CONFIDENTIAL TREATMENT REQUESTED
Confidential Portions of This Agreement Which Have Been Redacted Are Marked
With Brackets ("[***]"). The Omitted Material Has Been Filed Separately With The
Securities and Exchange Commission.
MASTER DESIGN BUILD AGREEMENT
THIS MASTER DESIGN BUILD AGREEMENT ("Agreement") dated as of the 1st
day of October, 1999 ("Effective Date"), is made by and between Bright Personal
Communications Services, LLC ("Bright PCS") and SBA Towers, Inc., a Florida
corporation ("BTS Company").
WHEREAS, Bright PCS is in the business of providing wireless
telecommunications services; and
WHEREAS, BTS Company is in the business of erecting, owning and leasing
tower facilities for equipment used in providing such services; and
WHEREAS, Bright PCS desires to use BTS Company's services to identify,
evaluate, and acquire sites for such tower facilities; and
WHEREAS, BTS Company desires to construct a network of such tower
facilities within Bright PCS's service areas in a manner that will coordinate
with Bright PCS's needs for tower facilities; and
WHEREAS, the parties desire that in most cases a site identified by the
procedures set forth herein will result in a tower facility constructed by BTS
Company and leased to Bright PCS for the installation and operation of its
equipment; and
WHEREAS, this Agreement sets forth the manner in which Bright PCS will
identify the general location of potential sites, BTS Company will evaluate and
make recommendations as to specific sites and Bright PCS will lease space on any
such site for the installation and operation of its equipment pursuant to this
Agreement.
NOW, THEREFORE, for and in consideration of the mutual promises set forth
herein, the parties hereto agree as follows:
1. RELATIONSHIP OF PARTIES
1.1 INDEPENDENT CONTRACTOR RELATIONSHIP. The parties intend by this
Agreement to establish an independent contractor relationship. Neither party nor
their employees shall be agents or legal representatives of the other party for
any purpose. Neither party shall have the authority to act for, bind, or commit
the other party. BTS Company and Bright PCS agree that this Agreement does not
establish or create a relationship of employer-employee, principal-agent, or a
franchise, joint venture, or partnership for any purpose whatsoever.
1.2 CONTRACTS WITH AFFILIATES. BTS Company may contract with any Affiliate
(as hereinafter defined) of BTS Company to provide goods or services beyond
those which its employees would perform, if it deems the same to be necessary or
advisable for development and/or construction of the Sites (as hereinafter
defined).
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1.3 LANDLORD AND TENANT RELATIONSHIP. BTS Company and Bright PCS shall
execute contemporaneously with the execution of this Agreement, a Master Site
Agreement ("MSA") which governs the relationship of BTS Company, as landlord,
and Bright PCS, as tenant, on those BTS Sites which are accepted by Bright PCS
pursuant to Section 2.7(b) of this Agreement. A copy of the MSA is attached
hereto as Exhibit "A."
1.4 EXCLUSIVITY. During the term of this Agreement, BTS Company shall be
the exclusive build-to-suit, site acquisition, line and antenna installation,
and construction company for wireless telecommunications tower sites for Bright
PCS and its Affiliates in Region 1 (as defined in the MSA). For purposes of this
Agreement, "Affiliates" with respect to either party, shall mean companies which
are controlled by that party. For purposes of this Agreement, the word "control"
shall mean the ownership, directly or indirectly, or the power to direct or
cause the direction of the management and policies of an entity, or the power to
veto major policy decisions of any such entity, whether through the ownership of
voting securities, by contract or otherwise. During the term of this Agreement,
Bright PCS shall not engage any third party or Affiliate directly or indirectly
to perform build-to-suit, site acquisition, construction, or equipment
installation services described in this Agreement and will not enter into any
discussions with any third party or Affiliate concerning, or furnish any
information relating to such services to any third party or Affiliate, for the
purpose of considering, soliciting or inducing any offer by such third party.
Notwithstanding the foregoing, in the event that Bright PCS and BTS Company do
not agree upon the payment amount for a CMS Site (as hereinafter defined),
Bright PCS shall be entitled to utilize a different contractor or subcontractor
or its own personnel for construction services. In the event that Bright PCS
elects to utilize a different contractor or subcontractor as provided herein,
Bright PCS shall first offer BTS Company the right to perform such services on
the same terms and conditions as offered by the contractor or subcontractor.
II. SITE ACQUISITION SERVICES
2.1 SITE ACQUISITION SERVICES.
(a) Bright PCS shall establish small geographic areas within which a
cell site or transmission tower shall be located, based on the network
grid's RF design (a "Search Ring"). For each Search Ring, Bright PCS shall
provide (i) minimum tower specifications, (ii) desired mounting height,
(iii) a description of the equipment that Bright PCS intends to put on the
tower, and (iv) any other technical data necessary to permit BTS Company to
effectively identify the candidate sites that meet Bright PCS's needs.
Bright PCS will provide to BTS Company its system network grid, with the
established Search Rings overlaid thereon. Bright PCS will, from time to
time, assign Search Rings to BTS Company. BTS Company shall provide the
personnel and facilities which are necessary to locate and lease or license
existing towers, buildings or other structures by Bright PCS to be used for
the construction and installation of Bright PCS's equipment ("Collocation
Sites") or unimproved real property suitable for the construction and
installation of a communications tower ("Tower") and related facilities by
BTS Company ("BTS Site"). As used herein, "Sites" shall refer to both
Collocation Sites and BTS Sites, where appropriate. The Site Acquisition
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[***] - CONFIDENTIAL TREATMENT REQUESTED
Services are more particularly described in and shall be performed by BTS
Company in accordance with the scope of work attached hereto as Schedule
"A" which is incorporated by reference herein ("Site Acquisition
Services"). BTS Company shall be entitled to compensation from Bright PCS
for the Site Acquisition Services as set forth on Schedule "C".
(b) Upon its receipt of a Search Ring designated hereunder by Bright
PCS, BTS Company shall promptly, diligently and professionally perform the
Site Acquisition Services with respect to such Search Ring. BTS Company
shall perform the Site Acquisition Services in accordance with this
Agreement, including, without limitation, the objectives and procedures set
forth in Schedule "A" ("Objectives and Procedures"). Provided that Bright
PCS does not materially increase BTS Company's duties or impair BTS
Company's rights hereunder, Bright PCS shall have the right from time to
time upon written notice to BTS Company to adjust, modify, or supplement
the Objectives and Procedures and the form of documents to be generated or
provided by BTS Company pursuant thereto.
(c) Except as expressly authorized in this Agreement or otherwise
expressly authorized by Bright PCS in writing, BTS Company shall provide
all labor, equipment, material and supplies necessary or appropriate to
perform Site Acquisition Services. In the event that BTS Company elects to
subcontract any Site Acquisition Services, BTS Company shall obtain Bright
PCS's prior written consent to utilize such subcontractors, which consent
shall not be unreasonably conditioned, delayed or withheld.
(d) During the performance of Site Acquisition Services with respect
to any designated Search Ring, BTS Company shall at all times apprise
Bright PCS of any expressed opposition, protest, litigation or other
efforts, whether by an individual, group, neighborhood association or other
organization, to restrict, alter or prohibit the construction, installation
or operation of any structure, structures or other facilities that Bright
PCS or BTS Company proposes to construct or operate on any Site within such
Search Ring.
2.2 WITHDRAWAL OF SITE. In the event Bright PCS elects to withdraw a
Collocation Site at any time or a BTS Site pursuant to the terms of this
Agreement, Bright PCS shall give BTS Company notice of such withdrawal and shall
pay BTS Company [***] of the milestone instrument that would be due if the work
currently in progress was completed, [***] of the reimbursable costs which were
incurred prior to the date on which BTS Company receives notice of the withdrawn
Site, and [***] of all other amounts due hereunder for work completed on the
Site as of the date BTS Company receives Bright PCS's withdrawal notice and
substitute the withdrawn Site with an alternative site within sixty (60) days
("Alternative Site"), if available. In the event that a withdrawn Site is a BTS
Site, Bright PCS shall pay BTS Company for Site Acquisition Services in
connection with such Site as set forth in Schedule "C" attached hereto.
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[***] - CONFIDENTIAL TREATMENT REQUESTED
2.3 SEARCH RINGS DESIGN. Bright PCS shall have the right at any time in its
sole and absolute discretion to expand or reconfigure a previously designated
Search Ring. In the event that Bright PCS redesigns a search ring beyond [***]
miles of an urban or suburban Site or [***] miles of a rural Site for which BTS
Company has begun but not yet completed all Site Acquisition Services, then
Bright PCS shall pay BTS Company [***] for all Site Acquisition Services
completed at the time that the notice of redesign is received by BTS Company,
[***] of the reimbursable costs which were incurred prior to the date on which
BTS Company receives notice of such reconfigured Search Ring, and [***] of the
milestone installment that would be due if the work currently in progress was
completed. In the event that such Site was a BTS Site, Bright PCS shall pay BTS
Company for such Site Acquisition Services as set forth on Schedule "C". For all
Site Acquisition Services rendered for the redesigned Search Ring, in the event
that the Site in the redesigned Search Ring is not a BTS Site, Bright PCS shall
pay BTS Company an additional [***] of the milestone installments due for all
milestone installments to be performed and [***] of all milestone installments
to be performed for the first time and [***] of the reimbursable costs which are
incurred. Bright PCS agrees not to develop any site within any redesigned or
withdrawn Search Rings as a tower site and further agrees not to transfer the
associated Work Product to any third party, including Affiliates.
2.4 TERM OF SITE ACQUISITION SERVICES AGREEMENT. The term of this Agreement
(the "Site Acquisition Term") shall commence on the date of this Agreement and
shall expire on December 31, 2001.
(a) This Agreement may be terminated as to any particular Search Ring
upon written notice by either party following the other party's breach of
an obligation or covenant on such party's part to be performed with respect
to that Search Ring, which breach is not cured within thirty (30) days
after the breaching party's receipt of written notice; provided, however,
that so long as the defaulting party commenced appropriate curative action
within such thirty (30) day period and thereafter diligently prosecutes
such cure to completion as promptly as possible, the cure period will be
extended until the cure is completed. If a party fails to cure a breach
within this thirty (30) day period as it may be extended, the party will be
in default under this Agreement as it applies to the applicable Search
Ring; and
(b) Neither a termination nor the expiration of this Agreement shall
affect:
(i) the term of the MSA or any SLA, as that term is defined
herein, which has been entered into by the parties prior to the date
of termination of this Agreement, which shall continue in accordance
with its terms and conditions;
(ii) the terms of this Agreement that apply to any SLA which has
been entered into by the parties prior to the date of termination of
this Agreement;
(iii) any duties or obligations for payment or performance that
are or become owing hereunder prior to the effective date of such
termination;
(iv) the terms of this Agreement that apply to any Search Ring
which was issued prior to the date of termination of this Agreement;
or
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[***] - CONFIDENTIAL TREATMENT REQUESTED
(v) any other duties or obligations that expressly survive the
termination or expiration hereof.
(c) A default regarding one Search Ring shall not constitute a default
under this Agreement; however, a default under the greater of [***] Search
Rings; or [***] or more of the Search Rings which have been issued pursuant
to this Agreement, shall constitute a default under every Search Ring and a
default under this Agreement. In the event of such a default, Bright PCS
shall be entitled to terminate the services of BTS Company and complete or
engage a third party to complete BTS Company's responsibilities under this
Agreement pursuant to the Plans and Specifications (as hereinafter defined)
provided by BTS Company. In such event, Bright PCS shall convey the Tower
Facilities (as hereinafter defined) and any site development materials
including ground leases and title, environmental and geotechnical reports
to BTS Company upon completion, lien free, and BTS Company shall reimburse
Bright PCS for the reasonable costs of completing its responsibilities and
pay Bright PCS the applicable site development fee set forth in the Site
Development Agreement (as hereinafter defined).
2.5 GROUND LEASES. The acquisition of BTS Sites by BTS Company pursuant to
this Agreement shall be accomplished using a lease agreement in substantially
the same form as the Option and Lease Agreement which is attached hereto as
Exhibit "B" (hereafter the "Ground Lease"). In no event shall BTS Company agree
to material modifications to the provisions set forth in paragraph 35 of the
Ground Lease without Bright PCS's prior written approval. The acquisition of
Collocation Sites by BTS Company pursuant to this Agreement shall be
accomplished using a lease agreement which Bright PCS shall provide to BTS
Company or on such other form which Bright PCS may, in its sole discretion,
approve.
2.6. ACCEPTANCE AND REJECTION OF COLLOCATION SITES. Bright PCS may at any
time in its sole and absolute discretion accept or reject any proposed
Collocation Site. Without limiting the foregoing, Bright PCS may withdraw its
prior acceptance of a Collocation Site and thereby reject such Collocation Site.
A withdrawal or a rejection by Bright PCS of a Collocation Site shall not affect
its obligation for fees earned through the date of termination for Site
Acquisition Services as more particularly described in Section 2.2.
2.7 ACCEPTANCE AND REJECTION OF BTS SITES; EXECUTION AND DELIVERY OF SLAS
(a) A BTS Site shall be deemed to be an accepted BTS Site from and
after the date that the Candidate Site which corresponds to the BTS Site
has been approved by Bright PCS pursuant to Section 2(a) of Schedule A and
shall continue to be deemed an accepted BTS Site unless and until Bright
PCS rejects the BTS Site pursuant to Section 2.7(b) hereof.
(b) Bright PCS may at any time prior to the parties' execution and
delivery of an SLA corresponding thereto, and in Bright PCS's sole and
absolute discretion, reject any BTS Site. In the case of a BTS Site that is
accepted by Bright PCS, the following shall apply:
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(i) BTS Company shall continue the diligent, thorough and
professional prosecution of Site Acquisition Services (including the
completion of Ground Lease negotiations and required zoning, land use
and permitting matters) necessary for the construction of a
communications tower and related facilities consistent with the
criteria theretofore identified by Bright PCS;
(ii) Subject to Section 2.7(b)(iii) below, BTS Company and Bright
PCS shall prepare and finalize the SLA (and exhibits thereto)
applicable to such BTS Site;
(iii) Within thirty (30) days following BTS Company's receipt of
all necessary zoning or other land use permits or approvals applicable
to the improvements to be constructed by BTS Company on the BTS Site
and the completion of Site Acquisition Services in accordance with the
Objectives and Procedures, but subject to Section 2.7(b)(iv) below,
Bright PCS and BTS Company shall execute and deliver the SLA
applicable thereto. Unless Bright PCS rejects the applicable BTS Site
within thirty (30) days following notice by BTS Company of BTS
Company's receipt of all necessary zoning or other land use permits or
approvals applicable to the landlord improvements to be constructed by
BTS Company on the BTS Site and BTS Company's completion of Site
Acquisition Services in accordance with the Objectives and Procedures,
BTS Company shall be unconditionally obligated to enter into the SLA
with respect thereto upon receipt of the foregoing permits and
approvals, and shall thereafter perform its obligations thereunder in
accordance with the SLA and this Agreement. Notwithstanding any
provision of this Agreement to the contrary, in the event that Bright
PCS neither accepts nor rejects the BTS Site within thirty days as
provided herein, BTS Company may, at BTS Company's sole option, either
(1) deem the BTS Site approved (in which event BTS Company shall be
entitled to compel Bright PCS to execute a SLA with respect to the BTS
Site) or (2) deem the BTS Site to be denied and make demand on Bright
PCS for payment of the fees earned for Site Acquisition Services.
(iv) Bright PCS may in its sole and absolute discretion withdraw
its prior acceptance of a BTS Site, and thereby reject said BTS Site,
at any time prior to the BTS Company parties' execution and delivery
of the SLA for such BTS Site.
(c) In the event of a rejection by Bright PCS of a BTS Site, including
a rejection after a prior acceptance thereof as described above in Section
2.7(b) hereof, Bright PCS's only obligation for such BTS Site shall be for
the payment of Site Acquisition Services incurred prior to such rejection
with respect to the Search Ring containing such BTS Site in accordance with
Section 2.2. In such event, Bright PCS agrees not to develop the rejected
BTS Site as a tower site and further agrees not to transfer the associated
Work Product to any third party, including Affiliates.
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(d) In the event of a rejection by Bright PCS of a BTS Site, BTS
Company may elect to forego the compensation set forth in Section 2.2 and
retain the Work Product. In such event, Bright PCS shall have the right,
but not the obligation, for a period of one (1) year following the
construction of a tower on such Site to enter into an SLA for such Site
pursuant to the MSA as if such Site were constructed as an accepted BTS
Site.
(e) This Section 2.7 shall not be deemed to limit or restrict any
rights of termination of an SLA as expressly set forth therein. Bright
PCS's rights of rejection with respect to a BTS Site contained in this
Section 2.7 shall be in addition to, and not in lieu of, any SLA
termination rights.
(f) In the event that BTS Company's due diligence investigation of a
BTS Site reveals any defect in such Site which BTS Company reasonably
believes would materially adversely affect BTS Company's multi-tenant use
or ownership of such Site, BTS Company shall be entitled to reject such
Site upon notice to Bright PCS. In such event, Bright PCS shall have the
right to designate another candidate site as the preferred candidate. BTS
Company shall bear all costs associated with Site Acquisition Activities
and all costs associated with the due diligence investigation, zoning, and
permitting of such Site.
2.8 CONTINUED PERFORMANCE OF SITE ACQUISITION SERVICES FOLLOWING SITE
ACCEPTANCE OR REJECTION. Unless otherwise notified by Bright PCS, BTS Company
shall:
(a) Following Bright PCS's acceptance of any Site, continue to perform
Site Acquisition Services with respect to such accepted Site in accordance
with this Agreement, including, without limitation, the Objectives and
Procedures; and
(b) Following Bright PCS's rejection of any Site (including a
rejection after Bright PCS's prior acceptance thereof), continue to perform
Site Acquisition Services with respect to the Search Ring pertaining
thereto (including a modified Search Ring as described above in Section 2.3
hereof) in accordance with the terms and conditions of this Agreement,
including, without limitation, the Objectives and Procedures.
2.9 NO CONFLICTING OBLIGATIONS.
(a) Neither BTS Company nor any Affiliate of BTS Company shall
hereafter during the Site Acquisition Term enter into any agreement,
contract or other arrangement with any Competitor other than Horizon
Personal Communications Services, Inc. For purposes of this Agreement,
"Competitor" shall mean an entity whose business includes the provision of
wireless telecommunications services to the public pursuant to which BTS
Company or any Affiliate of BTS Company agrees to provide to or on behalf
of such Competitor site acquisition services that: (i) may result in the
leasing (or other acquisition) of real property and the construction
thereon by BTS Company or such Affiliate of a wireless communications
7
facility designed to meet such Competitor's specifications and (ii) affect
or may affect any real property located within a Search Ring. BTS Company
shall provide to Bright PCS during the Site Acquisition Term BTS Company's
primary duty of loyalty and professionalism in the performance within the
geographic area of Site Acquisition Services hereunder. BTS Company shall
not perform, or undertake to perform, any services that would conflict with
BTS Company's loyal, professional and diligent performance of its duties
hereunder. The foregoing provisions of this Section 2.9(a) shall not apply
if BTS Company notifies Bright PCS of a preexisting conflict upon BTS
Company's receipt of a Search Ring, nor will it apply to a Search Ring
after BTS Company has completed construction of a BTS Site within such
Search Ring.
(b) In the course of performing Site Acquisition Services or otherwise
in conducting its activities under or with respect to this Agreement or any
SLA, BTS Company shall not publish or distribute any materials or
documentation using Bright PCS's name without Bright PCS's express prior
written permission specifically relating to such use; provided, however,
that BTS Company shall be entitled to utilize Bright PCS's name where
reasonably necessary to facilitate zoning and other governmental approvals.
2.10 COMPLIANCE WITH LAWS. BTS Company represents and warrants that it
shall: (a) comply with all federal, state and local laws, regulations and
ordinances with respect to its performance of the Site Acquisition Services; (b)
file all reports relating to the Site Acquisition Services and required under
applicable law (including, without limitation, tax returns); (c) pay all filing
fees and federal, state and local taxes applicable to BTS Company's business as
the same shall become due; and (d) pay all amounts required under local, state
and federal workers' compensation, disability benefit, unemployment insurance,
and other employee benefit laws and regulations when due. BTS Company shall
provide Bright PCS with such documents and other supporting materials as Bright
PCS may reasonably request to evidence BTS Company's continuing compliance with
this Section 2.10.
2.11 INSURANCE. BTS Company and Bright PCS shall each maintain in effect,
without interruption, on an annual basis, during the term of this Agreement, the
following insurance policies:
(a) Commercial General Liability (Bodily Injury and Property Damage).
Insurance coverage with endorsement evidencing coverage for contractual
liability. The limits of this insurance shall not be less than:
(i) Each Occurrence Limit $1,000,000
(ii) General Aggregate Limit $2,000,000
(b) Comprehensive Automobile Liability insurance covering the
ownership, operation and maintenance of allowed, non-owed, and hired motor
vehicles, in limits not less than $1,000,000 for bodily injury and property
damage per occurrence.
(c) Worker's Compensation Insurance with statutory limits and
Employer's Liability Insurance with limits of not less than $1,000,000 for
each accident.
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(d) Professional Liability (errors and omissions) insurance of not
less than $1,000,000 for each occurrence, with endorsement evidencing
coverage for contractual liability.
(e) All foregoing insurance shall provide for an effective date no
later than the Effective Date of this Agreement. Bright PCS and BTS Company
agrees to maintain such coverage in effect without interruption on an
annual basis for so long as this Agreement is in effect. Bright PCS shall
be included as an additional insured on BTS Company's Commercial General
Liability insurance, and BTS Company shall be included as an additional
insured on Bright PCS's Commercial General Liability insurance. Bright PCS
and BTS Company agree to obtain such insurance from nationally recognized
carriers at commercially reasonable rates. Bright PCS's and BTS Company's
obligations under this Agreement, including its indemnification obligations
under Section 2.12, will not be affected by obtaining or the failure to
obtain any insurance coverage required under this Section 2.11.
(f) Bright PCS and BTS Company shall each provide the other with
Certificates of Insurance from its insurance agent or broker or insurance
company evidencing the above coverage and limits.
(g) All insurance policies required to be maintained hereunder shall
be issued by companies that hold a current rating of not less than "A",
according to Best Key Rating Guide, unless this requirement is expressly
waived in writing by the other party.
2.12 INDEMNIFICATION. The following indemnities shall survive the
expiration or termination of this Agreement:
(a) By Bright PCS. Bright PCS shall indemnify and hold harmless BTS
Company, its Affiliates, directors, officers, shareholders, agents, and
employees thereof from and against any fine, penalty, loss, cost, damage,
injury, claim, expense (including reasonable attorney and other
professional fees and costs and all reasonable fees and costs associated
with enforcing this indemnification), or liability incurred by BTS Company
as the result of any act, error, omission, non-performance by negligence,
or wrongful act of Bright PCS arising directly out of the performance of
this Agreement, including any election by Bright PCS to pursue certain
rights under this Agreement.
(b) By BTS Company. BTS Company shall indemnify and hold harmless
Bright PCS, its Affiliates, directors, officers, shareholders, agents, and
employees thereof from and against any fine, penalty, loss, cost, damage,
injury, claim, expense (including reasonable attorney and other
professional fees and costs and all reasonable fees and costs associated
with enforcing this indemnification), or liability incurred by Bright PCS
as the result of any act, error, omission, non-performance by negligence,
or wrongful act of BTS Company arising directly out of the performance of
this Agreement, including any election by BTS Company to pursue certain
rights under this Agreement.
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(c) Notwithstanding anything to the contrary contained in this Section
2.12, the indemnity obligations of either party hereto will not apply to
any injury, loss, damage, liability, penalty or obligation (or any claim in
respect of the foregoing) resulting from the negligence or intentional
misconduct of the other party hereto or such of such other party's agents,
employees or contractors. To the fullest extent permitted by law, all
claims against the other party for lost profits or earnings or other
indirect or consequential damages otherwise recoverable under applicable
law as a result of the breach of this Agreement or otherwise pursuant to
the foregoing indemnity, provisions are hereby waived by the aggrieved
party.
2.13 ASSIGNMENT AND SUBLEASING. BTS Company may not assign this Agreement,
in whole or in part, without Bright PCS's prior written consent except as
collateral in connection with BTS Company's financing. BTS Company may, however,
subject to the terms of the MSA, sublease any particular Site to another entity.
Bright PCS may assign all or a portion of its rights hereunder to: (a) any
corporation resulting from any merger, consolidation or other reorganization to
which Bright PCS is a party; (b) any corporation, partnership, association or
other person to which Bright PCS transfers all or substantially all of the
assets and business of Bright PCS existing at such time; or (c) any Affiliate of
Bright PCS; provided, however, that in the event of an assignment, Bright PCS
shall remain liable for its obligations hereunder. All the terms and provisions
of this Agreement shall be binding upon and inure to the benefit of and be
enforceable by the parties hereto and their respective successors and permitted
assigns.
III. CONSTRUCTION, CONSTRUCTION MANAGEMENT AND PROGRAM
MANAGEMENT SERVICES
3.1 CONSTRUCTION AND CONSTRUCTION MANAGEMENT. BTS Company shall perform the
services set forth on Schedule "B" attached hereto (all of which shall be
hereinafter referred to collectively as the "Construction Management Services")
for Bright PCS, for each site chosen within each of the Search Rings assigned.
All sites for which BTS Company will perform Construction Management Services
shall hereinafter be referred to as the "CMS Sites."
3.2 PROGRAM MANAGEMENT SERVICES. In connection with, and as a tracking and
indexing mechanism for its provision of Site Acquisition and Construction
Management Services pursuant to this Agreement, BTS Company shall develop,
implement and maintain a deployment plan which tracks all activities and costs
associated with the performance of Site Acquisition Services and Construction
Management Services for each Site in accordance with the following procedures:
(a) BTS Company shall develop and implement a quality assurance
program which ensures that all activities are performed to such quality
standards as may be established from time to time by Sprint Spectrum, L.P.
(b) BTS Company shall develop and implement comprehensive reporting
mechanisms so that detailed site progress is tracked on a weekly basis, and
complete reports are provided when required by Bright PCS, not less
frequently than once per week.
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(c) BTS Company shall develop and implement a comprehensive filing
system that ensures that all relevant site information is organized and
available. BTS Company shall seek to use electronic means whenever
available. BTS Company shall ensure the physical security of the filing
system.
(d) BTS Company shall manage and coordinate interaction among site
acquisition construction, management, and the A&E firm.
(e) BTS Company shall manage and coordinate interactions between the
infrastructure development staff (site acquisition and construction
management) and other disciplines involved in the system deployment (e.g.,
RF engineering, network engineering, marketing).
IV. DESIGN AND CONSTRUCTION OF WIRELESS COMMUNICATIONS FACILITIES
4.1 APPROVAL OF PLANS AND SPECIFICATIONS. BTS Company shall be responsible
for constructing the tower platforms, ice bridges, towers, fencing, grounding
systems, power and telephone connections to a central demarcation point within
the tower compound, and a concrete equipment pad as specified by site diagrams
for Bright PCS's equipment and battery back-up ("Tower Facilities"). BTS Company
shall prepare and deliver to Bright PCS for its approval three copies of
prototype, standard plans ("Plans") and construction specifications
("Specifications") for the construction of prototype Tower Facilities. The Plans
and Specifications shall be delivered to Bright PCS at least fourteen (14)
business days prior to obtaining the building permit on a Site. Within ten (10)
days after receipt of the Plans and Specifications, Bright PCS shall either
approve such Plans and Specifications or deliver to BTS Company detailed written
objections thereto. Bright PCS shall approve the Plans and Specifications if
they meet the minimum specifications set forth by Bright PCS in its Search Ring;
provided, however, that Bright PCS shall not be required to approve the Plans
and Specifications if BTS Company's Plans and Specifications contemplate tower
height or loading in excess of what was contemplated in Bright PCS's Search Ring
minimum specifications, and such excess would cause a material delay in BTS
Company obtaining governmental approvals with respect to the applicable Site,
and such delay would materially delay Bright PCS's anticipated installation date
for its Equipment (as hereinafter defined) on such Site.
4.2 CHANGE ORDERS. Bright PCS shall have the right to issue reasonable
change orders to BTS Company on any given Site provided that such changes are
tendered to BTS Company in writing thirty (30) days prior to the submittal of
the applicable building permit application for the Tower Facilities which are
affected by the change order and further provided that Bright PCS pays the
increase in the cost of construction of the Tower Facilities attributable to
such change orders.
4.3 DEFINITION OF CONSTRUCTION COSTS. As used herein, Construction Costs
shall mean those costs which are the responsibility of BTS Company under this
Agreement and which shall include the costs of materials and labor used in the
construction of the Tower Facilities, payments made to contractors and
subcontractors performing construction work in connection with the Tower
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Facilities including but not limited to the cost of materials, labor, expenses
associated with the lease of equipment used in construction, the cost of any
tower lighting system, the cost of all site work required for the property or
the easement, the cost incurred in extending utilities to the Property including
the cost incurred in obtaining any grants of easements for ingress, egress or
utilities over real property, owned by persons or entities other than the prime
lessor, supplies, reasonable travel expenses, cost of overhead incurred by
contractors in the performance of this Agreement, fees for building permits,
licenses and inspections, fees or assessments imposed by local, state or federal
governmental entities including but not limited to the FCC and FAA, insurance
premiums paid by BTS Company during the construction period, recording fees and
filing fees, fees and payments on construction, interim or permanent financing,
mortgage brokerage fees, fees of engineers, surveyors, architects, attorneys and
others providing professional services, brokerage commissions, and premiums for
contractor's faithful performance and or mechanic's lien bonds ("Construction
Costs"). Construction Costs shall not include the cost of Bright PCS's Equipment
(as used herein, "Bright PCS's Equipment" shall mean all antennas, microwave
antennas, hardware and lines, GPS antennas, hardware and lines, coaxial cable,
jumpers, connectors, waterproof kits, hoisting grips, mounting brackets,
generators, battery backup kits, BTS equipment and BTS mounting platforms or
equipment) or any costs associated with the delivery or installation of Bright
PCS's Equipment. Bright PCS shall be solely responsible for purchasing Bright
PCS's Equipment, the delivery and installation of Bright PCS's Equipment and the
costs associated with these goods and services.
4.4 COVENANT TO CONSTRUCT. BTS Company shall act with due diligence to
construct the Tower Facilities at minimum in accordance with Bright PCS's
minimum specifications. BTS Company shall use due diligence to obtain all
necessary permits and approval of the Plans from all applicable governmental
agencies. BTS Company will install Bright PCS's Equipment to agreed upon
specifications, perform sweep tests and document results meeting or exceeding
Bright PCS's standards and set Bright PCS's BTS equipment and connect to
grounding system and provide resistance to ground tests yielding 5 ohms or less
for a fee which is defined in Schedule "C" of this Agreement. BTS Company shall
provide conduit for electrical and telephone connections from central
demarcation point to Bright PCS's BTS Equipment location and will pull coaxial
cables into the "doghouse" and install jumpers. Bright PCS shall be responsible
for connecting power, telephone and coaxial cable jumpers to Bright PCS's BTS
equipment. BTS Company will provide warehouse space for storage and staging of
Bright PCS and BTS Company's Equipment.
4.5. COMMENCEMENT OF CONSTRUCTION. BTS Company shall make reasonable and
diligent efforts to complete the construction of an individual Tower Facility
within sixty (60) days after Bright PCS executes an SLA for the Site upon which
the Tower Facilities are to be constructed. BTS Company shall have no obligation
to commence construction of the Tower Facility at a Site unless and until an SLA
has been properly executed by Bright PCS for that Site. In the event that BTS
Company reasonably anticipates that the construction of a particular Tower
Facility at a Site cannot be completed within sixty (60) days after execution of
an SLA, BTS Company and Bright PCS shall act reasonably in agreeing upon an
alternate number of days which will be required to complete construction. In the
event that BTS Company fails to complete the construction of any Tower Facility
within thirty (30) days of the date on which such Site was scheduled to be
completed (as such scheduled completion date may have been extended pursuant to
the previous sentence), BTS Company shall pay to Bright PCS as liquidated
damages the sum of [***] for each day on which the Tower Facility has not been
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completed after the scheduled completion date (as such scheduled completion date
may have been extended pursuant to the previous sentence) unless Bright PCS
elects to terminate this Agreement pursuant to Section 2.4(c) in which event the
liquidated damages provided for herein shall cease to accrue on the effective
date of such termination. Except as provided in Section 2.4(c) herein, these
liquidated damages shall be Bright PCS's sole remedy, in the event that BTS
Company fails to meet such construction deadline.
4.6. MANNER OF CONSTRUCTION. BTS Company represents, warrants and agrees
that the Tower Facilities shall be constructed in a good and workmanlike manner
and at a minimum in accordance with Bright PCS's minimum specifications and all
applicable federal, state and local laws, ordinances, rules and regulations. BTS
Company warrants to Bright PCS that all materials furnished in connection with
the construction of the Tower Facilities will be new unless otherwise specified,
and that such construction will be of good quality in accordance with industry
standards, free from faults and patent defects. The warranties contained in this
Section 4.6 shall run for a period of six (6) months from the SLA Commencement
Date, as defined in the MSA.
4.7. NO LIENS. BTS Company shall keep the Tower Facilities free of all
liens and claims arising out of or related to the performance of the
construction, all liens and claims of any contractor, subcontractor, laborer,
mechanic or materialman for labor performed or material finished in connection
with the performance of the construction. In the event any such lien is recorded
against the Site, the BTS Company shall, within thirty (30) days after its
receipt of notice that such a lien has been recorded, either (a) have such lien
released of record, or (b) deliver to Bright PCS a bond, in form, content and
amount, and issued by a surety, reasonably satisfactory to Bright PCS,
indemnifying Bright PCS against all costs and liabilities resulting from such
lien.
4.8. NOTIFICATION OF COMPLETION. BTS Company shall notify Bright PCS of (i)
the expected date for substantial completion of the Tower Facilities at least
fifteen (15) days before that date, and (ii) the date when the Tower Facilities
have been substantially completed ("Notice of Completion"). Within three (3)
business days after the Notice of Completion, Bright PCS shall deliver to BTS
Company a list of items ("Punch List") that Bright PCS deems necessary, that BTS
Company complete or correct in order for the Tower Facilities to be completed in
accordance with Bright PCS's minimum specifications for the applicable Search
Ring. The Tower Facilities shall be deemed accepted by Bright PCS if a Punch
List is not received by BTS Company within three (3) business days of the date
of Notice of Completion. In the event that Bright PCS delivers a Punch List to
BTS Company, the notification process set forth in this section shall be
iterated until the Tower Facilities have been completed in accordance with
Bright PCS's minimum specifications for the applicable Search Ring and any
approved Change Orders.
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V. REPRESENTATIONS, WARRANTIES AND COVENANTS
5.1 MUTUAL REPRESENTATIONS, WARRANTIES AND COVENANTS. Each party represents
and warrants to the other party, which representations and warranties shall
continue for the term of the Agreement and the consummation of the transactions
herein contemplated, that:
(a) it has full power and authority to execute and perform under the
Agreement;
(b) the execution, delivery and performance of the Agreement have been
duly authorized by all necessary action on the part of such party and the
Agreement is binding and enforceable against such party in accordance with
its terms.
The parties covenant and agree to use their best efforts to cooperate with
each other in the performance of their respective obligations under the
Agreement, and to take no action that will interfere with the performance by the
other party of such obligations.
5.2 BTS COMPANY'S REPRESENTATIONS, WARRANTIES, AND COVENANTS.
(a) BTS Company is a corporation duly organized, validly existing, and
in good standing under the laws of the State of Florida and that, as of the
Effective Date, it is qualified to do business in and is in good standing
under the laws of the following states: Ohio, Kentucky, West Virginia,
Tennessee.
(b) BTS Company warrants it shall perform the Site Acquisition
Services in accordance with the current standards of care and diligence
normally practiced by recognized firms in performing services of a similar
nature. If, during the six (6) month period following the completion of any
of the Site Acquisition Services, Bright PCS observes that the Site
Acquisition Services or a portion of the Site Acquisition Services were
incompletely or incorrectly performed and notifies BTS Company of the same
within that period, BTS Company shall promptly complete or correct such
Site Acquisition Services without cost or expense to Bright PCS.
(c) BTS Company shall comply with all local, municipal, state,
federal, and governmental laws, orders, codes, and regulations applicable
to BTS Company's provision of Site Acquisition Services. BTS Company has
all necessary licenses to perform the Site Acquisition Services and shall
provide copies of same to Bright PCS.
5.3 BRIGHT PCS'S REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) Bright PCS represents and warrants that all information which it
shall provide to BTS Company in connection with BTS Company's performance
of Site Acquisition Services hereunder shall be true and complete in all
material respects.
(b) Bright PCS covenants that, in a timely fashion, it shall provide
all information which BTS Company reasonably requests, not otherwise freely
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[***] - CONFIDENTIAL TREATMENT REQUESTED
available to BTS Company, deemed necessary or desirable by BTS Company in
the course of its provision of the Site Acquisition Services, including,
but not limited to, information to be supplied in connection with the
zoning, permitting or construction process.
(c) Bright PCS is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Ohio and as of
the Effective Date, it is qualified to do business in and is in good
standing under the laws of the following states: Ohio, Kentucky, West
Virginia, Tennessee.
(d) Notwithstanding anything to the contrary contained in this
Agreement, the terms of this Agreement shall apply only to Region 1. Bright
PCS represents and warrants that Bright PCS shall not issue any Search
Rings to any entity during the Site Acquisition Term in Region 2 (as
defined in the MSA). This Agreement does not apply to Region 2 as a result
of this representation. In the event that Bright PCS issues a Search Ring
to any entity in Region 2 during the Site Acquisition Term, such Search
Ring and all other Search Rings issued in Region 2 shall be subject to the
exclusivity provisions of Section 1.7, except that (i) the Rent (as defined
in the MSA) for BTS Sites within such Region 2 Search Rings shall be [***]
a month subject to a three percent (3%) annual increase; and (ii) Bright
will be required to execute an Antenna Site Agreement substantially similar
to the form attached as Exhibit B to the Master Site Agreement dated as of
August 17, 1999, by and between BTS Company and Horizon Personal
Communications, Inc. ("Horizon MSA"), to lease space on 20 tower sites
owned by BTS Company in Region 2 for [***] monthly Rent, subject to a 3%
annual increase and an initial one (1) year abatement, to the extent
Horizon has not already done so pursuant to the Horizon MSA.
5.4 CONFIDENTIAL INFORMATION.
(a) USE OF CONFIDENTIAL INFORMATION. In order to permit the parties to
perform their respective obligations under this Agreement, each party may,
from time to time, disclose to the other confidential or proprietary
information. Such confidential or proprietary information and the terms of
this Agreement shall constitute "Confidential Information." Each party
shall use all Confidential Information solely for the purpose of performing
its obligations under this Agreement. Neither party shall disclose to any
other person other than employees or agents of the party who agree, in
writing, to be bound by an equivalent undertaking, any Confidential
Information. BTS Company agrees not to disclose any of Bright PCS's
Confidential Information or any information pertaining to the Sites to a
competitor of Bright PCS. Bright PCS agrees not to disclose any of BTS
Company's Confidential Information or any information pertaining to the
Sites to a competitor of BTS Company.
(b) EXCEPTIONS. The aforementioned restrictions shall apply to all
Confidential Information with the exception of the following:
(i) Confidential Information which is made public by either party
while performing under this Agreement or which otherwise is or
hereafter becomes part of the public domain through no wrongful act,
fault, or negligence on the part of the other party;
15
(ii) Confidential Information which a party can reasonably
demonstrate is already in such party's possession and not subject to
an existing agreement of confidentiality;
(iii) Confidential Information which is received from a third
party without restriction and without breach of an agreement with
Bright PCS or BTS Company;
(iv) Confidential Information which is independently developed by
a party as evidenced by its records; or
(v) Confidential Information which either party is required to
disclose pursuant to a valid order of a court or other governmental
body or any political subdivision thereof, provided that, to the
extent that it may lawfully do so, the disclosing party shall provide
the affected party with immediate written notice of the nature of the
required disclosure and shall, where appropriate, provide that party
with the opportunity to interpose an objection or obtain a protective
order restricting the use and disclosure of the Confidential
Information; or
(vi) in defense of a legal action or otherwise required by a
governmental agency or applicable law.
(c) MARKETING OF SITES. Notwithstanding the foregoing, nothing
contained herein shall be construed to prevent BTS Company from marketing
space on the Tower Facilities to be constructed on a particular Site after
the Ground Lease has been executed by the ground lessor and BTS Company.
VI. OWNERSHIP OF WORK PRODUCT AND INTELLECTUAL PROPERTY
6.1 OWNERSHIP OF WORK PRODUCT. BTS Company shall promptly disclose to
Bright PCS all written work product generated in the course of performing Site
Acquisition Services and all facts respecting such work product (the "Work
Product"). To the extent that Bright PCS pays BTS Company for the Work Product,
BTS Company hereby assigns to Bright PCS all of BTS Company's right, title and
interest in Work Product, including without limitation all engineering or
architectural drawings and specifications developed by BTS Company in connection
with the Site Acquisition Services and all intellectual property rights embodied
therein. In addition, to the extent that Bright PCS pays BTS Company for the
corresponding Work Product, all inventions, discoveries, and other intellectual
properties, whether or not patentable, that are conceived or reduced to practice
by BTS Company in connection with the Site Acquisition Services, are the sole
property of Bright PCS, and BTS Company hereby fully and forever assigns same to
Bright PCS.
16
In addition, to the extent that Bright PCS pays BTS Company for the
corresponding work product, all materials that BTS Company develops and delivers
to Bright PCS pursuant to this Agreement shall become the sole and exclusive
property of Bright PCS without limitation. BTS Company agrees to execute all
documents and to take all steps that Bright PCS deems necessary or desirable to
protect Bright PCS's ownership and property rights of these materials.
No Implied Rights or Licenses. Except as provided elsewhere in this
Agreement, no rights or licenses to the Work Product or Bright PCS's
Confidential Information or to trademarks, inventions, copyrights, or patents
embodied therein are implied or granted under this Agreement.
6.2 OWNER'S RIGHT TO COMPLETE WORK. If BTS Company defaults or neglects to
carry out any of its obligations, or takes any action, or omits to do anything
which endangers safety, or risks damage or injury to persons or property and
fails within a five (5) day period after receipt of reasonable detailed written
notice from Bright PCS not to commence and continue correction of such default
or neglect with diligence and promptness, Bright PCS may correct all such work,
omissions, or deficiencies, and Bright PCS shall be entitled to recover costs
and expenses, including reasonable attorneys' fees, pertaining thereto from BTS
Company. This remedy provided for in this Section 6.2 shall be in addition to,
and not in lieu of any other right or remedy which may be afforded to Bright PCS
herein or under applicable law.
VII. DISPUTE RESOLUTION
7.1 ARBITRATION PROCEDURE. If the parties in this Agreement are unable to
resolve any dispute arising out of or relating to this Agreement, either party,
may refer such dispute for resolution by final and binding arbitration. The
party submitting a dispute to arbitration shall give notice thereof to each
other party to such dispute and to the President of the American Arbitration
Association, who shall select an arbitrator (the "Arbitrator") who (i) has
expertise and at least five years' experience in matters directly involved with
the type of services to be performed under this Agreement in the geographic area
in which the obligations hereunder are to be performed, (ii) certifies to all
parties that he/she is independent of the parties to the dispute and will be
able to render an impartial decision, and (iii) agrees to proceed in accordance
with the applicable provisions of this Section 7.1.
The Arbitrator shall hold one or more hearings to begin within fifteen (15)
days of his/her selection, shall furnish a written decision within forty-five
(45) days of his/her selection, and shall provide an opinion demonstrating the
basis for such decision. The Arbitrator may also attempt to mediate the dispute
between parties if requested to do so by both of the parties.
The parties hereto agree to exchange promptly any and all relevant
documentation as the Arbitrator may order. All arbitration proceedings hereunder
shall be conducted in private, and each party hereby agrees to maintain the
confidentiality of the enforcement of the award. All arbitration hearings or
mediation sessions are to be held in the Chillicothe, Ohio area unless otherwise
agreed by the parties, and arbitration hearings need not be conducted in
accordance with formal rules of evidence.
17
The Arbitrator may determine the procedure for hearings which may, but need
not, include (a) direct testimony of witnesses; (b) cross-examination of
witnesses; (c) submission of sworn statement or affidavits; (d) consideration of
relevant documents; and (e) consideration of other matters which the Arbitrator
considers to be helpful in making his/her decision.
7.2 COST OF ARBITRATION. The Arbitrator's fees and other expenses
associated with arbitration shall be borne equally by the parties, unless the
Arbitrator finds that the position of one party is frivolous or unreasonable, in
which case the Arbitrator may require the offending party to pay all fees and
expenses (or some disproportionate amount) associated with the arbitration.
7.3 CONTINUED PERFORMANCE. At all times during the course of arbitration
proceedings, the parties shall continue in good faith to perform their
respective obligations under this Agreement, to the extent such obligations are
not in dispute. If a disputed issue is impeding continued performance by either
party, the Arbitrator may adopt an expected schedule upon request of either
party. Notwithstanding the foregoing, should BTS Company not be paid in timely
fashion for any Site Acquisition Service not disputed and not subject to
arbitration proceedings, BTS Company may suspend its performance of such Site
Acquisition Service.
7.4 AWARD ENFORCEMENT. The arbitrator may award monetary damages and/or
make a binding order, and the parties hereby agree that an award of the
Arbitrator hereunder may be enforced by either party in the United States
District Court which has jurisdiction over matters arising in Chillicothe, Ohio.
7.5 THIRD PARTY GUARANTEES AND WARRANTIES. If any of the Site Acquisition
or Construction Management Services requires the purchase of equipment or
materials or the procurement of services, BTS Company shall make reasonable
efforts to obtain from all vendors and subcontractors commercially reasonable
guarantees and Warranties with respect to such equipment, materials and
services. BTS Company's liability with respect to such equipment and materials
obtained from vendors or services from subcontractors shall be limited to
procuring guarantees from such vendors or subcontractors and rendering all
reasonable assistance to Bright PCS as part of the Site Acquisition Services for
the purpose of enforcing the same.
7.6 PERMITS. BTS Company shall (without additional compensation) keep
current all governmental permits (other than Building Permits), certificates,
and licenses (including professional licenses) required by law to be in BTS
Company's name necessary to perform the Site Acquisition Services.
7.7 PUBLICITY. Neither party shall make news releases or issue other
advertising pertaining to the Site Acquisition Services or this Agreement
without prior written approval of the other party; provided, however, that both
parties agree to either approve or deny such news release or advertising within
two (2) business days of the request for approval from the other party. In the
event a party fails to either approve or deny such news release or advertisement
within two (2) business days, such news release of advertisement shall be deemed
approved.
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7.8 NOTICES. All notices or other communications hereunder shall be in
writing and shall be deemed to have been duly delivered and effective upon
receipt if personally delivered, or on receipt if mailed by prepaid overnight
express service, addressed to the following (or other addresses as the parties
hereto may designate):
if to Bright PCS, to: If to BTS Company, to:
Bright PCS
68 East Main Street SBA Towers, Inc.
P.O. Box 5050 One Town Center Road, 3rd Floor
Chillicothe, Ohio 45601-0480 Boca Raton, FL 33462
Attn: Vice President Technology Attn: General Counsel
7.9 BINDING EFFECT. The Agreement shall be binding upon and enforceable by,
and inure to the benefit of, successors,
assigns, and transferees of the parties.
7.10 FURTHER ASSURANCES. The parties shall execute and deliver such further
instruments and perform such further acts as may reasonably be required to carry
out the intent and purposes of this Agreement.
7.11 CHOICE OF LAW. The Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio, excluding the conflict of law
provisions thereof.
7.12 WAIVER. The failure of either party to insist upon strict performance
of any obligation hereunder, irrespective of the length of time for which such
failure continue, shall not be a waiver of such party's right to demand strict
compliance in the future. No consent or waiver, express or implied, to or of any
breach or default in the performance of any obligation hereunder shall
constitute a consent or waiver to or of any other breach or default in the
performance of the same or any other obligation hereunder.
7.13 SEVERABILITY. In case any term of this Agreement shall be held
invalid, illegal, or unenforceable in whole or in part, neither the validity of
the remaining part of such term nor the validity of the remaining terms of this
Agreement shall in any way be affected thereby.
7.14 READINGS. All section and paragraph titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the text
of this Agreement.
7.15 PRONOUNS. All pronouns and any variations thereof shall be deemed to
refer to the masculine, feminine, neuter, singular, or plural as the context may
require.
7.16 COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which shall be considered an original and all of which
taken together shall constitute one and the same instrument.
7.17 MODIFICATION; AMENDMENT; ADDITIONAL SERVICES. This Agreement may be
amended only by a written instrument executed by an officer or authorized
19
representative of each of the parties. In the event that the parties, at any
time, desire BTS Company to provide services other than the types of those
provided for in this Agreement, then, at such time, the parties shall execute an
amendment to Sections III and IV of this Agreement, describing such services and
the payment to be made therefor in a manner substantially similar to the manner
in which Site Acquisition Services and payment for Site Acquisition Services are
presently described therein. In the event that the parties so amend this
Agreement, the Agreement, as amended, shall continue in full force and effect
thereafter.
7.18 CONSTRUCTION OF AGREEMENT. This Agreement shall be interpreted
according to its plain meaning and shall not be strictly construed against
either party.
7.19 ENTIRE AGREEMENT. This Agreement and the MSA which is executed
simultaneously herewith between Bright PCS and BTS Company contain the entire
understanding between and among the parties and supersede any prior
understandings and agreements among them respecting the subject matter of this
Agreement.
7.20 FACSIMILE SIGNATURE. Notwithstanding anything to the contrary
contained in this Agreement, faxed signatures on this Agreement shall be binding
as though such signatures were original ink signatures.
7.21 NO BROKERS; INDEMNIFICATION FROM BROKER'S FEES. Bright PCS and BTS
Company hereby represent, agree and acknowledge that no broker or other person
is entitled to claim or to be paid a commission as a result of the execution and
delivery of this Agreement. Each of the parties shall indemnify, defend and hold
the other party harmless for all claims, damages, liabilities and expenses
(including attorney's fees) arising from a misrepresentation arising from the
first sentence of this paragraph.
IN WITNESS WHEREOF, BTS Company and Bright PCS have duly executed and
delivered this Agreement. The party last executing this Agreement shall insert
the date of such execution on the first page hereof, which date shall be the
date of this Agreement.
BTS COMPANY: BRIGHT PCS
SBA TOWERS, INC.
By: /s/ By: /s/
_________________________________ ______________________________
Title: CFO, Sr. Vice President Name: Mark J. Rekers
Attest: Robert Grobstein, Asst. Sect. Title: Secretary
[CORPORATE SEAL]
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SCHEDULE "A"
SITE ACQUISITION SERVICES
1. Search Ring Background Workup. BTS Company shall prepare a zoning,
construction, and land use analysis of the geographic area covered by each
Search Ring, which will include, at a minimum:
a. Listing of all state and local jurisdictions;
b. Zoning process descriptions;
c. Zoning maps in both hardcopy and softcopy formats, to the extent
possible;
d. Zoning application forms, and estimates of necessary fees;
e. Zoning meeting schedules;
f. Sample construction and land use permit applications, forms, estimates
of necessary fees, identity of permitting authorities and their
various meeting schedules;
g. Contact information (name, address, affiliation, phone, e-mail and
fax) for key zoning, construction, and land use permitting personnel;
h. Background report on community awareness, issues, and concerns related
to PCS infrastructure deployment;
i. Identified Federal Aviation Administration (FAA) restrictions;
j. Identified environmental restrictions.
2. Site Identification, Acquisition, Zoning and Permitting.
a. BTS Company shall identify at least two possible locations on which a
Collocation Site or a BTS Site could be located within each Search
Ring. Each candidate Site shall be submitted to Bright PCS, which will
certify in writing to BTS Company whether each such Site meets Bright
PCS's requirements within ten (10) days of such submission. Submission
of the Site shall be made to the person designated by Bright PCS from
time to time. Bright PCS shall designate one of the candidate Sites as
the Preferred Candidate.
b. BTS Company shall negotiate the purchase or lease of the Preferred
Candidate within each Search Ring. If the Preferred Candidate is a BTS
Site, the purchase or lease agreement for such Site shall be between
the landowner and BTS Company and shall be on terms and conditions
substantially similar to the agreement which is attached hereto as
Exhibit "B" (hereafter the "Ground Lease"). In no event shall BTS
21
Company agree to material modifications to the provisions set forth in
paragraph 35 of the Ground Lease without Bright PCS's prior written
approval. In the event that the Preferred Candidate is a Collocation
Site, the lease for such Site shall be between the landowner and
Bright PCS. The purchase and lease terms for each Collocation Site
shall, upon completion of their negotiation by BTS Company, be
submitted to Bright PCS in writing, and Bright PCS shall accept or
reject same, in writing (acceptance may be by execution of documents
presented, if appropriate).
c. For all BTS Sites, BTS Company shall conduct a thorough title
investigation in accordance with generally accepted industry standards
to ensure that BTS Company has a valid and enforceable leasehold
interest in the Site and that the intended use of such Site is not
prohibited or unreasonably restricted. For Collocation Sites, BTS
Company shall, at the express written direction of Bright PCS, order
title abstracts, coordinate a full title search, and/or obtain title
insurance.
d. For all BTS Sites, BTS Company shall have a Phase I environmental
assessment and a NEPA analysis conducted to ensure that the site is
free from environmental contamination and that construction of the
Site does not require FCC approval. At the express written direction
of Bright PCS, BTS Company shall coordinate a "Phase I" or other
environmental surveys for approved and accepted Collocation Sites.
e. BTS Company shall obtain all land use permits and/or zoning variances
required for each approved and accepted Site if any are necessary. If
no approvals or variances are required, BTS Company shall provide
proof thereof. In connection with obtaining these approvals and
variances, BTS Company shall:
i. Submit complete zoning applications with all necessary exhibits;
ii. Attend necessary meetings, including zoning hearings, planning
meetings, and community meetings, as a representative of Bright
PCS;
iii. Coordinate community outreach programs, expert witness testimony,
and other measures which may be required to assure the zoning,
construction, and land use of approved and accepted Sites.
iv. Secure all required construction permits on behalf of BTS Company
and Bright PCS.
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3. Documentation of Site Acquisition Services.
BTS Company shall maintain a comprehensive record (both hard copy and
electronic copy, when available) indexed by Site, which shall include
the following elements, at a minimum:
a. Site Survey Report for each of the Sites presented to Bright PCS
for approval, consisting of property name, address, latitude,
longitude, photos, site owner or property manager, contact
information, and proposed lease rate or purchase price;
b. For each of the approved and accepted Sites, the fully executed
lease agreement or purchase document with all exhibits;
c. For each of the approved and accepted Sites, the copy of zoning,
construction, and land use applications and zoning variance
requests, if any, with all exhibits;
d. For each of the approved and accepted Sites, the copy of the land
use permits;
e. For each of the approved and accepted Sites, the Landlord
approval of construction plans, and other indicia of compliance
with lease terms;
f For each of the approved and accepted Sites, copy of the
construction permits.
23
4. Organizational Interfaces.
a. BTS Company shall designate one or more points of contact, as it
deems efficient, in order to communicate effectively with Bright
PCS. BTS Company shall obtain Bright PCS's explicit approval
before obligating Bright PCS financially, contractually, or
otherwise.
b. BTS Company shall coordinate the activities of the Architectural
and Engineering (A&E) firms during the site acquisition phase, to
include the development of site-specific drawings for landlord
approval and for zoning purposes.
c. BTS Company shall coordinate all site visits during the site
acquisition phase, to include at a minimum: site surveys,
technical team visits, drive tests, construction surveys, A&E
surveys, geotechnical surveys, and environmental surveys.
d. BTS Company shall work to ensure a smooth transition of
site-related activities from Site Acquisition to Construction
Management.
e. BTS Company shall procure on behalf of Bright PCS required
discretionary (zoning, construction and land use) entitlements
and other permits, including building permits required for
completion of Sites from state and local government authorities
and from agencies of the United States Government, other than the
Federal Communications Commission ("FCC").
f. BTS Company will from time to time provide Bright PCS with such
financial information as Bright PCS deems reasonably necessary to
track costs associated with the development of the Sites.
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SCHEDULE "B"
CONSTRUCTION MANAGEMENT SERVICES
The Construction Management Services to be performed by BTS Company are as
follows:
1. For all approved and accepted Sites, BTS Company shall, as required by
Bright PCS, continue its installation of Bright PCS's Equipment on
such Sites by acting as the construction manager in the capacity of
general contractor to Bright PCS.
2. The Minimum Construction Management Services which BTS Company shall
perform include:
a. Ordering and permitting access and delivery for the installation
of commercial electrical power.
b. Permitting access to, arranging for, scheduling accepting
delivery of telephone service as ordered to be installed by BTS
Company.
c. Management and supervision of day-to-day construction activities,
including
i. Site access preparation;
ii. Site preparation;
iii. Electrical connection power, and grounding;
iv. Antenna mounting and coaxial routing and mounting;
v. Placement of OEM equipment;
vi. Safety and OSHA compliance.
3. BTS Company Operating Standards.
a. All construction activities shall fully comply with Sprint
Spectrum, L.P.'s standards for quality, as well as with all
local, state, and national codes and laws.
b. BTS Company shall present and fully implement a comprehensive
safety program. BTS Company shall demonstrate its corporate
safety record. BTS Company shall document and report safety
hazards, environmental concerns, and other abnormal situations
immediately.
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4. Subcontractor and Supplier Management.
a. BTS Company shall select all subcontractors and suppliers. BTS
Company shall develop subcontractor and supplier selection
standards. BTS Company shall implement a subcontractor and
supplier election process that reflects the best interests of
Bright PCS at all times.
b. BTS Company shall maintain full responsibility to Bright PCS for
quality, cost, delivery, and performance of all subcontractor and
supplier goods and services.
5. Materials Management.
a. Bright PCS shall provide the following materials FOB at BTS
Company's warehouse location as identified from time to time, but
initially located in Fort Wayne, Indiana: All Antennas, microwave
antennas, hardware and lines, GPS antennas, hardware and lines,
Coaxial Cable, Jumpers, Connectors, Waterproof Kits, Hoisting
Grips, Mounting Brackets, Generators, Battery Backup kits, BTS
equipment and BTS Mounting platforms or equipment.
b. BTS Company will provide at its cost and retain possession of at
expiration or earlier termination of the relevant site lease,
tower platforms, ice bridges, towers, fencing, grounding systems,
power and telephone connections to a central demarcation point
within the tower compound, and a concrete equipment pad as
specified by site diagrams for Bright PCS's BTS Equipment and
Battery Backup.
c. BTS Company will install each of the foregoing to agreed upon
specifications, perform sweep tests and document results meeting
or exceeding Bright PCS standards and set Bright PCS BTS
equipment and connect to grounding system and provide resistance
to ground tests yielding 5 ohms or less, for a fee defined in
Schedule "C". BTS Company shall provide conduct for electrical
and telephone connections from central demarc point to Bright
PCS's BTS Equipment location and will pull coaxial cables into
the "doghouse" and install jumpers. Bright PCS shall be
responsible for connecting power, telephone and coaxial cable
jumpers to Bright PCS's BTS equipment.
d. BTS Company will provide warehouse space for storage and staging
of Bright PCS and BTS Company's equipment and will implement
inventory control and security processes acceptable to Bright
PCS.
6. Final Deliverables. As the final deliverable of its Construction
Management Services, BTS Company shall deliver to Bright PCS a written
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Closeout Report for each CMS site within 10 days of completion, which
shall include a thorough and fully approved close out package of all
Sites. Close out activities shall include, but are not limited to
final inspection, punch list development and resolution, and final
walk-through and inspection with Bright PCS. BTS Company shall not
have completed close out until it has received notice from Bright PCS
of completed close out following final walk-through and inspection,
which notice shall not be unreasonably withheld.
7. Documentation of Construction Management Service. BTS Company shall
maintain comprehensive records for each site for which it performs
Construction Management Services, indexed by CMS Site, which shall
include the following, at a minimum:
a. land use permit,
b. construction and related permit,
c. current construction status,
d. detailed financial accounting records, including but not limited
to, approved purchase orders price quotations and selections
criteria; and verification of goods or services received.
8. Organizational Interfaces.
a. BTS Company shall designate one or more points of contact, as it
deems efficient, in order to communicate effectively with Bright
PCS. BTS Company shall obtain Bright PCS's explicit prior written
approval before obligating Bright PCS financially, contractually,
or otherwise.
b. BTS Company shall coordinate the activities of the Architectural
and Engineering (A&E) firms during the construction phase, to
include ensuring that basic site drawings provided by Bright PCS
are tailored to the specific requirements of individual Sites.
c. BTS Company shall coordinate all site visits during the
construction phase, to include at a minimum: site surveys,
technical team visits, drive tests, construction surveys,
architectural and engineering surveys, geotechnical surveys, and
environmental surveys.
d. BTS Company shall from time to time provide Bright PCS with such
financial information as Bright PCS deems reasonably necessary to
track costs associated with the development of the Sites.
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e. BTS Company shall coordinate its Construction Management Services
with Bright PCS to insure that each Site delivered by BTS Company
pursuant to the terms of this Agreement shall be ready for
delivery and installation of equipment in accordance with Bright
PCS's equipment vendor contracts, and that all conditions to such
equipment vendor's installation of equipment and performance of
services on a Site shall have been fulfilled. No Site shall be
deemed completed unless it has been delivered to Bright PCS in
accordance with the terms of this Section.
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[***] - CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE "C"
PAYMENT FOR SITE ACQUISITION SERVICES AND CONSTRUCTION MANAGEMENT SERVICES
PAYMENT
A. COMPENSATION FOR SITE ACQUISITION AND CONSTRUCTION COSTS FOR BTS
SITES.
BTS Company shall be solely responsible for all costs associated with Site
Acquisition Services for all sites on which the Preferred Candidate is a BTS
Site. BTS Company shall be solely responsible for all costs associated with the
construction of the Tower Facilities on each BTS Site. Bright PCS shall pay BTS
Company for Construction Management Services which are rendered by BTS Company
on BTS Sites in accordance with paragraph B(2) below as if such Site were a
Collocation Site.
B. COMPENSATION FOR SERVICES ON SITES.
1. Site Acquisition Fees
a. Per Site Fees for Site Acquisition on Collocation Sites In
consideration for performance of the Site Acquisition for
Collocation Sites, Bright PCS shall pay BTS Company, the sum
of [***] per Site on which zoning approval is not required,
and the sum of [***] per Site on which zoning approval is
required, in the manner set forth below:
Milestone Amount Due
- --------- ----------
Upon RF approval of a completed Site Survey Report [***]
Upon fully executed lease or purchase agreement for [***]
site
Upon receipt of zoning approval (if applicable) [***]
Upon issuance of a building permit or equivalent [***]
approval
Total amount due upon completion of Site Acquisition [***] for sites
Services on which zoning
approval is required
[***] for sites
on which zoning
approval is not
required
b. Per Site Fees for Site Acquisition on BTS Sites. In
consideration for performance of the Site Acquisition
Services for BTS Sites for which payment is due pursuant to
this Agreement, Bright PCS shall pay BTS Company in
accordance with this Agreement, an amount not to exceed the
sum of [***] per Site in the manner set forth below:
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[***] - CONFIDENTIAL TREATMENT REQUESTED
Milestone Amount Due
- --------- ----------
Upon RF approval of a completed Site Survey Report [***]
Upon fully executed lease or purchase agreement [***]
for a site
Upon receipt of zoning approval (if applicable) [***]
Upon issuance of a building permit or equivalent [***]
approval
Total amount due upon completion of Site [***]
Acquisition Services
c. Reimbursement for Per Site Advances
i. Non-Reimbursable Costs. BTS Company's compensation for
the Site Acquisition Services on Collocation Sites
shall be inclusive of customary out-of-pocket expenses
incurred by BTS Company in the performance of its
obligations hereunder ("Per Site Fee"), including,
without limitation;
(a) wireless equipment and services;
(b) field expenses for maps, deeds, and film
development;
(c) vehicle expense; and
(d) travel and living expenses Any
extraordinary or other expenses that BTS
Company should reasonably anticipate
incurring, which are not customarily
incurred in the ordinary course of
business, must be pre-approved by Bright
PCS in order for BTS Company to receive
reimbursement for such expenditures.
ii. Reimbursable Costs. In the event that BTS Company
provides or contracts directly with third parties,
trade contractors, and subcontractors in connection
with its provision of Site Acquisition Services for
Collocation Sites, the following expenses (in addition
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to other expenses which the parties may agree to from
time to time) shall be considered pass through costs
and be reimbursed to BTS Company to the extent not paid
directly by Bright PCS in accordance with IV(a) above,
provided, however, that Bright PCS shall be obligated
to reimburse expenses incurred by BTS Company only with
respect to which BTS Company had received express
written direction from Bright PCS:
(a) Any and all construction materials used
in the installation of Bright PCS's
Equipment on the Site;
(b) Any and all construction subcontractor
cost including, but not limited to,
cable and antenna contractors and
electricians;
(c) Architectural and electrical engineering
drawings;
(d) Azimuth verification surveys;
(e) Blueprint reproduction;
(f) Building inspection fees; except that
Bright PCS will not pay for any
expedited delivery costs, unless
specifically authorized by Bright PCS;
(g) Cable sweeps and other technical tests;
(h) Costs involved in varying zoning
compliance, including permit and
inspection fees;
(i) Delivery costs for all materials except
that Bright PCS will not pay for any
expedited delivery costs, unless
specifically authorized by Bright PCS;
(j) Engineering services;
(k) Federal Aviation Administration study
and analysis;
(l) GIS/mapping;
(m) Independent inspection agencies;
(n) Legal support and expert witness fees
for zoning hearings;
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(o) Option fees for leases, lease options,
purchase agreements, and purchase
agreement options to the extent such
options were approved by Bright PCS in
advance;
(p) Phase 1 Environmental Study including
soil compaction, engineering, and other
inspections of the property required or
reasonably deemed necessary to provide a
thorough due diligence review of the
project;
(q) Photo simulations;
(r) Site survey;
(s) Structure loading study and analysis for
towers, rooftops, water tanks,
billboards and signs, and other similar
facilities expected to contain PCS
equipment;
(t) Appraisals, title reports, and title
insurance premiums;
(u) Zoning, filing, and permitting
application fees; and
(v) Office supplies and equipment, but only
to the extent that such supplies and
equipment requests are in compliance
with Bright PCS's standard policies and
procedures for such expenses.
2. Construction and Construction Management Fees.
a. Per CMS Site Fees. In consideration for performance of the
construction and Construction Management Services ("CMS"),
Bright PCS shall pay BTS Company an amount to be mutually
agreed upon on a site by site basis in the manner set forth
below:
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[***] - CONFIDENTIAL TREATMENT REQUESTED
Milestones Amount Due
- ---------- ----------
Upon the commencement of construction on the CMS Site [***]
Final acceptance of civil construction on the CMS Site [***]
Total amount due per CMS Site upon completion of To be agreed upon on
Construction Management Services a site by site basis
b. Withdrawal
In the event Bright PCS elects to withdraw a CMS Site,
Bright PCS shall give BTS Company notice of such withdrawal,
and shall pay BTS Company [***] of the milestone installment
that would be due if the work currently in progress was
completed and [***] of all other work completed on the
withdrawn CMS Site as of the date of Bright PCS's withdrawal
notice plus reimbursable expenses and substitute the
withdrawn CMS Site with an alternative site within sixty
(60) days ("Alternative CMS Site"), if available. If Bright
PCS does not issue an Alternative CMS Site within sixty days
of withdrawing a CMS Site, then BTS Company shall be
entitled to receive [***] of the entire Construction
Management Fee, for the CMS Site withdrawn.
c. Payments to Contractors
BTS Company shall be responsible for making all payments due
to contractors and subcontractors selected by, or contracted
with, BTS Company to perform services and to provide
materials at the Sites in connection with Construction
Management Services rendered hereunder. Bright PCS may
advise BTS Company in writing that Bright PCS will pay them
directly. BTS Company shall present copies of all such
invoices relating to the installation of Bright PCS's
Equipment which BTS Company has paid, and Bright PCS shall
then provide BTS Company reimbursement of such disbursements
within thirty (30) days of BTS Company's submission of said
invoices to Bright PCS.
BTS Company shall furnish evidence satisfactory to Bright
PCS that all labor furnished and material consumed by BTS
Company during the invoice period has been paid in full and
that the Services are not subject to liens or claims on
account thereof. Bright PCS may withhold payment of the
invoice until BTS Company furnishes such evidence.
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C. TIMING OF PAYMENT
All invoices shall be sent to Bright PCS's mailing address and marked:
Attn: Accounts Payable. BTS Company shall invoice Bright PCS in accordance with
the payment schedule set forth herein. Such invoices, after receipt in form
satisfactory to Bright PCS, and subject to verification by Bright PCS, shall be
paid within thirty (30) days of receipt by Bright PCS. Invoices must be sent in
accordance with the invoicing instructions provided in this Agreement. All
invoices must indicate the FEIN # and the correct code per line item as
invoices. These codes will be provided to BTS Company by Bright PCS.
D. PAYMENT DISPUTES
If Bright PCS disputes the amount of expenses or fees claimed by BTS
Company, Bright PCS shall notify BTS Company in writing and shall pay when due
all amounts not in dispute. If the disputed matter cannot be resolved informally
between the parties, either Bright PCS or BTS Company may request arbitration
pursuant to the terms of this Agreement.
E. LIABILITIES
BTS Company shall remain solely responsible for all matters relating to
compensation, unemployment, disability insurance, social security, withholding,
and all other federal, state, and local laws, rules and regulations governing
such matters.
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EXHIBIT "A"
MSA