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HomeMy WebLinkAbout4.05 Telecom Marketing Svcsor 19 82 /ii � 111 DATE: TO: FROM: STAFF REPORT CITY COUNCIL December 17, 2013 Honorable Mayor and City Councilmembers Joni Pattillo City Manager""' CITY CLERK File #1010 -10 SUBJECT: Authorizing the City Manager to Negotiate and Enter into a Consultant Services Agreement for Telecom Marketing and Management Services with Horizon Prepared by Roger Bradley, Assistant to the City Manager EXECUTIVE SUMMARY: The City Council will consider authorizing the City Manager to finalize negotiations and enter into an agreement with Horizon Tower, LLC to provide consultant services for marketing and management of telecommunication sites on City property. FINANCIAL IMPACT: Each potential telecommunications lease has the potential to generate an estimated $175,000 to $200,000 in new revenue for the City over a ten year period. RECOMMENDATION: Staff recommends that the City Council authorize the City Manager to finalize the contract negotiations with Horizon Tower, LLC for Telecom Marketing and Management Services, and execute the agreement as long as it is within the substantial form as outlined within this Staff Report and its attachments. Submitted By Assistant to the City Manager DESCRIPTION: Reviewed By Assistant City Manager At the November 5, 2013 City Council meeting, the City Council received a report and approved the concept of acquiring a consultant to market the leasing of City sites as possible telecommunication infrastructure locations as well as manage any resultant leases (Attachment 1). As a number of leasing opportunities have presented themselves recently, in particular the Fallon Sports Park location as mentioned at the November 5, 2013 meeting, Staff is recommending that the City Council authorize the City Manager to finalize the contract Page 1 of 2 ITEM NO. 4.5 negations with Horizon Tower, LLC and execute the agreement as long as the terms are in line with those highlighted within the attached Staff Report and accompanying consultant proposal. Contract negotiations have been proceeding in an appropriate manner and timeframe; however, given the uniqueness of the services being provided, which has required an augmentation of the City's standard Consultant Services Agreement template, and the impact of the holiday breaks, Staff is recommending that the City Manager be authorized to finalize the agreement language, as long as they are within the parameters outlined within the Staff Report and Consultant proposal, to help expedite the process and avoid waiting an additional month to approve the agreement as there is only a single meeting within the month of January. NOTICING REQUIREMENTS /PUBLIC OUTREACH: A copy of the Staff Report was sent to Horizon Tower, LLC. ATTACHMENTS: 1. Staff Report — November 5, 2013 Page 2 of 2 or �9 82 DATE: TO: FROM: SUBJECT STAFF REPORT CITY COUNCIL November 5, 2013 Honorable Mayor and City Councilmembers Joni Pattillo City Manager""' CITY CLERK File # Proposal for Telecom Marketing and Management Services Prepared by Paul McCreary, Parks and Community Services Director EXECUTIVE SUMMARY: The City Council will consider a proposal received by Horizon Tower, LLC to provide consulting services for marketing and management of telecommunications sites on City property. FINANCIAL IMPACT: Each telecommunications lease has the potential to generate for the City an estimated $175,000 to $200,000 over a ten year period. RECOMMENDATION: Staff recommends the City Council approve the concept of securing a consultant to market and manage telecommunications services on City property, and direct Staff to negotiate an Agreement with Horizon Tower, LLC. Submitted B Reviewed By Director of Parkland Assistant City Manager Community Services DESCRIPTION: The City frequently receives inquiries from cellular service providers about locating telecommunications equipment on City property. Currently the City has one lease for a cellular antenna behind the Shannon Community Center that serves Sprint PCS. Citywide there are currently approximately 16 telecommunications towers and, as the City grows, the demand is increasing to locate additional antennas in the eastern part of Dublin. Additionally, due to the dramatic increase in the use of data - driven smartphones, there is an industry -wide trend toward densification of service in existing areas. Page 1 of 3 ITEM NO. 8.1 With the demand growing for telecommunications sites in Dublin, Staff believes that this is an opportunity to create additional revenue streams for the City. However, the telecommunications industry is complex and continues to rapidly change. Therefore, Staff published a Request for Proposals (RFP) to find an expert to: 1) market the City's properties as potential telecom sites; 2) negotiate lease agreements for City Council consideration, and 3) manage the improvements and the relations with lessees during the term of the agreements. It is anticipated that retaining the services of a telecommunications consultant will help the City maximize the revenue potential of telecom sites and be a more efficient use of staff time. As part of the RFP process, Horizon Tower, LLC of Danville was the only firm to submit a proposal to the City to provide the marketing and management services outlined in the RFP (Attachment 1). Horizon is a wireless infrastructure company that has been in business since 2004. Horizon's staff has over fifty years of combined wireless site development experience in the planning, design, construction and project management of telecom sites. They have experience negotiating telecom lease agreements including lease amendments and adjustments; site equipment specifications; stealth applications for suitable design parameters for zoning approval and building permit compliance; legal compliance and all environmental compliance. Horizon has experience working in partnership with a variety of public agencies such as City of Oakley, City of Fontana, the State of California and various school districts. Under the proposal received from Horizon, Horizon would work with Staff to identify potential sites for telecommunications leases. Fallon Sports Park is one site that Horizon would highly recommend for telecommunications equipment due to service gaps in Positano and Jordan Ranch. A preliminary review shows that Fallon Sports Park has the potential for up to four carriers. Staff also believes that there could be renewed interest in the Public Safety Complex, as there were several wireless carriers using that site when it was the former home to the National Food Lab. There has also been interest by the current lessee at Shannon Park to expand capacity. That agreement expires in 2014. If retained, Horizon would also negotiate with the lessee at Shannon Park for any modifications to the site and future amendments to the agreement, which is almost 15 years old. Agreements would be negotiated so that all capital costs for the improvements be paid for by the lessees, as well as all operating, maintenance and repair costs. Agreements would have a defined term with options for renewal and escalating lease payments. Horizon would only have the ability to negotiate agreements for the City using a standard agreement agreed to by the City as a template. All draft agreements would be presented to the City Council for consideration and approval. The proposed financial arrangement between the City and Horizon would be a tiered revenue share structure for all telecom lease revenue generated by the partnership. It is set up to incentivize Horizon to negotiate the best possible lease terms on behalf of the City. Following shows the percent share of the monthly lease payments that Horizon would receive for their services: Gross Monthly Lease Payment per Telecom Antenna Horizon Fee Years 1 to 5 Horizon Fee Years 6 & Beyond Net to City over 10 years Less than $2,000 /month 20% 15% Up to $186,000 $2,000 to $2,399 /month 25% 20% Up to $208,000 $2,400 /month and greater 30% 25% Over $210,000 Page 2 of 3 Horizon would not be paid any retainer fee and, as noted, there would be no capital outlay for the City. Therefore the City would not be out any funds to enter into an Agreement with Horizon and have them market potential sites. Staff has followed up with references provided by Horizon Tower and found the firm to have a reputation for professionalism, demonstrated technical knowledge of the industry, creativity and follow- through. All references would work with Horizon Tower again on future projects. If the City Council concurs with the concept of securing the services of Horizon, Staff will negotiate a Consulting Services Agreement with Horizon for approval by the City Council at a future meeting. NOTICING REQUIREMENTS /PUBLIC OUTREACH: A copy of the Staff Report was sent to Horizon Tower, LLC. ATTACHMENTS: 1. Proposal from Horizon Tower, LLC Page 3 of 3 Response to Request for Proposal (RFP) Telecom Marketing and Management Services with 'the City of Dublin John Kapulica, Horizon "rower, LLG 117 Town & COLIntry Drive, SUite A, Danvifle, Ca 94526 -2 925-314-1113 � 925-314-1114 F1 john@horizontower.001"n www. hoOzontower. corn RFP Closing Date: September 25, 2013 at 4:451)m HORIZON TOWER, 1.,.[..0 All-, Table of Contents: A, Narrative Pg 3-5 B. Horizon Backgrowid Pg 5-6 C. Horizon Personnel/Resumes Pg 6'-9 D. Other Consultants Pg 8 l ". Statement of Qualificat] oils Pg 8-10 F. Statem.ent, of Proposed Financial Arrangement Pg 10 G ppendix, I (Letter of Recommendation) Pg I I 11, Appendix 2 (Proposed Contract) Pg 12-23 1, Appendix 3 (Existing Telecom Site Map -- City of'Dublin) Pg 241- -2 - Ary NZONOWER, LLC RITIR s m b City of Dublili'l,"'clecon'i MailagernOnt Proposal Paul McCreary, Parks COMMUnity Services Director City of Dublin Parks and Coininunity Services Department 100 Civic Plaza Dublin, Ca 94568 Because of the explosive growth of data and Voice Usage on smart phones and other devices, the wiretess industry is struggling to meet the demand ifnposed by riew 4/55 technology platf'oftris. Carriers are racing to upgrade and grow their networks to manage heavy data demand brought oil by unprecedented mobile device sales over the last 6ew years (i.e., Appte iPhones, Samsung Galaxy, Motorola Droid and other tablets arid devices, such as the iPad). As a result, the demand for new infrastructure continues to grow at as rapid pace. Local jurisdictions, like tile City of Dublin ("the City"), are strategically positioned to help alleviate the constraints to wireless networks (brought on by tile increased data usage), by offering city owned properties as suitable Solutions for new telecom sites to carriers such as, Verizon, AT&T, Sprint, T-Mobile and others, As a locally, based wireless infrastMettire company since 20�04, horizon Tower, LLC ("1104-1ZOT)") Will provide assistance and direction to the City of Dublin for telecorn nlarke(ing., leasing arid management services by providing consufling expertise in the ["ollowing areas: Site Selection: Horizon will advise the City oil file most suitable city owned properties and locations that would qualify as potential candidates for wireless carriers, Horizon works extensively with wireless carriers in our local n•tarRets and will act as an intermediary between the City and the wireless carriers in analyzing/identifying arid promoting the use of city owned properties as suitable candidates flier wireless carriers and the installation of their Telcoorn Eqi.iipment. In addition, Horizon utilizes licensed and technologically advanced mapping tools that identify existing telecoill, sites and propagation analysis for both existing an(] new sites. These tools will be valuable in Ile] ping to identi fy and market suitable city owned properties. Site Markefin , and Leasi.qg Secy i-ces: Upon successful identification Of suitable city owned properties. Horizon will engage the wireless carriers on behalfol"the City in anticipation or cross ret-ereneing current and future needs of the carriers with a niap of the predeterarined city properties and advise [lie City on suitable rnatches with carrier needs. Horizon's staff, with over fifty years of combined wifeless site development experience in the planning, design, construction, and project rnanagernent. of cell sites will consult and advise tl-te City on all aspects of Telecom Lease Agreements and negotiations, including lease amendn'lents and adjustments; site equipment specifications, stealth applications for suitable design pararrieters For zoning approval and building pennit compliance; legal compliance arid all environmental coni.pliance matters, 'Telecom I lorizon will provide services to the City fr.)• Telecom Management Services in a diligent, eareful and at the higtwst professional grade consistent with OW" reputation in the industry for the scope ol"work depicted below: (i) Inventoi- rand Assessment: Horizon shall maintain a database with reporting featUTCS that will provide inventory of all telecorn leases and telecom equipment on City property. Horizon will also provide rapping .features to assist in propagation and coverage details of each telecom site. (U) Telecom Equipment Installation Review: Horizon shall monitor the installation of all (clecorri equipment, with City staff and mandate site walks with all carriers t1iioughout the construction and installation process for compliance with installation plans and specifications and conformity With telecom leases. (W) (7oinlyflance En, rem eent: Horizon. shall, with support froin fo the City, enforce all RIC, FAA, NEPA, SHPO arid local and regional ordinances related to use of the telecorn ecluiptnent and conformity with telecom leases, (iv) nteiference.- Horizon shall, with support from the City, entbi-ce all interference problems that tray arise fi-011-1 MUltiple: carriers at co-location facilities on City owned property and ensure conformity ofthe telecorn lease provisions addressing interference issues.. �.. Z1. - (y) Books and Recor&v: Horizon shall maintain a database of all telecorn leases and equiptnent, as well as doc'urnentation, provided by telecorn carriers related to,, Prefimina)m sile clatafinformation; Ground Lecap elEase mend Grant Deetllw-9; Hemorantlum qf Leases (MOL %); Option renet➢al / commencetnent letters; Tille procurement, SNDA / Lien, releases; I-Al2-C Bomedwy surve.-p; Phase IlPhase 11 re"Imrts; NEPAISHPO rel)orts; Geotechnieal relml; L UPIZoning approval (pholosinss); EAA / FCC ana(ysis and registration, AM certirication; Site Plans (Construction Dra win v) Power/ Eoundation, lBuih-ling Draivings; Power & Telco A ccomid I Light Honitoring (where tq)plicable); Permit(�,) Appro val / Cert. Qf Occ ulmn, q; A s- B uilt SurveylDra ivings and till relatetl telecom lease corresporti-lence. (vi) Telecom Lease Relations. Horizon shall act as an intermediary between the City and the telecom carriers for all matters related to the telecom lease and telecom siting, (vii) LeaseRevenwes: Horizon shall work with City staff and accounting personnel providing detailed reports on telecom lease revenues, escalations,, delinquencies, late charges, etc,, oil. behalf of the City. Full reporting using QuickBooks cif" all relevant accounting will be available for City review. (viii) Insurance: Horizon shall worh with. City staff on verifying all insurance requirements per telecom lease provisions, including having, the City and Horizon Tower being named as additional insured with certificates lair all installation work on City property. (ix) Notices: I-lorizon and the City will I.-)c listed, as appropriate contacts on telecoin leases. All notices shall be ("allowed up on by Horizon Tower with the �ity, including all notices on new or pending sites that Horizon niarkets to the telecorn carriers. (x) Pqformance of Ser vices: See opening paragraph above. B. Horizon Background I lorizonTower as a local consultant, developer, owner and, operator aof'wireless intrastn,,Icture in, Northern California since its inception in January, 2004, specializes in a 'grass roots" approach to condUCting business services to the wireless COTIMILL11ity. Horizon specializes in all phases, of consulting and project management in the wireless industry, including, but not limited (w ..5-- * Site! SelectiOD/Site Acquisition * Land LJse Planning /Design and Zoning, Adininistration * Site St.ii,veyiji,g/At,chitecttaruit & Fngineering * Utility and 'Felco/Fiber connectivity & Coordination * Felco Backhaul Services * Consiruction Mmmagernerit Services * Site MEiiiagei-iient/Maiii.l,enai,ice & Logistics Reliable Infrastructure Partners Horizon prides itself on providing the highest caliber service to its clients and with over 50 years of cornbined stat17'experience in the industry', we are confident in meeting the highest expectations of our clients, Over the years, Horizon has found a niche in working with local governments and jurisdictions in provicling site development services for wireless carriers and offering carriers a. predictable, efficient path to inrl'aStrUCtUre expansion on city owned properties, florizon provides a full turn -key operation that incorporates leasing, zoning, compliance, development fun(ling, construction and site maintenance - all executed in a timely and professional manner allowing for clarity and efficiency for potential itifrastruCtUre developi-nent Some of these telecom projects include partnerships with local municipalities, such as. City of Oakley, City of Fontana, the State of California (DG S) and local school districts, such, as Lo,di Unified School District. These projects have allowed Horizon the uniClUe ability to partner with local niunicipality and government bodies to e.itharice the use of city/government owned properties and as a result we feel our experience and existing carrier relationships will help leverage opportunities with the city of Dublin. (Please re.Pr to section E Slatetnenl Qf' Qualijicationsjbi, re, ,prences am] (,Iefoils regarding these projecl,�). C. Uorizon Per -sonnel /l esume The key perso.rmel that will interact with the City ot'Dublin, staff on a. regular basis are identifiecl below along with brief resurnes. S'Ltsmi Densmore, as Director of Development will be the initial point of contact for all rnatters, related to this project, JOHN KAPULICA C EO ROGER MATSUI I SUZIE DENSMORE CFO -- FRJAIqCF DIRECTOR DIRECTOR OF DEVELOPMENJ 1OW4T OF CO 11,ff ACT J 0 1-1 N () N G I R C(DNSTRUCTION AAA[AAGEIR, PAUL BUSCHINI OPERATIONS NIAMAGER RNANCE SUPPORT John Kapulica � (.7hiql'Evecutive Ofjicer Mr. Kapulica has been engaged in real estate acquisition and developnient for over twenty years, seventeen of which have been dedicated to the wireless corrimunications industry, In 1995, Mr. Kapulica joined JM Consulting Group to assist i. a [lie launch omacific Bell Mobile Services', (now AT&T) GSM network hl the San Francisco Bay Area and has since been engaged in every aspect of the wireless development business with direct responsibility for the deployment of hund.reds ol'sites, lor all the national carders (hrough various entities nand startups, including: Communication Systems Development, CSI), hic.,"I"'owerCom West Coast, LLC., Standard Tower, LLC.,, and most recently Horizon Tower, LLC, which he fionlied along with private eqUity partner Duff Ackernian & Goodrich (DAG, LLC ) in 2004 and continues to serve as its CEO, Mr. Kapulica received a Bachelor ot'Science degree in Business Administration from San Francisco State University and holds as Master of Science degree in Finance tioni Golden Gate University. Roger Matsui I CJY4cY'Financia1 Qf ,ficer Mr. Matsui is an experienced financial executive with a deep background in the Cellular tower, private equity, and broker/dealer sectors. Froni 2002 through 2012 Mr, Matsui served as Chief Financial Officer for private equity firm Duff Ackerman & Goodrich (DAG, 11,C), with responsibility for fund administration and accounting. In 2004 DAG LLC invested in Flo•izon Tower and Mr, Matsui took on the added responsibility of serving as f1orizon 'tower's Chief Financial Officer, Prior to joining DAG LLC,, Mr. Matsui was the Chief Finwicial Officer for Sutro & Co, frocil 1996 to 2002. Sutra was a full set-vice regional broker/dealer with 16 branch offices in the western United States prior to being acquired by RBC, Dain Rauscher. Mr. Matsui is at member of (lie California Society of Certified Public Accounting and received his MBA from California State University, Hayward, Suzie Densmore I DirecforMte De,velt)l)rtieittlAc,qgii.vitic)it Ms. Derismorejoined Horizon in 2006. She has worked in the wireless leteco ni-niu-nica ti o cis industry for snore than 13 years. Her experience spans two national, publicly traded tower asset companie,s as well as two west coast based regional tower companies. During her tenure in the industry, Ms, Densmore has participated in the development, management, acquisition or securitization of over 2,000 tower sites. At Horizon, Ms. Densmore oversees all facets of tower development and acquisitions including project rnanagement, portfolio management and due diligence, Ms. Densmore is also responsible for developinerIt arid maintenance of the Company's dalabase systetus, used to track site development, accounting, tilaircteri,,'i nee and other aspects of the Coniparry's operations, Paul Buschini I Operations Manager Mr. Buschini joined Horizon in 2004. He bririgs over 15 years ofproJect rriarnigencent and operations experience to Horizon. Prior to joining llorizon, Mr. Buschini spent five years with TowefCorri alongside Mr. Kapulica, where lie played tin instruniental role in its project. 17 - management gYOUP, At Horizon, Mr. Buschini is responsible for all operational aspects of towers including oversight, of receivables and payables, and irI--h0USe,: acco unt i ng/fina rice support to the CFO� Additionally, Mr. Buschini assists the Company's tower development and. acquisition e[Torts including vendor rnanagcinent, site evaluation, inspection and niaintenance FAA/FCC compliance and cnvironrnental compliance. John Unger I Constraction Managei- Mr. Unger brings over 15 years of wireless construction experience tol-lorizon Tower and was originally part of the initial launch for Pacific Bell Mobile Services in Pleasanton, Calil,ornia, serving the East Bay conirriunity. Mr Unger has asleep understanding of every aspect of the design and construction of wireless telecom facilities for AT&F, Verizon,'T'Mobile and Sprint/Nextel. PreVi0USIy Mr, Unger served as Construction Manager for AT&T Wireless and. with lower developer Spectra.Site. D. Other Consultants (Not applicable) E. Statement of Qualifications Below please find a list of relevant projects that Horizon has completed which are similar in scope and nature to the Dublin W,711. All projects were co-location facilities (4-carrier irrinknum) and strategically located on. government property. The City of Fontana project was an extensive arrangement to remove 4 existing wireless carriers (4 individually carrier owned mono-poles) on private property and re- located and consolidated on I new structure on City owned property. (See appendix for reconin-i end ation. letter). City of Oakley Rrojec(Naule'. 0aldey CA2009 Barbara, Mason, Redevelopment/Economic Development Director 925-625-70 16 -8- State of California Pro ect arne� ("'len I'llen SDC CA4001 (ew-retitly un.der, development) J N -T Tony I's ihopai d as, Manager, State Owned Leasing and Development 916-375-4040 City or Fontana Project Name: Fontana CA2000 Debbie M. Brazil], Deputy City Manager (909) 350-6727 [See attached letter of recommendation (Appendix I)l -9- Lodi Unified School District Project Name: Lodi High C' .4002 Art, Harid, ,Jr. Asst, Superintemlant, Facility & Planning C/o Barry DaCruz, Mik,,,i'Felecorn Group 209--992-1134 F. Statement of Proposed Financial Arrangement Horizon proposes a. tiered revellUt Share strUCIAIM, for all telecom lease revenUe gen,erated by the partnership and under the proposed tenns, of contract* and per the scope otservices depicted in this RF1' as follows: Gross Lease Payment Years 1.- Years 6 & Beyond Less than $2,000/mo 20% 15,% $2,00042,399/mo 25% 20% $2,400/mo & greater 30% 2,5% *See Appendix 2 t"or pi-oposed forn-i of writi-act Apj!LmLlix 1 — City of Fmillana Letter of'Recoonmendation November 29, 2006 TO Whom It May Concern: Please accept this letter as a reference and recon-imenclation lbr the services 1lo6zon To%vcr provide,d the City of Fontagnaa and the Foritalla Rodevolopnicrij. Agency in the relocation/redevc1opment of cel,i sites at our JessieTurner Coil) 11,11m i ly� (acility In [lie Spring of 2005, the City of Fontana was confi-onled with the task of relocatin.- three national whviess carriers residing oil three separato mono-palms to another location due to file redevelopmeill, of the existing pared where 1he sites were located. With Horizon Tower's expertise an(i knowledge ofthe industry, they were able to step in and present as viable Collocation SOlulion for till parties involved, incAuding the design of a new stmilill structure dial met environmental, voning as d jurisdictional concerns. lJorizoo Tower's professionalism and ability to coordinate and inanage an unlbrcsc�cn move to a LemporM-Y f- acility, in addition to the permanent facility, depicted their willingness to work with <all parfiCS. ']'Ile UlfriC& iSSLICS were, accommodated as well as the City's timelines and Horizon Tower completed the entire pro,icel ilk an exlwdicnitv is r;aaaliy responsible and proressional Illmmu"r. We would reconnitend working with Horizon Tower Oil any difficult or %erlsilive Project involving Nvis-cless tclecomillunicalion inffitstructure. Tbcir eNperGsQ and desire n:) work within (weryone's parameters nunde wiv,,it could have been a probleinafic, situation intca a positive collocation solution fear all involved. Please do not hesitate: to conlaet nle of 909-350-6727 should you havu ony questions. Sincei:ely, Debbic M,. Brach] DCpUt)I City MUTlr.lj!,Cl- M Jolin Kapulicm:, 1-torizonTower., LLC AMIendix 2 - Proposed form of Partnership contra el, TELECOMMUNICATIONS SITE MANA('EMEN'T ACRFA,'MENT ThiS Te[eCOMYTILIllications Site Management Agreement (this "Agjeejjieij`) is entered into as of the - day of­..­,_, 2013 by Florizon'Tower., tA.,C, a Delaware Hinited liability company, with its principal place of business at 11 TFown and Country Drive, Suite A, Danville, CA 94526 (the -MgIIAW") and the City of Dublin, Califlornia (the "Owner"), Section 1. Appointment. Owner hereby engages Manager as an independent contractor for the Purpose of perforadug the Services (as defined. in Section 4 of this Agreement) with respect to the sites identified on Exhibit A attached hereto (ea.ch a "Location"' and collectively the 'T ro. ert Section 2. rertn of Agreement, Termination. A. Term. This Agreement shall continue f'or an initial term of` five (5) years (the "Initial Term") commencing on the date hereof, unless sooner terminated in accordance with the provisions of this Agreerrient. Thereafter this Agreement will automatically renew for consecutive five (5) year teri-ris (each as "Renewal Tenn "" and, together with the Initial Teryn, the " "Term " ") unless terminated by either party providing written notice to the other party at least ninety (90) days prior to the expiration of the then Current term, , B, Termination. This Agreement shall terminate, prior to 0-te expiration of the Term, upon the occurrence of any of the following, subject to the provisions ofthis Agreenient. (i) MqLqql Agreement- The rri(rtual written agreernerit of Owner and Manager. (ii) Material Default, The Owner or Manager breaches its representations or warranties, or defaults in the performance of its covenants or agreements contained in this Agreement, and such breach or default is material in the context of this Agreernent., and fails to cure such breach or default within thirty (30) days, Or SUCIA longer period as is reasonable under the cimtlulstances provided the defaulting party is diligently pursuing as cure of such breach or default, of receiving written notice of such breach or del"a.uh from the other party, prqvided, however , that the cure period for monetary deffitifts slial I be ten (10) days frown the dare date of the applicable payment. (11, Duties LI)on End of ' " Terni. Following the expiration of the Term, Manager shall deliver to Owner all original Telecom i Lease Agreenients and technical studies and diagrarns., and all ftinds in Manager's possession which belong to Owner (jfarty) or received by Mana.ger with - 1 2- regard to the Propeay less Managers compensation and reiinburserricrits as provided in Exhibit B. Manager shall also, for a period of thirty (30) days after such expiration or termination, be available during business hours to respond to any questioris of Owner regarding the operation and nmintenance of" the Property. Section 3. (7ompensation. Manager shall be paid a rnanagernent fee for performing the Services as provided in Exhi.b.it_B attached hereto. Section 4. Manager's Sep-vices. Manager shall perform the rollowing, services (collectively, `` r rvices "') for Owner with respect to the Property: A, Site Marketing, and Leqsitig_,�e ry ices - D S_Lr. (i) h arlk th1g, Managers shall inarket the Property to prospective wireless telecorn tenants (each as "Teleconi Lessee") fOr use as a telecortununleations transmitting and receiving location and the installation, operation, and maintenance of teleconnymnications equipment and systems, inClUding, but not limited to, towers, poles, transmittcrs, receivers, antenna support masts, cabling, wiring, and accessories (collectively, "'I'd-C—Com EtLIJ_IPnIC_r)A'I'I'), Mana-er shall have the exclusive right to niarket the Property to prospective Telecoin Lessees for installation, operation and maintenance of such Telecom Equipment, Manager shall not be required to provide any Services with respect to existing tenants on the Property as ofthe date hereof. Manager may, at its own expense, engage consultants, independent contractors, brokers or others to assist in marketing the Property. (ii) Telecom Lease ALreements, Managers shall prepare and negotiate, oil Owner's behalf, a lease agreement, including aniendments and extensions thereof (each a "Telecom L "), with respect to the installation and operation oFfelecorn FC]Uiprnent at the Property. Manager stiall negotiate each Telecoj,n Lease Agreement based on the form attached here-to as Exhibit C. Manager shall have no authority and Manager shall not represent to third parties that Manager has authority to exeCUte any doCUment on behalf of Owner, to bind Owner to any Telecom, Lease Agreement, or other agreement, Owner agrees that it will conduct itself in all respects in connection with the performance of this Agreement in good faith and in a cornmercialty reasonable manner, and, wiflimit limiting the fbregoing, will not Linfeasonably delay, withhold, or condition its consent to enter into any Telecom Lease Agrecraent, (iii) Lease faecifica ions. Managers shall periodically consult with Owner regarding ftitirre installation plans and specifications to address issries related to space requirements, Telecorn Equipment location, roof top COnfigUration, building aesthetics, and other strtict-oral or engineering reqUiremcnts and make recornmendation.s, to Owner as to approval or disapproval thereof, as well as the appropriate rates Lind terms f6r]'elecorn Lease Agreernents. (iv) Leg j:-o—nipliatice, To the extent necess,,Ary, Manager shall require each L Telecom Lessee to provide Manager with evidence, it has received all necessary approvals for com.pliance with zoning ordinances, building codes and all other applicable laws regarding Telecom Equipment installation, ol)ei'atic)n,.illaijitetiiiice,, repair and/or replacenient. - 1 3 - B. Te I ecom Maria yen ervices, (i) jnyc p y_qjjcl Assessment. Maintain a current inventory of"Felecorn leases anal Telecom EqUiprnent located at the Properly, Update SLIch inventory sctieclule and provide to Owner upon requesi- (ii), TekqoLi "Ec . Monitor installation of"Telecorn EqUiptnellt With OwncCs engineer for compliance with, the inst-allation, plans and specifications of the Telecorri Lease Agreement. (iii) Compliance Enforcement. In cooperation with Owner, to enlorce coiripliance by eacbTelecorn Lessee at the Property 'with its Telecorn Lease Agreement. Upon receipt of approval fi-orn Owner, use contractors and external resources to confirm that each Telecom I,essee is operating and inaintaining its Telecom Equipment in compliance with the terms of itsTeleconi, Lease Agreement and (lie technical recorntirendations and requirements specified by the Federal, COMMUfliCitions Commission ("fCC"), Federal Aviation Adininistration ("LAA") and other relevant regulatory agencies. Fees ctiarged by the external contractors and resources will be the responsibility of the Owner. (iv) Interference. Monitor and resolve any interference problems arriong Telecom Lessees and among Telecom Lessees and third parties. (v) Books and Records. Maintain books and records with respect to the Telecom Equipi-nent, the Telecom I..,easc Agreements, and Telecom Lessees as necessary to satisfy governmental reporting requirements, (vi) Teleconi Lessee Relations. Serve as [lie intertace between Owner and the Telecom Lessees, (vii) Collection and Remittance. Collect monthly Telecom Lessee rental paytrients (the "Telecom Lessee Rents"') under ffie'Teleconi Lease Agreements and remit all Telecorn Lessee Rents to Owner after deductioii of the Management Fee then clue to Manager hereunder In accordance with Exhibit B attached hereto-, support stich remittances with schedules detailing the Telecom Lessees,, the calculation of the'l-'elecon-i Lessee Rents drie and collected and the extent of any delinquencies thereof, and of Management Fees earned and paid-., send such remittances and schedules to Owner on the fifteenth (I 5th) day of the month following the i-nonfli in which Telecom Lessee Rents are received by Manager. Owner shall hold any security deposits and other deposits from Telecoms Lessees in accounts designated by Owner. Manager shall, with the prior written approval ofOwncr, promptly and diligently <.issisl Owner to enR)rce Owner's rights under any Telecom Lease Agreements by way of litigation or other extraordinary enforceirient actions, if necessary, (viii) ' hi " surance,, Verify conipliance byTeleconi Lessees with insurance 1°e(l U ire I'll efIt S Set f6rth in Telecom Lease Agreetnent, . 14 - (ix) N - otices. Ink M )rrn Owner of any material notices which anager receives in connection with any Location or Property, the'-felecon'i Lessees, or Telecom Lease Agreetnerits, including material notices received Frorn any gOVefnnlentatrl body, insurance carrier, orTc1ccorn. Lessee, eftbil's to: (x) Perforprance of Services. Manager shall use coannercially reasonable (a) perform the Services in a diligent, care-ftil, and professional manner-, arid (b) maxii-nize revenues and minimize expenses arid losses, and the Services shall be of a scope arid quality, riot less than those genet-ally pe6orrned by first class, pro-fessional WleCOIIIIIILtnications site nninagers. Section 5. Manager's Exclusivity; Owner's Indemnity. Owner has appointed Manager as its exclusive manager and marketer of the Property, Owner shall riot undertake arty rnar[Ceting or other activities related to the Property (including the retention ofany broker or other manager) and shall refer to Manager all inquiries it receives frorn potential "relecorn Lessees, Manager further acknowledges and agrees that Owner may cornmunicate to Manager, its obJectives with respect to the general leasing of the Property and the Manager shall use its corn mercia1ly reasonable efforts to accomplish such objectives. Owner hereby warrants and represents that Owner has no arrangements with any broker(s) which would entitle such broker(s) to a corrirnission. or referral fee [or any Telecom Lease Agreements, and Owner agrees to indemnify, defend, and hold harraless Manager against any c➢airirs of any broker-, manager, or other person ctairniug such an arrangenient, including attorney's fees and expenses. Section 6. Inquiries and Negotiations. Without limiting Manager's marketing obligations set forth herein to identify prospectiveTelecorn Lessees, all inquiries concerning proposed Telecom Lease Agreerricrits shall be referred to Manager, All negoliations ol'proposed: "I"elecorit Lease Agreements shall be conducted by or under the direction of the Manager, Section 7. Owner's Responsibilities Related to Leasing, A. Access and Information. Owner shall provide Manager, its agents, subcontractors, and employees with 24 hour access 7-days a week to each Property, subject to Owner5s, security requirements, to install, tnaintain, inspect, operate, dismantle,, assernble, alter, repair, arid monitor any'1'elecorri Equipment of elecom Lessees in a Property and to work with on-site Prol)erty personnel to show each Property to prospective Telecom Lessees. Owner shall respond protriptly to the reasonable requests of Manager regarding the Property, shall provide Manager with any inforrnation., documents or ma cerials related to the Property acrd shall keep Manager infort-ned of any material events which rnay irripact the Property. B. Lease AVL)rc)gl. Each proposed Telecom Lease Agreement shall be subject to Owner's approval, Martager, shafl provide Owner with a draft of ea,ch "felecorn Lease Agreement to permit Owner to evaluate the tern-is thereol'and the potential Telecom Lessee, Owner shall - 15 - promptly notify Manager of its intention to accept or reject each proposed Te I ecom Lease Agreenient. Owner reserves the right to accept or reject any offer to lease any portion of the Property to any proposed Telecom Lessee, provided that there is as commercially reasonable j l"I'Stific"Iti Oil lot- doing so and provided that Owner provides Manager with a written justification there.fore, Any attorneys or consultants engaged by owner in conriection with the review of ally proposed TelecolTi Lease Agreement shall be at Owner's sole cost and expense, C, Condition ofthe Prop , Durir)g the'Verm of this Agreement Owner shall keep the Property, other than the Telecom Equipment, in good corlditii:ln and repair, reasonable wear and tear excepted and shall keep the Property free from excess vegetation and debris. Owner shall be responsible for the inainterrance or repair of any equipment, machinery, or t-riecharlical systems, including any heating, ventilating, or air conditioning sys(enis, relating to the building operation (collectively the "Building Systems") that are or rnay be ma-de available toTelecorn Lessees pursuant to their respective Telecom Lease Agreements, D. Addition or Removal of Locations. Duri rig the Term, Owner may add additional Locations to EXrhjbit.A by providing written notice thereof to Manager, Upon reecipt of'such 11 notice, Manager shall commence performing the Services for such Location, If during, the Term, Owner- sells, assigns or transfers all of its right, title and interest in and to any Location to a third party (whether pursuant to as taking tinder the power oferninent dornain or otherwise) or otherwise ceases to have an interest in a, Location, this Agreernent shall terminate (a.s to that Location only), and on the date of such assigrurrent or transfer the 0wner shall promptly deliver to Manager an amended Exhibit A reflecting the removal of such Location from the scope of this Agreement and shall pay Manager the Management Fee described. on Exhibit B Section 161 for the remaining terra any Telecom Lease Agreements at such Location. Upon the terminatiorl of this Agreement as to a Location,, the Manager shall be released and discharged ftom all liability hereunder with respect to Such Location for the period from and after the applicable termination date and the Manager shall have no further obfi ation to perform any Services with respect Z:7 therelo from and after such date. Section 8. Books, Records, and Reporting, Manager shall keep and inaintain ],looks, records and EICCOUJIB in connection with the Services to be provided and rnanagernent of the Property. Owner shall have the right during usual business hours Upon reasonable notice to examine and audit all such books, records and accounts, and Owner may make copies of any documents and records pertaining to any time period during the'Yerrn. If any audit shows that Owner or Manager-, ,is applicable, has been underpaid., then the other party shall prorripfly pay to tfie party that has been underpaid the amount due. Befiore any records or docurrients relating to the Property are destroyed during the Term, Manager shall notify Owner, Whereupon Owner shall have thirty (30) days to take possession of such records and documents. In no event shall Manager destroy records or dOCUI-newts during the'"Ferm relating to the Property without Owner's written approval. Section 9. Owner's Obligation. Owner shall provide Manager with such cool)eratioll and infori-nation as is reasonably necessary for the effective perforniance ofthe Services, Section 10. 111d e al n i ty, .. 1 6- A. Manaer's Inderrinily. Manager shall indefirnit'y, defend, and hold harmless Owner, from and agair►st, a try and all claims, I iabi lities, daniages, and costs, (incl tiding WithOUt lin)i4lrti(na, reasonable attorneys' I-ces) arising out of any fraLid,, gross negligence, or wilifill misconduct on the part of Manager. B. Ownersindeginity, Owner shall inderrinify, -end, arid hold harinless Manager def from and against any and all claims, liabilities, darriages, and costs (including without litiritation, reasonable attorneys' fees) arising our of, (i) any fraiid, gross negligence., or willful misconduct on the part of Owner; (ii) any Telecom Lease Agreement; and (iii) Owner's ownership or leasing of the Property. Owner shall look solely to the Telecom Lessee in the event of any dall-lage to the Properties by reason of such "Felecorn Lessee's breach of any 'releconi Lease Agreeirient and shall hold. Manager and its Affiliates harmless frorn and against any liability in respect thereof, Section 1, 1. if and Wai-ranties. Eac► party makes the following representations, and warrants to the other: (i) it is dirty organized, validly existing, arid in good standing under the laws of the state of its formation, arid is, or will be at (lie appropriate tinle, qt.ialified to do bLisiness in any jurisdiction in which st►cli qualification is necessary for the performance by such party of its obligations hereunder; (ii) it has the necessary power and authority required to execute, deliver, and perform this Agreement, and has SLIt"ficient staff and other resources to carry out its duties hereunder in a. prompt, efficient, diligent, and professional niariner; (iii) the execution, delivery, and perforl-nance of this Agreement has been duly authorized by all necessary action on the part of such party, and once executed, this Agreement will be valid arid binding upon such party; and (iv) this Agreement does not conflict with the organizational documents of stjch party or constitute as defal.lft Linder any material insti-Lirrieln or agreement by which sLich party is bound. Section 12. Insun,,ince Requirements. Manager shall rnaintain during the term of this Agreement a policy of("orrunercial General Liability Insurance naming Owner as ail additional inst►red and providing $ 1,1000,000 in coverage per occurrrence and $2,000 000 in aggregate. Manager shall furnish Owner, it the titne ofexect►tion ol'this Agreement, with copies certificates of insurance evidericing its insi,trance coverage as reqLdred under this Agreenrent. Manger shall deliver to Owner upon request evidence that Owner has been added as additional insured, All Manager's policies shall be at Manager's sole cost. Owner shall rnaintain inset-arice oil the Property in sneh amounts as nray- be reasonably required by the TeIccoin Lessees Linder [lie Telecom Lease Agreements. Section 13. Miscellaneous. A, Relations�Ili oaf Par -ties. The parties intend that Manager's legal status With respect to Owner shall be that of an independent contractor, Nothing in this Agreement, shall constitrite a patInership,joint VCTAUre., agency., or other snuilar relationship. B. Notice, Any notice in this Agreerneirt pennitted to be given, made or accepted by eil.her party to (lie other, nitist be in writing and rnay be given or served by depositing (lie same, in tile United States mail, postpaid, certificd, return receij°)t requested,, addressed to the party to be notified, or by delivering sarne by hand or overnight courier to an officer or agent of such party. Notice deposited in the I.Jnfled States mail shall be deerned given three (3) days after it is d("posited. Notice giVeD in any other manner shall be effective When received al the a(ldress of the addressee. For Purposes hereof the addresses of the parties, until chat),ged as hereafter provided shall be as follows: if to Owner: if to Manager: with a co,py (which shall not constitute notice) to: Horizon Tower, LL,C 117 Town and Country Drive., Suite A Danville, CA 94526 Attn.: Property Manager Edinger Associates •LLC 187'5 1 Street, N. W. Washington, DC, 20006 Attn: Brook A. Edinger C. A , None of tl"ie rights, interests, duties, or obligations created by this Agreement may be assigned, transferred, or delegated in whole or in part, by any party hereto without, the prior written consent of the other party, which consent shall riot be Unreasonably withheld, conditioned, or delayed, except that either party may assign this Agreement to a person or entity acquiring substantially all of its assets or equity and, who agrees to assume this Agreernent in writing. D. Entire AOCIernent and Amendment. This Agreement (including exhibits hereto) contains the entire agreement between Owner and Manager, and no oral statements or prior written matter not set forth herein shall be of any force and effect, No variatioa, modification or changes hereofsfiall be binding on either party hereto unless set forth in as document executed by such parties. E. NoRecording. Neither Owner nor Manager shall file or record any instrument or document relative to this Agreement Marty public records, F GoverniLig.La and Venue. f'hc laws of the State Cali-fornia shat I govern the validity, enforcement, and interpretation of this Agreem. ent. G. Waiver, N'o failure by Owner or Manager to insist on the strict performance of' any obligation, covenant, agreenrent, term, or condition of this Agreemetill or to exercise any right or remedy available upon a breach of this Agrcement, shall constitute a waiver, and no breach shall be waived, altered or modified, except by written instrument. K )wners l :Ags --Qon� n L and ,A)tnr)�Is- Owners consents and approvals may be given only by Ownei, or its representatives fron-i time to time designated by Owner to Manager in writing. Owner may from tirne to time designate representatives to !l!llllllWllllll!ll approve rtialters, receive repods, materials, or otf)er items, or otherwise take actior) oil behalf of Owner, and Manager shall cooperate with such representatives, to the sarne extent as if(lealing directly with Owner, T. Confidential igforrg,ation, Maiiager agrees to hold iri confidence and not use ot disclose to others any confidential or proprietary inf6ri-nation of Owner heretofore or herealler disclosed to Manager, kicluding bit( not finlited to arty data, information, plans, prograrrls,, processes, costs, operations, orTelecom Lessee lists which may come within the knowledge of Manager in the performance of its services, except where Owner specifically authorizes disclosure. J. Severability. It' any provision hereof is in conflict with any statute or law of the governing jurisdiction or any other statute or rule of law of any other applicable jurisdiction or is otherwise unenforceable, SUCh provision shall be deerned to be void only to tile extent cal` such coriffict or lunenforceability and shall be separate from and shall r1ot invalidate any other provisions ofthis agrcernent,. K. o or ig arts, This Agreel-nerit may be executed in COUnterpa-rts, each of- which _g� shall be deemed an original and all of which together shall constitute one and the same instrument. [StGNATURE PAGE FOLLOWS] - 19 - SIGNATURE, PAGE"I"O TELECOMMUNICATIONS SITE MAN AGEMENTAG REE MENT IN WTTNESS WHEREOF, the undersigned have eNecuted this Agreernent as of"the date set, forth above: MANAGER� HORIZONTOWER, LLC By Name: Title: OWNER: CITY OF DUBLI-N, CALIFORNIA By: Nib ne� Title: LIST OF LOCATIONS - 2 q - EXHIBIT' B MANAGER'S COMPIENSATION ManageniqrYLJ--,'ee, 0\,vner shall pay to Manager a fee (the "'Mana eineri t Fee"), if) ttle arriounts, described below, The Managernent Fee shall be pa,id monthly in arrears. The Manager is autliorized to deduct the Managenient Fee froni rnonthly rental payments it collects under the"Felecorn Lease Agreements, The Maiiager shall provide the Owner a trionthly statement detailing the monthly rental paynienis due to be collected each month and a calculation of the Management Fee: (i) Thirty percent (30%) of the total rental payrnents to be collected during the initial terrn of each'Telecorn Lease Agreement; and (ii) Twenty-Five percent (25%) of the total rental payments to be collected during all renewal or extension terms ofeach Tele(.'-,orn ],ease Agreenrient, or the term of any replacement contract entered into in licti of an extension or renewal ofaTelccon-i Lease Agreement, regardless of any termination, of this Agreeirient. 2. Proiect Fees, Owner shall pay Manager for providing services which are outside of the scope of the Services described in this Agreement in the amount of $150.00 per hour, plus actual expenses incurred by Manager. Prior to undertaking any project at an hourly rate, Manager will provide Owner, or its representative, with an estimate of the hours required to complete the project and the scope of work to be perfornied. The Manager is authorized to deduct the project Fees Erorn an rental payments it collects tinder the "I"clecom Lease Agreements, Additional. CoqL)gns iati�Qq, Upon termination of this, Agreement, Manager shall provide Owner with a list setting forth the narnes oftfie persons or entities to whoni, Manager has shown the Property for possibly occupancy by such party or with whom Manager has comnienced negotiations of the terrns, of a potential TOecorn Lease Agreement, Such list, shall be submitted by Manager to Owner within. twenty (20) business days of the termination of this Agreement, If Owner enters into any Telecom I-ease Agreement with any party OD such fist within one hundred fifty (150) days from the terroination date of this Agreement, Manager shall be entitled to receive from Owner the Managernent Fee as set forth. in this Agreement on account of such Telecom Lease Agreement. 4, Ex -enses, Manager shall be responsible to pay, its own costs and expenses associated with providing the Services and Owner shall be responsible for paying all costs and expenses associated with the Property including any irnprovernents to the Properi.y, any fecs or expenses related to zoning applications, filing fees and similar expenses, - 22 - mmumum TELECOM [-EASE, AGREEMENTTEMPLATE - 23 - A )L)cn4ii 3 .,.- Existing Tell com Site Map -- it -y of Dublin L . .... . -- See attached