Loading...
HomeMy WebLinkAbout2012-244 1 RESOLUTION NO. 2012-244 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN 3 BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A SERVICES 4 AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND ATS COMMUNICATIONS, A CALIFORNIA CORPORATION, FOR THE 5 DEVELOPMENT OF NEW CELL TOWER LEASES ON CITY PROPERTY. 6 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AS FOLLOWS: 8 9 SECTION 1. The City Manager of the City of San Bernardino is hereby 10 authorized to execute on behalf of said City the Services Agreement with ATS 11 Communications regarding the development of new cell tower leases on city property, a copy of 12 which is attached hereto, marked as Exhibit "A", and incorporated herein by reference as fully 13 as though set forth at length. 14 15 SECTION 2: This purchase is exempt from the formal contract procedures of 16 Section 3.04.010 of the Municipal Code, pursuant to Section 3.04.010(B) entitled "Purchases 17 approved by the Mayor and Common Council". 18 SECTION 3: The authorization granted hereunder shall expire and be void and 19 20 of no further effect if the agreement is not executed by both parties and returned to the Office of 21 the City Clerk within sixty (60) days following the effective date of the Resolution. 22 /// 23 /// 24 /// 25 26 /// 27 /// 28 /// 1 2012-244 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE A SERVICES 2 AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND ATS 3 COMMUNICATIONS, A CALIFORNIA CORPORATION, FOR THE DEVELOPMENT OF NEW CELL TOWER LEASES ON CITY PROPERTY. 4 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and 5 6 Common Council of the City of San Bernardino at a oint regula meeting thereof, held on 7 the 1st day of October , 2012, by the following vote, to wit: 8 Council Members: AYES NAYS ABSTAIN ABSENT 9 MARQUEZ X 10 11 JENKINS X 12 VALDIVIA X 13 SHORETT X 14 KELLEY X 15 JOHNSON X 16 17 MCCAMMACK 1 18 19 George nn Hanna, Pity Clerk 20 The foregoing Resolution is hereby approved this a day of Ocr har , 2012. 21 --► 22 'atri• J. Morris, ayor 23 City of San Bernardino Approved as to 24 form: 25 •L "vr. 26 , , es F. Penman ' ity Attorney 27 28 2 2012-244 SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ATS COMMUNICATIONS REGARDING THE DEVELOPMENT OF NEW CELL TOWER LEASES ON CITY PROPERTY This Agreement is made and entered into this 1St day of October, 2012 Effective Date") by and between ATS 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 services 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. Consultant represents that Consultant is able and willing to provide such services to the City 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. 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 service and identify opportunities to expand, subject to formal adoption by the Mayor and Common Council, 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 or "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. b) Pursuant to the wireless 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; EXHIBIT "A" 2012-244 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 Attorney. All Form Lease Agreements proposed by Consultant to shall contain at a minimum, the following provisions: 1. The location, nature and scope of all Wireless Services equipment and facilities 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, ordinan2es 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 permits 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 elected and appointed 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; 11. Insurance coverage ( including CGL-type liability coverage and all of City standard requirements) in the minimum amount of 1 million per occurrence 2012-244 • and naming City, its official, 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); and 12. Lessee acknowledges 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 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 provided hereunder. The Consultant shall have no authority to bind the City and all proposals for New Leases shall be subject to Council 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 Council. 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 agreement and provide any comments within 60 days of such submission. 2. COMPENSATION 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 requiring notice to Consultant and 2012-244 the 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 improvements, sales taxes, real estate or personal property tax reimbursement and Insurance reimbursement, if applicable, shall be excluded from the New Lease revenues. 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 facilities covered by the Wireless Master Plan and otherwise subject to discretionary approval of the Mayor and Common Council. 3. TERM. The initial term of this Agreement shall be for a period of one year, commencing on October 1, 2012 and terminating on September 30, 2013, 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 Agreement 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. 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 this Agreement, any extension or extensions thereof, and for a period of three years following its termination, by whatever means. 2012-244 6. INDEMNITY Consultant shall indemnify, defend and hold harmless the City, its elected and appointed officials, 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, it's 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. 7. INSURANCE 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 with a policy limit of not less than One Million Dollars ($1,000,000) combined single limit, per occurrence and aggregate. b) Automobile liability owned vehicles, hired, and non-owned vehicles with a policy limit not less than One Million Dollars ($1,000,000) combined single limit, per occurrence and aggregate. c) Workers' compensation insurance as required by the State of California. d) Professional errors and omissions (" E& 0") liability insurance with policy limits of not less than One Million Dollars ($ 1, 000,000.00), combined single limits, per occurrence and aggregate. Consultant shall obtain and maintain, said E& 0 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." 2012-244 • 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 he an independent contractor and not an agent or employee of the City. 10. NOTICES Any notice to be given pursuant to this Agreement shall he deposited with the United States 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 . 2012-244 enforcing this agreement on behalf of the City shall be considered as " attorney's 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 LAW. 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. /// 2012-244 • SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ATS COMMUNICATIONS REGARDING THE DEVELOPMENT OF NEW CELL TOWER LEASES ON CITY PROPERTY IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date first above written. Date: !a-/ , 2012 ATS Communications af61 Date: IC—7, 2012 City of San Bernardino By: A ��`. 4 Andrea ravis-Miller, Acting City Manager Attest: Georgeann Hanna, City Clerk Approved as to form: J s F. Penman, City Attorney 2012-244 SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ATS COMMUNICATIONS REGARDING THE DEVELOPMENT OF NEW CELL TOWER LEASES ON CITY PROPERTY This Agreement is made and entered into this 1st day of October, 2012 Effective Date") by and between ATS 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 services 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. Consultant represents that Consultant is able and willing to provide such services to the City 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. 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 service and identify opportunities to expand, subject to formal adoption by the Mayor and Common Council, 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 or "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. b) Pursuant to the wireless 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; 2012-244 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 Attorney. All Form Lease Agreements proposed by Consultant to shall contain at a minimum, the following provisions: 1. The location, nature and scope of all Wireless Services equipment and facilities 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, ordinan2es 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 permits 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 elected and appointed 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; 11. Insurance coverage ( including CGL-type liability coverage and all of City standard requirements) in the minimum amount o5 1 million per occurrence 2012-244 and naming City, its official, 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); and 12. Lessee acknowledges 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 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 provided hereunder. The Consultant shall have no authority to bind the City and all proposals for New Leases shall be subject to Council 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 Council. 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 agreement and provide any comments within 60 days of such submission. 2. COMPENSATION 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 requiring notice to Consultant and 2012-244 the 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 improvements, sales taxes, real estate or personal property tax reimbursement and Insurance reimbursement, if applicable, shall be excluded from the New Lease revenues. 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 facilities covered by the Wireless Master Plan and otherwise subject to discretionary approval of the Mayor and Common Council. 3. TERM. The initial term of this Agreement shall be for a period of one year, commencing on October 1, 2012 and terminating on September 30, 2013, 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 Agreement 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. 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 this Agreement, any extension or extensions thereof, and for a period of three years following its termination, by whatever means. 2012-244 6. INDEMNITY Consultant shall indemnify, defend and hold harmless the City, its elected and appointed officials, 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, it's 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. 7. INSURANCE 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 with a policy limit of not less than One Million Dollars ($1,000,000) combined single limit,per occurrence and aggregate. b) Automobile liability owned vehicles, hired, and non-owned vehicles with a policy limit not less than One Million Dollars ($1,000,000) combined single limit, per occurrence and aggregate. c) Workers' compensation insurance as required by the State of California. d) Professional errors and omissions (" E& 0") liability insurance with policy limits of not less than One Million Dollars ($ 1, 000,000.00), combined single limits, per occurrence and aggregate. Consultant shall obtain and maintain, said E& 0 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." 2012-244 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 he an independent contractor and not an agent or employee of the City. 10. NOTICES Any notice to be given pursuant to this Agreement shall he deposited with the United States 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 2012-244 enforcing this agreement on behalf of the City shall be considered as " attorney's 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 LAW. 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. /// 2012-244 SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ATS COMMUNICATIONS REGARDING THE DEVELOPMENT OF NEW CELL TOWER LEASES ON CITY PROPERTY IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date first above written. Date: , 2012 ATS Communications By: Date: , 2012 City of San Bernardino By: Andrea Travis-Miller, Acting City Manager Attest: .),,iy-t:‘:-/i/e//gii,<-- Georgeann Hanna, City Clerk Approved as to form: J s F. Penman, City Attorney