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EXHIBIT 10.168
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CONSTRUCTION AGREEMENT
BETWEEN
WHCT BROADCASTING, INC.,
AND
▇▇▇▇▇▇ COMMUNICATIONS OF HARTFORD-18, INC.
FOR
WHCT(TV), CHANNEL 18, HARTFORD, CONNECTICUT
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CONSTRUCTION AGREEMENT
This Construction Agreement is made as of this ____ day of December,
1996, by and between WHCT Broadcasting, Inc., a Delaware corporation
(hereinafter referred to as "Broadcaster"), and ▇▇▇▇▇▇ Communications of
Hartford-18, Inc., a Florida corporation (the "Contractor").
WITNESSETH
WHEREAS, Broadcaster has contracted to acquire the assets and
licenses used in the operation of WHCT, Channel 18, Hartford, Connecticut
(hereinafter "the Station"), and has an application pending before the Federal
Communications Commission ("FCC") for consent to acquire the license, known as
File No. BALCT-930922KE; and
WHEREAS, the Broadcaster must return the Station to operation prior
to February 9, 1997; and
WHEREAS, the Contractor and Broadcaster intend to enter into a Time
Brokerage Agreement providing for Contractor to program the Station consistent
with applicable law and regulations; and
WHEREAS, Contractor has experience in television station
construction; and
WHEREAS, Contractor has agreed to purchase all materials and
equipment required in order to construct the Station facilities authorized in
its license and to undertake the construction of the Station, in exchange for
regular lease payments by Broadcaster to Contractor;
NOW THEREFORE, in consideration of the above and of the mutual
promises covenants contained herein, Broadcaster and Contractor, intending to
be legally bound, agree as follows:
1. DEFINITIONS
In addition to the terms which are elsewhere defined in this Agreement,
the following terms shall have the respective meanings hereinafter set forth:
(a) "Budget" shall mean the preliminary budget as agreed to by
Broadcaster and Contractor, as described in Exhibit A, attached hereto, as such
Budget may be amended in accordance with Paragraph 5 of this agreement.
(b) "Contract Documents" shall mean this Agreement, all
authorizations issued to the Licensee for the Station's operation and
construction, the Plans and Specifications and the Budget.
(c) "Plans and Specifications" shall mean the plans and
specifications for the construction of the facilities authorized by the FCC, as
supplemented by specifications for the Work as agreed to by Contractor and
Broadcaster, as described in Exhibit B attached hereto.
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(d) "Work" shall mean all labor, materials and equipment necessary or
appropriate for the construction of the Station in accordance with the Plans
and Specifications set forth in Exhibit B and the Construction Permit
Application.
2. THE WORK
(a) Contractor has done or agrees to do the following during the term
of this Agreement:
(1) In consultation with Broadcaster, specify the equipment, supplies
and materials necessary or appropriate for the construction and
installation of the facilities authorized by the FCC;
(2) Construct and/or install the facilities of the Station with the
concurrence of the Broadcaster's Chief Engineer as authorized by the FCC
in accordance with the Plans and Specifications and all applicable zoning,
building or other governmental laws, ordinances or regulations, including,
without limitation, all permits, regulations and directions of the FCC;
and
(3) Purchase all equipment necessary to the construction of the
Station and pay the entire cost of the work,
(b) Broadcaster has done or agrees to do the following during the
term of this Agreement:
(1) Prosecute any applications or authorizations at the FCC required
to construct and return to operation the Station prior to February 9,
1997;
(2) Cooperate with Contractor in timely filing and obtaining any
zoning, building and other permits, State, County or municipal, that are
required in connection with the Plans and Specifications and the Work and
execute the necessary documents and agreements provided by Contractor in
accordance with his obligations hereunder, and
(3) Obtain and maintain in effect a lease for the Station's tower
site.
(4) Notwithstanding any other provision of this Agreement, the
parties acknowledge that Broadcaster does not presently possess the right
to control the licenses of WHCT until such a time as the FCC grants
Broadcaster's pending application for assignment of licensee to
Broadcaster from the Trustee in Bankruptcy presently holding said license.
Broadcaster does not represent that it possesses the power to take any
steps with respect to the Station
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other than those which it lawfully may take prior to the grant by the FCC
of said application for assignment of license.
3. TIME
(a) The Work shall be commenced promptly upon the Broadcaster's
acquisition of the Station following FCC approval and shall be
substantially completed as promptly as possible, providing, however, that
the parties agree that date shall be extended by reason of strikes, labor
troubles, inability to procure material, failure of power, governmental
actions or inactions, riots, insurrection, war or other reasons beyond the
control of the parties. Upon substantial completion of the Work, the
Contractor shall lease the facilities to Broadcaster pursuant to a Lease
Agreement in the Form of Exhibit C. If the FCC has not granted
Broadcaster's application for consent to acquire the Station by _______ ,
then this Agreement may be terminated by Contractor without liability to
Contractor.
(b) The date of substantial completion of the Work is the date when
(I) construction is sufficiently complete, in accordance with the Contract
Documents, so that the Station may begin operating pursuant to Program
Test Authority under FCC rules using the constructed facilities and (ii)
all permits, modifications of permits, authorizations and licenses
necessary to operate such facilities have been obtained. Any Work required
by the Contract Documents which remains to be completed after the date of
substantial completion shall, if reasonably feasible, be completed by
Contractor within ninety (90) days after the date of substantial
completion.
4. PAYMENTS FOR THE WORK
Contractor shall be responsible for the entire cost of the Work not
to exceed the sum of Three Million Dollars ($3,000,000) (hereinafter "the
Cost"). The Lease Agreement between Contractor and Broadcaster shall provide
for monthly lease payments which represent not more than Three Percent of the
Cost.
5. BUDGET
Broadcaster and Contractor acknowledge and agree that the Budget
represents the estimated cost of the Work. Promptly after the date hereof,
Contractor shall obtain firm bids from responsible manufacturers, suppliers,
and contractors approved by Broadcaster for the performance of the Work or
portions thereof, and shall supply copies of all bids to Broadcaster.
Upon receipt of the bids and upon the agreement by Broadcaster and
Contractor to accept those bids, Contractor shall accept the bids and the
Budget shall be adjusted to conform to the bids.
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6. CONTRACTOR'S CONSTRUCTION OBLIGATIONS
(a) Contractor shall supervise and direct the Work, using its best
skill and attention and, subject to the concurrence of Broadcaster, shall
be responsible for all construction means, methods, techniques, sequences
and procedures and for coordinating all portions of the Work under this
Agreement.
(b) Contractor shall be responsible to the Broadcaster for the
acts and omissions of Contractor's employees, contractors, subcontractors,
and their agents and employees, and other persons providing or performing
any of the Work.
(c) Unless otherwise provided in the Contract Documents,
Contractor shall provide all labor, materials, equipment, tools,
construction, equipment and machinery, water, heat, utilities,
transportation and other facilities and services necessary for the proper
execution and completion of the Work, whether temporary or permanent and
whether or not incorporated or to be incorporated in the Work.
(d) Contractor shall at all times enforce strict discipline and
good order among any person working at the construction site and shall not
employ on the Work any unfit person or anyone not skilled in the task
assigned to him.
(e) Contractor warrants to Broadcaster that all materials and
equipment furnished under this Contract will be new, unless otherwise
specified in Exhibit A, and that all Work will be of good quality, free
from faults and defects and in conformance with the Contract Documents.
(f) Contractor shall give all material notices and comply in all
material respects with all laws, ordinances, rules, regulations and lawful
orders of any public authority bearing on the performance of the Work.
(g) Contractor shall prepare and submit to Broadcaster an
estimated progress schedule for the Work. The progress schedule shall be
related to the entire project to the extent required by the Contract
Documents and shall provide for expeditious and practicable completion of
the Work.
(h) Contractor at all times shall keep the construction site free
from accumulation of waste material or rubbish caused by the Work. At the
completion of the Work, at Broadcaster's expense, Contractor shall remove
or cause to be removed all waste materials and rubbish from and about the
construction site and tools, construction equipment, machinery and surplus
materials.
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(i) Contractor shall not suffer or permit any mechanics or similar
statutory liens to be filed on property of Broadcaster as a result of the
work that is not removed or for which adequate bond has not been provided
within 30 days of such filing.
7. SUBCONTRACTORS
By an appropriate written agreement, Contractor shall require each
Subcontractor, to the extent of the Work to be performed by the Subcontractor,
to be bound to Contractor by the terms of these Contract Documents, and to
assume toward Contractor all the obligations and responsibilities which
Contractor, by these documents, assumes toward Broadcaster.
8. PROTECTION OF PERSONS AND PROPERTY
(a) Contractor shall take all reasonable precautions for the
safety of, and shall provide all reasonable protection to prevent damage,
injury or loss to:
(1) all employees on the Work and all other persons who may be
affected thereby,
(2) all the Work and all materials and equipment to be
incorporated therein, whether in storage on or off the site, under
the care, custody or control of Contractor or any of his
subcontractors, and
(3) other property at the site or adjacent thereto.
(b) Contractor shall give all material notices and comply in all
material respects with all applicable laws, ordinances, rules, regulations
and lawful orders of any public authority bearing on the safety of persons
or property or their protection from damage, injury or loss. There shall
be a waiver of subrogation except to the extent covered by insurance.
9. INSURANCE
(a) Contractor shall purchase and maintain or cause to be
purchased and maintained such insurance as will protect Contractor and
Broadcaster from claims set forth below which may arise out of or result from
the Work or operations under the Contract, whether such operations be by
Contractor or by any subcontractor or by anyone directly or indirectly employed
by any of them, or by anyone for whose acts any of them may be liable:
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(1) claims under workers' or workmen's compensation, disability
benefit and other similar employee benefit acts;
(2) claims for damages because of bodily injury, occupational
sickness or disease, or death of its employees;
(3) claims for damages because of bodily injury, sickness or
disease, or death of any person other than its employees;
(4) claims for damages insured by usual personal injury liability
coverage which are sustained (1) by any person as a result of an
offense directly or indirectly related to the employment of such
person by Contractor, or (2) by any other person;
(5) claims for damages, other than to the Work itself, because of
injury to or destruction of tangible property; and
(6) claims for damages because of bodily injury or death or any
person or property damage arising out of the Broadcaster's,
maintenance or use of any motor vehicle in respect of the Work.
(b) The insurance required by this Paragraph shall be written for not
less than the limits of liability agreed to by Contractor and Broadcaster
or required by law, whichever is greater.
(c) Certificates of Insurance acceptable to Broadcaster and
Contractor shall be delivered to Broadcaster prior to commencement of the
Work. These Certificates shall contain a provision that coverage afforded
under the policies will not be canceled until at least thirty (30) days'
prior written notice has been given to the Broadcaster.
(d) Broadcaster shall purchase and maintain property insurance upon
the entire Work to the full insurable value thereof. This insurance shall
insure against the perils of fire and extended coverage, shall include
"all risk" insurance for physical loss or damage including, without
duplication of coverage, theft, vandalism and malicious mischief and shall
provide that all proceeds from such insurance shall go to Contractor.
10. DAMAGES
In the event of a default by Contractor of its obligations under this
Agreement or the failure of Contractor to complete the Work, Contractor shall
not be liable to Broadcaster for any consequential damages as a result of such
delay, including without limitation, any loss suffered by Broadcaster because
construction is not completed by February 9, 1996.
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11. MISCELLANEOUS PROVISIONS
(a) This Agreement and the exhibits hereto embodies the entire agreement
and understanding of the parties relating to the construction and leasing of
equipment for the Station. No amendment, waiver of compliance with any
provision or condition hereof, or consent pursuant to this Agreement will be
effective unless evidenced by an instrument in writing signed by the parties.
(b) The headings are for convenience only and will not control or affect
the meaning or construction of the provisions of this Agreement.
(c) The obligations of Broadcaster and Contractor are subject to
applicable federal, state and local law, rules and regulations. The
construction and performance of the Agreement will be governed by the laws of
the State of Florida.
(d) All notices, demands and requests required or permitted to be given
under the provisions of this Agreement shall be (i) in writing, (ii) sent by
telecopy (with receipt personally confirmed by telephone), delivered by
personal delivery, or sent by commercial delivery service or certified mail,
return receipt requested, (iii) deemed to have been given on the date
telecopied with receipt confirmed, the date of personal delivery, or the date
set forth in the records of the delivery service or on the return receipt, and
(iv) addressed as follows:
To Broadcaster: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
WHCT Broadcasting, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To Contractor: ▇▇▇▇▇▇ Communications of Hartford-18, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, President-Television
or to any such other or additional persons and addresses as the parties may
from time to time designate in a writing delivered in accordance with this
Paragraph 11(d).
(e) If any provision of this Agreement or the application thereof to any
person or circumstances shall be invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected thereby and shall be enforced to
the greatest extent permitted by law. In the event that the FCC alters or
modifies its rules or policies in a fashion which would raise substantial and
material question as to the validity of any provision of this Agreement, the
parties hereto shall negotiate in good faith to revise any such
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provision of this Agreement with a view toward assuring compliance with all
then existing FCC rules and policies which may be applicable, while attempting
to preserve, as closely as possible, the intent of the parties as embodied in
the provision of this Agreement which is to be so modified.
(f) Waiver of Default: Either party may waive any default or remedy any
default in any manner without waiving such default remedied and without waiving
any other prior or subsequent default and may waive or delay the exercise of
any right or remedy under this Agreement without waiving that right or remedy
or any other right or remedy hereunder. No waiver of any of the terms,
provisions or conditions hereof shall be effective against any party unless the
same is in writing and signed by both parties.
(g) Broadcaster and Contractor each binds itself and its successors,
assigns and legal representatives to the other party hereto and to the
successors, assigns and legal representatives of such other party with respect
to all covenants, agreements and obligations contained in the Contract
Documents, provided that in the event of an assignment by Contractor, it shall
not relieve Contractor of its obligations hereunder.
(h) The parties hereto agree to cooperate fully with each other in
preparing, filing, prosecuting, advocating grant, and taking any other actions
necessary with respect to any applications or actions which are or may be
necessary to obtain the consent of the FCC or of any other governmental
instrumentality, or any third party to, or are or may be necessary or helpful
in order to accomplish the transactions contemplated by this Agreement.
(i) If the Contract Documents, laws, ordinances, rules, regulations or
orders or any public authority having jurisdiction require any portion of the
Work to be inspected, tested or approved, Contractor shall give Broadcaster
timely notice of its readiness so Broadcaster may observe such inspection,
testing or approval.
(j) Broadcaster's and Contractor's respective obligations hereunder are
unique and valuable and not readily subject to compensation by money damages
alone. Accordingly, in the event either party should breach its obligations
under this Agreement, the other party shall be entitled to an order directing
specific performance from a court of competent jurisdiction, in addition to all
other remedies at law or in equity.
12. COUNTERPARTS
This Agreement may be signed in any number of counterparts with the same
effect as if the signatures on all counterparts were upon the same instrument.
IN WITNESS WHEREOF, Broadcaster and Contractor have executed this
Agreement as of the date first above written.
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BROADCASTER:
WHCT BROADCASTING, INC.
CONTRACTOR:
By: /s/
-----------------------------------------[SEAL]
Title:
CONTRACTOR:
▇▇▇▇▇▇ COMMUNICATIONS OF HARTFORD-18, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------[SEAL]
Title:
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EXHIBIT A
BUDGET
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EXHIBIT B
PLANS AND SPECIFICATIONS
CONSTRUCTION PERMIT APPLICATION
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EXHIBIT C
LEASE AGREEMENT