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HomeMy WebLinkAbout08 AGREEMENT W/ATS COMMUNICATIONS 05-15-07MEETING DATE: MAY 15, 2007 T0: HONORABLE MAYOR AND MEMBERS OF CITY COUNCIL FROM: WILLIAM A. HUSTON, CITY MANAGE SUBJECT: AGREEMENT WITH ATS COMMUNICATIONS RECOMMENDATION: That the City Council authorize the City Manager to execute the attached agreement with ATS Communications subject to non-substantive modifications to the agreement as approved by the City Manager and City Attorney. BACKGROUND: The City Council previously authorized retaining ATS Communications to identify potential cell towers on City-owned sites and to negotiate leases on behalf of the City for sites approved by the City Council. Once the technical analysis of cell coverage and potential new sites is completed, the City Council will review the results and provide direction concerning lease sites. DISCUSSION: The attached agreement largely reflects the work products to be prepared by 'ATS Communications through its proposal. Additional language is needed in Section 8 of the agreement to deal with sharing of lease revenue in case the City opted to cancel the agreement in the future. The additional language would not affect ATS Communications obligations concerning the technical analysis or negotiation and administration of leases for cell sites. The City Manager's Office and City Attorney will work with ATS Communications to arrive at mutually acceptable language to be added to Section 8 (for sharing of future lease revenue in the event the agreement is terminated prior to termination of any cell site leases). FISCAL IM PACT: There is no cost to the City for the technical analysis.- Lease revenue would be shared pursuant to the ATS Communications proposal except as modified by a revision to Section 8 as discussed above. Potential lease revenue will be computed upon completion of the technical analysis and approval by the City Council of lease sites. CONSULTANT SERVICES AGREEMENT THIS AGREEMENT FQR CONSULTANT SERVICES is made and entered into this day of , 20 , by and between the CITY OF TUSTIN, a municipal corporation, hereinafter referred to as "City", and ~ATS,CQMMUNICATIONS, a ~C,aljfornia Co,,, ,~ora_tion~ hereinafter referred to as "Consultant". RECITALS WHEREAS, City requires the services of a consultant to furnish the special skills and knowledge in the field of wireless communication technology to assist the City in marketing and facilitating the development of cell towers on City-owned property to provide a wireless communication network throughout the City, hereinafter referred to as "Project"; and WHEREAS, City has prepared a Request for Proposal dated December 22, 2006, a copy of which is attached hereto, marked as Exhibit "A" and is by this reference incorporated into this Agreement; and WHEREAS, Consultant has submitted to City a proposal dated February 22, 2001, a copy of which is attached hereto marked as Exhibit "B" and is by this reference incorporated into this Agreement; and WHEREAS, Consultant is qualified to provide the necessary services for the Project and desires to provide said services; and WHEREAS, City desires to retain the services of Consultant for said Project; NOW, THEREFORE, for the consideration and upon the terms and conditions hereinafter set forth, the parties agree as follows: AGREEMENT Section ,1~,Scope of Consultant's Services Consultant shall perform all work necessary to complete in a manner satisfactory to City, the services set forth in Exhibits "A"and "C". Section 2: Order of Precedence In the event of a conflict between or among any of the documents comprising this Agreement, the following order of precedence shall govern the provision in question: 1. This Agreement 2. City's Request for Proposal Exhibit "A"} 3. Consultant's Proposal Exhibit "B"} 4. Scope of Services (Exhibit "C"} 5. Compensation Exhibit "D"} CSA ATS COMMUNICATIONS 04/1112007 Page 1 Section 3: Time for Completion The time for completion of the work to be performed by Consultant is an essential condition of this Agreement. Consultant shall prosecute regularly and diligen#ly the work of this Agreement according to reasonable schedules established by the City for various items described and as outlined within Consultant's proposal. Consultant shall not be accountable for delays in the progress of its work caused by any condition beyond its control and without the fault or negligence of Consultant. Section 4: Compensation rwwwr.rwrrrirr.rwmrw.rwiwnri ior~. A. The compensation to be paid under this Agreement shall be as set forth in Exhibit "D", not to exceed a total cost of B. Consultant shall submit detailed invoices, based upon the actual work performed accompanied by backup documentation as requested by the City. C. Progress payments for work completed shall be paid by City as the work progresses, within thirty (34) days of the date of Consultant's invoice. D. Consultant shall provide City with a monthly itemization of all work performed, and the fees accrued thereon, in complete and .sufficient detail to fully apprise City thereof Section 5: Independent Contractor ~i~.riwnrir. n._nw.rn~..~r.rrrrrnwr... rw~rw.~wrn.~~~.r.w.w..wrwr.nr~ Consultant's relationship to City in the performance of this Agreement is that of an independent contractor. Consultant's personnel performing services under this Agreement shall at all times be under Consultant's exclusive direction and control and shall be employees of Consultant and not employees of City. Consultant shall pay all wages, salaries and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them, such as social security, income tax withholding, unemployment compensation, workers' compensation and similar matters. Section fi: Indemnification Consultant agrees to defend, indemnify, and hold City, its officers, agents, employees, successors and assigns harmless from any loss, damage, injury, sickness, death, or other claim made by any person and from all costs, expenses and charges including attorney's fees caused by or arising out of Consultant's, its officers', agents', subcontractors', or employees' negligent acts, negligent errors, or negligent omissions or willful misconduct, or conduct for which the law imposes. strict liability on Consultant in the performance orfailure to perform this Agreement. CSA ATS COMMUNICATIONS 4411912~Q7 Page 2 Section 7: Insurance A. Consultant shall maintain in full force and effect during the term of this Agreement, policies of commercial general liability and automobile liability insurance (each of which shall include property damage and bodily injury) and each with limits of at least $1,000,000 combined single limit coverage per occurrence. B. Consultant shall maintain in full force and effect during the term of this Agreement a policy of professional liability insurance coverage with limits of at least $1,000,000 combined single limit coverage per claim or per occurrence. If Consultant provides claims made professional liability insurance, Consultant shall also agree in writing either (1 } to purchase tail insurance in the amount required by this Agreement or to cover claims made within five (5) years of the completion of Consultant's service under this Agreement, or (2} to maintain professional liability insurance coverage with the same carrier in the amount required by this Agreement for at least five (5} years after completion of Consultant's services under this Agreement. Consultant shall also provide evidence to the City of the purchase of the required tail insurance or continuation of the professional liability policy by executing the attached Letter Agreement on Consultant's letterhead, C. Consultant shall carry and pay for such workers' compensation insurance as is required to fully protect Consultant and its employees under California Worker's Compensation Insurance Law. The insurance company shall agree to waive all rights of subrogation against the City for losses paid under the policy, which losses arose from the work performed by the named insured. D. tither applicable insurance requirements are: (1) Name the City, its officials and employees as an additional insured on the commercial, general and automobile policies. (2} The insurance shall be issued by a company authorized by the Insurance Department of the State of California and rated A, VII or better (if an admitted carrier} or A-, X (if offered, by a surplus line broker), by the latest edition of Best's Key Rating Guide, except that the .City will accept workers' compensation insurance rated B-VIII or better or from the State Compensation Fund. {3} The Insurance shall not be cancelled, except after thirty {30) days written prior notice to the City; and (4) The commercial general and automobile liability insurance shall each be primary as respects the City, and any other insurance maintained by the City shall be in excess of this insurance and not contribute to it. E. Upon execution of this Agreement, Consultant shall provide to City certificates of insurance showing the names of the insurers and the amounts of coverage and insurer endorsements. evidencing the required insurance provisions. Insurer endorsements (or a copy of the policy binder if applicable} shall be provided as evidence of meeting the requirements of Subsections (1) (3) and (4} of Section 7D above and the waiver of subrogation requirement in Section C above. If self- insured for worker's compensation, Consultant shall submit to City a copy of its certification of self-insurance issued by the Department of Industrial Relations. CSA ATS COMMUNICATIONS 04/1112007 Page 3 Section 8: Termination of Agreement ....... A. City and Consultant shall each have the right to terminate any or all of the services covered by this Agreement at any time for any reason by giving ten X10} business day written advance notice to the other party. B. Upon termination of this Agreement, Consultant shall be paid for services rendered by the effective date of the termination. C. Upon termination of this Agreement or completion of the Project, all documents relating to the Project shall become the sole property of City. Should City terminate this Agreement pursuant to subparagraph A. of this Section, Consultant shall, within ten (10} business days of receipt of notice of termination, provide City with all documents within Consultant's possession relating to this Agreement and the Project, including but not limited to all completed documents and all draftsof uncompleted documents. Section 9: Notices Any notice allowed or required to be given. shall be effective upon personal delivery thereof, or upon depositing thereof in the United States Postal Service, certified mail, return receipt requested, postage prepaid, addressed as follows: To City: City of Tustin Attn.: Department Head 300 Centennial Way Tustin, CA 92780 To Consultant: Section 14: Miscellaneous Provisions A. Consultant shall proceed immediately and diligently to perform 'the services provided for in this Agreement upon receipt of notice from City to proceed therewith. B. No part of this Agreement may be assigned by Consultant without the prior written approval of City. C. .This Agreement shall extend to and be binding upon and inure to the benefit of heirs, executors, administrators, successors and assigns of the respective parties hereto. D. Consultant shall perform all services' required under this Agreement using that degree of care and skill ordinarily exercised under similar conditions in similar CSA ATS COMMUNICATIONS 0411112aQ7 Page 4 localities, and shall be responsible for all errors and omissions for services performed by Consultant under the terms of this Agreement. E. Consultant certifies that there shall be no discrimination against any employee who is employed in the work covered by this Agreement, or against any application far such employment, because of race, religion, color, sex or national origin including but not limited to, the following: employment, upgrading, demotion or transfer, recruitment, or recruitment advertising, lay-off or termination, rate of pay or other forms of compensation, and selection for training, including apprenticeship. F. This Agreement shall be interpreted in accordance with California Law. The parties agree that the Urange County Superior Court is the exclusive venue for any lawsuits by either party regarding this Agreement G. The initial term of this Agreement shall be five ~5}years commencing on June 11, 2001. The term of this Agreement may be extended at the option of the City Council in its sole and absolute discretion of the City Council in two year increments for up to a maximum term of nine years. Any extensions thereafter shall be at the discretion of the City Council. H. Consultant shall serve as Facility Property Manager for each New Lease entered into in which Consultant receives revenue for the term of said lease. Consultant shall perform on-going monitoring of the communications site on City-owned property including maintenance compliance, facility inspection, vendor contact, issuance of correction mandates, and citizen or City complaint response. Consultant shall provide an annual report regarding each facility, a summary of issues and vendor responsiveness. I. Consultant shall, during the entire term of this Agreement, be construed to bean independent contractor and not an employee of the City. This Agreement is not intended nor shall it be construed to create an employer-employee relationship, a joint venture relationship, or to allow the City to exercise discretion or control over the manner in which Consultant performs the services which are the subject matter of this Agreement; however, the services to be provided by Consultant shall be provided in a manner consistent with all applicable standards and regulations governing such services, and Consultant's employees shall, at all times, conduct themselves with courtesy and professionalism when performing work on behalf of the City. Consultant shall pay all salaries and wages, employer's social security taxes, unemployment insurance and similar taxes relating to employees and shall be responsible for all applicable withholding taxes. The City's City Manager shall designate a Staff Contact who shall be responsible for all coordination/supervision of Consultant. Consultant and Consultant's employees, and subconsultants and subcontractors shall communicate solely with the Staff Contact and any other City staff or official only if approved b the Y Staff Contact. Consultant and Staff Contact shall cooperate in selecting viable CSA ATS COMMUNICATIONS 04/11/2047 Page ~ sites to be marketed to wireless providers, Final approval of each site and the terms of each lease are subject to recommendation by the Staff Contact and approval by the City Council. This agreement shall not be construed to impose upon the City, Staff Contact and/or City Council any obligation other than to consider recommended sites for leasing in good faith, and the City Council reserves its absolute discretion to approve, disapprove or modify the terms of any lease agreement, The failure of the City Council to approve any recommended wireless site lease shall not be a basis for breach of the City's obligations hereunder or entitle Consultant to damages therefore. City agrees it shall not negotiate or enter into any leases with wireless providers on City-owned land other than. through Consultant at any time during the initial term of the Agreement or any extensions thereof. Any leases entered into in violation of this provision shall be deemed New Leases and subject to payment of the Consultant Lease Fees. Notwithstanding the foregoing, nothing herein shall prohibit the City from extending, or modifying any Existing Lease, subject to terms identified in Exhibit "D." IN WITNESS WHEREOF, this Agreement was executed by the parties on the day and year first above written. "CITY" CITY OF TUSTIN ATTEST: By Pamela Stoker, City Clerk APPROVED AS TO FORM: Douglas G. Holland, City Attorney "CONSULTANT" ATS COMMUNICATIONS By_ Title [Title] CSA ATS C~MMUNICATI~NS 04/1112007 Page 6 EXHIBITC SCOPE OF SERVICES CITY WIDE CELLULAR WIRELESS TELECOMMUNICATIONS MASTER PLAN Consultant shall develop and implement, subject to formal adoption by the City 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 other wireless communications facilities, 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"}. Except as otherwise limited herein or b Y State or Federal laws, Consultant will have the exclusive right to market all City-owned sites identified in the Wireless Master Plan, and approved for lease by the City, 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 /disapprove, for any reason, any location andlor provision of any lease agreement recommended by Consultant. Grant of rights enables the City, separate and apart from this agreement, to participate in, own or contract for ubiquitous, high speed broadband wireless networks on a subregional, city wide or localized "hot spot" basis providing public Internet access andlorfor internal governmental uses. Pursuant to the Wireless Master Plan process, Consultant shall develop procedures to streamline the process for wireless providers to submit lease proposals for Ci tY Properties, including {i} development of form lease agreements {"Form Lease Agreements"} for wireless providers and submission materials {in a form approved by the City Attorney}, and {ii} identification of priority City Properties where Consultant believes .there is the most potential demandlrevenue opportunit for New Leases the « Y ~ Pnonty Sites }, During the duration of the Agreement, Consultant shall have the exclusive right and authority to {x} contact wireless providers and market the City Properties as potential sites for New Leases {defined below}, {y} receive submissions of proposals for New Leases and negotiate with wireless providers with respect to the terms and conditions of such New Leases and {2} represent itself as the City's 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 Cit .The Cit Y Y 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 30 days of such submission, EXHIBIT D COMPENSATION CITY WIDE CELLULAR WIRELESS TELECOMMUNICATIONS MASTER PLAN 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 net revenue from each New Lease defined below} over the life of the New Lease, including any renewals or extensions (all such New Lease revenue payable to Consultant, including fees set forth in Section 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. The Consultant Lease Fees shall be the only compensation payable to the Consultant for services rendered under this Agreement, including those services described in Section 4, herein. For purposes of this Agreement, "New Lease" means any lease approved by the City Council during the term of this Agreement (or where lease negotiations or the initial process for a lease has begun during the term of this Agreement and such lease is executed after the expiration or termination of the Agreement} for any portion of a City Property between the City and a third party relating to the construction, lease or maintenance of wireless transmission towers or the provision or transmission of any Wireless Services (and shall include any and all amendments, modifications or extensions of such leases}. New Leases shall contain a provision requiring notice to Consultant of any change or modification in the terms of such New Leases. Consultant shall not be entitled to any revenues from any lease approved by the City Council prior to the Effective Date fan "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 collocation 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 net revenue over the life of the lease attributable to such modification. (c}All New Leases shall contain provisions stating that any and all payments under such New Leases shall be paid into athird-party escrow or lockbox account the "lockbox Account"} provided such a process is consistent with governmental accounting and finance practices and standards. In such case, Consultant shall be responsible for selecting the third-party to EXHIBIT d provide the Lockbox Account, subject to the City's reasonable approval of such third party, and the Consultant shall pay all fees and .expenses associated with opening and maintaining the Lockbox Account. The C'rty and the Consultant shall execute instructions to the party providing the Lockbox Account the Holder"}, instructing the Holder to distribute the Consultant Lease Fees directly to Consultant and the remaining funds directly to the City within 5 business days of receipt of such funds into the Lockbox Account, or such other commercially reasonable terms the parties may agree upon from tune to time, (d} Upon termination of this Agreement, or upon the exercise of any option periods in a lease, the City, at its option, may "buy out" the remaining Consultant Lease Fees by paying the net present value of such remaining obligation. ~e}For purposes of calculating the Consultant Lease Fee, in-kind consideration such as public improvement, plus sales taxes, real estate or personal property tax reimbursement and 'insurance reimbursement, if applicable, shall be excluded from the New Lease revenues. The Holder shall provide Consultant a monthly report including a statement of account detailing transactions, and showing all amounts collected and uncollected from New Leases. The Consultant Lease Fee shall be "net" of any expenses incurred by City in the collection of the revenue, including any taxes, collection charges, attorneys' fees, and consultants', or experts' fees, if any, and shall exclude any fees paid to City as described in paragraph (f} below. (f} As part of approval of the Wireless Master Plan, the City shall consider imposing a fee to offset the cost of the City reviewing all public and private applications forw'rreless facilities covered by the Wireless Master Plan and otherwise subject to discretionary City approval. fig) Consultant agrees to complete the technical portion of the Wireless Master Plan within ten months following receipt of the fully executed agreement. The technical portion of the Wireless Master Plan shall include the site reviews of current wireless faci`lit'ies used for personal communications on public and private property, the radio frequency analysis of each wireless carrier's communications network throughout the community, an evaluation of potential future wireless sites on City-owned property and recommendations of proposed facility designs. This will also include City {Jrdinance recommendations and process recommendations. For each month following this ten month period that the technical portion of the Wireless Master Plan is not completed, Consultant shall reduce its portion of the share of revenue by one percent. EXHIBIT D ~h) A "New Lease" is defined as a lease of City property identified as a Priority Site in the Wireless Master Plan accepted and approved by the City, and which is a fully executed and enforceable agreement between a Wireless Provider and the City. New Leases also include those Existing Leases described in subdivision ~b}, above.