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HomeMy WebLinkAbout8.1 Telecom Mkting & Mgmt Servicesor 19 82 /ii � 111 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 . A- HORIZON TOWER, LLC Request for Proposal _ t t A" Response to Request for Proposal {RFP} for Telecom Marketing and Management Services with the City of Dublin John Kapulica, Horizon Tower, LLC 117 Town & Country Drive, Suite A, Danville, Ca 94526 9 925 -314 -1113 71925-314-1114 P71 john @horizontower.com www.horizontower.com RFP Closing Date: September 25, 2013 at 4:45pm IL- HORIZON A TOWER, LLC Table of Contents: A. Narrative Pg 3 -5 B. Horizon Background Pg 5 -6 C. Horizon Personncl/Resumes Pg 6 -8 D. Other Consultants Pg 8 E. Statement of Qualifications Pg 8 -10 F. Statement of Proposed Financial Arrangement Pg 10 G. Appendix I (Letter of Recommendation) Pg 11 H. Appendix 2 (Proposed Contract) Pg 12 -23 I. Appendix 3 (Existing Telecom Site Map — City of Dublin) Pg 24 -2- HORIZON IATOWER, LLC RFP Response by Horizon Tower LLC — City of Dublin Telecom Management Proposal Paul McCreary, Parks community Services Director City of Dublin Parks and Community Services Department 100 Civic Plaza Dublin, Ca 94568 A. Narrative: Because of the explosive growth of data and voice usage on smart phones and other devices, the wireless industry is struggling to meet the demand imposed by new 415G technology platforms. Carriers are racing to upgrade and grow their networks to manage heavy data demand brought on by unprecedented mobile device sales over the last few years (i.e., Apple Whones, Samsung Galaxy, Motorola Droid and other tablets and devices, such as the Wad). As a result, the demand for new infrastructure continues to grow at a rapid pace. Local jurisdictions, like the City of Dublin ( "the City "), are strategically positioned to help alleviate the constraints to wireless networks (brought on by the 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 infrastructure company since 2004, Horizon Tower, LLC ( "Horizon ") will provide assistance and direction to the City of Dublin for telecom marketing, leasing and management services by providing consulting expertise in the following areas: Site Selection: Horizon will advise the City on the 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 markets and will act as an intermediary between the City and the wireless carriers in analyzing /identifying and promoting the use of city owned properties as suitable candidates for wireless carriers and the installation of their Telecom Equipment. In addition, Horizon utilizes licensed and technologically advanced mapping tools that identify existing telecom sites and propagation analysis for both existing and new sites. These tools will be valuable in helping to identify and market suitable city owned properties. -3- Site Marketing and Leasing Services: Upon successful identification of suitable city owned properties, Horizon will engage the wireless carriers on behalf of the City in anticipation of cross referencing current and future needs of the carriers with a reap of the predetermined city properties and advise the City on suitable matches with carrier needs. Horizon's staff, with over fifty years of combined wireless site development experience in the planning, design, construction, and project management of cell sites will consult and advise the City on all aspects of Telecom Lease Agreements and negotiations, 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 matters. Telecom Management Services: Horizon will provide services to the City for Telecom Management Services in a diligent, careful and at the highest professional grade consistent with our reputation in the industry for the scope of work depicted below: (i) Inventory and Assessment: Horizon shall maintain a database with reporting features that will provide inventory of all telecom leases and telecom equipment on City property. Horizon will also provide mapping features to assist in propagation and coverage details of each telecom site. (ii) Telecom Equipment Installation Review: Horizon shall monitor the installation of all telecom equipment with City staff and mandate site walks with all carriers throughout the construction and installation process for compliance with installation plans and specifications and conformity with telecom leases. (iii) Compliance Enforcement: Horizon shall, with support from the City, enforce all FCC, FAA, NEPA, SHPQ and local and regional ordinances related to use of the telecom equipment and conformity with telecom leases. (iv) Interference: Horizon shall, with support from the City, enforce all interference problems that may arise from multiple carriers at co- location facilities on City owned property and ensure conformity of the telecom lease provisions addressing interference issues. (v) Books and Records: Horizon shall maintain a database of all telecom leases and equipment, as well as documentation provided by telecom carriers related to: Preliminary site data/information; Ground Lease/Easement/Grant Deed/W -9; Memorandum of Leases (MOL's); Option renewal/ commencement letters; Title procurement, SNDA /Lien releases; 1 Alt -C Boundary survey; Phase UPhase H reports; NEPA/SHPO reports, Geotechnical report; LUP /Zoning approval (photosims); FAA /FCC analysis and registration, AM certification; Site Plans (Construction Drawings); Towerl Foundation /Building Drawings; Power & Telco Account /Light Monitoring (where applicable); Permit(s) / Approval / Cert. Of Occucpancy; As Built Survey/Drawings and all related telecom lease correspondence, (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) Lease Revenues: Horizon shall work with City staff and accounting personnel providing detailed reports on telccom lease revenues, escalations, delinquencies, late charges, etc., on behalf of the City. Full reporting using QuickBooks of all relevant accounting will be available for City review. (viii) Insurance: Horizon shall work 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 for all installation work on City property. (ix) Notices: Horizon and the City will be listed as appropriate contacts on telecom leases. All notices shall be followed up on by Horizon Tower with the City, including all notices on new or pending sites that Horizon markets to the telecom carriers. (x) Performance of Services: See opening paragraph above. B. Horizon Background Horizon Tower as a local consultant, developer, owner and operator of wireless infrastructure in Northern California since its inception in January, 2004, specializes in a `grass roots' approach to conducting business services to the wireless community. Horizon specializes in all phases of consulting and project management in the wireless industry, including, but not limited to: -5- • Site Selection/Site Acquisition • Land Use Planning/Design and Zoning Administration • Site Surveying/Architectural & Engineering • Utility and Telco /Fiber connectivity & Coordination • Telco Backhaul Services • Construction Management Services • Site Management/Maintenance & Logistics Reliable Infrastructure Partners Horizon prides itself on providing the highest caliber service to its clients and with over 50 years of combined staff 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 providing site development services for wireless carriers and offering carriers a predictable, efficient path to infrastructure expansion on city owned properties. Horizon provides a full turn -key operation that incorporates leasing, zoning, compliance, development funding, construction and site maintenance — all executed in a timely and professional manner allowing for clarity and efficiency for potential infrastructure development. Some of these telecom projects include partnerships with local municipalities, such as: City of Oakley, City of Fontana, the State of California (DGS) and local school districts, such as Lodi Unified School District. These projects have allowed Horizon the unique ability to partner with local municipality and government bodies to enhance 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 refer to section E. Statement of Qualifications for references and details regarding these projects). C. Horizon Person net/Res um es The key personnel that will interact with the City of Dublin staff on a regular basis are identified below along with brief resumes. Susan Densmore, as Director of Development will be the initial point of contact for all matters related to this project. JOHN KAPULICA CEO ROGER MATSUi I SUZIE DENSMORE CFO— FINANCE DIRECTOR DIRECTOR OF DEVELOPMENT PONT OF COf*TACT JOHN UNGER CONSTRUCTION MANAGER Now PAUL. BUSCHINI OPERATIONS MANAGER FINANCE SUPPORT John Kapulica I Chief Executive Officer Mr. Kapulica has been engaged in real estate acquisition and development for over twenty years, seventeen of which have been dedicated to the wireless communications industry. In 1995, Mr. Kapulica joined JM Consulting Group to assist in the launch of Pacific Bell Mobile Services' (now AT &T) GSM network in 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 hundreds of sites for all the national carriers through various entities and startups, including: Communication Systems Development, CSD, Inc_, TowerCom West Coast, LLC., Standard Tower, LLC., and most recently Horizon Tower, LLC, which he formed along with private equity partner Duff Ackerman & Goodrich (DAG, LLC ) in 2004 and continues to serve as its CEO. Mr. Kapulica received a Bachelor of Science degree in Business Administration from San Francisco State University and holds a Master of Science degree in Finance from Golden Gate University. Roger Matsui] Chief Financial Officer Mr. Matsui is an experienced financial executive with a deep background in the cellular tower, private equity, and broker /dealer sectors. From 2002 through 2012 Mr. Matsui served as Chief Financial Officer for private equity firm Duff Ackerman & Goodrich (DAG, LLC) with responsibility for fund administration and accounting. In 2004 DAG LLC invested in Horizon Tower and Mr. Matsui took on the added responsibility of serving as Horizon Tower's Chief Financial Officer. Prior to joining DAG LLC, Mr. Matsui was the Chief Financial Officer for Sutro & Co. from 1996 to 2002. Sutro was a full service regional broker /dealer with 16 branch offices in the western United States prior to being acquired by RBC, Dain Rauscher. Mr. Matsui is a member of the California Society of Certified Public Accounting and received his MBA from California State University, Hayward. Suzie Densmore I Director, Site Development /Acquisition Ms. Densmore joined Horizon in 2006. She has worked in the wireless telecommunications industry for more than 13 years. Her experience spans two national, publicly traded tower asset companies 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 management, portfolio management and due diligence. Ms. Densmore is also responsible for development and maintenance of the Company's database systems used to track site development, accounting, maintenance and other aspects of the Company's operations. Paul Buschini I Operations Manager Mr. Buschini joined Horizon in 2004. He brings over 15 years of project management and operations experience to Horizon. Prior to joining Horizon, Mr. Buschini spent five years with TowerCom alongside Mr. Kapulica, where he played an instrumental role in its project VZ management group. At Horizon, Mr. Buschini is responsible for all operational aspects of towers including oversight of receivables and payables, and in -house accounting /finance support to the CFO. Additionally, Mr. Buschini assists the Company's tower development and acquisition efforts including vendor management, site evaluation, inspection and maintenance FAA/FCC compliance and environmental compliance. John Unger I Construction Manager Mr. Unger brings over 15 years.of wireless construction experience to Horizon Tower and was originally part of the initial launch for Pacific Bell Mobile Services in Pleasanton, California, serving the East Bay community. Mr Unger has a deep understanding of every aspect of the design and construction of wireless telecom facilities for AT&T, Verizon, T Mobile and Sprint/Nextel. Previously Mr. Unger served as Construction Manager for AT &T Wireless and with tower developer SpectraSite. D. Other Consultants (Not applicable) E. Statement of Qualifications Below please find a list of relevant projects that IIorizon has completed which are similar in scope and nature to the Dublin RFP. All projects were co- location facilities (4- carrier minimum) 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 1 new structure on City owned property. (See appendix for recommendation letter). City of Oakley Project Name: Oakley CA2009 Barbara Mason, Redevelopment /Economic Development Director 925 - 625 -7016 - 9 - State of California Project Name: Glen Ellen SDC CA4001 (currently under development) Tony Psihopaidas, Manager, State Owned Leasing and Development 916- 375 -4040 City of Fontana Project Name: Fontana CA2000 Debbie M. Brazill, Deputy City Manager (909) 350 -6727 [See attached letter of recommendation (Appendix 1)] Lodi Unified School District Project Name: Lodi High CA4002 Art Hand, Jr. Asst. Superintendant, Facility & Planning C/o Barry DaCruz, Mika Telecom Group 209 -992 -1134 F. Statement of Proposed Financial Arrangement Horizon proposes a tiered revenue share structure for all telecom lease revenue generated by the partnership and under the proposed terms of contract* and per the scope of services depicted in this RFP as follows: Gross Lease Payment Years 1 -5 Years 6 & Beyond Less than $2,000 /mo 20% 15% $2,000- $2,399/mo 25% 20% $2,400 /mo & greater 30% 25% *See Appendix 2 for proposed form of contract Brim Appendix 1 — City of Fontana Letter of Recommendation November 29, 2006 To Whom It May Concern; Please accept this letter as a reference and recommendation for the services Horizon Tower provided the City of Fonlana and the Fontana Redevelopment Agency in the relocation/redevelopment of cell sites at our.lessie Turner Community facility. to [lie Sprint; of 2005, the City of Fontana was confronted with the task of relocating three national wireless carriers residing on three separate mono -palms to another location due to the redevelopment of the existing parcel where the sites were located. With Horizon 'rower's expertise and knowledge of the industry, they were able to step in and present a viable Collocation S4lnt1O11 for all parties involved, including the design of a new stealth structure that met environmental, zoning and jurisdictional concerns. Horizon Tower's professionalism and ability to coordinate and manage an unforeseen move to a temporary facility, in addition to the permanent facility, depicted their willingness to work with all parties. The carriers' issues were accommodated as well as the City's lilnclines and Horizon 'rower completed the entire project in an expedient, fiscally responsible and professional manner. We would recommend working with Horizon Tower on any difficult or sensitive project involving Fireless telecommunication infrastructure. Their expertise and desire to work within everyone's parameters made what could have been a problematic situation into a positive collocation solution for all involved. Please do not hesitate to contact me at 909- 350 -6727 should you have any questions. Since ely, Debbie M. Brazils Deputy City Manager cc: 3olu1 Kapulica, Horizon Tower, LLC ISV:1 : 511- 1;5;r•, %V1 i"AI,_(t �i•i l:,l.}g c''1l 11 u'1i ]Ir_ nRi- ii. - -,�, ,�a�ii -ll - Appendix 2 — Proposed form of Partnership contract TELECOMMUNICATIONS SITE MANAGEMENT AGREEMENT This Telecommunications Site Management Agreement (this "Agreement') is entered into as of the _ day of , 2013 by Horizon Tower, LLC, a Delaware limited liability company, with its principal place of business at l 17 Town and Country Drive, Suite A, Danville, CA 94526 (the "Manager ") and the City of Dublin, California (the "Owner "). Section 1. Appointment. Owner hereby engages Manager as an independent contractor for the purpose of performing the Services (as defined in Section 4 of this Agreement) with respect to the sites identified on Exhibit A attached hereto (each a "Location" and collectively the 'Trope "). Section 2. Term of Agreement, Termination. A. Term. This Agreement shall continue for an initial term of five (5) years (the "Initial Tenn ") commencing on the date hereof, unless sooner terminated in accordance with the provisions of this Agreement. Thereafter this Agreement will automatically renew for consecutive five (5) year terms (each a "Renewal Term" and, together with the Initial Term, 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 the expiration of the Term, upon the occurrence of any of the following, subject to the provisions of this Agreement: (i) Mutual Agreement. The mutual written agreement 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 Agreement, and fails to cure such breach or default within thirty (30) days, or such longer period as is reasonable under the circumstances provided the defaulting party is diligently pursuing a cure of such breach or default, of receiving written notice of such breach or default from the other party, provided, however, that the cure period for monetary defaults shall be ten (10) days from the due date of the applicable payment. C. Duties Upon End of Term. Following the expiration of the Term, Manager shall deliver to Owner all original Telecom Lease Agreements and technical studies and diagrams, and all funds in Manager's possession which belong to Owner (if any) or received by Manager with - 12- regard to the Property less Manager's compensation and reimbursements 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 questions of Owner regarding the operation and maintenance of the Property. Section 3. Compensation. Manager shall be paid a management fee ( "Management Fee ") for performing the Services as provided in Exhibit B attached hereto. Section 4. Manager's Services. Manager shall perform the following services (collectively, "Services ") for Owner with respect to the Property: A. Site Marketing and Leasing Services: (i) Marketin . Managers shall market the Property to prospective wireless telecom tenants (each a "Telecom Lessee ") for use as a telecommunications transmitting and receiving location and the installation, operation, and maintenance of telecommunications equipment and systems, including, but not limited to, towers, poles, transmitters, receivers, antenna support masts, cabling, wiring, and accessories (collectively, "Telecom E ui ment "). Manager shall have the exclusive right to market the Property to prospective Telecom Lessees for installation, operation and maintenance of such Telecom Equipment. Manager shall riot be required to provide any Services with respect to existing tenants on the Property as of the date hereof. Manager may, at its own expense, engage consultants, independent contractors, brokers or others to assist in marketing the Property. (ii) Telecom Lease Agreements. Managers shall prepare and negotiate, on Owner's behalf, a lease agreement, including amendments and extensions thereof (each a "Telecom Lease Agreement "), with respect to the installation and operation of Telecom Equipment at the Property. Manager shall negotiate each Telecom Lease Agreement based on the form attached hereto 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 commercially reasonable manner, and, without limiting the foregoing, will not unreasonably delay, withhold, or condition its consent to enter into any Telecom Lease Agreement. (iii) Lease Specifications. Managers shall periodically consult with Owner regarding future installation plans and specifications to address issues related to space requirements, Telecom Equipment location, roof top configuration, building aesthetics, and other structural or engineering requirements and make recommendations to Owner as to approval or disapproval thereof, as well as the appropriate rates and terms for Telecom Lease Agreements. (iv) Legal Compliance. To the extent necessary, Manager shall require each Telecom Lessee to provide Manager with evidence it has received all necessary approvals for compliance with zoning ordinances, building codes and all other applicable laws regarding Telecom Equipment installation, operation, maintenance, repair and /or replacement. -13- B. Telecom Management Services. (i) Inventory and Assessment. Maintain a current inventory of Telecom Leases and Telecom Equipment located at the Property. Update such inventory schedule and provide to Owner upon request. (ii) Telecom Equipment Installation Review. Monitor installation of Telecom Equipment with Owner's engineer for compliance with the installation plans and specifications of the Telecom Lease Agreement. (iii) Compliance Enforcement. In cooperation with Owner, to enforce compliance by each Telecom Lessee at the Property with its Telecom Lease Agreement. Upon receipt of approval from Owner, use contractors and external resources to confirm that each Telecom Lessee is operating and maintaining its Telecom Equipment in compliance with the terms of its Telecom Lease Agreement and the technical recommendations and requirements specified by the Federal Communications Commission ( "FCC "), Federal Aviation Administration ( "FAA ") and other relevant regulatory agencies. Fees charged by the external contractors and resources will be the responsibility of the Owner. (iv) Interference. Monitor and resolve any interference problems among Telecom Lessees and among Telecom Lessees and third parties. (v) Books and Records. Maintain books and records with respect to the Telecom Equipment, the Telecom Lease Agreements, and Telecom Lessees as necessary to satisfy governmental reporting requirements. (vi) Telecom Lessee Relations. Serve as the interface between Owner and the Telecom Lessees. (vii) Collection and Remittance. Collect monthly Telecom Lessee rental payments (fine "Telecom Lessee Rents ") under the Telecom Lease Agreements and remit all Telecom Lessee Rents to Owner after deduction of the Management Fee then due to Manager hereunder in accordance with Exhibit B attached hereto; support such remittances with schedules detailing the Telecom Lessees, the calculation of the Telecom Lessee Rents due 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 (15th) day of the month following the month in which Telecom Lessee Rents are received by Manager. Owner shall hold any security deposits and other deposits from Telecom Lessees in accounts designated by Owner. [Manager shall, with the prior written approval of Owner, promptly and diligently assist Owner to enforce Owner's rights under any Telecom Lease Agreements by way of litigation or other extraordinary enforcement actions, if necessary. (viii) Insurance. Verify compliance by Telecom Lessees with insurance requirements set forth in Telecom Lease Agreement. -14- (ix) Notices. Inform Owner of any material notices which Manager receives in connection with any Location or Property, the Telecom Lessees, or Telecom Lease Agreements, including material notices received from any governmental body, insurance carrier, or Telecom Lessee. efforts to: (x) Performance of Services. Manager shall use commercially reasonable (a) perform the Services in a diligent, careful, and professional manner; and (b) maximize revenues and minimize expenses and losses, and the Services shall be of a scope and duality not less than those generally performed by first class, professional telecommunications site managers. Section 5. Manager's Exclusivity; Owner's Indemnity. Owner has appointed Manager as its exclusive manager and marketer of the Property. Owner shall not undertake any marketing or other activities related to the Property (including the retention of any broker or other manager) and shall refer to Manager all inquiries it receives from potential Telecom Lessees. Manager further acknowledges and agrees that Owner may communicate to Manager its objectives with respect to the general leasing of the Property and the Manager shall use its commercially 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 commission or referral fee for any Telecom Lease Agreements, and Owner agrees to indemnify, defend, and hold harmless Manager against any claims of any broker, manager, or other person claiming such an arrangement, including attorney's fees and expenses. Section 6. Inquiries and Negotiations. Without limiting Manager's marketing obligations set forth herein to identify prospective Telecom Lessees, all inquiries concerning proposed Telecom Lease Agreements shall be referred to Manager. All negotiations of proposed Telecom 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 Owner's security requirements, to install, maintain, inspect, operate, dismantle, assemble, alter, repair, and monitor any Telecom Equipment of Telecom Lessees in a Property and to work with on -site Property personnel to show each Property to prospective Telecom Lessees. Owner shall respond promptly to the reasonable requests of Manager regarding the Property, shall provide Manager with any information, documents or materials related to the Property and shall keep Manager informed of any material events which may impact the Property. B. _Lease Approval. Each proposed Telecom Lease Agreement shall be subject to Owner's approval. Manager shall provide Owner with a draft of each Telecom Lease Agreement to permit Owner to evaluate the terms thereof and the potential Telecom Lessee. Owner shall -15- promptly notify Manager of its intention to accept or reject each proposed Telecom Lease Agreement. 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 a commercially reasonable justification for doing so and provided that Owner provides Manager with a written justification therefore. Any attorneys or consultants engaged by owner in connection with the review of any proposed Telecom Lease Agreement shall be at Owner's sole cost and expense. C. Condition of the Property. During the Term of this Agreement Owner shall keep the Property, other than the Telecom Equipment, in good condition and repair, reasonable wear and tear excepted and shall keep the Property free from excess vegetation and debris. Owner shall be responsible for the maintenance or repair of any equipment, machinery, or mechanical systems, including any heating, ventilating, or air conditioning systems, relating to the building operation (collectively the "Building Systems") that are or may be made available to Telecom Lessees pursuant to their respective Telecom Lease Agreements. D. Addition or Removal of Locations. During the Term, Owner may add additional Locations to Exhibit A by providing written notice thereof to Manager. Upon receipt of such 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 a taking under the power of eminent domain or otherwise) or otherwise ceases to have an interest in a Location, this Agreement shall terminate (as to that Location only), and on the date of such assignment or transfer the Owner 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 1(i) for the remaining term any Telecom Lease Agreements at such Location. Upon the termination of this Agreement as to a Location, the Manager shall be released and discharged from 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 obligation to perform any Services with respect thereto from and after such date. Section S. Books, Records, and Reporting. Manager shall keep and maintain books, records and accounts in connection with the Services to be provided. and management 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 Term. If any audit shows that Owner or Manager, as applicable, has been underpaid, then the other party shall promptly pay to the party that has been underpaid the amount due. Before any records or documents 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 documents during the Term relating to the Property without Owner's written approval. Section 9. Owner's Obligation. Owner shall provide Manager with such cooperation and information as is reasonably necessary for the effective performance of the Services. Section 10. Indemnity. amo A. Manager's Indemnity. Manager shall indemnify, defend, and hold harmless Owner from and against, any and all claims, liabilities, damages, and costs (including without limitation, reasonable attorneys' fees) arising out of any fraud, gross negligence, or willful misconduct on the part of Manager. B. Owner's Indemnity. Owner shall indemnify, defend, and hold harmless Manager from and against any and all claims, liabilities, damages, and costs (including without limitation, reasonable attorneys' fees) arising out of. (i) any Fraud, 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 damage to the Properties by reason of such Telecom Lessee's breach of any Telecom Lease Agreement and shall hold Manager and its Affiliates harmless from and against any liability in respect thereof. Section 11. Representations and Warranties. Each party makes the following representations and warrants to the other: (i) it is duly organized, validly existing, and in good standing under the laws of the state of its formation, and is, or will be at the appropriate time, qualified to do business in any jurisdiction in which such 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 sufficient staff and other resources to carry out its duties hereunder in a prompt, efficient, diligent, and professional manner; (iii) the execution, delivery, and performance of this Agreement has been duty authorized by all necessary action on the part of such party, and once executed, this Agreement will be valid and binding upon such party; and (iv) this Agreement does not conflict with the organizational documents of such party or constitute a default under any material instrument or agreement by which such party is bound. Section 12. Insurance Requirements. Manager shall maintain during the term of this Agreement a policy of Commercial General Liability Insurance naming Owner as an additional insured and providing $1,000,000 in coverage per occurrence and $2,000,000 in aggregate. Manager shall furnish Owner, at the time of execution of this Agreement, with copies certificates of insurance evidencing its insurance coverage as required under this Agreement. Manger shall deliver to Owner upon request evidence that Owner has been added as additional insured. Ali Manager's policies shall be at Manager's sole cost. Owner shall maintain insurance on the Property in such amounts as may be reasonably required by the Telecom Lessees under the Telecom Lease Agreements. Section 13. Miscellaneous. A. Relationship of Parties. The parties intend that Manager's legal status with respect to Owner shall be that of an independent contractor. Nothing in this Agreement shall constitute a partnership, joint venture, agency, or other similar relationship. B. Notice. Any notice in this Agreement permitted to be given, made or accepted by either party to the other, must be in writing and may be given or served by depositing the same in the United States mail, postpaid, certified, return receipt requested, addressed to the party to be -17- notified, or by delivering same by hand or overnight courier to an officer or agent of such party. Notice deposited in the United States mail shall be deemed given three (3) days after it is deposited. Notice given in any other manner shall be effective when received at the address of the addressee. For purposes hereof the addresses of the parties, until changed as hereafter provided shall be as follows: if to Owner: if to Manager: with a copy (which shall not constitute notice) to: Horizon Tower, LLC 117 Town and Country Drive, Suite A Danville, CA 94526 Attn: Property Manager Edinger Associates PLLC 18751 Street, N.W. Washington, DC 20006 Attn: Brook A. Edinger C. Assignment. None of the 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 not 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 Agreement in writing. D. Entire Agreement 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 variation, modification or changes hereof shall be binding on either party hereto sinless set forth in a document executed by such parties. E. No Recording. Neither Owner nor Manager shall file or record any instrument or document relative to this Agreement in any public records. F. Governing Laws and Venue. The laws of the State California shall govern the validity, enforcement, and interpretation of this Agreement. G. Waiver. No failure by Owner or Manager to insist on the strict performance of any obligation, covenant, agreement, term, or condition of this Agreement, or to exercise any right or remedy available upon a breach of this Agreement, shall constitute a waiver, and no breach shall be waived, altered or modified, except by written instrument. H. Owner's Representatives; Consents and Approvals. Owner's consents and approvals may be given only by Owner or its representatives from time to time designated by Owner to Manager in writing. Owner may from time to time designate representatives to SCIE approve matters, receive reports, materials, or other items, or otherwise take action on behalf of Owner, and Manager shall cooperate with such representatives, to the same extent as if dealing directly with Owner. 1. Confidential information. Manager agrees to hold in confidence and not use or disclose to others any confidential or proprietary information of Owner heretofore or hereafter disclosed to Manager, including but not limited to any data, information, plans, programs, processes, costs, operations, or Telecom Lessee lists which may come within the knowledge of Manager in the performance of its services, except where Owner specifically authorizes disclosure. J. Severahility. If 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 deemed to be void only to the extent of such conflict or unenforceability and shall be separate from and shall not invalidate any other provisions of this agreement. K. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. [SIGNATURE PAGE FOLLOWS] -19- SIGNATURE PAGE TO TELECOMMUNICATIONS SITE MANAGEMENT AGREEMENT IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set forth above: MANAGER: -20- HORIZON TOWER, LLC By: Name: Title: CITY OF DUBLIN, CALIFORNIA By: Name: Title: EXHIBIT A LIST OF LOCATIONS -21- MANAGER'S COMPENSATION Management Fee, Owner shall pay to Manager a fee (the "Management Fee ") in the amounts described below. The Management Fee shall be paid monthly in arrears. The Manager is authorized to deduct the Management Fee from monthly rental payments it collects under the Telecom Lease Agreements. The Manager shall provide the Owner a monthly statement detailing the monthly rental payments due to be collected each month and a calculation of the Management Fee: (i) Thirty percent (30 %) of the total rental payments to be collected during the initial term of each Telecom Lease Agreement; and (ii) Twenty -Five percent (25 %) of the total rental payments to be collected during all renewal or extension terms of each Telecom Lease Agreement or the term of any replacement contract entered into in lieu of an extension or renewal of a Telecom Lease Agreement, regardless of any termination of this Agreement. 2. Project 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 performed. The Manager is authorized to deduct the Project Fees from monthly rental payments it collects under the Telecom Lease Agreements. 3. Additional Com ensation. Upon termination of this Agreement, Manager shall provide Owner with a list setting forth the names of the persons or entities to whom Manager has shown the Property for possibly occupancy by such party or with whom Manager has commenced negotiations of the terms of a potential Telecom 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 Lease Agreement with any party on such list within one hundred fifty (150) days from the termination date of this Agreement, Manager shall be entitled to receive from Owner the Management Fee as set forth in this Agreement on account of such Telecom Lease Agreement. 4. Expenses. 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 improvements to the Property, any fees or expenses related to zoning applications, filing fees and similar expenses. -22- TELECOM LEASE AGREEMENT TEMPLATE -23- Appendix 3 — Existing Telecom Site Map — City of Dublin See attached -24-