ENGINEERING SERVICE CONTRACT
SYSTEM DESIGN AND CONSTRUCTION INSPECTION
AGREEMENT made July 27, 1998, between ALAMOSA PCS, LLC. (hereinafter
called the "Owner") and HICKS & RAGLAND ENGINEERING CO., INC. (hereinafter
called the "Engineer").
WHEREAS, the Owner proposes to implement certain additions,
rehabilitations or improvements to its system (all such improvements,
rehabilitation, new construction with its associated facilities being
hereinafter called the "Project" TEXAS 907); and
WHEREAS, the Owner desires the Engineer to perform certain engineering
services in connection with the Project; and
WHEREAS, the Engineer represents that it has access to sufficient
experienced personnel and equipment to perform such engineering services for the
Project.
NOW, THEREFORE, in consideration of the mutual undertakings herein
contained, the parties hereto agree as follows:
SECTION 1. FINANCING OF THE PROJECT. The financing of the Project, including
costs of materials, construction, installation, and engineering will be the
responsibility of the Owner.
SECTION 2. GENERAL OBLIGATION. The Engineer shall diligently and competently
render engineering services which shall be reasonably necessary or advisable for
the expeditious, economical, and sound design of that portion of the Project
included in the Attachments and for such other preparatory work as is necessary
to place such portion of the Project in service, except where such duties are
excluded from the terms of this Agreement.
2.01 DESCRIPTION OF PROJECT. The Engineer shall perform the services identified
in the Attachments for the Owner's Project as described in general below.
Provide Engineering Services for implementation of a PCS system in the Owner's
Markets. The Owner, as an Affiliate of Sprint, has the rights to serve areas in
Texas, New Mexico, Colorado and Arizona as defined in the Sprint agreement
Service Area. The Scope of Work is outlined in Attachment C. The Contract will
cover the deployment of mobile switching centers and base stations for the
pre-op period, year 1 and year 2. Estimates are based upon the deployment of
three switching centers: Lubbock, Albuquerque and El Paso. Estimates are also
based upon deployment of owner supplied base station estimates. The estimated
fees are based upon base station deployment as follows: pre op - 103 base
stations, year 1 - 89 base stations, and year 2 - 25 base stations. The Pre op
period will run through December 1998. Year 1 services will be from January 1999
through December 1999. Year 2 services will be from January 2000 through
December 2000. This contract excludes services associated with tower and site
work which will be provided by others.
SECTION 3. TERMS AND CONDITIONS.
3.01 INSURANCE. The Engineer shall take out and maintain throughout the contract
period the following minimum insurance:
a. Workmen's compensation insurance in statutory limits covering all employees
of the Engineer who shall perform any of the obligations of the Engineer
hereunder, whether or not such insurance is required by the laws of the
State governing the employment of any such employee. If any employee is not
subject to the workmen's compensation
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laws of such State, such insurance shall extend to such employee, voluntary
coverage to the same extent as though such employee were subject to such
laws.
b. Public liability and property damage liability insurance covering all
operations under the contact; limits for bodily injury or death, not less
than $1,000,000 for each occurrence; for property damage, not less than
$1,000,000 for each occurrence and $1,000,000 aggregate for occurrences
during the policy period.
c. Automobile liability insurance on all vehicles used in connection with the
contract whether owned, non-owned, or hired; public liability limits of not
less then $1,000,000 for one person and $1,000,000 for each occurrence;
property damage limit of $1,000,000 for each occurrence.
The Engineer shall furnish the Owner a certificate evidencing compliance with
the foregoing requirements which shall provide not less than thirty (30) days
prior written notice to the Owner of any cancellation or material reduction in
the insurance.
3.02 PROJECT SCHEDULE. The Engineer shall prepare in collaboration with the
Owner, a work and progress report schedule.
3.03 PLANS AND SPECIFICATIONS. Complete and detailed plans and specifications,
drawings, maps, and other documents as required for the construction of the
Project (all of the foregoing being herein sometimes collectively called the
"Plans and Specifications"), shall be prepared by the Engineer, pursuant to the
various Attachments to this Agreement, and made a part hereof.
3.04 GOVERNING LAW. This Agreement shall be governed by the laws of the State of
Texas.
3.05 STANDARDS. All maps, drawings, plans, specifications, estimates, studies
and other documents required to be prepared or submitted by the Engineer under
this Agreement shall conform to industry standards generally acceptable at the
date of this Agreement.
3.06 TERMINATION BY OWNER. The Owner may at any time terminate this Agreement
for cause by giving notice to the Engineer, in writing, to that effect not less
than thirty (30) days prior to the effective date of termination specified in
this notice. Such notice shall be deemed given if delivered or mailed to the
last known address of the Engineer. From and after the effective date specified
in such notice this Agreement shall be terminated. In the event of such
termination, the Owner shall immediately pay Engineer for all work performed on
a Time & Expense basis prior to the date of termination.
3.07 TERMINATION BY THE ENGINEER. The Engineer may at any time terminate this
Agreement by giving notice to the Owner, in writing, to that effect not less
than thirty (30) days prior to the effective date of termination specified in
this notice. Such notice shall be deemed given if delivered or mailed to the
last known address of the Owner. From and after the effective date specified in
such notice this Agreement shall be terminated, except that the Engineer shall
be entitled to receive compensation for services performed hereunder, computed
and payable as set forth in Section 3, 3.06 and 3.13.
3.08 OWNERSHIP OF DOCUMENTS. All reports, plans, specifications, computer files
and other documents prepared by the Engineer as instruments of service shall
remain the property of the Engineer. The Engineer shall retain all common law,
statutory and other reserved rights including copyrights.
3.09 EMPLOYEES' QUALIFICATIONS. The obligations and duties to be performed by
the Engineer under this Agreement shall be performed by persons qualified to
perform such duties efficiently. The Engineer, if the Owner shall so direct,
shall promptly replace any resident engineer or other person employed by the
Engineer in connection with the Project.
The term engineer or resident engineer as used in this Agreement shall mean a
person properly trained and experienced to perform the services required under
the terms of this Agreement, and does not mean that the person performing those
duties must be a licensed or a registered professional engineer.
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3.10 LICENSE. The engineer shall comply with all applicable statutes pertaining
to engineering and warrants that David E. Sharbutt who will be in responsible
charge of the Project possesses license number 41663 issued to him by the State
of Texas on the 30th day of June, 1977.
3.11 PAYMENTS OF ENGINEER'S EMPLOYEES. Prior to the time when any payment shall
be made to the Engineer pursuant to this Agreement, the Engineer, as requested
by the Owner, shall furnish to the Owner, as a condition precedent to such
payment, a certificate to the effect that all salaries or wages earned by the
employees of the Engineer in connection with the Project have been fully paid by
the Engineer up to and including a date not more than thirty (30) days prior to
the date of such invoice. Before the time when the final payment provided to be
made pursuant to this Agreement shall be made to the Engineer by the Owner, the
Engineer shall also furnish to the Owner as a condition precedent to such
payment a certificate that all of the employees of the Engineer have been paid
by him for services rendered by them in connection with the Project, and that
all other obligations which might become a lien upon the Project have been paid.
3.12 ENGINEER'S RECORDS. The Owner shall have the right to inspect and audit all
payrolls, records, and accounts of the Engineer relevant to the work for the
Purposes of this Agreement and the Engineer agrees to provide all reasonable
facilities necessary for such inspection and audit.
3.13 COMPENSATION. For the purpose of this Agreement, compensation for each type
of work covered by the Attachments and thereby made a part of this Agreement
shall be as outlined below.
a. TIME & EXPENSE. The Owner shall pay the Engineer for all services
performed pursuant this Agreement, "Time & Expense" compensation as
defined below (not to exceed the Guaranteed Maximum Fee amount defined
in Form P506).
1. TIME RATES. For services defined as Time & Expense, the Time
rates will include all costs associated with the employee except
for those listed in 2 and 3 below. The hourly rates are
identified in the Attachments and will be multiplied by the
number of hours expended in each job category to determine the
Time Rates.
2. EXPENSE RATES. These will include subsistence expense, if any,
paid to (or on behalf of) employees, plus reasonable
transportation cost of employees, plus a fee of 7% of billed
labor to cover the cost of prints, mailing and transportation
expenses relating to printed and other materials and equipment,
and telephone and telecommunications expenses.
3. TEST EQUIPMENT AND COMPUTER USAGE. The Owner will pay the
Engineer for the costs of test equipment and computer usage as
identified in the Attachments.
4. REVIEW OF RATES. The Time rates and Test Equipment and Computer
Usage rates attached are valid until July 1, 1999. Beginning on
July 1, 1999 and on each subsequent anniversary of this Agreement
new Rates shall be mutually agreed to by both Parties, until
Completion or Termination of this Agreement.
b. GUARANTEED MAXIMUM FEE. The engineering cost identified in Form P506 as
the Guaranteed Maximum Fee is based upon the time and expense billing of
the project as defined in 2.01 Description of the Project.
CONTINGENCIES. The Guaranteed Maximum Fee in this engineering contract is based
upon a set amount of construction. In the implementation of a PCS project there
are many uncertainties. The fees do not include any contingency costs that may
or may not have been projected by the Owner. These contingencies, should they
occur, will require additional engineering to ensure that the Owner's system
performs as required. Should any additional sites, beyond those identified in
2.01 Description of Project, require additional engineering expenditures, the
Guaranteed Maximum Fee of this contract will be automatically amended to add any
additional sites the owner requires due to any contingencies. The Guaranteed
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Maximum Fee will be amended upward on a per site fee. The per site fee will be
the amount of the Guaranteed Maximum Fee of the original scope divided by the
number of sites in the original scope.
INCENTIVE BONUS. The Owner and the Engineer mutually agree to strive to complete
the work defined in this Agreement at a cost less that the Guaranteed Maximum
Fee (GMF) amount defined in Form P506. As an incentive to reduce the cost of
engineering, if the total billing for the project is less than the amount
defined as the GMF, the Engineer will be paid an amount equal to 50% of the
difference between the GMF and the total billing as an Incentive Bonus. The
incentive bonus will be paid based upon the identified periods on the P506 forms
as follows.
PRE OP INCENTIVE. The amount of incentive payable at the conclusion of
the pre op period will be 75% of the calculated incentive amount due. The
remaining 25% will be held as a reserve for future periods. The incentive amount
due is calculated by taking the GMF for the pre op period less the actual
billing as follows.
Incentive amount = [Pre op GMF - Pre op billing]*50%
Incentive payable = incentive amount * 75%
The incentive payable will be determined within 45 days after the
completion of the pre op period as defined in this agreement.
YEAR 1 INCENTIVE. The amount of incentive payable at the conclusion of
the year 1 period will be 75% of the calculated incentive amount due. The
remaining 25% will be held as a reserve for future periods. The incentive amount
due is calculated by taking the GMF for all periods to date less the actual
billing for all periods as follows.
Incentive amount = [Pre op GMF + Year 1 GMF - Pre op billing -
Year 1 times billing]*50%
Incentive payable = incentive amount * 75% - pre op incentive
payable
The incentive payable will be determined within 45 days after the
completion of the year 1 period as defined in this agreement.
YEAR 2 (CONTRACT) INCENTIVE. The amount of incentive payable at the
conclusion of the contract which is the year 2 period is calculated by taking
the GMF for all periods to date less the actual billing for all periods as
follows.
Incentive amount = [Total GMF - Total billing]*50%
Incentive payable = incentive amount - total incentive paid to
date
The incentive payable will be determined within 45 days after the
completion of the Contract period as defined in this agreement.
3.14 TAXES. Compensation payable to the Engineer under any of the attachments to
this Agreement shall be in addition to taxes, or levies, (excluding Federal,
State and Local Income Taxes), which may be assessed against the Engineer by the
State or political sub-division directly on services performed or payments for
services performed by the Engineer pursuant to this Agreement. Such taxes or
levies, which the Engineer may be required to collect or pay, shall, in turn, be
added by the Engineer to invoices submitted to the Owner pursuant to this
Agreement.
3.15 INTEREST. Interest at the rate of TWELVE percent (12%) per annum shall be
paid by the Owner to the Engineer on any unpaid balance due the Engineer,
commencing thirty (45) days after the due date, provided that the delay in
payment beyond due date shall not have been caused by any conditions within the
control of the Engineer. Such compensation shall be paid ten (10) days after the
amount of the interest has been determined.
All amounts received by Engineer shall be applied first to accrued
unpaid interest and then to outstanding invoices for services and associated
expenses.
3.16 NON-ASSIGNMENT. The obligations of the Engineer under this Agreement shall
not be assigned without the approval in writing of the Owner.
3.17 ATTACHMENTS. The following listed Attachments, when checked in appropriate
boxes, are attached to and made a part of this Agreement, by this reference.
/ XX / Attachment A - Hourly Billing Rates
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/ XX / Attachment B - Test Equipment and Computer Usage Rates
/ XX / Attachment C - PCS Engineering Services
/ XX / Form P506 - Guaranteed Maximum Fee for PCS Engineering Services
3.18 SERVICE ADDITION. If after execution of this Agreement, a service not
listed as an Attachment in Paragraph 3.17 above is added to a this Agreement, an
amendment to this Agreement is required.
3.19 INVOICE INFORMATION. The Engineer shall furnish to the Owner detailed
itemized invoices on a monthly basis.
3.20 ENGINEERING FEE. The total cost of engineering shall not exceed the
Guaranteed Maximum Fee as set out in Form P506. Any change to the Scope of Work
outlined in Attachment C will require a contract amendment.
3.21 COMPENSATION FOR CORRECTIONS. No compensation shall be due or payable to
the Engineer, pursuant to this Agreement, for any engineering services performed
by the Engineer in connection with effecting of corrections to the Design of the
Project, when such corrections are required as a direct result of negligence by
the Engineer to properly fulfill any of his obligations as set forth in this
Agreement.
3.22 COMPENSATION PAYMENT. Compensation payable shall be due and payable ten
(10) days after approval of the Owner of the services performed. The Engineer's
invoice shall include detail of the services performed. The Owner must notify
the Engineer within ten (10) days of receipt of invoice of any discrepancies
which require correction or of any additions as a precedent for payment of such
charges. If no discrepancies are noted within ten (10) days of receipt of
invoice, the invoice will be considered to be approved. On invoices where
discrepancies are noted, all charges not identified for correction will be
considered approved and shall be due ten (10) days from the date of the
notification.
3.23 INDEMNIFICATION. Engineer shall hold Owner and Owner's employee's agents,
officers, and directors, harmless from any and all claims for injuries to
persons or for damage to property happening by reason of any negligence, default
or misconduct, on the part of the Engineer, his agents, servants or employees,
during the performance of this contract. This indemnity shall include, but not
be limited to, all expenses of litigation, court costs and reasonable attorney's
fees.
Owner shall hold Engineer and Engineer's employee's agents, officers, and
directors, harmless from any and all claims for injuries to persons or for
damage to property happening by reason of any negligence, default or misconduct,
on the part of the Owner, his agents, servants or employees, during the
performance of this contract. This indemnity shall include, but not be limited
to, all expenses of litigation, court costs and reasonable attorney's fees.
3.24 LIMITATION OF LIABILITY. In no event will Engineer be liable for
consequential damages, including lost profits, loss of investment, or other
incidental damages incurred from Owner's investment based on the Scope of Work
to be performed by Engineer under this Agreement. The Engineer's total liability
for work performed shall never exceed the amount paid by the Owner for services
performed under this Agreement.
3.25 FORCE MAJEURE. If the performance of the Agreement, or of any obligation
hereunder is prevented, restricted or interfered with by reason of fires,
breakdown of plant, labor disputes, embargoes, government ordinances or
requirements, civil or military authorities, acts of God or the public enemy,
acts or omissions of carriers, or other causes beyond the reasonable control of
the party whose performance is affected, then the party affected, upon giving
prompt notice to the other party, shall be excused from such performance on a
day-for-day basis to the extent of such prevention, restriction, or interference
(and the other party shall likewise be excused from performance of its
obligations on the day-for-day basis to the extent such party's obligations
relate to the performance so prevented, restricted or interfered with); provided
that the party so affected shall use its best efforts to avoid or remove such
causes.
3.26 DISPUTES. Owner and Engineer agree to submit to non-binding arbitration as
a first step toward resolution of any disputes arising under this contract.
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3.27 SOLICITATION TO HIRE EMPLOYEES. Owner and Engineer acknowledge and agree
that each party has invested significant time and resources in the recruitment
and training of its employees. Therefore, to the extent permitted by applicable
law, both parties agree that, during the term of this Agreement and for one (1)
year thereafter, that neither party will directly or indirectly solicit or seek
to employ the employees of the other party except as by mutual agreement of the
Owner and Engineer.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed.
ALAMOSA PCS, LLC.
-----------------------------------------
Owner
BY
---------------------------------------
President
ATTEST:
------------------------------------
Secretary
HICKS & RAGLAND ENGINEERING CO., INC.
-----------------------------------------
Engineer
BY
---------------------------------------
Vice President
ATTEST:
------------------------------------
Assistant Secretary
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ADDENDUM I TO
ENGINEERING SERVICE CONTRACT SYSTEM DESIGN
AND CONSTRUCTION INSPECTION
This Addendum contains certain changes, additional or supplemental
terms and provisions to that certain Engineering Service Contract System Design
and Construction Inspection Agreement (the "Hicks & Ragland Agreement") entered
into contemporaneously with and by the same parties as the Engineering Service
Contact System Design and Construction Inspection Agreement dated July 27, 1998,
by and between Alamosa PCS LLC, as "Owner", and Hicks & Ragland Engineering Co.,
Inc., as "Engineer". Except for the express modifications made in this Addendum,
the Engineering Service Contract System Design and Construction Inspection
Agreement continues in full force and effect.
The Hicks & Ragland Agreement is modified as follows:
1. Paragraph 3.01 shall delete the last sentence thereof and
substitute the following:
"The Engineer shall furnish the Owner a certificate evidencing
compliance with the foregoing requirements showing the Owner
and Sprint Spectrum L.P., a Delaware Limited Partnership,
WirelessCo, L.P., a Delaware Limited Partnership, and
SprintCom, Inc., a Kansas Corporation, as additional insured.
Such certificates and policies of insurance shall provide not
less than thirty (30) days written notice to the Owner and all
additional insureds of any cancellation or material reduction
in the insurance."
2. Paragraph 3.04 is changed to read as follows:
"3.04 GOVERNING LAW AND PERFORMANCE. This Agreement shall be
governed by the laws of the State of Texas and shall be deemed
to be executed in and performance called for in Lubbock,
Lubbock County, Texas."
3. Paragraph 3.06 will be changed to read as follows:
"3.06 TERMINATION BY OWNER. The Owner may terminate this
Agreement for cause. Such termination may be made only after
first giving the Engineer written notice giving the Engineer
at least ten (10) days to cure any default or breach of the
contract by Engineer. If Engineer fails to cure said default
or breach within this twenty (20) day notice, the Owner may
then give ten (10) days written notice prior to the effective
date of termination of this Agreement. Such notice shall be
deemed given if delivered or mailed to the last known address
of the Engineer. From and after the effective date specified
in such termination notice this Agreement shall be terminated.
In the event of such termination, the Owner shall immediately
pay Engineer compensation for services performed hereunder,
computed and payable as
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ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
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set forth in Section 3, less any damages caused by the
termination. Cause for termination shall include, but not be
limited to, gross negligence in the performance of its duties
under this Agreement, willful or intentional breach or
habitual neglect of its duties under this Agreement,
intentional disregard of the terms and provisions of the
Agreement, misconduct in the performance of a duty called for
under the terms of this Agreement, or committing dishonest
acts."
4. Paragraph 3.07 shall be changed to read as follows:
3.07 TERMINATION BY THE ENGINEER. The Engineer may terminate
this Agreement for cause. Such termination may be made only
after first giving the Owner written notice giving the Owner
at least ten (10) days to cure any default or breach of the
contract by Owner. If Owner fails to cure said default or
breach within this twenty (20) day notice, the Engineer shall
then give ten (10) days written notice prior to the effective
date of termination of this Agreement. Such notice shall be
deemed given if delivered or mailed to the last known address
of the Owner. From and after the effective date specified in
such termination notice this Agreement shall be terminated. In
the event of such termination, the Engineer shall be entitled
to receive compensation for services performed hereunder,
computed and payable as set forth in Section 3. Cause for
termination shall include, but not be limited to, gross
negligence in the performance of its duties under this
Agreement, willful or intentional breach or habitual neglect
of its duties under this Agreement, intentional disregard of
the terms and provisions of the Agreement, misconduct in the
performance of a duty called for under the terms of this
Agreement, or committing dishonest acts."
5. Paragraph 3.10 shall have added thereto the following
sentence:
"In addition to the Texas license set forth above, David E.
Sharbutt possesses New Mexico license number 66655; Colorado
license number 15576; and Arizona license number 11828."
6. Paragraph 3.13(a)(4) shall have added thereto the following:
"In the event that the parties shall fail to mutually agree on
any new Rates, in that event, there shall be no change in the
Rates and the Time Rates and Test Equipment and Computer Usage
rates attached throughout the entire term of this Agreement.
Such failure to mutually agree on any new Rates shall not be a
breach nor a cause for a breach of this Agreement. Provided,
however, that owner shall not unreasonably withhold consent to
new Rates which are at or below Engineer's normal and usual
Rates for such services to Engineer's clients and customers."
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ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
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7. Paragraph 3.13(b) shall have added thereto the following:
"Notwithstanding anything herein to the contrary or apparently
to the contrary, the foregoing incentive bonus shall only be
earned by the Engineer, if the Engineer performs its services
within the time frames called for as set forth in the
finalized version of the Business Plan for the Sprint
Affiliate or Sprint Management Agreement, which is the basis
of this Agreement. Attached hereto marked Attachment D and
incorporated herein by this reference as if copied herein in
full is a Time Line based upon that finalized version of the
Business Plan referred to above. The Engineer agrees that in
order to be entitled to any incentive bonus as set forth in
this provision, that the Engineer must complete all of those
services called for to be made and completed by the Engineer
within the time frames set forth in the Attachment D. If for
any reason there is a delay in providing the services of the
Engineer under this Agreement, which delay is within the
definition of force majeure as set forth in Paragraph 3.25, or
any matter over which the Engineer has no control, in that
event, the Engineer shall be entitled to an extension of the
Time Line items equal to the number of days delay caused by
such matters within the definition of force majeure as set
forth in Paragraph 3.25, or any matter over which the Engineer
has no control. If the Engineer does not meet the Time Line as
set forth in Attachment D, in that event, the Engineer shall
not be entitled to the incentive bonus for any or all of the
three (3) incentive bonuses set forth above, being the pre op
incentive, the year one incentive in the year two (contract)
incentive. If the Engineer does not provide its services
within the time frame for any of these incentive periods, the
Engineer may nonetheless be entitled to earn the incentive
bonus for any other incentive period, if the Engineer provides
its services within the time frames for any of the incentive
bonuses referred to above. Engineer also agrees that at the
time of the execution of this Agreement and at the time of any
change in the Time rates in this Agreement, that the Time
rates of this Agreement for Engineer's services, shall be at
or below Engineer's normal and usual rate for such services to
Engineer's clients and customers."
8. Paragraph 3.15 shall be changed by deleting in the second line
thereof the word thirty and (45) and substituting therefor the
word sixty and (60).
9. Paragraph 3.23 shall be changed by adding the following
paragraph:
"In the event that either party hereto shall provide the
indemnification set forth in the preceding paragraphs of this
Section, in that event, the party to whom indemnification is
given shall have the right to choose and approve of any
attorneys or firm of attorneys who may represent them in any
matter for which indemnification is being provided by the
other party. The costs of
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ADDENDUM I TO PAGE 3 OF 7
ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
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such representation shall be paid by the party who is
providing the indemnification and shall be paid at the normal
and usual rates of such attorneys and in the manner to which
is normal and usual for such representation."
10. Paragraph 3.26 is hereby changed to read as follows:
"3.26 DISPUTES. Owner and Engineer agree to the following in
regard to any disputes between them arising under this
contract.
1. MEDIATION. Owner and Engineer agree to mediate any
dispute arising under this contract. In the event of
any dispute, the parties, within thirty (30) days of
a written request for mediation, shall attend, in
good faith, a mediation in order to make a good faith
reasonable effort to resolve any dispute arising
under this contract. If this good faith mediation
effort fails to resolve any dispute arising under
this contract, Owner and Engineer agree to arbitrate
any dispute arising under this contract. This
arbitration shall occur only after the mediation
process described herein.
2. ARBITRATION. Owner and Engineer agree, as
concluded by the parties to this Agreement on the
advice of their counsel, and as evidenced by the
signatures of the parties and of their respective
attorneys, it is agreed that all questions as to
rights and obligations arising under the terms of
this contract are subject to arbitration and such
arbitration shall be governed by the provisions of
the Texas General Arbitration Act (Texas Civil
Practice and Remedies Code ss. 171.001 et seq as it
may be amended from time to time).
3. DEMAND FOR ARBITRATION. If a dispute should arise
under this contract, either party may within thirty
(30) days make a demand for arbitration by filing a
demand in writing with the other.
4. APPOINTMENT OF ARBITRATORS. The parties to this
Agreement may agree on one arbitrator, but in the
event that they cannot so agree, there shall be three
arbitrators, one named in writing by each of the
parties within thirty (30) days after demand for
arbitration is made, and a third to be chosen by the
two so named. Should either party fail to timely join
in the appointment of the arbitrators, the
arbitrators shall be appointed in accordance with the
provisions of Texas Civil Practice and Remedies Code
ss. 171.041.
5. HEARING. All arbitration hearings conducted under
the terms of this Agreement, and all judicial
proceedings to enforce any of the provisions of this
Agreement, shall take place in Lubbock County, Texas.
The hearing before the arbitrators of the matter to
be
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ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
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arbitrated shall be at the time and place within that
County selected by the arbitrators or if deemed by
the arbitrators to be more convenient for the parties
or more economically feasible, may be conducted in
any city of the State of Texas.
6. ARBITRATION AWARD. If there is only one
arbitrator, his or her decision shall be binding and
conclusive. The submission of a dispute to the
arbitrators and the rendering of their decision shall
be a condition precedent to any right of legal action
on the dispute. A judgment confirming the award of
the arbitrators may be rendered by any court having
jurisdiction; or the court may vacate, modify, or
correct the award in accordance with the provisions
of the Texas General Arbitration Act (Texas Civil
Practice and Remedies Code ss. 171.087 et seq as it
may be amended from time to time).
7. NEW ARBITRATORS. If the arbitrators selected,
pursuant to Paragraph c., above, shall fail to render
a decision within thirty (30) days of the date of
hearing, they shall be discharged, and three new
arbitrators shall be appointed and shall proceed in
the same manner, and the process shall be repeated
until a decision is finally reached by two of the
three arbitrators selected.
8. COSTS OF ARBITRATION. The costs and expenses of
arbitration, including the fees of the arbitrators,
shall be borne by the losing party or in such
proportions as the arbitrators shall determine.
9. CONDUCT OF ARBITRATION. Any arbitration brought
under the terms of this Agreement shall be conducted
in the following manner:
a. Time Limitations. The parties agree that
the following time limitations shall govern
the arbitration proceedings conducted under
the terms of this Agreement:
(i) Any demand for arbitration must
be filed within thirty (30) days of
the date on which the dispute arises
or the alleged breach occurs.
(ii) Each party must select an
arbitrator within thirty (30) days
of receipt of notice that an
arbitration proceeding has
commenced. In the event that no such
selection is made, the arbitrator
selected by the other party may
conduct the arbitration proceeding
without selecting any other
arbitrator.
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<PAGE> 13
(iii) The hearing must be held
within thirty (30) days of the date
on which the third arbitrator is
selected.
(iv) Hearing briefs must be selected
within ten (10)
days of the hearing date.
(v) The arbitration award must be
made within thirty (30) days of the
receipt of hearing briefs.
b. Discovery in Arbitration Proceedings. The
parties agree that discovery may be
conducted in the course of the arbitration
proceeding in accordance with the following
provisions:
(i) Each party may notice no more
than three (3) depositions in total,
including both witnesses adherent to
the adverse party and third-party
witnesses.
(ii) Each party may serve no more
than twenty-five (25) requests for
admission on the other party. No
requests may be served within ten
(10) days of the date of hearing,
unless the parties otherwise
stipulate. All requests for
admission shall be responded to
within ten (10) days of service of
the requests, unless the parties
otherwise stipulate.
(iii) Each party may serve no more
than fifty (50) interrogatories on
the other party. No interrogatory
shall contain subparts, or concern
more than one topic or subject of
inquiry. Interrogatories may not be
phrased so as to circumvent the
effect of this clause. No
interrogatories may be served within
ten (10) days of the date of
hearing, unless the parties
otherwise stipulate. All
interrogatories shall be responded
to within ten (10) days of service
of the interrogatories, unless the
parties otherwise stipulate.
(iv) Each party may serve no more
than ten (10) requests for
production of documents on the other
party. No request for production of
documents shall contain subparts, or
seek more than one type of document.
Requests for production of documents
may not be phrased so as to
circumvent the effect of this
clause. Unless the parties otherwise
stipulate, requests for production
of documents may not be served
within ten (10) day of the date of
hearing, and all requests for
================================================================================
ADDENDUM I TO PAGE 6 OF 7
ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
<PAGE> 14
production of documents shall be
responded to within ten (10) days of
service of the requests.
(v) If any party contends that the
other party has served discovery
requests in a manner not permitted
by this Section, or that the other
party's response to a discovery
request is unsatisfactory, the party
may request the arbitrators to
resolve such discovery disputes. The
arbitrators shall prescribe the
procedure by which such disputes are
resolved.
The foregoing Addendum is hereby agreed to this 27th day of July, 1998.
OWNER
ALAMOSA PCS LLC
By /s/ David Sharbutt
----------------------------------
DAVID E. SHARBUTT, Chairman
ENGINEER
HICKS & RAGLAND ENGINEERING CO., INC.
By /s/ W. D. Stull
---------------------------
W. Don Stull (Name)
---------------------------
Vice President (Title)
---------------------------
/s/ Paula Sexton
----------------------------------
Assistant Secretary
Approved as to the Mediation and Arbitration provisions in paragraph 10
above.
Crenshaw, Dupree & Milam, L.L.P.
By: /s/ Jack McCutchin, Jr.
----------------------------------
Jack McCutchin, Jr.
Attorneys for Alamosa PCS LLC
/s/ Paula Sexton
----------------------------------
Paula Sexton
Attorney for Hicks & Ragland
Engineering Co., Inc.
================================================================================
ADDENDUM I TO PAGE 7 OF 7
ENGINEERING SERVICE CONTRACT SYSTEM DESIGN AND CONSTRUCTION INSPECTION
<PAGE> 15
AMENDMENT TO ENGINEERING SERVICE CONTRACT
SYSTEM DESIGN AND CONSTRUCTION INSPECTION
This Amendment, made this 1st day of September, 1999, contains certain
changes, additional or supplemental terms and provisions to the Engineering
Service Contract System Design and Construction Inspection dated July 27, 1998
and Addendum I thereto of same date ("Engineering Service Contract") by and
between ALAMOSA PCS LLC and Hicks & Ragland Engineering Co., Inc. Except for the
express modifications made in this Amendment, the Engineering Service Contract
as previously amended by Addendum I thereto continues in full force and effect.
In consideration of the mutual undertakings herein contained, the parties agree
to amend the Engineering Service Contract as follows:
1. Pursuant to Paragraph 3.13.b of the Engineering Service Contract, the
Guaranteed Maximum Fee is automatically amended to add additional sites.
The Guaranteed Maximum Fee is amended upward on a per site fee. The per
site fee is the amount of the Guaranteed Maximum Fee of the original
scope divided by the number of sites in the original scope. The per site
fee is $24,442 calculated using the original Guaranteed Maximum Fee of
$5,304,000 and 217 sites as noted in Paragraph 2.01 of the Engineering
Service Contract. The addition of sites is as follows:
<TABLE>
<CAPTION>
MARKET ORIGINAL SITES CURRENT SITES CHANGE IN SITES
<S>
<C>
<C>
<C>
Phase I
Albuquerque/Santa Fe 47 67 20
El Paso/Las Cruces 43 38 (5)
Laredo 13 20 7
Phase 2A
Lubbock 21 26 5
Amarillo 14 21 7
Midland/Odessa 18 15 (3)
Phase 2B
Abilene/San Angelo 25 26 1
Prescott/Flagstaff 6 12 6
Pueblo/Grand Junction 14 14 --
Phase 3A
Eagle Pass/Del Rio 3 6 3
Farmington 3 3 --
Roswell/Carlsbad 6 6 --
Gallup 4 4 --
Phase 3B
I-17 -- 13 13
I-25 -- 17 17
---------------------------------------------------------------------------------------
TOTALS 217 288 71
</TABLE>
Engineering Service Contract Amendment 1
September 1, 1999
<PAGE> 16
Therefore, the increase in the Guaranteed Maximum Fee is $1,735,382 (71
sites at $24,442 per site). The amended Guaranteed Maximum Fee is
$7,039,382.
2. The Pre-Op period is extended from December 1998 through August 1999.
The Year 1 services will be from September 1999 through August 2000. The
Year 2 services will be from September 2000 through August 2001.
The base station deployment schedule is changed as follows:
PRE-OP:
<TABLE>
<S>
<C>
<C>
<C>
Albuquerque/Santa Fe 67 sites 80% 54 net sites
El Paso/Las Cruces 38 sites 100% 38 net sites
Laredo 20 sites 95% 19 net sites
Lubbock 26 sites 95% 24 net sites
Midland/Odessa 15 sites 95% 14 net sites
Amarillo 21 sites 90% 19 net sites
------------------------------------------------------------
TOTAL NET PRE-OP SITES 168
YEAR 1:
Albuquerque/Santa Fe 67 sites 20% 13 net sites
Laredo 20 sites 5% 1 net sites
Lubbock 26 sites 5% 2 net sites
Midland/Odessa 15 sites 5% 1 net sites
Amarillo 21 sites 10% 2 net sites
Abilene/San Angelo 26 sites 100% 26 net sites
Prescott/Flagstaff 12 sites 100% 12 net sites
Pueblo/Grand Junction 14 sites 100% 14 net sites
Eagle Pass/Del Rio 6 sites 100% 6 net sites
Farmington 3 sites 100% 3 net sites
Roswell/Carlsbad 6 sites 100% 6 net sites
Gallup 4 sites 100% 4 net sites
------------------------------------------------------------
TOTAL NET YEAR 1 SITES 90
YEAR 2:
I-17 13 sites 100% 13 net sites
I-25 17 sites 100% 17 net sites
------------------------------------------------------------
TOTAL NET YEAR 2 SITES 30
</TABLE>
Attached are revised estimated fee schedules (H&R Form P506C) that
reflect the amended number of sites and deployment schedule.
3. Pursuant to Paragraph 3.13.a.4, attached is a revised Attachment A
reflecting the new time rates as of July 1, 1999 for the designated
classifications.
Engineering Service Contract Amendment 2
September 1, 1999
<PAGE> 17
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed.
ALAMOSA PCS, LLC.
--------------------------------------
Owner
ATTEST:
/s/ PAULA SEXTON BY /s/ DAVID SHARBUTT
-------------------------------- --------------------------------------
Secretary Chairman
HICKS & RAGLAND ENGINEERING CO., INC.
--------------------------------------
Engineer
ATTEST:
/s/ EILEEN G. HILDEBRAND BY /s/ RICK OVERMAN
-------------------------------- --------------------------------------
Assistant Secretary Chief Operating Officer
Engineering Service Contract Amendment 3
September 1, 1999
EX-10.15
21
MASTER SITE DEVELOPMENT/LEASE AGREEMENT AS AMENDED
<PAGE> 1
EXHIBIT 10.15
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT
THIS AGREEMENT, made this day of August, 1998 (the "Effective Date"),
between ALAMOSA PCS, LLC, a Texas limited liability company, with its principal
offices located at 6688 N. Central Expressway, Suite 850, Dallas, Texas,
("Customer") and Speciality Capital Services, Inc., a Nevada corporation with
its principal offices located as 12001 Hwy. 14 North, Cedar Crest, New Mexico,
87008 ("Specialty").
W I T N E S S E T H:
WHEREAS, Specialty provides site acquisition, zoning, construction,
site development, site maintenance and site leasing services for wireless
communications facilities located in the United States of America;
WHEREAS, Customer desires to lease space on certain wireless
communications towers or platforms to be constructed and owned by Specialty
("Leased Sites"); and
WHEREAS, Specialty and Customer desire to set forth terms and
conditions upon which Specialty will construct and Customer will lease from
Speciality Leased Sites located in the areas identified in Exhibit "A" hereto.
NOW THEREFORE, in consideration of the premises and the mutual
covenants and obligations hereinafter set forth, the parties agree as follows:
1. Leased Sites.
1.1 Leased Site Schedules. This Agreement and each Leased Site Schedule
in substantially the form attached hereto as Exhibit "B" ("Leased Site
Schedule") executed in connection with this Agreement contain the basic terms
and conditions upon which each Leased Site will be constructed and leased by
Specialty to Customer. The location of each Leased Site is individually referred
to in this Agreement as a "Site." Each Leased Site Schedule will describe the
specific location, description and the size of the Site to which it pertains and
contain a precise description of the wireless communications platform or tower
to be constructed by Speciality on the Site. Customer will indicate its interest
in obtaining a Leased Site Schedule for a particular Site by completing and
forwarding to Specialty either search rings for a particular area or a written
notice identifying particular Sites for implementation pursuant to this
Agreement. Upon receipt of search rings, Specialty will, at its sole expense,
promptly inventory and review all existing elevated structures within each
search ring that are susceptible of locating a Site, including existing roof top
sites, water tank sites, towers and other elevated structures. The purpose of
this inventory and review process is to identify sites on which Customer's
wireless transmission facilities can be located or co-located with other
carriers thereby minimizing the need for construction of new towers. Upon
completion of this inventory and review, Speciality and Customer will analyze
the results and review Customer's search rings in order to (i) identify the
specific roof top sites, water tank sites, existing towers and other existing
elevated structures to be utilized by Customer and (ii) determine the number and
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 1
<PAGE> 2
location of new towers to be constructed. Customer and Specialty understand and
agree that so long as Customer's time-to-market, and RF engineering criteria are
satisfied, Customer's wireless transmission facilities will be co-located on
existing structures within the applicable search rings whenever possible. After
Customer and Specialty determine that a new tower will be constructed within a
given search ring or location, Specialty will locate and identify to Customer a
proposed Site for construction of the new tower. Upon identification of each
proposed Site for construction of a new tower, Customer will have three (3)
business days in which to notify Specialty whether the proposed Site is
acceptable to Customer. If Customer deems the Site acceptable or if Customer
fails to notify Specialty that it deems the Site unacceptable within three (3)
business days after the proposed Site is identified to Customer, then Customer
will forward an executed Leased Site Schedule to Specialty whereupon, Specialty
will, at its sole expense, promptly complete the site acquisition, lease
procurement and zoning (collectively, "Site Acquisition and Zoning Services") of
the Site and construct the Leased Site in accordance with the time frames and
specifications set forth in Exhibit 2 to the Lease Site Schedule. Upon
completion of the Lease Site, Specialty will lease the Leased Site to Customer
pursuant to this Agreement and the applicable Lease Site Schedule. To the extent
requested by Customer, Specialty will use its best efforts to utilize existing
bulk siting agreements or other favorable siting arrangements available to
Customer, coordinate all zoning and permitting related activities with Customer
and allow Customer to participate in such zoning and permitting processes to
ensure consistency with Customer zoning and permitting practices and procedures.
Specialty intends to utilize Specialty personnel and existing subcontractor
relationships to perform Site Acquisition and Zoning Services. However, if
requested by Customer, Specialty will agree to utilize or work with individuals
and/or subcontractors designated by Customer (assuming such individuals and/or
subcontractors are willing to work with Specialty and meet Specialty's pricing
objectives to Customer). If Customer identifies one or more specific Sites to
Specialty for which Site Acquisition and Zoning Services already have been
completed, then Customer will forward an executed Leased Site Schedule to
Specialty describing the Site, whereupon, Specialty will, at its sole expense,
promptly enter into or accept the assignment of the underlying site lease or
sublease, construct the Leased Site in accordance with the time frames and
specifications set forth in Exhibit 2 to the Leased Site Schedule, and, upon
completion of the Leased Site, lease the Leased Site to Customer as described in
the Leased Site Schedule, and, upon completion of the Leased Site, lease the
Leased Site to Customer as described in the Leased Site Schedule. Each Leased
Site Schedule will become a part of this Agreement only upon its execution and
delivery by both Customer and Specialty. The parties acknowledge and agree that
the specifications for each Leased Site will be sufficient to facilitate
co-location of additional tenants on the Leased Site following completion.
1.2 Improvement of Existing Sites. Where an existing communications
tower or platform (including existing roof top sites, water tank sites, towers
and other elevated structures, owned or otherwise controlled by a party other
than Specialty) in any of the areas identified in Exhibit "A" is selected by
Customer for the co-location of a wireless transmission facility, Customer
agrees to engage Specialty to perform any necessary Site Acquisition and Zoning
Services and to construct any necessary improvements to implement the planned
facility, provided Specialty's fees for performing such services are competitive
with those available from contractors ("qualified competing contractors") of
similar expertise, quality and reputation to Specialty. Specialty will provide
such services at competitive prices that are not higher than the average prices
available in the given market for like services from qualified competing
contractors, provided, however, that if Customer believes
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 2
<PAGE> 3
that the pricing offered by Specialty is not competitive, then Customer will
have the right to obtain bids from qualified competing contractors for the same
services (including, without limitation, construction management services) as
those proposed to be provided by Specialty. If Customer obtains a pricing bid
for the required services from a qualified competing contractor that is other
than Specialty's proposed pricing, then Customer shall notify Specialty and
Specialty shall have the right of first refusal, exercisable by notifying
Customer within seven (7) days following receipt of such notice from Customer,
to meet the bid upon the same terms and conditions as set forth in the bid. If
Specialty declines to meet the bid, then Customer will have the right to hire
the qualified competing contractor to perform the work with respect to that site
(subject to the qualified competing contractor's provision of certificates of
insurance consistent with the provisions of this Agreement).
1.3 Use of Additional Sites. If during the initial term of this
Agreement Customer desires to install additional wireless transmission
facilities in any of the areas identified in Exhibit "A," then the following
provisions shall apply:
1.3.1 If (i) Specialty owns, controls or manages an
existing roof top site, water tank site, tower or
other elevated structure within any of the areas
identified in Exhibit "A" that meets Customer's
predetermined coverage requirements (for purposes of
this Agreement, Customer's predetermined coverage
requirement shall include but not be limited to
location, height above ground level, antenna
configuration and radiation center) for such
additional wireless transmission facilities, (ii) the
required antenna space can be made available to
Customer within a mutually agreed upon period of time
that meets Customer's implementation requirements for
the additional wireless transmission facilities,
(iii) the placement of Customer's antennas, coaxial
cabling and other equipment on the subject structure
and the location of Customer's base station equipment
at the subject location will not require material
structural modification of the subject structure or
interfere with the contractual or other rights or
existing tenants at the location, then Customer may
request a Leased Site Schedule for the subject
structure and lease the required antenna space on the
subject structure pursuant to this Agreement for a
monthly lease price that does not exceed the
applicable monthly lease price set forth on Exhibit
"C." If Customer requests a Leased Site Schedule
pursuant to this Section 1.3.1, then Specialty shall
have ten (10) days from receiving notice of
Customer's request for a Leased Site Schedule to
notify Customer whether the subject structure is
available for Customer's purposes. In the event
Specialty fails to respond within said ten (10) days,
the subject structure will be deemed unavailable. In
connection with Customer's assessment of any
additional Sites, Specialty shall provide, at no
charge to Customer (i) for a period of up to
twenty-one (21) days, access to the subject structure
and necessary documentation for the purpose of
determining the suitability of the subject structure
(Customer shall supply, at Customer's expense, all
equipment and materials needed to conduct such tests)
and (ii) a copy of the Prime Lease (as hereinafter
defined), if any, applicable to the Site and such
other documentation applicable to the Site as
Customer shall reasonably
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 3
<PAGE> 4
request (subject to any restrictions regarding
confidentiality or disclosure as may be contained in
or otherwise applicable to such documents). Specialty
shall supply at Specialty's expense, the labor to
install one (1) antenna and one (1) coaxial cable to
conduct a suitability test at each Site. In order to
facilitate the parties compliance with the provisions
of this Section 1.3, Specialty agrees to provide
Customer with a list of all roof top sites, water
tank sites, towers or other elevated structures
within any of the areas identified in Exhibit "A"
that are owned, controlled or managed by Specialty
and to update this list from time to time as
necessary during the initial term of this Agreement.
1.3.2 If (i) Specialty does not own, control or manage an
existing roof top site, water tank site, tower or
other elevated structure within any of the areas
identified in Exhibit "A" that meets Customer's
predetermined coverage requirements for such
additional wireless transmission facilities, (ii) no
other existing roof top site, water tank site, tower
or other elevated structure within any of the areas
identified in Exhibit "A" meets Customer's
predetermined coverage requirements for such
additional wireless transmission facilities, (iii)
Customer determines to obtain a new tower to locate
such additional wireless transmission facilities, and
(iv) Specialty is willing to construct the new tower
within a mutually agreed upon time period that meets
Customer's construction schedule and lease the
required antenna space to Customer for a monthly
lease price that does not exceed the applicable
monthly lease price set forth on Exhibit "C," then
Customer shall request a Leased Site Schedule for the
new tower and lease the required antenna space on the
new tower pursuant to this Agreement.
2. Customer's Use of the Leased Site
Customer may use the Leased Site only for the installation, operation
and maintenance of unmanned radio communications equipment consistent with the
terms of this Agreement and the applicable Leased Site Schedule. Customer must,
at Customer's sole expense, comply with all laws, orders, ordinances,
regulations and directives of applicable federal, state, county and municipal
authorities or regulatory agencies including, without limitation, the Federal
Communications Commission ("FCC"), that are applicable to the installation or
operation of Customer's equipment at the Site. Customer must operate its
equipment in a manner that does not interfere with the operation of the
communications facility or any prior existing users of the communications
facility. Specialty agrees to cooperate with Customer, at Customer's expense, in
executing such documents or applications required in order for Customer to
obtain such licenses, permits or other governmental approval needed for
Customer's permitted use of the Site.
Notwithstanding the foregoing, Specialty shall obtain, at Specialty's
expense, any municipal permits necessary for the initial installation of the
Leased Site. Customer will maintain its equipment at the Site in a reasonable
condition and in a manner that will not interfere with other uses of the Site.
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 4
<PAGE> 5
3. Term.
3.1 Term of Agreement. The initial term of this Agreement shall be five
(5) years commencing on the Effective Date. The term of this Agreement will be
automatically renewed for three (3) additional terms of five (5) years each
unless Customer provides Specialty with notice of intention not to renew at last
six (6) months prior to the expiration of the then current term.
3.2 Term of Leased Site Schedule. Each Site leased by Specialty to
Customer pursuant to a Leased Site Schedule shall be leased for an initial term
of five (5) years with the commencement date ("Commencement Date") of the term
of each particular Leased Site Schedule being as of the first (1st) day of the
earlier of (i) the month following the completion of installation of Customer's
antennas and coaxial at the Site or (ii) if the Leased Site is a newly
constructed site constructed for Customer and the Leased Site is completed
within the time frame for completion set forth in the applicable Leased Site
Schedule, the second month following completion f the Leased Site. The term of
each particular Leased Site Schedule shall automatically be extended for up to
three (3) additional five (5) year terms unless Customer terminates it at the
end of the then current term by giving Specialty written notice of the intent to
terminate at least six (6) months prior to the end of the then current term;
provided, however, that the term of all Leased Site Schedules shall immediately
terminate upon the termination or expiration of this Agreement. If Specialty's
rights in any Site are derived from a prime lease or other agreement with a
third party (a "Prime Lease"), a copy of such Prime Lease will be attached as
Exhibit 4 to the applicable Leased Site Schedule. Notwithstanding the foregoing,
if Specialty's rights in any Site are derived from a Prime Lease and such Prime
Lease has a shorter term or extension terms than those provided for under this
paragraph, then Customer's right to extend the Leased Site Schedule applicable
to such Site shall only be for as long as Specialty retains its interest in the
same applicable property pursuant to such Prime Lease.
4. Rent
4.1 Rental Payments. The annual rental shall be paid in equal
installments beginning on the Commencement Date and continuing on the first day
of each and every month thereafter. Payments shall be made to Speciality, or
such other person, firm or place as Specialty may, from time to time, designate
in writing at least thirty (30) days in advance of any rental payment date. The
amount of the annual rental shall be that amount designated on the applicable
Leased Site Schedule which amount shall be adjusted on each Adjustment Date
according to the formula set forth in Section 4.2. The rental amounts designated
on each Leased Site Schedule shall be calculated according to the schedule set
forth in Exhibit "C."
4.2 Rental Payment Adjustment. The annual rental payment identified in
this Agreement shall be adjusted (collectively "Adjusted Fee") on the first
anniversary of the Effective Date and every annual anniversary thereafter
("Adjustment Date") by the following formula:
Adjusted Fee = Base Fee + ((IR-IL)YIL) + Base Fee
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 5
<PAGE> 6
"Base Fee" shall mean the applicable annual rental or other fees
identified in this Agreement which, for the purposes of the formula identified
above, shall remain the same as set forth in this Agreement as of the Effective
date.
IR is the Consumer Price Index for the month which is three (3) months
immediately preceding the month in which the Adjustment Date occurs.
IL is the Consumer Price Index for the month which is three (3) months
immediately preceding the month of the Effective Date.
"Consumer Price Index" shall mean the Consumer Price Index published by
the Bureau of Labor Statistics of the United States Department of Labor for
Urban Wage Earners and Clerical Workers for All Items (CPI-W) - U.S. City
average or shall mean the successor thereto. In the event the Consumer Price
Index is converted to a different standard reference base or otherwise revised,
the determination of Adjusted Fee for the Adjustment Date shall be made with the
use of such conversion factor, formula or table for converting the Consumer
Price Index as may be published by the Bureau of Labor Statistics, or if the
Bureau should fail to publish the same, then with the use of such conversion
factor, formula or table for converting the Consumer Price Index as may be
published by Prentice Hall, Inc., or any other nationally recognized publisher
or similar statistical information. If the Consumer Price Index ceases to be
published and there is no successor thereto, such other index as Customer and
Specialty may agree upon shall be substituted for the Consumer Price Index, and
if they are unable to agree, then such matter shall be submitted to arbitration
in accordance with the terms of Section 18.
4.3 Additional Rent. Customer shall pay as additional rent any taxes or
other assessments, including but limited to real estate or personal property
taxes, that are (i) levied against the Leased Sites or the improvements thereon
and (ii) attributable to the improvements, or portions thereof, that are
constructed or installed by or on behalf of Customer. Specialty will provide
reasonable documentation of real estate or personal property taxes attributable
to the improvements, or portions thereof, that are constructed or installed by
or on behalf of Customer.
4.4 Interest. Any fee or other payment not paid within ten (10)
business days of when due shall bear interest until paid at the lesser of:
4.4.1 The rate of ten percent (10%) per annum; or
4.4.2 The maximum rate allowed under applicable law.
5. Relationship of the Parties. Nothing contained in this Agreement shall be
deemed to create any partnership or joint venture relationship between the
parties.
6. Access
Customer shall have free access during the term of a Leased Site
Schedule to the applicable Site twenty-four (24) hours per day, seven (7) days
per week. Customer acknowledges that with
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 6
<PAGE> 7
respect to Sites where Specialty's rights are derived from a Prime Lease,
notwithstanding this Section 6, Customer's access rights to the Site are subject
to any restrictions on access to the Site as are set forth in such Prime Lease.
In the event Customer or its agents or contractors perform any work at a Site,
Specialty will be guaranteed by Customer that Specialty will not experience any
down time in operation or any other operations at the communications facility
and Customer will indemnify and reimburse Specialty for any and all claims of
liability or losses by any third party resulting from any such down time in
operation and any actual damages or losses sustained by Specialty resulting from
any such down time in operation directly attributable to Customer's or its
agent's or contractor's work at a Site. Specialty shall furnish Customer with
necessary devices for the purpose of ingress and egress to the said Site and
communications facility. It is agreed, however, that only authorized engineers,
employees or properly authorized contractors of Customer or persons under their
direct supervision will be permitted to enter said Site. Customer will retain
ownership of all buildings, equipment and appurtenances Customer installs at any
Site; provided; however, that the removal of said equipment will not adversely
affect the integrity of any structure.
7. Improvements and Construction of Leased Sites
7.1 Approved Communications Facility. Customer has the right, at
Customer's sole cost and expense, to erect, maintain, replace and operate at the
Site, only that communications facility specified on the Leased Site Schedule.
It is understood that Customer shall have the right at each and every Site,
subject to compliance with the terms of this Agreement and particularly those
set forth in this Section, to replace the equipment described in a Leased Site
schedule with similar and comparable equipment so long as: (a) there is no
greater wind loading, structural loading, size, weight or height; and (b) the
equipment operates at the frequency or range of frequencies designated in the
applicable Leased Site Schedule, or at the frequency or range of frequencies
identified in Customer's current licenses or successor licenses thereto, for the
transmission of wireless communications signals of that given Site. It is
understood that any such replacement equipment must be frequency compatible with
then existing uses of the Site and that any change in frequency shall not
adversely impact the business of Specialty, as determined within Specialty's
sole discretion. Prior to commencing any Installation or material alteration of
a communications facility and prior to accessing the communications tower
structure for any reason whatsoever, Customer must obtain Specialty's approval
of:
7.1.1 Customer's plans for Installation or alteration work;
and
7.1.2 The identity of the contractor performing the
installation or material alteration or in any way
accessing the tower structure itself.
Specialty's approval must not be unreasonably withheld or delayed. All of
Customer's installation and alteration work must be performed:
7.1.3 At Customer's sole cost and expense;
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 7
<PAGE> 8
7.1.4 In a good and workmanlike manner, using the care and
skill ordinarily used by members of the profession
practicing under similar conditions at the same time
and in the same geographic area;
7.1.5 In accordance with applicable building codes; and
7.1.6 Must not adversely affect the structural integrity or
maintenance of the Leased Site or any structure on or
use of the Leased Site.
Said erection, maintenance, replacement and operation will in no way
damage or interface with any existing tenant's use of or existing operations at
the communications facility. If damage or interference is caused by Customer and
Customer fails to make such repairs immediately after notice by Specialty,
Specialty may make the repairs and the reasonable costs thereof shall be payable
to Specialty by Customer on demand. If Customer does not make payment to
Specialty within thirty (30) days after such demand, Specialty shall have the
right to immediately terminate the applicable Leased Site Schedule. No materials
may be used in the installation of the antennas or transmission lines that will
cause corrosion or rust or deterioration of the tower structure or its
appurtenances.
After completion of the initial construction by Specialty and
acceptance of a Leased Site by Customer, any structural alterations to a
structure on the Leased Site must be designed, at Customer's sole cost and
expense, by a structural engineer licensed in the jurisdiction where the Site is
located. Notwithstanding the foregoing, for any structural alterations on a
tower, such structural engineer must either be approved by the lower
manufacturer or by Specialty. For structural alterations requiring a municipal
permit, the structural engineer must be satisfactory to the local municipality.
Following the initial installation of Customer's equipment at a Site,
any Installation, material alteration or removal of such equipment by Customer
and any activities whatsoever requiring access to the tower structure at the
Site, must be performed by Specialty or by a contractor reasonably acceptable to
Specialty (which acceptance may specifically include a requirement that all such
contractors provide to Specialty, at least three (3) business days prior to
performing any such installation, material alteration or removal, certificates
of insurance consistent with the provisions of this Agreement). Specialty's
consent thereto shall not be unreasonably withheld or delayed. In the event that
Specialty does not perform such installation, material alteration or removal,
Customer must engage Specialty's project manager to monitor, inspect and approve
all activities performed by or on behalf of Customer at the initial rate of
$70.00 per hour not to exceed a total of $2,000.00 per Site for any given
installation, material alteration or removal project. The hourly rate and the
maximum charge for the project manager shall be adjusted on each Adjustment Date
pursuant to the formula set forth in Section 4.2. Notwithstanding anything to
the contrary contained in this Agreement, Specialty, with respect to any work to
be performed at a Site, shall have the right of first refusal to meet any bona
fide bid selected by Customer for the performance of such work upon the same
terms and conditions as set forth in the bid. Specialty shall have seven (7)
business days after the receipt of such bid to notify Customer whether Specialty
intends to meet such bid and perform the work in accordance with the bid. In the
event Specialty does not notify Customer within such time, Customer may proceed
to contract with said bidder subject to Specialty's approval as set forth above.
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 8
<PAGE> 9
7.2 Liens. Customer must keep the Site free from any liens arising from
any work performed, materials furnished or obligations incurred by or at the
request of Customer. If any lien is filed against the Site as a result of the
acts or omissions of Customer's employees, agent or contractors, Customer must
discharge the lien or bond the lien off in a manner reasonably satisfactory to
Specialty within thirty (30) days after Customer receives written notice from
any party that the lien has been filed. If Customer fails to discharge or bond
any lien within such period, then, in addition to any other right or remedy of
Specialty, Specialty may, at Specialty's election, discharge the lien by either
paying the amount claimed to be due or obtaining the discharge by deposit with a
court or a title company or by bonding. Customer must pay on demand any amount
paid by Specialty for the discharge or satisfaction of any lien, and all
reasonable attorneys' fees and other legal expenses of Specialty incurred in
defending any such action or in obtaining the discharge of such lien, together
with all necessary disbursements in connection therewith.
7.3 Waiver of Specialty's Lien
7.3.1 Specialty waives any lien rights it may have
concerning Customer improvements which are deemed
Customer's personal property and not fixtures and
Customer has the right to remove the same at any time
without Specialty's consent.
7.3.2 Specialty acknowledges that Customer has or may enter
into a financing arrangement including promissory
notes, security agreements and other similar
documents (collectively, "Financing Agreement") for
the financing of the Customer improvements at the
Sites (the "Collateral") with a third party or
parties (the "Financing Entity"). In connection
therewith, Specialty (i) consents to the installation
of the Collateral; (ii) disclaims any interest in the
Collateral, as fixtures or otherwise; and (iii)
agrees that the Collateral shall be exempt from
execution, foreclosure, sale, levy, attachment, or
distress for any Rent due or to become due and that
such Collateral may be removed at any time without
recourse to legal proceedings. Customer agrees to
notify Specialty in writing that Customer has entered
into the Financing Agreement and of the identity of
the Financing Entity. Any removal of property made
pursuant to this Section 7.3 shall be made consistent
with the provisions of this Agreement.
7.4 Possession. Taking possession of the Site by Customer is conclusive
evidence that Customer:
7.4.1 Accepts the Site as suitable for the purposes for
which they are leased;
7.4.2 Accepts the Site and any structure on the Site and
every part and appurtenance thereof AS IS, with all
faults; and
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 9
<PAGE> 10
7.4.3 Waives any claims against Specialty in respect of
defects in the Site or the Leased Sites and its
appurtenances, their habitability or suitability for
any permitted purposes, except:
7.4.3.1 If otherwise expressly provided
hereunder;
7.4.3.2 If resulting from the negligence or
willful misconduct of Specialty,
Specialty's employees, agents or
contractors;
7.4.3.3 If resulting from any known claim by a
third party not identified by Specialty
in Specialty's representations under
this Agreement; or
7.4.3.4 If Specialty had actual knowledge of
such defects and did not disclose such
defects to Customer.
For the purposes of this provision, Customer is deemed to have taken
possession on the Commencement Date of the respective Leased Site Schedule.
8. Interference
Specialty and Customer understand that Customer and other current or
future users of Leased Sites will utilize the Leased Sites for the transmission
of wireless communication signals. Customer agrees to have installed at each
Leased Site transmitting and receiving equipment of a type and frequency that
will not cause measurable interference as defined by the FCC ("measurable
interference") to other users of such Leased Site. In addition, Customer agrees
that it will not change the manner in which it uses its equipment after the date
such equipment is installed at a Leased Site to a manner that causes measurable
interference to other current users of such Leased Site. Specialty agrees that
it will prohibit any future tenants of a Leased Site who take possession after
the date of execution by Customer of a Leased Site Schedule with respect to such
Leased Site from installing transmitting and receiving equipment of a type and
frequency that will cause measurable interference to Customer. In addition,
Specialty agrees that it will prohibit any tenant that took possession of space
on the Leased Site prior to execution by Customer of a Lease Site Schedule with
respect to such Leased Site from changing the manner in uses its equipment at
the Leased Site after Customer's execution of such Leased Site Schedule to a
manner that causes measurable interference to Customer. In the event that
Customer's equipment causes measurable interference to other users of a Leased
Site, Customer will take all steps necessary to correct and eliminate such
interference to other users of a Leased Site, Customer will take all steps
necessary to correct and eliminate such interference within forty-eight (48)
hours of Customer's receipt of notice of such interference from Specialty;
provided, however, that if (i) upon receipt of such notice, Customer
continuously and diligently endeavors to correct and eliminate such
interference, and (ii) notwithstanding Customer's efforts to correct and
eliminate such interference, such interference cannot be corrected and
eliminated within said forty-eight (48) hour period, then Customer shall notify
Specialty of this fact, whereupon the period during which Customer shall have
the right to cure such interference pursuant to this Section 8 shall be extended
automatically for an additional period not to exceed thirty (30) days following
the
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 10
<PAGE> 11
expiration of such initial forty-eight (48) hour period as long as Customer
continuously and diligently endeavors to correct and eliminate said
interference, unless prior to the expiration of such additional thirty (30) day
period, Specialty notifies Customer that such interference materially and
adversely affects another user's use of the Leased Site, in which case
Customer's right to extend the period during which it has the right to cure such
interference pursuant to this Section 8 shall terminate forty-eight (48) hours
after Customer's receipt of such notice, unless, prior to such time, Customer
ceases operation from the Leased Site until said interference is eliminated. In
the event that any equipment of any future tenant to the extent that the
tenant's equipment is malfunctioning or is difference or being operated
differently from when Customer installed its equipment, or the communications
facility causes measurable interference, Specialty will require that said tenant
takes all steps necessary to correct and eliminate the interference within
seventy-two (72) hours of Specialty's receipt of notice from Customer; provided,
however, that if (i) upon receipt of such notice, Specialty and/or the other
user whose equipment is causing such interference (the "other user")
continuously and diligently endeavors to correct and eliminate such
interference, and (ii) notwithstanding Specialty's and/or such other user's
efforts to correct and eliminate such interference, such interference cannot be
correct and eliminated within said forty-eight (48) hour period, then Specialty
shall promptly notify Customer of this fact, whereupon the period during which
Specialty shall have the right to cure such interference pursuant to this
Section 8 shall be extended automatically for an additional period not to exceed
thirty (30) days following the expiration of such initial forty-eight (48) hour
period as long as Specialty and/or the other user continuously and diligently
endeavors to correct and eliminate such interference, unless prior to the
expiration of such additional thirty (30) day period, Customer notifies
Specialty that such interference materially and adversely affects Customer's use
of the Leased Site, in which case Specialty's right to extend the period during
which it has the right to cure such interference pursuant to this Section 8
shall terminate forty-eight (48) hours after Specialty's receipt of such notice,
unless, prior to such time, the other user ceases operation from the Leased Site
until said interference is eliminated.
9. Indemnification
Customer shall indemnify and hold Specialty and all subsidiary
companies and affiliates harmless against any claim of liability or loss from
bodily injury and/or property damage resulting from or arising out of Customer's
and/or any of its subcontractors', servants', agents' or invitees' use or
occupancy of the Site, including but not limited to any claim of liability or
loss associated with any Environmental Hazards as defined in this Agreement,
excepting, however, such claims or damages as may be caused by the negligence or
willful misconduct of Specialty, or its subcontractors, servants, agents or
invitees. If Specialty is made a party to any litigation commenced by or against
Customer for any of the above reasons, then Customer shall protect and hold
Specialty harmless and pay all costs, penalties, charges, damages, expenses and
reasonable attorneys' fees incurred or paid by Specialty in connection
therewith.
Specialty shall indemnify and hold Customer and all subsidiary
companies and affiliates harmless against any claim of liability or loss from
bodily injury and/or property damage resulting from or arising out of
Specialty's and/or any of its subcontractors', servants', agents' or invitees'
use of occupancy of the Site, including but not limited to any claim of
liability or loss associated with any Environmental Hazards as defined in this
Agreement, excepting, however, such claims or damages
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 11
<PAGE> 12
as may be due to or caused by the negligence or willful misconduct of Customer,
or its subcontractors, servants, agent or invitees. If Customer is made a party
to any litigation commenced by or against Specialty for any of the above
reasons, then Specialty shall protect and hold Customer harmless and pay all
costs, penalties, charges, damages, expenses and reasonable attorneys' fees
incurred or paid by Customer in connection therewith.
10. Insurance
Customer shall maintain at its expense throughout the term of this
Agreement, general liability insurance with a combined single limit of Five
Million ($5,000,000.00) Dollars for bodily injury and property damage. Coverage
shall include Independent Contractors Liability. At execution of this Agreement,
Customer shall provide a Certificate of Insurance to Specialty, evidencing
Specialty as an additional insured and which shall contain a provision for
thirty (30) day notice of cancellation or material change to Specialty. Customer
shall also maintain Auto Liability insurance in an amount no less than One
Million ($1,000,000.00) Dollars combined single limit for bodily injury and/or
property damage. Customer must also maintain statutory Workers' Compensation
Insurance and Employee's Liability for the statutory limit but in no event less
than One Million ($1,000,000.00) Dollars.
All insurers will be rated A or better and must be licensed to do
business in the jurisdiction where the respective Sites are located. The
provision of insurance required in this Agreement shall not be construed to
limit or otherwise affect the liability of Customer.
Customer will not do or permit to be done in or about the Leased Sites
nor bring or keep or permit to be brought to the Leased Sites anything that: (a)
is prohibited by any insurance policy carried by Specialty covering the Site,
any improvements thereon, or the Leased Sites; or (b) will increase the existing
premiums for any such policy beyond that contemplated for the additional of
Customer's communications facility. Specialty acknowledges and agrees that the
installation of Customer's communications facility upon the Leased Sites in
accordance with the terms and conditions of this Agreement will be considered
within the underwriting requirements of any of Specialty's insurers and such
premiums contemplate the addition of the communications facility.
The parties hereby waive any and all rights of action for negligence
against the other which may hereafter since on account of damages to the
premises or Site resulting from any fire, or other casualty of the kind covered
by standard fire insurance policies, regardless of whether or not, or in what
amounts, such insurance is now or hereafter carried by the parties, or either of
them. Customer and Specialty shall each obtain a Waiver of Subrogation from
their respective insurance companies in which said insurance companies also
waive their respect rights to recover.
11. Surrender of Leased Site
Customer, upon termination of the Agreement or the applicable Leased
Site Schedule, shall have removed its equipment, personal property and all
fixtures and have restored the Leased Site to its original condition, reasonable
wear and tear excepted. If such time for removal causes Customer to remain on
the Site after termination of this Agreement or the applicable Leased Site
Schedule, Customer shall pay rent at one and one-half times the then existing
annual rate until such time as the
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 12
<PAGE> 13
removal of the equipment, personal property and all fixtures are completed.
Nothing in this provision shall be construed as providing Customer the right to
hold over and Specialty, immediately upon the termination or expiration of the
Agreement or the applicable Leased Site Schedule, shall have the right to evict
Customer from the Leased Sites.
12. Representation, Warranties and Covenants
12.1 Specialty. Specialty warrants, with respect to each particular
Leased Site Schedule that:
12.1.1 Specialty, or the entity for which Specialty
possesses the management rights, owns good,
marketable fee simple title or has a good and
marketable leasehold interest or has the right as a
manager or has a valid license or easement in the
land on which the Site is located and has the right
of access thereto;
12.1.2 Specialty will not permit or suffer the installation
and existence of any other improvement upon the
structure land of which the Site is a portion if such
improvement materially interferes with transmission
or reception by Customer's wireless transmission
facilities at the Site;
12.1.3 None of the Leased Sites, to the best knowledge of
Specialty, is contaminated by any Environmental
Hazards as defined below;
12.1.4 Electrical service is available to Customer at each
and every Site with the understanding that Customer
will pay for all utility services needed to operate
its communications facility; and
12.1.5 Specialty will keep, at Specialty's expense, the
communications tower structure in good repair as
required by law and applicable state and local codes
and regulations and shall also comply with all rules
and regulations enforced by the FCC and FAA with
regard to the lighting, marking and painting of
towers.
12.2 Customer. Customer warrants, with respect to each particular
Leased Site Schedule that:
12.2.1 Customer will maintain its equipment, antennas,
transmission lines and other appurtenances in proper
operating condition and maintain same as to
appearance and safety;
12.2.2 All installations and operations by Customer in
connection with this Agreement shall meet with all
applicable rules, codes and regulations of
governmental authorities, including, without
limitation, the FCC and the municipality, county and
state in which such installations and operations
exist.
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 13
<PAGE> 14
Specialty specifically assumes no responsibility for
the licensing, operation and/or maintenance of
Customer's radio equipment; and
12.2.3 Customer is responsible for bringing telephone
service to the Leased Site or for otherwise obtaining
access from the Leased Site to telephone service and
Customer will pay for all utility services needed to
operate its communications facility.
12.3 Mutual. Each party represents and warrants to the other party:
12.3.1 It has full right, power and authority to make this
Agreement and to enter into the Leased Sites
Schedules;
12.3.2 The making of this Agreement and the performance
thereof will not violate any laws, ordinances,
restrictive covenants, or other agreements under
which such party is bound;
12.3.3 That such party is qualified to do business in any
states in which the Sites are located; and
12.3.4 All persons signing on behalf of such party were
authorized to do so by appropriate corporate or
partnership action.
12.4 No Brokers. Specialty and Customer represent to each other that
neither has had any dealings with any real estate brokers or agents in
connection with this Agreement.
13. Casualty or Condemnation
13.1 Casualty. If there is a casualty to any structure upon which a
Customer communications facility is located, Specialty must within ninety (90)
days repair or restore the structure. During said period of repair or
restoration, all rent and other fees identified in this Agreement applicable to
that Site shall be abated. Upon completion of such repair or restoration,
Customer is entitled to reinstall Customer's communications facility. In the
event such repairs or restoration will reasonably require more than ninety (90)
days to complete, Customer is entitled to terminate the applicable Leased Site
Schedule upon thirty (30) days prior written notice. During any period during
which Customer's equipment cannot function at a Site due to a casualty to any
structure upon which a Customer communications facility is located, subject to
the terms of this Agreement regarding interference and relations with other
tenants, Customer shall be afforded the right to locate portable communications
equipment at the Site.
13.2 Condemnation. If there is a condemnation of the Site, including
without limitation a transfer of the Site by consensual deed in lieu of
condemnation, then the Leased Site Schedule for the condemned Site will
terminate upon transfer of title to the condemning authority, without further
liability to either party under this Agreement. Customer is entitled to pursue a
separate condemnation award for Customer's communications facility from the
condemning authority. Specialty will notify
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 14
<PAGE> 15
Customer within ten (10) business days following Specialty's receipt of notice
of condemnation with respect to a Site.
14. Default
14.1 Customer's Default. The occurrence of any one or more of the
following events constitutes an "event of default" by Customer under this
Agreement:
14.1.1 If Customer falls with respect to a total of five (5)
or more Sites to pay any fee or other sums payable by
Customer within twenty (20) business days of
Customer's receipt of written request for payment;
14.1.2 Breach of any representation, warranty or covenant
set forth in this Agreement including any Leased Site
Schedule, with the exception of the non- payment of
any fee or other sums by Customer, which is not cured
within thirty (30) days of receipt of written notice,
except such thirty (30) day cure period will be
extended as reasonably necessary to permit Customer
to complete the cure so long as Customer commences
the cure within such thirty (30) day period and
thereafter continuously and diligently pursues and
completes such cure;
14.1.3 If any petition is filed by or against Customer,
under any section or chapter of the present or any
future federal Bankruptcy Code or under any similar
law or statute of the United States or any state
thereof (and with respect to any petition filed
against Customer, such petition is not dismissed
within ninety (90) days after the filing thereof), or
Customer is adjudged bankruptcy or insolvent in
proceedings filed under any section or chapter of the
present or any future Bankruptcy Code or under any
similar law or statute of the United States or any
state thereof;
14.1.4 If a receiver, customer or trustee is appointed for
Customer or for any of the assets of Customer and
such appointment is not vacated within sixty (60)
days of the date of appointment;
14.1.5 If Customer becomes insolvent or makes a transfer in
fraud of creditors; or
14.1.6 If Customer's equipment is found to be interfering as
described to this Agreement and said interference is
not timely corrected as provided herein.
14.2 Specialty's Remedies. If an event of default occurs, Specialty
(without notice or demand except as expressly required above) may terminate this
Agreement including applicable Leased Site Schedules, in which event Customer
will immediately surrender the Sites to Specialty. Customer will become liable
for damages equal to the total of;
14.2.1 The actual costs of recovering the Sites;
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 15
<PAGE> 16
14.2.2 The rent earned as of the date of termination, plus
interest thereon from the date due until paid;
14.2.3 The amount by which any rents, fees and other
benefits that Specialty would have received under the
applicable Leased Site Schedules for the remainder of
the term under the applicable Leased Site Schedule
after the time of award subject to Specialty's duty
to mitigate damages as set forth below;
14.2.4 All other sums of money and damages owing by Customer
to Specialty.
Specialty may elect any one or more of the foregoing remedies with
respect to this Agreement or to any particular Leased Sites Schedules.
14.3 Specialty's Default. If Specialty is in breach of an
representation, warranty or covenant set forth in this Agreement and such breach
is not cured within thirty (30) days of receipt of written notice thereof,
except such thirty (30) day cure period will be extended as reasonable necessary
to permit Specialty to complete the cure so long as Specialty commences the cure
within such thirty (30) day period and thereafter continuously and diligently
pursues and completes such cure. Customer may, in addition to any other remedy
available at law or in equity, at Customer's option upon written notice:
14.3.1 Terminate the applicable Leased Site Schedule; or
14.3.2 Incur any expense reasonably necessary to perform the
obligation of Specialty specified in such notice and
invoice Specialty for the actual expenses, together
with interest as set forth herein from the date
named. Any invoice shall be accompanied by
documentation reasonably detailing actual expense. If
Specialty fails to reimburse the costs within thirty
(30) days of receipt of written notice, then Customer
is entitled to offer and deduct such expenses from
the fees or other charges next becoming due under any
Leased Site Schedule.
Customer may elect any one or more of the foregoing remedies with
respect to any particular Leased Site Schedule.
14.4 Duty to Mitigate Damages. Specialty and Customer shall endeavor in
good faith to mitigate damages arising under this Agreement.
15. Environmental Matters
Specialty represents and warrants that to the best of Specialty's
knowledge there are no Environmental Hazards on any Site. Nothing in this
Agreement or in any Leased Site Schedule will be construed or interpreted to
require that Customer remediate any Environmental Hazards located
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 16
<PAGE> 17
at any Site unless Customer or Customer's officers, employee, agents or
contractors placed the Environmental Hazards on the Site.
Customer will not bring to, transport across or dispose of any
Environmental Hazards on any particular Leased Sites or Site without Specialty's
prior written approval, which approval shall not unduly be withheld or delayed.
Customer's use of any approved substances constituting Environmental Hazards
must comply with all applicable laws, ordinances and regulations governing such
use.
The term "Environmental Hazards" means hazardous substances, hazardous
wastes, pollutants, asbestos, polychlorinated biphenyl (PCB), petroleum or other
fuels (including crude oil or any fraction or derivative thereof) and
underground storage tanks. The term "hazardous substances" shall be defined in
the Comprehensive Environmental Response, Compensation, and Liability Act, and
any regulations promulgated pursuant thereto. The term "pollutants" shall be as
defined in the Clean Water Act, and any regulations promulgated pursuant
thereto. This Section shall survive termination of the Agreement and any
particular Leased Site Schedule.
16. Covenant of Quite Enjoyment
Specialty covenants that Customer, on paying the rent and performing
all the terms, covenants and conditions of this Agreement, shall peaceably and
quietly have, hold and enjoy the Leased Sites.
17. Entire Agreement
It is agreed and understood that this Agreement, including all Leased
Site Schedules, contain all the agreements, promises and understandings between
Specialty and Customer and that no verbal or oral agreements, promises or
understandings shall be binding upon either Specialty or Customer in any
dispute, controversy or proceeding at law, and any addition, variation or
modification to this Agreement shall be void and ineffective unless made in
writing signed by the parties.
18. Governing Laws Arbitration
The laws of the State of Texas, disregarding conflict of law
principles, shall govern this Agreement. Any dispute or controversy arising
under, out of, in connection with or in relation to this Agreement shall, at the
election and upon written demand of either party, be finally determined and
settled by arbitration in the city of Dallas, Texas in accordance with the rules
and procedures of the American Arbitration Associations, and judgment upon the
award may be entered in any court having jurisdiction hereof.
19. Assignment
This Agreement may not be sold, subleased, assigned or transferred by
Customer without prior approval or consent of Specialty; provided, however, that
Customer may assign its interest to its parent company, any subsidiary or
affiliate or to any successor-in-interest or entity acquiring 51% or more of its
stock or assets, so long as any such purchaser, sublessee, assignee or
transferee has a
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 17
<PAGE> 18
net worth of $25,000,000.00 as defined by generally accepted accounting
principles. It is understood that any such assignment shall not relieve Customer
of any liability for performance of this Agreement. Customer acknowledges that
Customer is the current holder of all requisite FCC licenses necessary for it to
lawfully provide the wireless services that it intends to offer utilizing the
Leased Sites identified in Exhibit "A." As to other entities, this Agreement may
not be sold, subleased, assigned or transferred, in whole or in part, without
the written consent of Specialty, for any purpose, which consent may be withheld
in Specialty's absolute discretion.
Specialty consents to the assignment by Customer of this Agreement to
the Financing Entity described in Paragraph 7.3 above as security for the
payment of all indebtedness and performance of obligations under the Financing
Agreement; provided that, such assignment shall not constitute assumption by the
Financing Entity of any obligations under this Agreement unless and until the
Financing Entity elects to assume Customer's rights and obligations herein in
the event Customer defaults under the Financing Agreement or any agreement with
the Financing Entity related thereto. In such event, the Financing Entity may,
but shall have no obligation to take in its name or in the name of Customer or
otherwise, such actions as the Financing Entity may, at any time or from time to
time deem necessary to utilize the Leased Site. Customer hereby irrevocably
authorizes Specialty to accept such performance by the Financing Entity. Any
such assignment does not relieve Customer of any liabilities or obligations for
performance identified in this Agreement.
20. Severability
If any provision of this Agreement or any Leased Site Schedule is
invalid or unenforceable with respect to any party, the remainder of this
Agreement, or the application of such provision to persons other than those as
to whom it is held invalid or unenforceable, is not to be affected and each
provision of this Agreement is valid and enforceable to the fullest extent
permitted by law.
21. No Waiver
No provision of this Agreement will be deemed to have been waived by
either party unless the waiver is in writing and signed by the party against
whom enforcement is attempted. The rights granted in this Agreement are
cumulative of every other right or remedy that the enforcing party may otherwise
have at law or in equity or by statute and the exercise of one or more rights or
remedies will not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
22. Representation
Each of the parties acknowledges and agrees that it has been
represented by counsel and that it has participated in the drafting of this
Agreement. Accordingly, it is the intention and agreement of the parties that
the language, terms and conditions of this Agreement are not to be construed in
any way against or in favor of any party hereto by reason of the
responsibilities in connection with the preparation of this Agreement.
MASTER SITE DEVELOPMENT AND LEASE AGREEMENT - PAGE 18
<PAGE> 19
23. Notices
Any notice or demand required to be given in this Agreement shall be
made by certified mail, return receipt requested, or reliable overnight courier,
to the address of the other party set forth below:
As to Customer: ALAMOSA PCS, LLC
P.O. Box 65700
Lubbock, Texas 79424
Attention: David Sharbutt
WITH A COPY TO:
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