Loading...
HomeMy WebLinkAbout07.H- Finance RESOLUTION(ID#2053) DOC ID: 2053 CITY OF SAN BERNARDINO—REQUEST FOR COUNCIL ACTION Agreement/Contract From: Jason Simpson M/CC Meeting Date: 10/01/2012 Prepared by: Jason Simpson, Dept: Finance Ward(s): All Subject: Resolution of the Mayor and Common Council of the City of San Bernardino Authorizing The City Manager to Execute an Agreement by and Between the City of San Bernardino And ATS Communications, a California Corporation, ("Consultant") for the Purpose of Servicing and Expanding the City's Interests in Existing Cellular Tower Leases. Financial Impact: Compensation to Consultant will be determined entirely by the amount of sale for the cellular towers sites and will be limited to no more than$100,000 or 4% of the gross sale price and a minimum of$20,000. Motion: Adopt the Resolution. Synopsis of Previous Council Action: None. The City has not sold or monetized its leases on Cell Phone Tower Sites on City Property. Backaround• The City is the owner and proprietary lessor of certain lands upon which cellular towers have been constructed. Lease agreements have been executed between the City and various cellular telephone service providers for the construction and maintenance of these towers and the placement of cellular antennas at these sites. From these cellular tower site leases the City is compensated monthly for each site. The purpose of the agreement is to raise capital by selling off City interests in these existing cellular tower leases with the cellular telephone service providers to an independent third party. The consultant shall be responsible for assisting the City with its effort to collect and audit all necessary lease information in order to ensure completeness and accuracy. The consultant will also be responsible for assisting with the preparation of the necessary bid specifications for the actual purchase and assignment of the City's cellular tower sites. Additionally, the consultant will be responsible for assisting the City with the evaluation and selection of the independent third party purchaser and subsequent negotiations, including terms relative to each sale. The contract term is for a period not to exceed twelve(12)months. On July 10, 2012, the City invited proposals for the consulting services to sell/expand City cell phone towers sites. The City received three proposals from area firms. All of the responding firms have excellent participation and experience in this endeavor. The below list of firms who submitted bid responses to the City's RFP and the proposed fee of each firm are listed herein: �— Consultant Firm Fee ATS Communications Minimum Maximum Not to Exceed Updated:9/27/2012 by Jolena E.Crider Packet P9. 98 2053 © $20,000 $100,000 or 4%of gross sale price (If determined not to sell,City pays $20,000 within 30 Days of 1ST Continuance) Kramer Telcom Law Firm Hourly Fees Range $50-$250 per hour 65%of the hourly fee for travel per person (1.5 hours one-way cap) 7%mark up on project expenses (cost plus 7%) Initial estimate $30,000 - $40,000 American Tower Did not provide a qualifying cost proposal &time estimate ATS Communications has provided a very competitive bid and has illustrated the ability to meet and exceed the City's objectives. ATS's bid clearly established the need to cultivate as many possible competitive offers for the acquisition of the cellular tower lease sites and present the opportunity in a manner to garner the highest overall value for each asset. To this degree, ATS Communications expressed the ability to evaluate the offers and deal structures to advise the City on the best combination of financial benefit and transaction impact. Finally, the ATS Communications bid focused on the maximizing of economic benefits to the City without ending opportunities for leasing San Bernardino property for additional cellular towers. ATS Communications is independently owned and operated, and it is not an affiliate or subsidiary of any cellular tower company, cellular service provider, or cellular tower lease acquisition business. City Attorney Review: Suaaortine Documents: Cell Tower Resolution (DOC) Cell Tower Agreement (DOCX) O Updated: 9/27/2012 by Jolena E.Grider Packet Pg. 99 7.H.a 1 RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN m 3 BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN d 4 AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND ATS N COMMUNICATIONS, A CALIFORNIA CORPORATION, FOR THE PURPOSE OF °' 5 RAISING CAPITAL BY SELLING OFF CITY INTERESTS IN EXISTING CELL T) TOWER LEASES WITH THE CELLULAR TELEPHONE SERVICE PROVIDERS TO 3 6 AN INDEPENDENT THIRD PARTY. F°- 7 BE IT RESOLVED BY THE MAYOR AND COMMON COUNCIL OF THE T 8 CITY OF SAN BERNARDINO AS FOLLOWS: d 9 w SECTION 1. The City Manager of the City of San Bernardino is hereby o 10 E m authorized to execute on behalf of said City the Services Agreement with ATS 2 11 in v 12 Communications, a copy of which is attached hereto, marked as Exhibit "A", and incorporated m d 13 herein b reference as full as thou cr y y though set forth at length. d r 14 SECTION 2. This purchase is exempt from the formal contract procedures of N 15 c Section 3.04.010 of the Municipal Code,pursuant to Section 3.04.010(B)(3)entitled "Purchases 2 16 0 17 approved by the Mayor and Common Council". 1e SECTION 3. The authorization granted hereunder shall expire and be void and 2 19 of no further effect if the agreement is not executed by both parties and returned to the Office of 0 20 the City Clerk within sixty(60) days following the effective date of the Resolution. 21 g 22 Ir o 23 3 0 24 m 25 c 26 E 27 28 1 Packet Pi 00 1 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN ' BERNARDINO AUTHORIZING THE CITY MANAGER TO EXECUTE AN 2 AGREEMENT BY AND BETWEEN THE CITY OF SAN BERNARDINO AND ATS N 3 COMMUNICATIONS, A CALIFORNIA CORPORATION, FOR THE PURPOSE OF °n RAISING CAPITAL BY SELLING OFF CITY INTERESTS IN EXISTING CELL d J 4 TOWER LEASES WITH THE CELLULAR TELEPHONE SERVICE PROVIDERS TO 5 AN INDEPENDENT THIRD PARTY. d 6 I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and o 7 Common Council of the City of San Bernardino at a meeting thereof, held on ci $ the day of 2012,by the following vote,to wit: d L 9 Council Members: AYES NAYS ABSTAIN ABSENT ° 10 E M v 11 MARQUEZ d 12 JENKINS r m d 13 VALDIVIA m s 19 v SHORETT "- 15 c 0 KELLEY 2 16 0 17 JOHNSON 0 v 18 MCCAMMACK rn a 19 N 20 Georgeann Hanna, City Clerk N c 21 The foregoing Resolution is hereby approved this day of , 2012. 0 22 23 `m Patrick J. Morris, Mayor 29 City of San Bernardino — 25 Approved as to form: 26 E t U 27 James F. Penman '� © a 2 8 City Attorney 2 Packet Pg. 101 SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ATS COMMUNICATIONS REGARDING RAISING CAPITAL BY SELLING OFF CITY INTERESTS IN EXISTING CELL TOWER LEASES TO INDEPENDENT THIRD PARTIES W d THIS AGREEMENT, made and entered into this 1st day of October, 2012 ("Effective Date") by o and between ATS Communications, a California corporation ( hereinafter "Consultant'), and the T City of San Bernardino, a municipal corporation organized under the laws of the State of d California (hereinafter"City"). N a RECITALS 3 0 A. The City desires to retain a Consultant having special skill and knowledge in the field a U of wireless communication technology to assist the City in servicing and expanding the cell Z% towers on property owned by the City to provide a capital for the City of San Bernardino. d r B. Consultant represents that Consultant is able and willing to provide such services to c the City. E m C. In undertaking the performance of this Agreement, Consultant represents that it is m in knowledgeable in its field and that any services performed by Consultant under this Agreement d will be performed in compliance with such standards as may reasonably be expected from a � professional consulting firm in the field. � z 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 N exempt from competitive bidding. c 0 NOW THEREFORE, in consideration of the mutual and respective promises, and 2 subject to the terms and conditions hereinafter set forth, the parties agree as follows: 3 c 1. SCOPE OF SERVICES. E a a Consultant shall assist the City, for the purpose of raising capital, by selling off City interests in Q existing cellular tower leases with the cellular telephone service providers to an independent M third party. The consultant shall be responsible for assisting the City with its effort to collect and o audit all necessary lease information in order to ensure completeness and accuracy. The consultant will also be responsible for assisting with the preparation of the necessary bid m specifications for the actual purchase and assignment of the City's cellular tower sites. E Additionally, the consultant will be responsible for assisting the City with the evaluation and selection of the independent third party purchaser and subsequent negotiations, including terms m relative to each sale. The scope of services shall be as further laid out in "Attachment 1" a attached hereto. 3 0 2. COMPENSATION. w U The City, in its sole discretion, may choose to monetize none, some or all of the existing leases. m For this service, ATS Communications will receive 4% of the gross sale proceeds, not to exceed E $100,000. A minimum of $20,000 shall be paid to the ATS Communications if no sales are completed. Packet Pg. 702 3. TERM. N W 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 m cancelled by the written mutual consent of the parties. ui m This Agreement may be terminated at any time by thirty (30) days written notice by either party. o 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. U T 4. BUSINESS CERTIFICATE. m r Consultant shall obtain and maintain during the term of this Agreement, a valid City Business c Registration Certificate pursuant to Title 5 of the City of San Bernardino Municipal Code and any E and all other licenses, permits, qualifications, and approvals of whatever nature that are legally d required to practice its profession, skill or business. m d 5. RECORDS AND AUDITS. 'c d m 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 m the term of this Agreement, any extension or extensions thereof, and for a period of three years following its termination, by whatever means. c 2 6. INDEMNITY. c w Consultant shall indemnify, defend and hold harmless the City, its elected and appointed E d 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, o 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 E hold harmless shall not apply where injury to person or property is caused by Consultant's willful misconduct or negligence. a 7. INSURANCE. ; 0 7. 1 Minimum Scope and Limits of Insurance. Consultant shall obtain and maintain w during the term of this Agreement all of the following insurance coverages: a) Comprehensive U general liability, including premises-operations, products/completed operations, broad form property damage, blanket contractual liability, independent contractors, personal injury with a E policy limit of not less than One Million Dollars ($ 1, 000,000.00), combined single limits, per occurrence and aggregate. b) Automobile liability for owned vehicles, hired, and non-owned a 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 Packet Pg,;103 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 d N hereunder. d J 7.2. Endorsements. The comprehensive general liability insurance policy shall contain or be endorsed to contain the following provisions: vi L v a) Additional insureds: "The City of San Bernardino and its elected and o appointed boards, officers, agents, and employees are additional insureds ~ with respect to this subject project and contract with City." d U b) Notice: "Said policy shall not terminate, nor shall it be cancelled, nor the L) coverage reduced, until thirty(30) days after written notice is given to City." r w 0 c) Other insurance: "Any other insurance maintained by the City of San E Bernardino shall be excess and not contributing with the insurance provided by w this policy." ` in m 7.3. Certificates of Insurance: Consultant shall provide to City certificates of insurance � m 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. � L 7.4. Non-limiting: Nothing in this Section shall be construed as limiting in any way, the N indemnification provision contained in this Agreement, or the extent to which Consultant may be % held responsible for payments of damages to persons or property. c E 8. NON-DISCRIMINATION. ° c v In the performance of this Agreement and in the hiring and recruitment of employees, E 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. M N 9. INDEPENDENT CONTRACTOR. .NN. c Consultant shall perform work tasks provided by this Agreement but for all intents and purposes E Consultant shall be an independent contractor and not an agent or employee of the City. d 10. NOTICES. a L d 3 Any notice to be given pursuant to this Agreement shall be deposited with the United Postal 1°- Service, postage prepaid and addressed as follows: d U TO THE CITY: City Manager's Office 300 North "D" Street E San Bernardino, CA 92418 v Facsimile (909) 384-5138 a Packet Pg. 104 7.H.b TO THE CONSULTANT: ATS Communications 22651 Lambert Street, Suite 101A v Lake Forest, CA 92630 m Facsimile ( 949) 768-6984 a v 11. ATTORNEYS' FEES. w L d In the event that litigation is brought by any party in connection with this agreement, the o 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 T hereof. 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 r purposes of this paragraph. c 12. ASSIGNMENT. E L Consultant shall not voluntarily or by operation of law assign, transfer, sublet or encumber all or m 3 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 r0 perform all other obligations to be performed by Consultant hereunder for the term of this d agreement. d c 0 13. GOVERNING LAW. 2 0 This Agreement shall be governed by and construed and interpreted in accordance with the m laws of the State of California without regard to principles of conflicts of law. E d m L 14. VENUE. a M The parties hereto agree that all actions or proceedings arising in connection with this o 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 e aforementioned choice of venue is intended by the parties to be mandatory and not permissive E in nature. w v L a 15. SUCCESSORS AND ASSIGNS. Q L w 3 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. w U 16. HEADINGS. c m E 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 a provisions. Packet Pg.105 17. ENTIRE AGREEMENT; MODIFICATION. N d 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 d by all parties to this Agreement. y m /// o 0 Z. U m t 0 O y c d o: m c O O V E O) a M N C E d d Q W 3 O H U c m E n A Packet Pg. 106" 7.H.b SERVICES AGREEMENT BETWEEN THE CITY OF SAN BERNARDINO AND ATS COMMUNICATIONS REGARDING RAISING CAPITAL BY SELLING OFF CITY INTERESTS IN EXISTING CELL TOWER LEASES TO INDEPENDENT THIRD PARTIES v N A IN WITNESS THEREOF, the parties hereto have executed this Agreement on the day and date first above written. rn Date: _, 2012 ATS Communications d 3 0 By: v U m t w O E R d Date: _, 2012 City of San Bernardino y w r c d By: 'm Andrea Travis-Miller, Acting City Manager d Attest: N z Q 0 2 0 Georgeann Hanna, City Clerk w E m d rn a Approved as to form: 0 N C d E m m James F. Penman, City Attorney a v 3 0 v V c d E t v m a Packet Pg.:107 Attachment 1 SCOPE OF SERVICES a a m Consultant shall assist the City for the purpose of raising capital by selling off City interests in existing cellular tower leases with the cellular telephone service providers to an independent third party. The consultant shall be responsible for assisting the City with its effort to collect and rn audit all necessary lease information in order to ensure completeness and accuracy. The 3 consultant will also be responsible for assisting with the preparation of the necessary bid F specifications for the actual purchase and assignment of the City's cellular tower sites. _ Additionally, the consultant will be responsible for assisting the City with the evaluation and selection of the independent third party purchaser and subsequent negotiations, including terms Z. relative to each sale. m z w 0 (a) Pursuant to the sale of the Cellular Tower Sites Consultant shall: E • Communicate with City personnel to understand goals and objectives. d • Evaluate all existing wireless communications facilities located on City rn property. • Visit and photograph each cell tower site. d • Determine issues that relate to increasing the potential value of each site m for consideration by financial institutions. z • Audit existing wireless communications leases for City property. r • Ensure carriers are paying correct amount per the existing leases. N • Ensure carrier installations are in compliance with the leases. V • Identify any hidden value that may increase the potential value of the o lease. 2 Make recommendations regarding the value of the lease. 3 • Identify those sites with highest potential value in I a lump sum a transaction. E d • Identify ways to increase value for the leases with lower value. • Contact the wireless carriers to make improvements to the existing lease ¢ agreement to maximize sale value. • Manage the entire lease sale process. o • Prepare a detailed package containing all the requisite information N regarding the lease, and sites. d • Contact the various financial institutions to determine interest in E "monetizing" certain leases in the City portfolio. 0 • Negotiate the best possible terms for a lump sum transaction based on a industry standard terms, conditions and requirements. • Prepare an analysis of the various offerings from interested potential c buyers, identifying the benefits an attributes of each proposal. 0 • Present the analysis to the City, and make a recommendation as to the best possible transaction directly tied to City goals. • Assist City personnel in negotiating and completing the transaction m documentation and closing the transaction E v m Packet Pg.108