Cny of San Bernardino Municipal Code and any
and all other licenses, permits, qualifications, and approvals of whatever nature that are legally
required to practice its profession, skill or business.
5. RECORDS AND AUDITS
Records of Consultant's services relating to this Agreement shall be maintained in
accordance with generally recognized accounting principles and shall be made available to City for
inspection and/or audit upon 24-hours notice to Consultant. The records shall be maintained for the
term of the this Agreement, any extension or extensions thereof, and for a period of three years
following its termination, by whatever means.
EXHIBIT "A"
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6.
I:-.iDEMNITY.
Consultant shall indemnify, defend and hold harmless the City, its officers, employees and
agents (including. \\'ithoutlimitation, reasonable eo>;'s of defense and reasonable attorney's fees)
ansing out of or related tl' City's performance of this agreement, except that such duty to indemnify,
defend and hold harmless shall not apply where injury to person or property is caused by City's
willful misconduct or negligence. City shall indemnify, defend and hold harmless the Consultant,
ltS officers, employees and agents (including, without limitation, reasonable costs of defense and
reasonable attorney's fees) arising out of or related to Consultant's performance of this Agreement,
except that such duty to indemnify, defend arid hold harmless shall not apply where injury to person
or property is caused by Consultant's willful misconduct or negligence. The costs, salary and
expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of
the City shall be considered as "attorneys' fees" for the purposes of this paragraph.
7, INSL'RANCE.
7.1 Minimum Scope and Limits of Insurance. Consultant shall obtain and maintain
during the term of thIS Agreement all of the following insurance coverages:
(a)
Comprehensive general liability, including premises-operations.
products/completed operations, broad form property damage. blanket
contractual liability. independent contractors, personal injury \llth a policy
limit of not less than One 1\.1illion Dollars (Sl.OOO.ooo.om. combined single
I lITI I t,:, , per OLCllrrence and aggregate.
(b) Automobile li:dJil'ity for o\':ned vehicles. hired. and nnn-Q\\'ned vehiclcs. with
a policy 11lmt oinot less than One YlilllOn Dollars (S 1.000.000.00 I. combined
smgle limits. per occurrence Jnd aggregate.
(CI Workers' compensation insurance as required by the State of California.
(d) Professional errors and omissiClns ("E&O") liability insurance \\'lth policy
limits of not less than One Million Dollars ($1,000,000.00), combined smgle
limits, per occurrence and aggregate. Consultant shall obtain and maintain,
said E&O liability insurance during the life of this Agreement and for three
years after completion of the work hereunder.
7.2. Endorsements. The comprehensive general liability insurance policy shall contain
or be endorsed to contain the following provisions:
(a)
Additional insureds: "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional insureds
with respect to this subject project and contract with City."
(b)
Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced, until thirty (30) days after written notice is given to City."
EXHIBIT "A"
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(c)
Other insurance: "Any other insurance maintained by the City of San
Bernardino shall be excess and not contributing with the insurance provided
by this policy."
7.3. Certificates of Insurance: Consultant shall provide to City certificates of insurance
showing the insurance coverages and required endorsements described above, in a form and content
approved by City, prior to performing any services under this Agreement.
7"+. Non-limiting: Nothing in this Section shall be construed as limiting in any way, the
indemnification provision contained in this Agreement, or the extent to which Consultant may be
held responsible for payments of damages to persons or property.
8. NON-DISCRIMINA TION
In the performance of this Agreement and in the hiring and recruitment of employees,
Consultant shall not discriminate on the basis of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, or sexual
orientation.
9. L!\DEPENDENT CONTRACTOR
Consultant shall perform work tasks provided by this Agreement but for all intents and
purposes Consultant shall he an independent'contractor and not an agent or employce of the City.
10, :'\OTlCES
Any notice to be given pursuant to this Agrcement shall he deposircd \\ith the Cnited
Po,tal Service. postage prepaid and addressed as follows:
TO THE CITY: City Manager's Office
300 North "D" Street
San Bernardino, CA 92418
Facsimile (909) 384-5138
TO THE CONSULTANT: ATS Communications
22651 Lambert Street, Suite IOIA
Lake Forest, CA 92630
Facsimile (949) 768-6984
II. ATTORNEYS' FEES
In the event that litigation is brought by any party in connection with this agreement, the
prevailing party shall be entitled to recover from the opposing party all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or
remedies hereunder or tbe enforcement of any of the terms, conditions or provisions hereof. The
costs, salary and expenses of the City Attorney and members of his office in enforcing this
EXHIBIT "A"
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.\greement on behalf of the City shall be considered as "attorn,"ys' fees" for the purposes of this
paragraph.
]2. ASS]GMIE~T
Consultant shall not voluntarily or by operation of law assign. transfer, sublet or encumber
all or any part of the Consultant's interest in this Agreement without City's prior written consent.
Any attempted assignment. transfer. subletting or encumbrance shall be void and shall constitute a
brea~h of this Agreement and cause for the termination of this Agreement. Regardless of City's
consent, no sublctting or assignment shall release Consultant of Consultant's obligation to perform
all other obligations to be performed by Consultant hereunder for the term of this agreem'nt.
13. GOVER 'lING LA W
This Agreement shall be governed by and construed and interpreted in accordance with the
laws of the State of California without regard to principles of conflicts of law.
]4. VE:\l'E
The panies hereto agree that all actions vI' proceedings arising in connection with this
Agreement shall be tried and litigated either in the State courts located in the County of San
F.,rnardino. State of Calil'ornia or the U.S. District Court for the Central District of California
The aforementioned choice of vcnue is intended by the parties to be IT'andatory and not permissive
In n~ttur(:.
15. SlCCESSORS A:\D ASSIG:\S.
ThiS Agreement sha!1 be binding on and inure to the benefit of the pCII11es to this Agreement
,md their respective heirs. representat1\es. successors, and assigns.
]6. HE.\D1:\GS.
The subject headings of the sections of this Agreement are included for the purposes of
convenience only and shall not affect the construction or the interpretation of any of its provisions.
]7. ENTIRE AGREEMENT; MODIFICATION.
This Agreement constitutes the entire agreement and the understanding between the parties,
and supercedes any prior agreements and understandings rclating to the subject matter of this
Agreement. This Agreement may be modified or amended only by a w~tten instrument executed
by all parties to this Agreement.
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EXHIBIT "A"
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IN WITNESS THEREOF, the parties hereto haw executed this Agreement on the day and
date first above written.
Date: May
.2007
Telecom Partners Group Corporation,
dba A TS Communications
By:
Tony Ingegneri, President
Date: May
,2007
City of San Bernardino
By:
Fred Wilson, City Manager
Attest:
Rachel Clark. City Clerk
Arproved as to form:
.lames F. Pcnm,c.n. eJty Attorney
B"
EXHIBIT "A"
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Attachment I
SCOPE OF SERVICES
Consultant shall prepare and assist in implementing a City wide wireless communications master
plan designed to:
Reduce the number of wireless antennas necessary to provide service throughout the City.
Reduce the blight of cell antennas through an effective equipment screening process.
Create good wireless reception throughout the City.
Generate additional rcvenues 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 San Bernardino.
estimating projections of future demand for facilities in San Bernardino.
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 antici pated future needs.
Act as the Clty's exclusive agent to lease identified City Property to wireless communications
pnlliders and facilitate lease negotiations. including tenns relating to the developmcnt of additional
Improvements on City PropeJ1y in exchange,for a portion of the lease \'alue and
O"ersee design and implementation of wireless faCilities. Consultant shall coordinate the
design and location of wireless communIcation facilities and stealth antenna wllh City staff to
mmimize 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
(adio sen'lce. 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 pJior to the release
of electrical service to the site.
City will provide to Consultant. information regarding the location of existing telecommunications
facilities within the City. the location of any planned facilities within the next I2-month period and
a list of all frequencies presently utilized at all existing sites (transmit and receive).
None of the services provided hereunder shall apply to any property within or containing a public
right-of.way. road, street or highway.
EXHIBIT "A"
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Attachment 2
ADDITIO~AL INSURED E~DORSEMENT
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 San Bernardino, California 92418; 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.
-. Thi~ insurance applies separately to r-;Jch insured. against \,"ham claim is made or suit
is brought ncept \\ llh respect to the company's limits of liability. The inclusion of any person or
or~al1izat'on as an insured shall not affect any fight \\hlch such person or organizatIOn \\ould have
as" clulmant 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 \\ ritten notice has been given
to the City of San Bernardino, California.
(Completion of the following. including countersignature, is required to make this endorsement
effective.)
Effecti ve
Polic'#
Issued to
, this endorsement form as a part of
Named Insured
Countersigned by
Authorized Representative
EXHIBIT "A"
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SERVICES AGREEMENT
THIS AGREEMENT, made and entered into this _ day of , 2007
("Effective Date") by and between Telecom Partners Group Corporation, dba A TS Communications,
a California corporation (hereinafter "Consultant"), and the City of San Bernardino, a municipal
corporation organized under the 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 property owned by the City to provide a wireless communication
network throughout the City of San Bernardino.
B.
the City.
Consultant represents that Consultant is able and willing to provide such services to
C. In undertaking the performance of this Agreement, Consultant represents that it is
knowledgeable in its field and that any services performed by Consultant under this Agreement will
be performed in compliance with such standards as may reasonably be expected from a professional
consulting firm in the field.
e D. In approving this Agreement, the Mayor and Common 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
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(a) Consultant shall develop and implement, subject to formal adoption by the Mayor and
Common Council, a wireless communications master plan ("Wireless Master Plan") for the City
which will identify 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"). Consultant will have the exclusive right to market
all City owned sites to potential wireless providers and facilitate the placement of wireless
communication cell towers and facilities on City owned property ("City Property") to implement the
Wireless Master Plan, as set forth in Exhibit A, attached hereto. Said grant of rights is specifically
subject to City's reservation to itself of the absolute discretion to approve or disapprove, for any
reason, any location and/or provision of any lease'agreement recommended by Consultant. City
Property subject to this Agreement shall not include those public properties (whether City-owned
or otherwise publicly-owned) within or containing a public right-of-way.
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(b) Pursuant to the Wireless Master Plan process, Consultant shall develop procedures
to streamline the process for wireless providers to submit lease proposals for City Properties,
including:
i. The development of standard application and proposal materials to be used
by wireless providers for their proposals for new Wireless Services on City Properties;
ii. The development of form lease agreements ("Form Lease Agreements") to
be used with wireless providers eligible to lease City Properties. Form Lease Agreements shall be
subject to approval by the City's City Attorney. All Form Lease Agreements proposed by Consultant
to shall contain, at a minimum, the following provisions:
I. The location, nature and scope of all Wireless Services equipment and
facilities within each City Property shall be subject to City approval;
2. Each lessee shall obtain prior City approval for access for operations
and maintenance;
3. Lessees shall procure labor and material bonds during construction;
the City Property must at all times remain lien-free
4. Lessees shall be responsible for obtaining all utility service, and all
land use, uniform construction and other governmental permits and approvals to construct and
operate Wireless Services:
5. Lessees shall comply with all laws, ordinances and governmental
requirements:
6. Lessees shall be solely responsible for, and pay all costs of, obtaining
all required land use entitlements and permits. Lessees shall not acquiesce in any entitlement or
permit condition without the prior written consent of the City;
7. Lessees shall comply with City security and safety requirements for
City Properties;
8. Lessees shall be responsible for the complete repair of any City
Property or facility damaged by any action of the lessee;
9. City Properties are leased as-is, without any warranty by City, and with
waiver of any claims by lessee against City for damage to such City Properties or facilities thereon;
10. Lessees shall defend and indemnify City, its officials, employees and
agents for any claim, injury or damage arising out of the lease or any lease-related activities, unless
such claim, injury or damage arose out of the sole active negligence or willful misconduct of City
or any of its officials, agents or employees;
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. 11. Insurance coverage (including CGL-type liability coverage and all of
City's standard requirements) in the minimum amount of $1 million per occurrence and naming City,
its officials, employees and agents as additional insureds; builder's all risk or similar construction
casualty, and completed facilities casualty insurance covering all City Property leased by the wireless
provider; and workers compensation insurance, with no rights of subrogation against City (including
all of City's standard provisions);
12. Lessee acknowledgments that they are subject to possessory interest
taxation.
iii. The identification of priority City Properties where Consultant believes there
is the most potential demand/revenue opportunity for new leases with wireless providers (the
"Priority Sites"). Priority Sites shall be subject to approval by the City's City Manager or hislher
designee.
(cl During the duration of this agreement, Consultant shall have the exclusive right and
authority to (i) contact wireless providers and market the City Properties as potential sites for New
Leases (defined below), (ii) accept submissions of proposals for New Leases and negotiate with
wireless providers with respect to the terms and conditions of such New Leases and (iii) 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 further agrees that it shall
use its best efforts to expedite the review of proposed New Leases that conform to the Form Lease
Agreements and provide any comments within 60 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.
2. COMPENSA TION
For the services delineated above, City shall pay to Consultant, and Consultant shall accept
from City, compensation for services under this agreement as follows:
(a) Twenty five Percent (25%) of the revenue from each New Lease (defined below) over
the life of the New Lease. Any renewals or extensions after the first five years shall be paid at a rate
of 25% of the revenue received from the lease (all such New Lease revenue payable to Consultant,
including fees set forth in Section 5(c) below, is referred to collectively herein as the "Consultant
Lease Fees"). Consultant shall 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 Mayor
and Common Council during the term 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
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requiring notice to Consultant and the City's City Manager of any change or modification in the
terms of such New Leases. Consultant shall not be entitled to any revenues from any lease being
negotiated by City Staff and/or approved by the Mayor and Common 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 five percent (25%) of the incremental
lease revenue over the life of the lease attributable to such modification. Any such amendment or
modification of an Existing Lease shall be subject to the City's reasonable written approval.
(c) 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.
(d) As part of approval of the Wireless Master Plan, the City shall consider imposing a
fee to offset the cost of the Consultant reviewing all public and private applications for wireless
faci lities covered by the Wireless Masier Plan and otherwise subject to discretionary approval of the
Mayor and Common Council.
3.
TERM; SEVERABILITY.
The initial term of this Agreement shall be for a period of five years, commencing on June
1,2007, and terminating on May 31, 2012, unless previously modified, amended. or cancelled by
the written mutual consent of the parties.
This Agreement may be terminated at any time by thirty (30) days written notice by
either party. The terms of this contract shall remain in force unless mutually amended. The duration
of this contract may be extended with the written consent of both parties.
4. BUSINESS CERTIFICATE
Consultant shall obtain and maintain during the term of this Agreement, a valid City Business
Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any
and all other licenses, permits, qualifications, and approvals of whatever nature that are legally
required to practice its profession, skill or business.
S. RECORDS AND AUDITS
Records of Consultant's services relating to this Agreement shall be maintained in
accordance with generally recognized accounting principles and shall be made available to City for
inspection and/or audit upon 24-hours notice to Consultant. The records shall be maintained for the
term of the this Agreement, any extension or extensions thereof, and for a period of three years
following. its termination, by whatever means.
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6.
INDEMNITY.
Consultant shall indemnify, defend and hold harmless the City, its officers, employees and
agents (including, without limitation, reasonable costs of defense and reasonable attorney's fees)
arising out of or related to City's performance of this agreement, except that such duty to indemnify,
defend and hold harmless shall not apply where injury to person or property is caused by City's
willful misconduct or negligence. City shall indemnify, defend and hold harmless the Consultant,
its officers, employees and agents (including, without limitation, reasonable costs of defense and
reasonable attorney's fees) arising out of or related to Consultant's performance of this Agreement,
except that such duty to indemnify, defend and hold harmless shall not apply where injury to person
or property is caused by Consultant's willful misconduct or negligence. The costs, salary and
expenses of the City Attorney and members of his office in enforcing this Agreement on behalf of
the City shall be considered as "attorneys' fees" for the purposes of this paragraph.
7. INSURANCE.
7.1 Minimum Scooe and Limits of Insurance. Consultant shall obtain and maintain
during the term of this Agreement all of the following insurance coverages:
(a)
Comprehensive general liability, including premises-operations,
products/completed operations, broad form property damage, blanket
contractual liability, independent contractors, personal injury with a policy
limit of not less than One Million Dollars ($1,000,000.00), combined single
limits, per occurrence and aggregate.
(b) Automobile liabilityforowned vehicles, hired, and non-owned vehicles, with
a policy limit of not less than One Million Dollars ($1 ,000,000.00), combined
single limits, per occurrence and aggregate.
(c) Workers' compensation insurance as required by the State of California.
(d) Professional errors and omissions ("E&O") liability insurance with policy
limits of not less than One Million Dollars ($1,000,000.00), combined single
limits, per occurrence and aggregate. Consultant shall obtain and maintain,
said E&O liability insurance during the life of this Agreement and for three
years after completion of the work hereunder.
7.2. Endorsements. The comprehensive general liability insurance policy shall contain
or be endorsed to contain the following provisions:
(a) Additional insureds: "The City of San Bernardino and its elected and
appointed boards, officers, agents, and employees are additional insureds
with respect to this subject project and contract with City."
(b)
Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the
coverage reduced, until thirty (30) days after written notice is given to City."
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(c)
Other insurance: "Any other insurance maintained by the City of San
Bernardino shall be excess and not contributing with the insurance provided
by this policy."
7.3. Certificates of Insurance: Consultant shall provide to City certificates of insurance
showing the insurance coverages and required endorsements described above, in a form and content
approved by City, prior to performing any services under this Agreement.
7.4. Non-limiting: Nothing in this Section shall be construed as limiting in any way, the
indemnification provision contained in this Agreement, or the extent to which Consultant may be
held responsible for payments of damages to persons or property.
8. NON-DISCRIMINATION
In the performance of this Agreement and in the hiring and recruitment of employees,
Consultant shall not discriminate on the basis of race, religious creed, color, national origin, ancestry,
physical disability, mental disability, medical condition, marital status, sex, age, or sexual
orientation.
9. INDEPENDENT CONTRACTOR
Consultant shall perform work tasks provided by this Agreement but for all intents and
purposes Consultant shall be an independent contractor and not an agent or employee of the City.
10. NOTICES
Any notice to be given pursuant to this Agreement shall be deposited with the United
Postal Service, postage prepaid and addressed as follows:
TO THE CITY: City Manager's Office
300 North "D" Street
San Bernardino, CA 92418
Facsimile (909) 384-5138
TO THE CONSULTANT: ATS Communications
22651 Lambert Street, Suite IOIA
Lake Forest, CA 92630
Facsimile (949) 768-6984
11. ATTORNEYS' FEES
In the event that litigation is brought by any party in connection with this agreement, the
prevailing party shall be entitled to recover from the opposing party all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party in the exercise of any of its rights or
remedies hereunder or the enforcement of any of the terms, conditions or provisions hereof. The
costs, salary and expenses of the City Attorney and members of his office in enforcing this
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Agreement on behalf of the City shall be considered as "attorneys' fees" for the purposes of this
paragraph.
12. ASSIGNMENT
Consultant shall not voluntarily or by operation of law assign, transfer, sublet or encumber
all or any part of the Consultant's interest in this Agreement without City's prior written consent.
Any attempted assignment, transfer, subletting or encumbrance shall be void and shall constitute a
breach of this Agreement and cause for the termination of this Agreement. Regardless of City's
consent, no subletting or assignment shall release Consultant of Consultant's obligation to perform
all other obligations to be performed by Consultant hereunder for the term of this agreement.
13. GOVERNING LA W
This Agreement shall be governed by and construed and interpreted in accordance with the
laws of the State of California without regard to principles of conflicts of law.
14. VENUE
The parties hereto agree that all actions or proceedings arising in connection with this
Agreement shall be tried and litigated either in the State courts located in the County of San
Bernardino, State of California or the U.S. District Court for the Central District of California
The aforementioned choice of venue is intended by the parties to be mandatory and not permissive
in nature.
15. SUCCESSORS AND ASSIGNS.
This Agreement shall be binding on and inure to the benefit of the parties to this Agreement
and their respective heirs, representatives, successors, and assigns.
16. HEADINGS.
The subject headings of the sections of this Agreement are included for the purposes of
convenience only and shall not affect the construction or the interpretation of any of its provisions.
17. ENTIRE AGREEMENT; MODIFICATION.
This Agreement constitutes the entire agreement and the understanding between the parties,
and supercedes any prior agreements and understandings relating to the subject matter of this
Agreement. This Agreement may be modified or amended only by a written instrument executed
by all parties to this Agreement.
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IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and
date first above written.
Date: May
,2007
Telecom Partners Group Corporation,
dba A TS Communications
By:
Tony Ingegneri, President
Date: May
,2007
City of San Bernardino
By:
Fred Wilson, City Manager
Attest:
Rachel Clark, City Clerk
Approved as to form:
e James F. Penman. City Attorney
By: ./::~.~ ;'-i-j/'~' ./'::v C::j~ ~f.
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Attachment 1
SCOPE OF SERVICES
Consultant shall prepare and assist in implementing a City wide wireless communications master
plan designed to:
Reduce the number of wireless antennas necessary to provide service throughout the City.
Reduce the blight of cell 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 San Bernardino,
estimating projections of future demand for facilities in San Bernardino.
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 exclusi ve 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.
City will provide to 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).
None of the services provided hereunder shall apply to any property within or containing a public
right-of-way, road, street or highway.
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Attachment 2
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 San Bernardino, California 92418; 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, Ihis 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 San Bernardino, California.
(Complelion of the following, including countersignature, is required to make this endorsement
effective.)
Effecti ve
Policy #
Issued to
, this endorsement form as a part of
Named Insured
Countersigned by
Authorized Representative
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