13-R-79 - Charmain Sanchez Personal Services AgreementRESOLUTION NO. 13-R-79
A RESOLUTION BY THE CITY COUNCIL OF THE CITY OF
SCHERTZ, TEXAS AUTHORIZING A PERSONAL SERVICES
AGREEMENT WITH CHARMAIN SANCHEZ FOR SERVICES
RELATED TO MARKETING AND DEVELOPING CERTAIN CITY
PROPERTY FOR THE PURPOSE OF THE INSTALLATION AND
OPERATION OF WIRELESS COMMUNICATIONS EQUIPMENT AND
SYSTEMS AND THE CONTINUED MANAGEMENT OF THE CITY'S
TELECOMMUNICATIONS TENANTS, AND OTHER MATTERS IN
CONNECTION THEREWITH
WHEREAS, the City staff of the City of Schertz (the "City") has determined that the City
requires personal services relating to marketing and developing certain City property for the
ptupose of the installation and operation of wireless communications equipment and systems and
the continued management of the City's telecommunications tenants; and
WHEREAS, City staff has determined that Chaz7nain Sanchez is uniquely qualified to
provide such services far the City; and
WHEREAS, pursuant to Section 252.022(a)(4), the City is not required to seek bids or
proposals with respect to a procurement for personal, professional, or planning purposes; and
WHEREAS, the City Council has detei7nined that it is in the best interest of the City to
contract with Charmain Sanchez pursuant to the Personal Services Agreement attached hereto as
Exhibit A (the "Agreement"}.
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ, TEXAS
THAT:
Section 1. The City Council hereby authorizes the City Manager to execute and
deliver the Agreement with Charmain Sanchez in substantially the farm set forth on Exhibit A.
Section 2, The recitals contained in the preamble hereof are hereby found to be true,
and such recitals are hereby made a part of this Resolution for all purposes and are adopted as a
part of the judgment and findings of the City Council.
Section 3. All resolutions, or parts thereof, which are in conflict or inconsistent with
any provision of this Resolution are hereby repealed to the extent of such conflict, and the
provisions of this Resolution shall be and remain controlling as to the matters resolved herein.
Section 4. This Resolution shall be construed and enforced in accordance with the
laws of the State of Texas and the United States of America.
Section 5. If any provision of this Resolution or the application thereof to any person
or circumstance shall be held to be invalid, the remainder of this Resolution and the application
of such provision to other persons and circumstances shall nevertheless be valid, and the City
Council hereby declares that this Resolution would have been enacted without such invalid
provision.
Section b. It is officially found, determined, and declared that the meeting at which
this Resolution is adopted was open to the public and public notice of the time, place, and subject
matter of the public business to be considered at such meeting, including this Resolution, was
given, all as required by Chapter 551, Texas Government Code, as amended.
Section 7. This Resolution shall be in force and effect from and after its final
passage, and it is so resolved.
PASSED AND ADOPTED, this 17th day of September, 2013.
CITY OF XAS
Mic el R. Carpenter, Mayor
ATTEST:
C~.
Brenda Dennis, City Secretary
(CITY SEAL}
50677418.1
EXHIBIT A
PERSONAL SERVICES AGRI3aEMENT
so6~~ais.i A-1
PERSONAL SERVECES AGREEMENT
This Personal Services Agreement (the "Agreement") dated to be effective as of October
1, 2013 {the "Effective Date") is between the City of Schertz, Texas, a Texas municipal
corporation {the "City"), and Charmain Sanchez, an individual (the "Consultant").
GENERAL RECITALS
WHEREAS, the City and the Consultant entered into that certain Personal Services
Agreement dated as of August 5, 2008 {the "Original Agreement"), which Original Agreement,
through a series of extensions, terminated on September 30, 20].3.
WHEREAS, the City and the Consultant desire to enter into this Agreement to allow far
the Consultant to continue to provide personal services to the City as set forth herein.
WHEREAS, the City holds title to certain real properties described in Exhibit A attached
hereto. Additional properties maybe added to Exhibit A by way of amendments provided to the
Consultant by the City. The properties and any additional properties that will be added to
Exhibit A shall hereinafter be referred to as the "Property".
WI~REAS, the Consultant represents that she is experienced in the business of
marketing real estate for telecommunication development and providing certain other real estate
consulting services associated with the deployment of wireless communication equipment and
systems.
WHEREAS, the City desires to continue to engage the services of the Consultant to
market and develop the Property for the purpose of the installation and operation of wireless
communications equipment and systems, and the continued management of telecommunications
tenants and the Consultant desires to continue to provide such services pursuant to the terms and
conditions included herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE FOLLOWING
MUTUAL PROMISES AND THE MUTUAL BENEFITS TO BE DERIVED BY THE
PARTIES HERETO, IT IS UNDERSTOOD, CONTRACTED AND AGREED AS FOLLOWS:
SECTION I
RELATIONSHIP OF PARTIES; STANDARD OF WORK; SERVICES GENERALLY
1.01 The City hereby contracts with the Consultant to negotiate on the City's behalf in
the leasing of the Property for the sale purpose of telecommunications development and the
installation on the Property and operation of telecommunications equipment and systems awned
by entities other than the City (the "Services"). The Services shall include, but not be limited to
the services listed on the attached Exhibit B. The Consultant may, by separate written agreement
with the City, provide various additional real estate services.
1.02 The City and the Consultant agree that the Consultant is an independent
contractor and not an agent or employee of the City. The City and the Consultant agree that their
50677397.1 1
relationship arising from this Agreement does not constitute a general agency, joint venture,
parhlership, employment relationship, or franchise between them.
1.03 The Consultant acknowledges that she will control the conduct and means of
performing the Services required of the Consultant under this Agreement. The Consultant will
provide all of the Services herself, and she will not utilize any employees or independent
contractors. She promises to adhere to all appropriate professional standards, including the
maintenance of all licenses and permits required by law for any of the Services to be performed,
and to complete all work in a timely manner, consistent with generally accepted marketing and
property management procedures and standards of the real estate industry.
1.04 This Agreement is non-exclusive. The Consultant acknowledges that the City
may enter into agreements with other persons or entities to provide any or all of the Services
described in this Agreement.
SECTION II
TERM; EXTENSION; TERMINATION
2.01 Subject to Section 2.03, this Agreement shall be for a term beginning on October
1, 2013 and ending on September 30, 2018 (the "Initial Term"). At the expiration of the Initial
Term of this Agreement, if not renewed in writing for an additional fixed period in accordance
with Section 2.02 below and if not terminated in accordance with Section 2.03 below, the
Agreement will renew automatically for an additional twelve (12) month period.
2.02 The City and the Consultant may agree to fiu-ther renewals hereof.
2.03 Either party shall have the right to terminate this Agreement for any or no reason,
upon delivery of thirty {30) days' prior written notice to the other. Further, either party may
terminate this Agreement at any time for cause or for failure of the other to comply with the
terms, representations, and conditions of this Agreement. Such termination shall not affect the
Consultant's right to receive any Management Fees relating to lease or rental agreements
executed before the date of termination as described in Section 4.01.
SECTION III
LEASING OF PROPERTY; COLLECTION OF RENT AND OTHER FEES
3.01 The Consultant shall make reasonable efforts to negotiate far the lease of
available space on the Property for wireless communications services by entities other than the
City. The City shall identify whether space on any particular piece of the Property is "available".
The Consultant shall be responsible for negotiations with prospective tenants and shall have the
right to propose reasonable concessions aimed at inducing occupancy and use, subject to final
approval by the City Manager. The Consultant shall not, without the prior written consent of the
City Council, propose any lease for a term of less than of sixty (60} months or more than two
hundred forty (240} months. The City Manager shall execute all lease and rental agreements on
behalf of the City, before such agreements shall become effective and following approval by the
City Council.
SOfi77397.1 2
3.02 The Consultant shall not be responsible far the collection of any lease payments.
Planning, zoning, ar permit fees required by the City shall be paid directly to the City by the
tenant or lessee and not to the Consultant.
3.03 All application fees, rents, and other income issuing from the Property shall be
paid directly to the order of the City. Compensation due to the Consultant under Section IV shall
be paid by the City to the Consultant after the corresponding Gross Receipts (as defined in
Section 4.01) are received by the City from the tenant.
SECTION IV
COMPENSATION
4.01 For the continuation of Services under this Agreement, the Consultant shall
receive a Management Fee equal to thirty percent (30%) of the monthly "Gross Receipts"
collected by the City from lease or rental agreements executed during the term of the Original
Agreement and for the term of this Agreement and any renewal(s) hereof. "Gross Receipts"
means all revenues collected by the City from leases or rental agreements entered into by the
City pursuant to the Original Agreement and this Agreement, less refundable deposits.
4.02 Unless otherwise provided for in this Agreement, the Management Fee provided
in Section 4.01 includes all compensation receivable by the Consultant.
4.03 Unless otherwise agreed in writing by the City in advance, the Consultant shall be
responsible for providing at her sole cost all equipment and supplies necessary or appropriate for
performing the Services hereunder.
SECTION V
RECORDS AND REPORTS
SA1 The Consultant shall furnish the City, not later than the end of the next succeeding
month; a detailed statement of all activities by the Consultant pursuant to this Agreement.
5.02 The Consultant shall report to the City promptly .any conditions concerning the
Property that, in the opinion of the Consultant, require the attention of the City.
SECTION VI
INDEMNIFICATION
b.01 The Consultant agrees to indemnify and hold harmless the City, its employees,
agents, and representatives from and against any claims, debts, demands, suits, costs, or charges,
including reasonable attorney's fees, arising in connection with the Consultant's Services
hereunder.
50677397.1
SECTION VII
GOVERNMENT REGULATIONS
7.01 The Consultant agrees to perform the Services hereunder in fiill compliance with
all laws and regulations of any federal, state, county, or municipal authority having jurisdiction
over the Property.
SECTION VIII
ASSIGNMENT; BINDING EFFECT
8.01 This Agreement and the rights, obligations, and liabilities created hereunder shall
be binding upon and inure to the benefit of the heirs, executors, administrators, legal
representatives, successors, and assigns of each of the parties hereto, but no rights, obligations,
or liabilities hereunder shall be assignable or delegable by the Consultant without the prior
written consent of the City. The City may assign or delegate the rights, obligations, or liabilities
created hereunder to its successor in interest without the consent of the Consultant,
8.02 All obligations by either party which expressly or by their nature survive the
expiration or termination of this Agreement shall continue in full force and effect subsequent to
and notwithstanding its expiration or termination and until they are satisfied in full or by their
nature or within one year of termination, provided however that any obligations regarding
protecting confidential information shall continue in perpetuity.
SECTION IX
IMPOSSIBILITY OF PERFORMANCE
9.01 Neither the City nor the Consultant shall be liable for loss or damage or deemed
to be in breach of this Agreement if its failure to perform its obligations results from (a}
compliance with any law, ruling, order, regulation, requirement, or instruction of any federal,
state, or municipal government or any department or agency thereof or court of competent
jurisdiction; (b) acts of God; {c) acts or omissions of the other party; or (d) fires, strikes,
embargoes, war, insurrection, or riot. Any delay resulting from any of said causes shall extend
performance accordingly or excuse performance, in whole or in part, as may be reasonable.
SECTION X
SURVNAL
10.01 The terms, provisions, representations, and warranties contained in this
Agreement that by their sense and context are intended to survive the performance thereof by
either or both parties hereunder shall so survive the completion of performances and termination
of this Agreement, including the making of any and all payments due hereunder.
SECTION XI
CONFIDENTIAL INFORMATION
11.01 Any specifications, plans, drawings, sketches, models, samples, data, computer
programs or documentation, or technical, or business information ("Information") furnished or
disclosed by the City to the Consultant hereunder shall be deemed the exclusive property of the
50677397.1 ~1
City, including title to copyright in all copyrightable material, and, when in tangible form, shall
be returned to the City by the Consultant upon completion or termination of the related Services.
Unless such information was previously known to the Consultant free of any obligation to the
City to keep it confidential, or has been ar is subsequently made public by the City, it shall be
held in confidence by the Consultant, shall be used only for the purposes hereunder, and may be
used for other purposes only upon such terms and conditions as may be mutually agreed upon in
writing.
11.42 If the Consultant is served with process to obtain Information, the Consultant
shall immediately notify the City in writing, which shall have the right to seek to quash such
process.
SECTION XII
INTEGRATION• MODIFICATION• SEVERABILITY• GOVERNING LAW
12.01 This Agreement embodies the entire understanding of the parties as to the subject
matter hereof, and there are no further or other agreements or understandings, written ar oral, in
effect between the parties as to the subject matter hereof. The drafting, execution, and delivery
of this Agreement by the parties have been induced by no representations, statements, warranties,
or agreements other than those expressed in this Agreement, and except as expressly provided to
the contrary, the provisions. of this Agreement are for the benefit of the parties solely and not for
the benefit of any other persons} or entities:
12.02 A waiver, alteration, or modification of any of the provisions of this Agreement
shall not be binding unless in writing and signed by authorized representatives of the parties to
this Agreement.
12.03 A determination by a court of law with competent jurisdiction that a section or
any part of a section of this Agreement is void, invalid, or unenforceable for any reason shall not
render void, invalid, or unenforceable any other section or any part of any other section of this
Agreement.
12.04 Nothing contained in this Agreement shall be deemed to create or shall be
construed as creating in the Consultant any property interest in or to the Property.
12.05 Except to the extent governed by United States law that preempts state law, this
Agreement shall be governed by and construed in accordance with the laws of the State of Texas.
Proper venue for any dispute or Iitigation shall be only in Guadalupe County, Texas.
SECTION XIII
1vIEDIATION• ATTORNEY'S FEES
13.01 Each party agrees that it or she shall first submit any and all unsettled claims,
counterclaims, disputes, and other matters in question between them arising out of or relating to
this Agreement or the breach thereof ("disputes") to an alternate dispute resolution process
before filing a suit concerning this Agreement.
5U677397.t
13.02 Each party shall have the right to collect from the other all damages, reasonable
costs and expenses, including reasonable attorneys' fees, incurred by~ a successful party in
exercising or enforcing any of its rights or remedies hereunder or in enforcing any of the terms,
conditions, or provisions of this Agreement in a court of law.
SECTION X1V
NOTICE
14.01 All notices, requests, demands, or other communications affecting the terms of
this Agreement shall be in writing and shall be deemed to have been duly given if delivered in
person, by facsimile or within five {5) days after deposited in the United States mail, postage
prepaid, certified, with return receipt requested. Notice shall be addressed to the parties as
follows:
The City: The City of Schertz
Attn: City Manager
1400 Schertz Parkway
Schertz, TX 78154
Telephone: {210) 619-1015
Facsimile: (210) b19-1029
With a contemporaneous copy to;
Norton Rase Fulbright
Attn: Katherine A. Tapley
300 Convent Street, Suite 2100
San Antonio, TX 7$205
Telephone: (210) 270-7191
Facsimile: (210) 270-7205
The Consultant; Charmain Sanchez
8006 Devonshire Drive
Spring Branch, TX 78070
Telephone; (830) 885-7b74
50677397.1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
set forth above.
CITY OF SCHERTZ
By:
3o C. Kesse ,City Manager
CHARMAIN SANCHEZ
By.
Charmain Sanchez
50677397.1 S-1
Exhibit A
The Property
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50677397.1 A
Exhibit B
The Services
1. The Consultant shall provide non-exclusive real estate consulting services, advice, and
assistance sufficient for the City as determined by other means suitable to accommodate wireless
telecommunications facilities and/or switching buildings or towers on the Property, to the extent
previously authorized by the City.
2. The Consultant shall provide and obtain Entry and Testing Agreements signed by the
prospective tenant and the City when appropriate for site access, to survey the proposed site, to
have an E-911 address assigned to the site and any environmental testing when required ar
determined by the prospective tenant (at such tenant's expense).
3. Upon approval by the City of a Tower Site Application, the Consultant will enter into
final negotiations with the prospective tenant. Leases will be negotiated by the Consultant with
appropriate assistance and approval of the City Attorney, subject to final approval by the City
Council.
4. The Consultant will submit to the City a lease package which shall include a Lease
Summary Sheet identifying the lease terms and other pertinent data necessary for Iease
administration, the required number of executed originals by the tenant and the City of the Lease,
and, if requested by the City, a Memorandum of Lease Agreement for signature. The lease
package will also include related documents with the Lease that may include the following:
• Lease Summary Sheet (to be completed when the Lease is ready to be signed by
the City)
• Entry and Testing Agreement (to be signed beforelduring Lease negotiations)
• Construction Drawings (the Consultant to coordinate the City's receipt of signed
Construction Drawings for its records}
SDb77397.1 B_1