Wireless Facilithy Ordinance_Consultant AgreementTHE CITY OF DUBUQUE
Masterpiece on the Mississippi
Dubuque
All-American City
2007
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Consultant Agreement for Wireless Facility Ordinance and Leases
DATE: October 28, 2008
Public Information Officer Randy Gehl recommends City Council approval of an
agreement with The Center for Municipal Solutions. The agreement ensures that the
City will not incur any costs related to new wireless facility leases, experts in the field
will review all applications for new facilities and facility leases, the application process
will be standardized, and the City will be appropriately reimbursed for commercial use of
public property.
It is further recommended that the Resolution of Interim Application for Wireless
Telecommunications Facilities be renewed for an additional ninety days to cover the
time while the ordinance is developed.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Randy Gehl, Pubic Information Officer
TO: Michael Van Milligen, City Manager
FROM: Randy Gehl, Public Information Officer
SUBJECT: Consultant Agreement for Wireless Facility Ordinance and Leases
DATE: October 27, 2008
BACKGROUND
The City of Dubuque currently holds eight lease agreements for wireless
telecommunications facilities (towers and co-located equipment) on City property
throughout the community. The City continues to receive requests from wireless
carriers for new towers and facilities as well as requests for renegotiations of existing
lease agreements for these facilities.
Currently, several City staff are involved in negotiating and maintaining these lease
agreements. The location of the facility determines which staff member is responsible.
For instance, wireless facilities located on the City's water towers are handled by Water
Department Manager Bob Green and facilities on City park property are handled by
Leisure Services Manager Gil Spence. No current City staff members have expertise in
this type of wireless technology and tower construction. In some cases, the City has
hired a consultant to assist with these projects.
The City was contacted by The Center for Municipal Solutions, a private firm that
specializes in regulating towers and wireless facilities. The firm provides their clients
(cities and counties) with an ordinance, permitting process, application review, and
construction inspection service. All costs for these services are incurred by the
applicant (wireless carrier) and there are no costs for the municipality. The company
lists the following goals and purposes for this process:
• Assure a rational, reasonable, orderly approach that gives wireless carriers what
they need;
• Assures that any towers or co-located facilities have minimal visual impacts and
effects;
• Protects the nature and character of the community from the uncontrolled
proliferation of towers and wireless facilities;
• No new towers unless there is absolutely no alternative and this can be proven;
and
• The community will always be in absolute control of the issue.
Leisure Services Manager Gil Spence, City Attorney Barry Lindahl, Public Information
Officer Randy Gehl, and Cable Television Coordinator Craig Nowack met with Richard
Comi, co-founder of The Center for Municipal Solutions, and Robert Naumann, chief
executive officer of United Engineering, a subcontractor for The Center for Municipal
Solutions. The firm's services and a potential agreement with the City of Dubuque were
discussed and a sample agreement was provided. Additionally, the representatives
offered a sample resolution adopting an interim application process for wireless
telecommunications facilities.
Following that meeting, the attending staff members and Water Department Manager
Bob Green met with City Manager Mike Van Milligen to discuss the possibility of
entering into an agreement with the firm. The City Manager recommended that a
resolution for an interim application process be submitted for City Council consideration
while the firm's proposal is investigated further. That resolution was approved by the
City Council in July and recently expired.
DISCUSSION
I have checked references for the Center for Municipal Solutions (CMS) and City
Attorney Barry Lindahl and I have further discussed their services. Richard Comi of
CMS has submitted a proposed agreement for the City of Dubuque to contract for their
services, including the preparation of a Wireless Telecommunications Facilities Local
Ordinance and reviewing and analyzing applications to the City for wireless facilities and
wireless facility leases. City Attorney Barry Lindahl and I have reviewed the proposed
agreement, and made a number of changes and approve of the final version of the
agreement.
Miller and Van Eaton, the Washington, DC consultant the City contracts with for cable
television related issued, also submitted a proposal for similar services. However, their
proposal required a significant ($70,000) cost to the City for the development of a
wireless ordinance.
RECOMMENDED ACTION
I recommend the City of Dubuque accept the proposed agreement with The Center for
Municipal Solutions. The nature of the agreement ensures that the City will not incur
any costs related to new wireless facility leases, experts in the field will review all
applications for new facilities and facility leases, the application process will be
standardized, and the City will be appropriately reimbursed for commercial use of public
property.
Secondly, I recommend that the Resolution on Interim Application for Wireless
Telecommunications Facilities be renewed for an additional ninety (90) days to cover
the time while the ordinance is developed.
Cc: Barry Lindahl, City Attorney
Steve Sampson-Brown, Project Manager
Attachment: Proposed Agreement with The Center for Municipal Solutions
Preparers Barry A. Lindahl, Esq. Address: Suite 330, Harbor view Place, 300 Main Street,
Dubuque, Iowa 52001-6944 Telephone: (563) 583-4113
RESOLUTION NO. 389 -08
AMENDING RESOLUTION NO. 238-08 WHICH ADOPTED AN INTERIM
APPLICATION PROCESS FOR WIRELESS TELECOMMUNICATIONS
FACILITIES BY EXTENDING THE INTERIM APPLICATION PROCESS UNTIL
FEBRUARY 1, 2009
Whereas, Resolution No. 238-08 established a ninety (90) day Interim
Application Process for the issuance of permits by the City of Dubuque on
applications for the construction of wireless telecommunications towers, facilities
and related facilities; and
Whereas, the City Council has determined that the Interim Application
Process should be extended to allow the review of regulations for the
construction of wireless telecommunications towers, facilities and related facilities
to be included in the Unified Development Code.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF DUBUQUE, IOWA:
Section 1. The Interim Application Process for the issuance of permits by
the City of Dubuque on applications for the construction of wireless
telecommunications towers, facilities and related facilities is hereby re-
established and extended to February 1, 2009.
Passed, approved and adopted this 3rd day of November
2008.
'l!.~.
Roy D. col, Mayor
Attest:
.~' ~ y~C/
Jeanne F. Schneider, City Clerk
This Agreement dated for reference purposes the 3rd day of November, 2008,
by and between RICHARD A. COMI d/b/a THE CENTER FOR MUNICIPAL
SOLUTIONS (herein after referred to as Consultant) (mailing address: 70 Cambridge
Drive, Glenmont, New York 12077) ,and the City of Dubuque, Iowa (hereinafter
referred to as Client) (mailing address: 50 West 13th Street, Dubuque IA 52001).
Consultant and Client, for the consideration named, hereby agree as follows:
SECTION 1. PURPOSE. Client hereby retains Consultant for the purpose of assisting,
advising and representing Client on matters relating to the preparation of a Wireless
Telecommunications Facilities Local Ordinance for Client, and reviewing and analyzing
applications received by Client for Wireless Telecommunications Facilities. The
consultant is not a real estate broker or agent. All real estate brokerage services, if any,
shall be performed by Client or Client's attorney.
SECTION 2. SPECIFIC SERVICES: LOCAL ORDINANCE. As soon as possible
after the execution of this Agreement, Consultant shall prepare and deliver to Client for
use by Client a comprehensive Wireless Telecommunications Facilities Local
Ordinance (hereinafter referred to as Ordinance). Subsequently, in consultation with
designated officials of Client, Consultant shall devote up to five (5) hours to draft and
deliver to Client, as may be requested, legally permissible revisions to the Ordinance,
prior to the public hearing relating to the adoption of the Ordinance. Consultant shall
attend one meeting with Client, which Client will schedule in connection with the
adoption of the Ordinance.
SECTION 3. SPECIFIC SERVICES: SERVICES DURING PROCESSING OF
APPLICATIONS. Consultant shall furnish appropriate Wireless Telecommunications
Facilities siting assistance and advice to Client and Client officials involved in the
processing of applications for Wireless Telecommunications Facilities, and, in
connection therewith, shall:
(1) Review all applications filed with Client for Wireless Telecommunications
Facilities;
(2) Assist and advise Client as regards all applications, to include attending
meetings with the Applicants and/or Client's staff and/or officials as required;
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(3) Recommend in writing to Client whether a particular application should be
approved or disapproved, and set forth in writing the reasons for such approval
or disapproval; and,
(4) Inspect the construction of the facility and in writing recommend when/if
the certificate of compliance should be issued.
(5) In conjunction with Client's City Attorney, assist in the negotiation of all
leases for the use of Client-owned property or facilities by wireless
communications entities or persons at its normal hourly rate, with such cost to be
paid out of the Applicant's escrow deposit or a written commitment by the
potential lessee to reimburse the Client for the cost reasonably incurred on
behalf of Client.
SECTION 4. TIMES AND ATTENDANCE: COOPERATION BY CLIENT
4.1. Consultant shall perform the services described herein in as expeditious a
manner as is reasonably possible and with due consideration of the time requirements
of Client. Client recognizes that the timing of the performance of Consultant's services
may be affected by previous commitments to other clients (including the delivery of
promised services and work product and previously scheduled meetings), and
situations normally and traditionally deemed to be matters of a force majeure nature,
including those influenced by the weather, strikes, or power outages.
4.2. Client agrees to cooperate with Consultant, as needed, and to provide
Consultant with copies of any records, documents and other information needed for the
fulfillment of this Agreement on a timely basis. Client further agrees to provide
Consultant with access to appropriate officials and/or employees of Client, as may be
needed in the fulfillment of the Agreement. Moreover, both parties understand and
agree that mutual accountability and responsiveness is critical to the successful
completion of the project, and therefore both shall always make their best faith efforts to
be accountable and promptly responsive to each other.
SECTION 5. COMPENSATION. In payment for the services to be performed
hereunder by Consultant, Client shall make payments to the Consultant as follows:
(1) For the services to be performed by the Consultant pursuant to paragraph
2 hereof, there shall be no hourly charge. Time beyond five hours customizing
the draft ordinance or attendance at more than one meeting related to the
customization, consideration or adoption of the Ordinance shall be billed at the
Consultant's normal hourly rate. Based on prior experience, Consultant feels
that this should be sufficient time to prepare an Ordinance that will meet Client's
needs. Therefore, Consultant anticipates that, absent extraordinary
circumstances, there will be no charge to Client for the preparation of the
Ordinance.
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(2) For the services to be performed by the Consultant pursuant to paragraph
3 hereof, Client shall pay Consultant its normal published hourly rate (which at
the date of this Agreement is $200.00 per hour, but is subject to reasonable
change over time) for each hour of time devoted by Consultant to the
performance of such services, provided, however, that for time traveling by
Consultant in conjunction with the performance of such services Client shall pay
Consultant only 50% of the Consultant's normal published rate. (The draft
Ordinance as initially provided to Client shall require an applicant to pay, in
advance of any work related to the application or the application process, a sum
to be put into an escrow account to assure that Client is reimbursed by the
applicant for the amounts payable by Client hereunder to the Consultant.)
(3) Consultant shall invoice Client regularly, but no less frequently than
monthly, after services have been performed, for any compensation payable
pursuant to paragraph 5(2) of this Agreement. Such invoices shall be due and
payable upon receipt, but in no case later than thirty (30) days.
SECTION 6. REIMBURSEMENT FOR EXPENSES
6.1. For services performed hereunder, Client shall reimburse Consultant, for out-of-
pocket expenses for the following items:
(1) Travel-related costs such as airfare, car rental, night lodging
accommodations and meals consumed while on-site or enroute;
(2) Expedited or overnight delivery service;
(3) Any other reasonably necessary expenses directly related and attributable
to the fulfillment of this Agreement.
6.2. Consultant's requests for expense reimbursement shall be included in
Consultant's invoice at actual cost, with no markup.
SECTION 7. TERM OF AGREEMENT; TERMINATION. This Agreement shall be for
a term of one (1) year commencing on the day of 2008 (the
Commencement Date) and terminating at midnight on the day of , 2009.
(the Initial Term). In the event that the Consultant during the initial Term refuses or fails
to provide services hereunder with due diligence, or is guilty of a substantial violation of
any provision of this Agreement, Client shall send Consultant written notice that the
Consultant has thirty (30) days to cure said default; and, if at the end of said thirty (30)
day period Consultant has not cured said default, this Agreement may be terminated.
After the Initial Term, this Agreement shall continue automatically on a month-to-month
basis, unless terminated in writing by either party with sixty (60) days notice and Client
may terminate this Agreement for any reason, with or without cause. If Client terminates
this Agreement between one (1) and three (3) years from the Commencement Date,
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without cause as described in this section, client will pay consultant an amount of
$5,000.00 which represents the value of Consultant's services provided in Section 2.
SECTION 8. STATUS OF CONSULTANT. Consultant and Client agree that in the
performance of Consultant's services hereunder, Consultant shall not be deemed to be
an employee of Client for any purpose whatsoever, nor act under color of state law.
SECTION 9. NOTICES. Any and all notices, invoices, and payments required
hereunder shall be addressed to the parties at their respective addresses set forth on
page 1 hereof, or to such other address as may hereafter be designated in writing by
either party hereto.
SECTION 10. CONSTRUCTION OF AGREEMENT. This Agreement shall be
construed and interpreted in accordance with the laws of the State of Iowa.
SECTION 11. COMPLETE AGREEMENT; MODIFICATION.
11.1. There are no terms, conditions or obligations other than those contained herein,
and there are no written or verbal statements or representations, warranties or
Agreements with respect to this Agreement that have not been embodied herein.
11.2. This Agreement constitutes the complete understanding of the parties with
respect to the subject matter hereof. No modification or amendment of any provisions
of this Agreement shall be valid unless in writing and signed by both parties.
SECTION 12. INSURANCE. Consultant shall provide insurance during the period of
its performance of this Agreement as set forth in the attached Insurance Schedule.
CITY OF DUBUQUE, IOWA
By:
Michael C. Van Milligen
City Manager
THE CENTER FOR MUNICIPAL
SOLUTIONS
By:
Richard A. Comi
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