Exhibit 10.12
TRITON/WFI MASTER SERVICES AGREEMENT
THIS MASTER SERVICES AGREEMENT (this "Agreement") is entered into effective
as January 19, 1998 (the "Effective Date") by and between TRITON PCS OPERATING
COMPANY, L.L.C., a Delaware limited liability company (the "Company"), and
Wireless Facilities Inc., a New York corporation that is in the process of
reincorporating in Delaware ("Contractor") (collectively, the "Parties"). The
Company desires to engage Contractor to perform the "Services," as defined
below, and Contract desires to provide the Services. Therefore, the parties
agree as follows:
1. SERVICES. The Company hereby engages Contractor as an independent
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contractor to provide the services set forth in Exhibit A hereto (the
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"Services") .
2. INDEPENDENT CONTRACTOR RELATIONSHIP. Contractor shall act as an independent
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contractor to the Company, and nothing in this Agreement shall be deemed to
create a relationship of employer-employee, principal-agent, partner, or joint
venture between Contractor and the Company. Neither party has any authority to
bind the other to any contract or agreement without the other's written
permission. The Company has no power to supervise, give directions or otherwise
regulate Contractor's operations, although the Company will be supervising the
Contractor's personnel that Contractor is supplying pursuant to this Agreement.
Notwithstanding the foregoing, the Company shall retain the right to request in
writing upon fifteen (15) days' notice therefor that any employee of Contractor
who does not have the requisite skills be removed from the job. No reasonable
request of the Company shall be refused concerning the dismissal or reassignment
of personnel in conformance with this section. Contractor shall be solely
responsible for payment of compensation to Contractor's employees and for all of
Contractor's federal, state and local payroll taxes, withholding, social
security, and unemployment insurance. Neither party is an agent of the other
party and neither has the authority to represent the other party as to any
matters.
3. TERM. The term of this Agreement shall begin on the Effective Date, and
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shall expire on the second (2nd) anniversary of the Effective Date (the "Initial
Term"). The term shall automatically renew for eight (8) successive one (1) year
periods, unless either party provides the other with written notice of this
intent not to renew the term of this Agreement at least sixty (60) days prior to
the expiration of the Initial Term or any renewal term. During the Initial Term
and any renewal terms (collectively, the "Term"), in addition to the services
described in Exhibit A, Contractor shall be the Company's preferred radio The
term of this Agreement shall begin on the Effective Date, and shall expire on
the second (2nd) anniversary of the Effective Date (the "Initial Term"). The
term shall automatically renew for eight (8) successive one (1) year periods,
unless either party provides the other with written notice of this intent not to
renew the term of this Agreement at least sixty (60) days prior to the
expiration of the Initial Term or any renewal term. During the Initial Term and
any renewal terms (collectively, the "Term"), in addition to the services
described in Exhibit A, Contractor shall be the Company's preferred radio
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frequency engineering vendor/provider and shall have a right of first refusal on
all radio frequency engineering projects awarded by the Company or any affiliate
or joint venture of the Company. In any event, the termination or expiration of
the Term shall not reduce or terminate the Company's payment obligations for
services provided to the date of termination or the Parties' confidentiality
obligations under Section 9 of this Agreement. Upon termination of the Term,
all physical property of the parties shall be returned to the proper party,
including any cellular telephones or related equipment.
4. EARLY TERMINATION. The Term may be terminated early:
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4.1 TERMINATION FOR BREACH. By Company or Contractor, immediately upon
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written notice of termination, in the event of a material breach of this
Agreement by the Other party, if such breach continues uncured for a period of
fifteen (15) business days after receipt of written notice of such breach.
4.2 TERMINATION OF INSOLVENCY. By Company or Contractor, immediately upon
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written notice of termination by the other Party, in the event the other Party
shall: (i) become insolvent; (ii) make an assignment for the benefit of
creditors; (iii) file a voluntary bankruptcy petition; (iv) acquiesce to any
involuntary bankruptcy petition; (v) be adjudicated bankrupt; or (vi) cease to
do business (other than as a result of an acquisition or merger).
4.3 RETURN OF INFORMATION. Upon termination of this Agreement, the parties
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hereto shall, within thirty (30) days return all of the other party's
information in written, graphic or tangible from relating to this Agreement.
Notwithstanding the foregoing, upon the Company's payment for all Services
provided through the date of termination, the Company shall be entitled to
retain on a non-exclusive basis, any and all work product prepared or assembled
by Contractor through the day of termination.
5. PAYMENT. The Company shall pay Contractor for the Services performed
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pursuant to this Agreement as specified in Exhibit B. The prices ("Prices") set
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forth in Exhibit B shall be fixed for each Site during the Term of the Agreement
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unless a specific change is mutually agreed to by the Parties in writing.
Contractor shall submit invoices for each payment due on a Site as set forth in
Exhibit B. The Company agrees that the invoice amount is correct, conclusive and
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binding unless the Company notifies Contractor in writing no later than fourteen
(14) days following the invoice date that the Company disputes a particular item
in an invoice. The Company's obligations to pay the remaining portion of a
particular invoice. To mitigate for the expenses and costs the parties
reasonably anticipate will occur, any invoice that remains unpaid more than
thirty-five (35) days after the invoice date shall automatically incur a late
payment charge equal to five percent (5%) of the amount charged on the unpaid
invoice, and the overdue amount owing on the invoice shall thereafter be
assessed a finance charge equal to the lesser of: (i) one and one-half percent
(1.5%) per month, or (ii) the highest interest rate permitted by law. The
Company shall pay all invoices within thirty (30) days from the date of the
invoice without right of offset. Contractor shall not file any mechanics liens
with respect to the Services prior to adjudication of any disputes between the
parties.
6. INSURANCE. Contractor shall maintain comprehensive general liability
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insurance coverage in an amount not less than One Million Dollars ($1,000,000)
per occurrence for bodily injury or death, personal injury and property damage
liability. Contractor shall name the Company as an additional insured on all
applicable policies. Contractor shall promptly provide the Company with proof of
such insurance as reasonably requested by the Company.
7. INFORMATION REPORTING. In order to track the progress of each site, Company
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requires the Contract to adhere to the following reporting methods:
7.1 SITE DATA REPORTING. In addition to the Services in Exhibit A, there
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are a number of data items that must be documented, communicated and stored by
Contractor on behalf of the Company. Contractor will provide such additional
information as reasonably required by the Company.
7.2 SCHEDULED AND MILESTONE DATA REPORTING. Contractor will maintain an
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accurate and up to date schedule of it engineering activities in a format
reasonably acceptable to the Company.
8. INDEMNIFY. Each of Contractor and the Company agree to defend, indemnify and
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hold harmless the other and all of their affiliates or subsidiaries companies,
their officers, agents and employees from any all costs, damages, expenses,
losses, claims, actions, suits, causes of action, judgments, and charges of
every kind and nature whatsoever, including reasonable attorney's fees, which
may in any manner arise out of or relate to the performance or non-performance
of this Agreement, except as this obligation is limited by Section 11
(Remedies).
9. PROTECTION OF CONFIDENTIAL INFORMATION AND EMPLOYEES.
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9.1 CONFIDENTIALITY. Each Party, including its affiliates, officers,
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directors, representatives and agents, shall hold confidential information
representatives and agents, shall hold confidential information received from
the other party in confidence, shall use such information only for the purpose
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and in accordance with this Agreement, and shall not disclose such information
to any third party without the prior express written approval of the disclosing
party. All confidential information shall remain the property of the disclosing
party and shall be returned on written request or upon termination of this
Agreement. Confidential information shall not include information that: (i) is
or becomes publicly known for no wrongful act, fault or negligence of the non-
disclosing party; (ii) was known by the non-disclosing party prior to disclosure
and the non-disclosing party was not under a duty of non-disclosure; (iii) was
disclosed to the non-disclosing party by someone not a party to this agreement
who was free of obligations of confidentiality to the disclosing party; (iv) is
approved for release by written authorization of the disclosing party; (v) is
publicly disclosed pursuant to a requirement or request of a governmental agency
or where disclosure is required by operation of law; or (vi) is furnished to
someone not a party to this Agreement by the disclosing party without a similar
restriction on rights.
9.2 EMPLOYEE PROTECTION. During the Term and for a period lasting six (6)
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months beyond the Term, neither Party shall directly or indirectly solicit for
hire, contract with, retain, or employee anyone employed by the other Party
during the Term.
10. WARRANTIES.
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10.1 NO VIOLATION. The Company and Contractor warrant that the execution of
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this Agreement and their performance of their respective obligations hereunder
does not now and will not in the future violate any agreement with any third
party, or any obligation to any third party.
10.2 REGISTRATION REQUIREMENTS. Contractor warrants that Contractor has
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complied with all applicable registration and licensing requirements to enable
Contractor to act as an independent contractor under the terms of this
Agreement.
11. REMEDIES. Upon the sending of written notice to the Company of completion
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of an item set forth in Exhibit A, the Company shall have fifteen (15) days (the
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"Warranty Period") to provide written notice to Contractor requiring Contractor
to repair or remedy all defects solely caused by Contractor in completing the
item. This shall be the Company's exclusive remedy. Failure of the Company to
give timely notice during the Warranty Period shall be deemed a waiver of any
right, claim, damages, injury or liability that the Company may have against
Contractor. Contractor shall have up to ninety (90) days at its election to
repair or remedy the defects or else return to the Company the amount actually
received by Contractor for that item.
11.1 INAPPLICABILITY. In no event shall Contractor's obligations arise for
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any damage or defect to the extent it is caused or made worse by:
11.1.1 Negligence, improper maintenance or improper operation by
anyone other than WFI or WFI's employees, agents or subcontractors; or
11.1.2 Failure by the Company or by anyone other than Contractor or
Contractor's employees, agents or subcontractors to comply with the warranty
requirements of manufacturers of equipment or other components; or
11.1.3 Failure by the Company to give notice to Contractor of any
defects during the Warranty Period; or
11.1.4 Changes, alterations or additions or additions made to the
work by anyone other than Contractor; or
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11.1.5 The failure of anyone other than Contractor to maintain the
work property; or
11.1.6 Loss or damage that the Company has not taken reasonable and
timely action to minimize; or
11.1.7 Any defect in, caused by, or resulting from, materials or
work supplied by anyone other than Contractor, its employees, agents or
subcontractors; or
11.1.8 Normal wear and tear or normal deterioration; or
11.1.9 Loss or damage caused by, or resulting from, accidents, riot
and civil commotion, fire, explosion, smoke, water escape, falling objects,
aircraft, vehicles, Acts of God, lighting, windstorm, hail, flood, mudslide,
earthquake, volcanic eruption, wind-driven water, or changes in the underground
water table; or
11.1.10 Loss or damage caused by, or resulting from, seepage of
water; or
11.1.11 Bodily injury or damage to personal property.
11.2 DISCLAIMER OF WARRANTIES. Following the Warranty Period, Contractor
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shall have no further obligations to the Company for the particular item. Except
as specifically provided herein. CONTRACTOR DISCLAIMS ALL WARRANTIES OF EVERY
KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
11.3 LIMITATION OF LIABILITY. EXCEPT AS SPECIFICALLY PROVIDED HEREIN,
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CONTRACTOR SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS) WHETHER BASED ON CONTRACT,
TORT OR ANY OTHER LEGAL THEORY. Notwithstanding anything in this Agreement to
the contrary or elsewhere, in no event shall Contractor be liable in the
aggregate for more than Contractor actually received from the Company under this
Agreement.
12. PATENTS. Contractor represents and warrants that it is authorized to use,
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install, or disclose materials, techniques, devices, or information as may be
required to perform the Services required hereunder other than those supplied by
the Company or other parties not affiliated with Contractor, and that all
necessary royalties or license fees have been paid. Subject to this Agreement,
Contractor shall save, defend, hold harmless, and indemnify the Company from any
and all claims, suits and proceedings for the infringement of any patent,
copyright, trade secret or other intellectual property rights arising from the
performance of this Agreement.
13. PROTECTION OF PERSONS AND PROPERTY.
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13.1 PRECAUTIONS. Contractor shall at all times take reasonable
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precautions to protect the persons and property of others which may be on or
adjacent to the site of performance of Contractor's obligations hereunder from
damage, loss or injury resulting from performance under this Agreement by
Contractor or any other party with whom Contractor may have subcontracted.
Contractor shall not disturb or displace any protection installed by others.
Subject to this Agreement, any property moved or damaged by Contractor during
the course of performance of the work hereunder shall be returned or repaired by
Contractor, at Contractor's expense, to the Company's reasonable satisfaction.
13.2 NOTIFICATION OF INJURY OR DISEASE. Contractor shall promptly notify
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the Company upon learning of any injury, death, loss or damage to any persons,
animals or property that is related to or
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occurs at the Services site during the performance of the Services, whether or
not caused by or involving in any way, Contractor, its employees or agents.
14. TAXES. Contractor shall pay all taxes, required by law in connection with
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this Agreement, including, without limitation, sales, use, storage, and similar
taxes, and shall secure, at Contractor's expense, all licenses and permits, pay
all charges and fees, and give all notices necessary for the Contractor's
performance of this Agreement and Contractor's furnishing of materials and shall
provide evidence of such upon demand.
15. ENTIRE AGREEMENT. This Agreement contains the entire understanding of the
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parties with respect to the subject matter hereof, and supersedes all prior
agreements and understandings between the parties.
16. MODIFICATIONS. This Agreement may be modified only in writing executed by
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both parties. Pre-printed terms and conditions that may be printed on either
side of a work order or similar communication shall not supersede the terms of
this Agreement.
17. ASSIGNMENT. This Assignment may not be assigned except upon the written
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consent of the non-assigning party, which consent may not be unreasonably
withheld; provided, however, that no consent shall be required for the Company
to assign any of its rights hereunder to any of its affiliates, including,
without limitation, AT&T and any of AT&T's affiliated entities, or to any
purchaser of substantially all of the Company's assets, if such affiliate or
purchaser has a net worth equal to or greater than the net worth of the Company
as of the date hereof and the Company remains liable. This Agreement shall be
binding upon the successors and assigns of the Parties.
18. NOTICES. All notices or other written communications required under this
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Agreement shall be given personally or by certified mail to the parties at the
following addresses:
To the Company: Triton PCS Operating Company, LLC
000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: The President
Copy To: Xxx Xxxxxxxxx, Esq.
Kleinebard, Xxxx & Brecker
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
To Contractor: Wireless Facilities, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Ph.D., President
Copy To: Xxxxxxx X. Xxxxxx, Esq.
Xxxxxxxx, Xxxx, Xxxxxxxxxx & Xxxxxxx LLP
000 "X" Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000
All notices shall be effective upon receipt if delivered personally, or
three (3) days following mailing.
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19. GOVERNING LAW. This Agreement shall be governed by and construed according
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to the internal laws of the State of Delaware without regard to Delaware's
choice-of-law provisions. Venue in any action brought with respect to this
Agreement by the Company shall be in state or federal courts in Philadelphia,
Pennsylvania, and each party consents to the jurisdiction of those courts. Venue
in any action brought with respect to this Agreement by Contractor shall be in
federal or state court in Virginia, and each party consents to the jurisdiction
of those courts.
20. ATTORNEYS' FEES. In any legal action arising from or relating to this
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Agreement, the substantially prevailing party (as determined by the court) shall
be entitled to recover reasonable attorneys' fees and other costs incurred in
that action or proceeding (including, without limitation, expert witness fees),
in addition to any other relief to which the prevailing party may be entitled.
21. INCORPORATION BY REFERENCE. The additional terms and conditions contained
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in any exhibit or attachment are hereby incorporated into this Agreement.
22. FORCE MAJEURE. If the performance of any part of this Agreement, except for
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payment obligations, by either party is delayed, rendered impossible by reason
of natural disaster, acts of God, actions or decrees of governmental bodies or
any other cause entirely beyond the control of the party whose performance is
affected (hereinafter referred to as "Force Majeure Event"), the party who has
been so affected shall immediately give written notice to the other party of the
nature of any such conditions and the extent of delay and shall do everything
possible to resume performance hereunder whenever such Force Majeure Event is
removed or ceases. Upon receipt of such notice, performance of this Agreement,
except for payment obligations, to the extent prevented by Force Majeure Event
shall immediately be suspended. If the period of nonperformance exceeds ninety
(90) days from the receipt of notice of the Force Majeure Event, the party whose
ability to perform has not been so affected may, by giving written notice,
terminate the term of this Agreement.
23. SEVERABILITY. If any provision in this Agreement is determined by any court
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of competent jurisdiction or arbitrator to be invalid or unenforceable for any
reasons, including without limitation by reason of such provision extending for
too long a period or over too large a subject, area, or by reason of its being
too extensive in any other respect, such provision to the specified extent that
it is unenforceable shall be interpreted to extend only over the maximum period
of time or subject area, and to the maximum extent in all other respects, as to
which it is valid and enforceable, thereby effectuating the parties' intent to
the greatest extent possible. The invalidity or unenforceability of any
particular provisions of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
24. ATTORNEY CONSULTATION. Each party has been informed of its right to consult
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with its own attorney prior to signing this Agreement and has either done so or
has considered the matter and has decided not to do so. As each party has had
opportunity to consult independent legal counsel, the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement.
25. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
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shall be deemed an original, but all of which together shall constitute one and
the same instrument.
26. EFFECTIVE DATE. Notwithstanding anything herein to the contrary, the
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Company shall have the right to terminate the term of this Agreement upon
written notice to Contractor if the Company has not acquired the PCS
License for the Virginia and South Carolina trading areas from AT&T
provided, however, that if the Company fails to obtain such PCS Licenses
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for the Service Area from AT&T, then the Company shall pay to Contractor
all professional fees and out-of-pocket expenses incurred by
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Contractor, in accordance with the payment terms under Section 5, prior to
Contractor's receipt of notification from the Company of the Company's failure
to obtain the PCS Licenses.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date.
TRITON PCS OPERATING COMPANY, L.L.C. WIRELESS FACILITIES, INC.
a Delaware limited liability company a New York corporation (currently
reincorporating in Delaware)
By: Triton Management Company, Inc. By:
its Manager -------------------------------
Name:
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Title:
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By:
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Name:
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Title:
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7
EXHIBIT A
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SERVICES
RF Engineering Scope of Work
A. PRELIMINARY DESIGN
1. DEFINITION: Coverage will be defined by the Company, and agreed
upon by Contractor, including coverage objectives and environment (urban,
suburban, rural), in-building and in-car penetration criteria, link budget and
the overall launch area. Design criteria will also include grade of service
(blocking objective) as well as estimated subscriber usage levels.
2. CONTRACTOR SCOPE
PROCEDURE: Contractor will perform propagation model optimization
drive testing before issuing the Preliminary Design. The sites will
be identified in communication with the site acquisition contractor
to allow for simultaneous model optimization and site evaluation.
The following minimum number of sites will be drive tested for each
category:
Urban 5
Suburban 10
Rural
(w/foliage) 5
Rural (w/o
foliage) 5 (where applicable)
Contractor will identify slope and intercept and determine standard
deviation on the error between measurement and preparation model
optimization. An effort will be made to keep this error in the 8dB
range for determination of optimal slope and intercept.
Search rings will be issued based on study of existing structures,
friendly sites, co-locations and zoning criteria in order to
minimize site acquisition cost and timeline. An initial study of
the existing structures and land will be performed with site
acquisition.
DELIVERABLE: Search rings will have a cover letter listing map
name, site ID, latitude, longitude, minimum and maximum radiation
center site name, target AGL (above ground level). Search ring
information may change according to acquisition request. Site
coverage objectives will accompany the search ring. A map will also
be issued identifying the surrounding site locations. Contractor
will create an optimized model with zero mean error, slope and
intercept for the four (4) site categories described above with
associated standard deviation on the prediction error. Contractor
will document results in the Preliminary Design report used for all
subsequent propagation analyses.
DELIVERABLE TIME LINE: The search ring package will be delivered
after the Company has reviewed the design and approved the release
of search rings.
B. SITE CANDIDATE EVALUATION AND APPROVAL
Contractor will evaluate the candidate sites per search ring identified by
the site acquisition contractor. The process is broken down as follows:
1. SITE SURVEY
A-1
DEFINITION: Visit each identified candidate for RF suitability.
Determine antenna locations. Identify coverage limitations and
comparison with any other candidates. The site survey will be
performed with site acquisition and construction personnel.
DELIVERABLE: The survey will consist of determining the suitability
of the site, identification of desired antenna location, antenna
orientation and justification of the site.
DELIVERABLE TIME LINE: The engineers will survey each site within two
(2) working days of receiving the site candidate from site
acquisition. A survey site report (documented site survey results)
will be [documented] within twenty-four (24) hours of the site visit.
2. DRIVE TESTING
DEFINITION: Upon the Company's approval of the survey, Contractor
will initiate a drive test for the site. All necessary drive testing
equipment will be provided by Contractor. Site access will be
coordinated with site acquisition.
PROCEDURE: Based on the RF coverage objective set forth in the
Preliminary Design, Contractor may evaluate the site by drive testing
(at least fifty-five percent [55%] of primary site will be drive
tested and upon the Company's request, up to ten percent [10%] of that
55% will be drive tested using panel antennas). The drive testing
shall be limited to one primary candidate per search ring as agreed
upon by the Company and Contractor. The Company search ring as agreed
upon by the Company and Contractor. The Company will reserve the
right to require Contractor to conduct additional drive tests in a
search ring as necessary at additional charge according to
Contractor's normal published hourly rates then in effect. Contractor
will verify and record antenna type, gain, transmitter power output,
cable losses, EIRP and a picture of the antenna set up. The equipment
used will be calibrated with a dB of accuracy. Contractor will
coordinate the required test frequency with a contractor selected by
the Company. The frequencies will be approved by the Company.
DELIVERABLE TIME LINE: Drive test will be completed within two (2)
working days of determination of preliminary site by the Company. The
drive test report will be completed within twenty-four (24) hours of
drive test completion.
A final site evaluation (approval/rejection) will be issued based on site
visit, drive testing and site availability. If the primary site is rejected,
Contractor will select another candidate site at the Company's cost according to
Contractor's normal published hourly rates then in effect for drive testing and
evaluation. Any candidate finally approved by Contractor and the Company will
be referred to as an RF Approved Site.
3. DETAILED SITE DESIGN
Definition: Antenna type, frequency planning, downtilts, interference
reduction, orientation and location will be identified on the site
sketch provided by the A&E firm approved by the Company. Necessary
prediction/measurement data analyses will be performed by Contractor
to optimally configure the antenna placement on all the RF Approved
Sites.
A-2
PROCEDURE: All zoning construction drawings prepared by the A&E firm
will be signed off by the Contractor for the purpose of verifying that
the EF coverage objectives are met. Contractor will verify the
antenna height, placement, orientation, downlift and type. Site
configuration will be determined (omni/sector, equipment type) based
on forecasted traffic usage. Contractor will not provide FAA analyses
but will be required to provide the Company with the information
reasonably necessary for such filings for FCC and FAA filings.
DELIVERABLE: Contractor will provide the Company with detailed site
design in accordance with procedure above subject to the Company's
approval ("Detailed Site Design").
DELIVERABLE TIME LINE: Detailed Site Design will be completed within
twenty-four (24) hours after site sketch is provided to Contractor.
4. DESIGN REVIEW
Definition: The objective of design review ("The Design Review") is
to verify that all the desired strategic coverage areas are covered in
the Detailed Site Design and to compare the predicted and actual
design cell count. The design cell count will be based on an
optimized propagation model determined by Contractor.
Procedure: An optimized propagation model will be used to develop a
system coverage analysis. The Preliminary Design will be compared
with the Detailed Site Design to determine any changes in the design
cell count. Measurement data from the drive test will be used
primarily to determine the design cell count, and the propagation
model will be used for all remaining sites. Contractor will perform a
analysis to ensure that all cells have adequate capacity to meet the
forecasted demand determined by the Company and Contractor after final
site approval and before frequency planning.
DELIVERABLE: A system wide coverage plot will be produced to
determine the coverage performance and design cell count. Prediction
plots will be used in place of measured date if a Detailed Site Design
has not been approved by the Company. Contractor will generate a
report documenting the coverage performance and the cell count
comparison between the Design Review and Preliminary Design.
DELIVERABLE TIME LINE: Four (4) design review reports will be
developed by Contractor after completion of 25%, 50%, 75% and 100% of
the Detailed Site Design has been approved by the Company for all
sites (each a "Design Review Report").
5. TRAFFIC ENGINEERING
DEFINITION: Contractor will develop a capacity forecast based on the
Company provided demand parameters. Contractor will identify
forecasted channel, capacity and site configuration requirements.
PROCEDURE: Based on the Company provided market segmentation (%
mobile, residential, business, etc.), penetration and subscriber usage
pattern (mou/xxx.xX/xxx) a ten (10) year capacity analysis forecast
will be developed to determine site configuration (omni/sector),
number of RF channels and carriers, and capacity cell addition. This
analysis will be performed on a per sector basis during the Detailed
Site Design
A-3
procedure. Contractor is required to meet AT&T standards for the
percentage of blocking, which requirements will be provided by the
Company.
DELIVERABLE: This information will be provided in each Design Review
Report identifying the following: number of channels and erlangs per
sector, cell configuration, capacity cells.
6. BUILD VERIFICATION
DEFINITION: Verification of site build and antenna placement
determining whether site is built according to the Contractor's
specifications.
PROCEDURE: Contractor will verify that sites are built with correct
antenna placement and orientation. Installation accuracy will be
reviewed in relation to construction specifications based on antenna
and cable run sweeps.
DELIVERABLE: Build verification check sheet will be completed and
provided to the Company. The Company will authorize any modification
of the Work, which will be verified by Contractor.
DELIVERABLE TIME LINE: Check sheet completed within twenty-four (24)
hours of request for verification by the Company.
C. OPTIMIZATION
System optimization support will be provided by RF using Contractor
provided optimization tools (primarily using items from Ericcson). The
optimization is divided into the following sub-tasks:
1. SITE SPECIFIC OPTIMIZATION
Definition: Site specific parameters will be recommended by
Contractor and Contractor will put in specific format of Ericcson for
switchloading.
PROCEDURE: As the sites are integrated into the network, Contractor
will set the parameters, test the site for coverage and hand-offs, and
verify the link balance. Any software parameter changes will be
implemented by the Company and verified by Contractor and any RF
configuration changes will be recommended to the Company. Contractor
will test the features and originate and terminate a call per sector.
DELIVERABLES: All information regarding a particular site will be
recorded and presented to the Company.
DELIVERABLE TIME LINE: Within two (2) working days after the site is
in service and available for testing.
2. NETWORK VERIFICATION DRIVE
DEFINITION: Network-wide drive test to establish performance
benchmarks.
PROCEDURE: A network wide drive test will be performed by Contractor.
This will provide the data required to establish the network coverage
and quality statistics and to
A-4
identify any marginal service areas. System performance benchmarks
will then be established as a result of the tests.
DELIVERABLES: A system wide performance report will be developed by
Contractor identifying areas of poor coverage, interference, incorrect
site parameters, and an action plan to correct these performance
deficiencies within three (3) working days after the network-wide
drive test is completed.
3. PRE-LAUNCH OPTIMIZATION PROCESS
Pre-Launch optimization will be carried out by Contractor to verify the
correct operation of the network, identifying the coverage area of each
site, validating parameters and neighbors, and documenting performance
benchmarks that meet the specified grade of service. It provides vital
data for the post-launch optimization engineers who may implement RF
configuration changes to improve the overall coverage of the network, and
who change software parameters to maintain the integrity of the system as
the traffic loan increases. The documentation produced in the process
shall accurately reflect the network performance statistics. The
percentage of dropped calls will meet AT&T standards.
4. FAA
The Contractor will provide all reasonably necessary information to the
Company approved airspace analysis contractor. Contractor will not be
responsible for filing FAA forms.
5. FCC
RF will furnish to the Company will reasonably necessary information
required for PCIA and FCC filings as requested in writing by the Company.
Contractor will not be responsible for filing FCC forms.
6. ZONING SUPPORT
Contractor will provide technical support, as reasonably necessary to
support land use planning, jurisdictional hearings and zoning functions.
This may consist of providing plots from drive testing, and the propagation
model or written justifications defending an application for a variance.
Contractor agrees to provide expert testimony as required for zoning
hearings at its published hourly rates.
A-5
EXHIBIT B
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PRICES
B.1 PRICE PER SITE. This Agreement call for the Company to pay for each
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cell site (each, a "Site") on a fixed price basis of ***** per Site. If
Contractor does not license hardware or software to the Company upon completion
of a Site, the price per Site shall be *****. Contractor is hiring and
relocating engineers and making commitment to them and to others based on these
representations.
B.2 SCHEDULE OF PAYMENTS. Subject to Section 5 of this Agreement, the
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Company shall pay the Prices to Contractor for each Site in four (4) equal
installments of *****, each due and payable upon the following events:
B.2.1. Release of search rings;
B.2.2. Detailed Site design approval;
B.2.3. Detailed frequency and traffic planning; and
B.2.4. Build verification and optimization.
B.3 INCOMPLETE SITES. If work is halted on a particular Site due to change
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of plan or another reason not caused by Contractor, the Company shall pay
Contractor the Price on a pro-rata basis under which Contractor shall be paid in
full for completed benchmarks and in part for incomplete benchmarks.
B.4 ADDITIONAL SERVICES. If the Company requests Contractor to provide
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additional RF Engineering or other services not specifically delineated in this
Agreement during the Term, the Contractor shall pay for those services
consistent with Section 5 of this Agreement at Contractor's standard hourly
billing rates then in effect. For 1997, Contractor's standard hourly rates are
as follows:
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*****Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
B-1
***** per hour for Associate Engineers, ***** per hour for Design Engineers,
***** per hour for Senior Engineers, and ***** per hour for Project Managers.
B.5 EXPENSES. The Prices for a Site include compensation for the following
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expenses:
B.5.1 Travel, lodging and food;
B.5.2 Drive test vehicle rental;
B.5.3 Gas for drive test vehicles;
B.5.4 Field measurement hardware;
B.5.5 RF design software;
B.5.6 Map and terrain data;
B.5.7 Field office space other than for the Charleston and
Richmond Offices, which will be provided by the Company;
B.5.8 Telephone, cellular phone, and fax charges except for
telephone and fax charges incurred in the Charleston and Richmond
offices;
B.5.9 Computer and printers;
B.5.10 Office supplies and equipment;
B.5.11 Temporary office support;
B.5.12 Maps;
B.5.13 Film Processing;; and
B.5.14 Compass, GPS.
All other expenses not explicitly listed in Section B.5 shall be borne by
the Company, including but not limited to crane rental.
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*****Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
B-2
