EXHIBIT 10.30
MASTER DESIGN AND BUILD AGREEMENT
THIS MASTER DESIGN AND BUILD AGREEMENT ("Agreement") is made and
entered into by and between UBIQUITEL LEASING COMPANY. ("Ubiquitel") a
Delaware corporation and SPECTRASITE COMMUNICATIONS, INC., a Delaware
corporation and SPECTRASITE CONSTRUCTION, INC. a Delaware corporation,
(collectively "SpectraSite") (each a "Party" and collectively, the "Parties")
as of this 23rd day of May, 2000.
WHEREAS, Ubiquitel wishes to install certain PCS network facilities, by
which to provide wireless communications service on towers throughout the
markets listed in the attached Exhibit A; and
WHEREAS, SpectraSite is in the business of constructing, owning and
leasing space on towers for the purpose of supporting wireless communications,
including PCS network facilities; and
WHEREAS, Ubiquitel and SpectraSite desire to enter into an arrangement
by which SpectraSite shall have the right of first refusal to construct
antenna towers on Sites identified by Ubiquitel, and on which SpectraSite
shall lease space to Ubiquitel for the installation and use of
telecommunications equipment under the Master Site Agreement entered into by
and between the Ubiquitel and SpectraSite Communications, Inc. on May 11, 2000
("Master Site Agreement"); and
WHEREAS, Ubiquitel may employ SpectraSite to install its communications
facilities on existing structures;
NOW THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.1 "BUILD-TO-SUIT SITE" means a Site which is constructed by
SpectraSite, at SpectraSite's sole expense, at the location specified by
Ubiquitel and otherwise in accord with Ubiquitel's specifications and is owned
and managed by SpectraSite upon completion of construction.
1.2 "BTS NOTICE" means the document tendered by Ubiquitel to
SpectraSite setting forth the parameters of a Site Ubiquitel wishes to have
constructed by SpectraSite under this Agreement.
1.3 "CHANGE ORDERS" means any and all material revisions to the
specifications set forth in the Construction Work Order presented to
SpectraSite after commencement of construction.
1.4 "CO-LOCATE SITE" means any Site other than a Built-to-Suit Site,
at which a tower exists, together with easements or other rights of access.
1.5 "COMMENCEMENT DATE" means the date on which the last of the
Parties executes this Agreement.
1.6 "CONFIDENTIAL INFORMATION" means all information of a business
or technical nature, whether disclosed orally or in writing, as to which
confidential treatment has been requested and which has been conspicuously
labeled as "Proprietary" or "Confidential," and if disclosed orally, reduced
to writing, labeled and delivered to the receiving party within thirty (30)
days of the date of disclosure. Confidential Information shall not include
publicly available information.
1.7 "CONTRACT SUM" means the agreed price for the services performed
under this Agreement.
1.8 "CONSTRUCTION MANAGEMENT TEAM" means the team comprised of one
representative of Ubiquitel and one representative of SpectraSite who are
responsible for the administration of the Construction Services.
1.9 "CONSTRUCTION SERVICES" means the services described in the
Scope of Work, attached hereto and made part hereof, as Exhibit B-1, and shall
include, as a minimum, all staging, mobilization, labor, materials, tools, and
related equipment and work.
1.10 "CONSTRUCTION WORK ORDER" means, for each Site, the document
which sets forth the General Terms and Conditions, Specifications, and any
other writings, drawings, photographs or rendition necessary for the proper
execution and completion of the Construction Services by SpectraSite.
1.11 "COSTS" means expenses necessarily incurred in the proper
performance of the obligations under this Agreement. Costs shall be at rates
not higher than the standard paid at the place of the delivery of the
services, except with the prior consent of the Party to pay the Costs.
1.12 "CURE PERIOD" means the fifteen (15) business days after
SpectraSite's transmits its objection to any Site proposed in a BTS Notice
under this Agreement.
1.13 "DOCUMENTS" means the shop drawings, product data, samples and
similar submittals.
1.14 "FCC" means the U.S. Federal Communications Commission,
authorized by the Communications Act of 1934, as amended, 47 U.S.C. Section
151 et. seq.
1.15 "INDEMNITEE" means any party indemnified under Section 22 of
this Agreement.
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1.16 "INDEMNITOR" means any party making an indemnification under
Section 22 of this Agreement.
1.17 "MASTER SITE AGREEMENT" means that certain agreement entered
into by and between Ubiquitel and SpectraSite Communications, Inc. on May 11,
2000, contemplating Ubiquitel's lease and occupation of certain towers owned
or leased by SpectraSite for the purpose of installing Ubiquitel's
communications equipment.
1.18 "PERSON" means an individual, corporation, association,
partnership, joint venture, trust, estate, or other entity or organization,
other than either Party hereto.
1.19 "POPS" means, in the aggregate, the number of persons who may be
served by Ubiquitel's communications facilities located on SpectraSite's
towers.
1.20 "SCOPE OF WORK" means, for each Site, the construction services
to be provided in accord with the Construction Work Order.
1.21 "SITE" means the location, described by street address or
geographic coordinates, together with easements for access at which Ubiquitel
wishes to install communications equipment.
1.22 "SITE ACQUISITION SERVICES" means the site acquisition services
to be provided to SpectraSite by Ubiquitel, including, as appropriate, site
location, A&E Services, site surveys, and zoning variances.
1.23 "SITE APPLICATION" means the document to be completed by
Ubiquitel and submitted to SpectraSite indicating Ubiquitel's desire to locate
its communications facilities on a tower owned by SpectraSite, on the terms
and conditions set forth in the Master Site Agreement.
1.24 "SITE CONSTRUCTABILITY REPORT" means the written analysis and
recommendation concerning the issues associated with constructing the Site,
including the expected cost of construction and the time in which SpectraSite
expects to complete the Work. The Site Constructability Report also shall
state whether the Site will be a "standard site" as contemplated by the
Memorandum from Xxxxxx X. Xxxxx, P.E., dated March 20, 2000, attached hereto
as Exhibit B-4.
1.25 "SITE VISIT" means the visit of the Parties to the Site for
purposes of conducting the Site Constructability Review.
1.26 "SUBCONTRACTOR" means a person or entity who has a direct
contract with SpectraSite to perform a portion of the Construction Services at
the Site.
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ARTICLE II
CONSTRUCTION AND OCCUPATION
2.1 BUILD-TO-SUIT SITES. Subject to the terms and conditions of this
Agreement, Ubiquitel shall offer to SpectraSite the opportunity to construct
each tower or other supporting structure at each Site in Ubiquitel's network
plan which is not a Co-locate Site.
2.2 CO-LOCATE SITES. Subject to the terms and conditions of this
Agreement, Ubiquitel may engage SpectraSite to handle any construction
necessary to the installation of its communications equipment on Co-locate
Sites.
2.3 RELATIONSHIP TO MASTER SITE AGREEMENT. Upon completion of
construction and prior to completion of installation of Ubiquitel's
communications equipment on any Build-to-Suit Site and prior to completion of
installation of Ubiquitel's communications equipment on any Co-locate Site
which is owned by SpectraSite, pursuant to the Master Site Agreement, a Site
Agreement shall be executed and shall govern the leasing arrangement between
Ubiquitel and SpectraSite Communications, Inc.
ARTICLE III
RIGHT OF FIRST REFUSAL - BUILD-TO-SUIT
3.1 GRANT. Subject to the terms and conditions of this Agreement,
Ubiquitel grants to SpectraSite, the right of first refusal to construct and
acquire any Build-to-Suit Sites proposed by Ubiquitel serving up to an
aggregate of ten million POPS.
3.2 COSTS OF CONSTRUCTION. If SpectraSite accepts any BTS
Notice, SpectraSite shall be responsible for the costs of construction of the
proposed Site, except for the costs specified as costs to be paid by Ubiquitel
in the Site Constructability Report and priced in the Construction Work Order.
3.3 SITE ACQUISITION SERVICES. If SpectraSite accepts a BTS Notice,
SpectraSite shall pay to Ubiquitel the fees and costs paid by Ubiquitel for
its Site Acquisition Services associated with Site Acquisition for the
particular site, plus thirty percent (30%).
ARTICLE IV
PROCESS
4.1 BTS NOTICE. For each Build-to-Suit Site, Ubiquitel shall
transmit a BTS Notice.
4.1.1 Each BTS Notice shall include:
a) the location of the proposed Site, including street
address and geographic coordinates, the height and type of
structure, and notation of any known non-standard
requirements or circumstances;
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b) a freely assignable assurance of site availability,
including the name, address and telephone number of the
owner of the property or its agent, the amount of rent
to be paid under a lease or a fully assignable option to
lease;
c) a copy of a title report or title policy for the Site;
d) assessment of the availability of utilities or easements
for utilities to the Site,
e) assessment of access to and egress from the Site is
available by public road right of way or private
easements,
f) a Site Application for collocation at the proposed Site
under the Master Site Agreement executed by and between
the Parties on May 10, 2000;
g) the date on which construction must be completed;
h) any competing bids for the construction of the
proposed Site in Ubiquitel's possession; and
i) total Site Acquisition fee for the Site to be paid by
SpectraSite to Ubiquitel pursuant to Section 3.3 of this
Agreement.
4.2 SITE CONSTRUCTABILITY REVIEW.
4.2.1 Upon receipt of a BTS Notice, SpectraSite, Ubiquitel
and/or its site acquisition contractor shall schedule a time at which
Ubiquitel and/or its site acquisition contractors and SpectraSite shall visit
the Site specified in the Build-to-Suit Application.
4.2.2 Within ten (10) days of the date of the Site Visit
SpectraSite shall provide Ubiquitel with a Site Constructability Report
4.2.3 Ubiquitel shall pay SpectraSite the sum of $500.00
within thirty (30) days of receipt of the Construction Work Order or delivery
of all items specified in Section 4.3.3, whichever is later.
4.3 BTS ACCEPTANCE/REJECTION OR CONDITIONAL ACCEPTANCE. Within ten
(10) business days of SpectraSite's receipt of the BTS Notice SpectraSite
shall notify Ubiquitel whether:
a) SpectraSite wishes to construct and own the Site, as
proposed, within such time, SpectraSite shall provide a
conditional acceptance; or
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b) has objections to any matters disclosed in the BTS Notice,
which may be addressed; or
c) rejects construction and ownership of the proposed site.
4.3.1 If SpectraSite notifies Ubiquitel of any reasonable
objection, Ubiquitel may exercise reasonable efforts to cure SpectraSite's
objection within fifteen (15) business days after receipt of SpectraSite's
objection. If Ubiquitel presents a revised BTS Notice, SpectraSite shall
consider and accept or reject the revised BTS Notice in the same manner as any
BTS Notice.
4.3.2 If SpectraSite rejects a proposed Site or fails to
affirmatively accept or reject a proposed Site within ten (10) days of the
date of the BTS Notice, as contemplated in Section 4.3(a) - (c), Ubiquitel
may employ the construction services company of its choice to complete the
construction and installation of the Site and SpectraSite shall have no
ownership or other interest in the rejected Site.
4.3.3 If SpectraSite provides a conditional acceptance, within
five (5) days of the conditional acceptance, the parties will execute a
Construction Work Order for the construction of the Site.
4.3.4 The condition of SpectraSite's acceptance shall be
removed and the acceptance shall become unconditional upon commencement of
construction of the Site or upon Notice that the Site is accepted. ("Notice of
Unconditional Acceptance"). If construction is not commenced or the Notice of
Unconditional Acceptance is not received within ten (10) days following the
date on which Ubiquitel tendered the BTS Package, Ubiquitel may deem the Site
rejected and employ the construction services company of its choice to
complete the construction and installationof the Site and SpectraSite shall
have no ownership or other interest in the Site.
4.3.5 SpectraSite will commence construction upon receipt of
the BTS Package which shall be comprised of these items:
a) an option for a ground lease or a ground lease for the
Site, executed by the landowner
b) a copy of the title commitment,
c) a copy of the final zoning approval
d) a copy of all governmental permits necessary for
commencement of construction of the Site;
e) a copy of the FAA determination of no hazard; and
f) Architectural design drawings specifying Site
construction, appropriately
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signed and sealed.
4.3.6 If SpectraSite does not receive a BTS Package within
ninety (90) days of receipt of the BTS Notice, SpectraSite may notify
Ubiquitel that it rejects the Site. If SpectraSite rejects a Site, Ubiquitel
shall have no further obligation to SpectraSite with respect to the Site.
ARTICLE V
CO-LOCATE SITES
5.1 Ubiquitel may issue a request for proposals ("RFP") for the
construction and installation services associated with installation of
communications facilities at any Co-locate Site.
5.2 If SpectraSite wishes to bid on the provision of Construction
Services for a Co-locate Site, it will follow the procedure set forth in the
Site specific RFP.
5.3 Upon receipt of the RFP, SpectraSite shall conduct whatever
research is necessary and appropriate to the formulation of a complete
proposal, including, without limitation, a Site Visit.
5.4 If Ubiquitel engages SpectraSite to perform services for
Co-locate Sites, the services will be performed in accordance with the terms
and conditions of Articles I, IV, V and VI of this Agreement.
ARTICLE VI
CONSTRUCTION
6.1 CONSTRUCTION SCHEDULE/PENALTIES.
6.1.1 SpectraSite shall perform the Construction Services in
accordance with the Construction Work Order.
6.1.2 Unless a delay is caused by (i) changes agreed to by
Ubiquitel in the Construction Services, (ii) labor dispute or fire, (iii)
unusual delay in delivery of essential materials, not the fault of
SpectraSite, (iv) abnormal adverse weather conditions not reasonably
anticipated, if SpectraSite is delayed at any time in the progress of the
Construction Services, SpectraSite agrees to pay a penalty for failing to
complete Construction Services in accordance with the schedule contained in
the Construction Work Order in the amount of 10% of the contract price for
days 1 through 14 overdue, and an additional 5% of the contract price
commencing on day 15.
6.2 CONSTRUCTION ADMINISTRATION. The Administration of the
Construction Services shall be provided directly by SpectraSite, whether
through its own employees or through consultants or other representatives
designated by SpectraSite. At the time the parties execute the Construction
Work Order, each Party shall provide to the other the name, address and
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telephone number of the person or persons who shall act as its representative
to the Construction Management Team. Each Party shall direct all
communications, notices, requests for information, submittals, and other
correspondence to the other Party's Construction Management Team
representative.
6.3 PERFORMANCE BOND, If required by the Site owner or land
owner, SpectraSite shall furnish bonds covering faithful performance of
SpectraSite's obligations under this Agreement and each Construction Work
Order and payment of all obligations arising in connection with performance of
its obligations.
6.4 CONSTRUCTION SUBCONTRACTORS. SpectraSite may hire
Subcontractors to perform all or a portion of the Construction Services.
6.4.1 SpectraSite shall require each Subcontractor (to the
extent of the Construction Services to be performed by the Subcontractor), to
be bound by the terms of the Construction Work Order.
6.4.2 SpectraSite agrees to timely pay each such Subcontractor
for services performed in an manner acceptable to SpectraSite and require each
Subcontractor to timely pay its material suppliers or second tier
subcontractors.
6.4.3 Ubiquitel shall have no obligation to pay, or to see to
the payment of any money to any Subcontractor.
6.4.4 Nothing contained herein shall be deemed to create any
contractual relationship between Ubiquitel and any Subcontractor or to create
any rights in any Subcontractor against Ubiquitel.
6.4.5 Regardless of delegation of its duties to a Subcontractor
or any other Person, SpectraSite shall be for the Construction Services
performed by SpectraSite's subcontractors.
6.5 CONSTRUCTION CHANGE ORDERS. In the event unforeseen or
undisclosed circumstances arise on a Site, or if Ubiquitel desires additional
or different Construction Services, Ubiquitel and SpectraSite may, without
invalidating the Contract Documents, execute changes in the Construction
Services, consisting of additions, deletions or modifications on the form
attached hereto as Exhibit B-3. Such Change Order shall be in writing and
shall be signed by Ubiquitel and SpectraSite.
6.6 FEES FOR CONSTRUCTION SERVICES. Ubiquitel agrees to pay to
SpectraSite only the fees specified in the Construction Work Order or written
Change Order.
6.7 SPECTRASITE'S OBLIGATIONS RELATED TO THE CONSTRUCTION SERVICES.
SpectraSite shall exercise its best skill in supervising and directing the
Construction. SpectraSite shall be responsible for and have control over
construction means, methods, techniques, sequences and
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procedures and for coordinating all portions of the Construction Services
under each Construction Work Order. SpectraSite shall provide and pay for
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 Construction
Services, whether temporary or permanent and whether or not incorporated or to
be incorporated in the Construction Services. SpectraSite shall complete the
Construction Services in a good workmanlike manner.
6.8 QUALITY. SpectraSite agrees that materials, goods and
equipment supplied and all work or services performed pursuant to each
Construction Work Order shall be of good quality and new unless otherwise
required or permitted by the Contract Documents. Further, all Construction
Services shall be free from defects and the Construction Services shall
conform with the requirements of the Contract Documents. SpectraSite warrants
its Construction Services against any deficiencies and defects in all services
performed and agrees to assign any and all warranties for goods and/or
materials to Ubiquitel. SpectraSite shall not be responsible for remedying
damages or defects caused by abuse, modifications not executed by SpectraSite,
improper or insufficient maintenance, improper operations or normal wear and
tear under normal usage. If required by Ubiquitel, SpectraSite shall furnish
satisfactory evidence as to the kind and quality of materials and equipment.
6.9 INDEPENDENT CONTRACTOR. Nothing contained in this Agreement
shall be deemed to constitute a partnership or agency agreement between the
Parties. Each Party, in performing any of its obligations hereunder, shall be
an independent contractor and shall discharge its contractual obligations at
its own risk.
6.10 COMPLIANCE WITH LAWS.
6.10.1 SpectraSite shall comply with and give notices required
by all laws, ordinances, rules, regulations and lawful orders of public
authorities bearing on performance of the Construction Services and shall
comply with all applicable laws and regulations, including without limitation
all stated federal safety and heath laws and regulations.
6.10.2 SpectraSite agrees to keep each Site free from
accumulation of waste material and rubbish, and at the completion of the
Construction Services, shall remove from the Site all of SpectraSite's
rubbish, implements and surplus materials.
6.10.3 SpectraSite shall review, approve and submit, if
requested by Ubiquitel, shop drawings, product data, samples and similar
submittals ("Documents") with reasonable promptness. The Construction
Services shall be in accordance with such Documents. When professional
certification of performance criteria of materials, systems or equipment is
required by the Contract Documents, Ubiquitel may rely upon the accuracy and
completeness of such certifications.
6.11 LIENS. SpectraSite shall keep Ubiquitel's Equipment free from
any liens arising from any work performed, materials furnished or obligations
incurred by or at SpectraSite's
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request. All persons either contracting with SpectraSite or furnishing or
rendering labor and materials to SpectraSite shall be notified in writing by
SpectraSite that they must look only to SpectraSite for payment for any labor
or materials. If any lien is filed against the Equipment as a result of
SpectraSite's acts or omissions, SpectraSite shall discharge it or bond it off
within thirty (30) days after SpectraSite learns that the lien has been filed.
6.12 PROTECTION OF PERSONS AND PROPERTY. SpectraSite shall be
responsible for initiating and maintaining all safety precautions and programs
in connection with the performance of Construction Services on any Site.
SpectraSite shall take reasonable precautions for safety of, and shall provide
reasonable protection to prevent damage, injury or loss to, Site employees and
other persons who may be affected thereby, the Construction Services,
materials and equipment to be incorporated therein and other property at the
Site or adjacent thereto. SpectraSite indemnifies and releases Ubiquitel from
any liability related to property, equipment or other liability incurred in
the process of construction of the Sites, unless resulting from Ubiquitel's
negligence or intentional misconduct.
6.11 INTERPRETATION OF PLANS, CORRECTIVE CONSTRUCTION SERVICES. The
Construction Services shall be completed to the acceptance of Ubiquitel, which
shall not be unreasonably withheld. SpectraSite shall promptly remove
portions of the Construction Services and materials reasonably condemned by
Ubiquitel as being improper, unsound or not in conformity with the Contract
Documents and SpectraSite at its own expense shall exercise its best efforts
to remedy such problems. All Construction Services executed under this
Contract shall be free from defective materials and workmanship.
ARTICLE VII
MISCELLANEOUS
7.1 TERM. The term of this Agreement shall be five (5) years
beginning on the date of execution described below unless services have been
performed in markets totaling an aggregate of 10 million POPs or unless the
Agreement is terminated earlier in accordance with its terms.
7.2 INSURANCE. For so long as this Agreement remains in effect,
SpectraSite and each of its Subcontractors shall be required to carry, at the
cost and expense of each, the following insurance:
7.2.1 Adequate workers' compensation insurance to cover any
claim which may arise, as such compensation is provided for under any workers'
compensation or similar law in effect in the jurisdiction where any
Construction Services is performed. The minimum employer's liability limit of
such insurance will be not less than $1,000,000 per accident or disease;
7.2.2 Adequate commercial general liability insurance,
including coverage for contractual liability and products/completed operations
liability, with a limit of not less than $1,000,000 combined single limit per
occurrence for bodily injury, property damage and
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personal injury liability, with contractual exclusion deleted. Such insurance
must contain an express provision, as evidenced on the below referenced
certificate of insurance, that the contractual liability coverage contains no
exclusion for any Construction Services performed on or near a railroad
right-of-way.
7.2.3 Adequate business automobile insurance covering the
ownership, maintenance or use of any owned, non-owned or hired automobile.
Such insurance shall have a limit of not less than $1,000,000 combined single
limit per accident for bodily injury and property damage liability.
7.2.4 Adequate umbrella excess liability insurance with a limit
of not less than $5,000,000 combined single limit in excess of the
above-referenced employers' liability insurance, commercial general liability
insurance and business auto liability insurance.
7.2.5 Adequate "all risk" property insurance covering not less
than the full replacement cost of Ubiquitel's, SpectraSite's and all
contractor's and subcontractor's, if any, real and/or personal property at
risk due to the Sprint PCS Management Agreement or this Agreement.
7.3 INDEMNITY.
7.3.1 INDEMNITY BY UBIQUITEL. Ubiquitel agrees to indemnify,
defend, and hold harmless SpectraSite, its directors, managers, officers,
employees, agents and representatives from and against any all claims,
demands, causes of action, losses, actions, damages, liability and expense
including costs and reasonable attorneys fees that may be incurred by
SpectraSite, its directors, managers, officers, employees, agents and
representatives arising from or relating to the violation by Ubiquitel of any
law, regulation or ordinance applicable to Ubiquitel or by Ubiquitel's breach
of any representation, warranty or covenant contained in this Agreement, or
Ubiquitel's breach of this Agreement, except where and to the extent that the
claim, demand, cause of action, loss, action, damage, liability and/or expense
results from the negligence or willful misconduct SpectraSite.
7.3.2 INDEMNITY BY SPECTRASITE. SpectraSite agrees to
indemnify, defend, and hold harmless Ubiquitel, its directors, managers,
officers, employees, agents and representatives from and against any all
claims, demands, causes of action, losses, actions, damages, liability and
expense including costs and reasonable attorneys fees that may be incurred by
Ubiquitel, its directors, managers, officers, employees, agents and
representatives arising from or relating to the violation by SpectraSite or
any of its employees, delegatees or Subcontractors, of any law, regulation or
ordinance applicable to SpectraSite or any of its employees, delegatees or
Subcontractors or by SpectraSite's or any of its employees, delegatees or
Subcontractors breach of any representation, warranty or covenant contained in
this Agreement, or SpectraSite's or any of its employees, delegatees or
Subcontractors breach of this Agreement, except where and to the extent that
the claim, demand, cause of action, loss, action, damage, liability and/or
expense results from the negligence or willful misconduct Ubiquitel.
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7.3.3 NOTICE. Any party being indemnified will give the party
making the indemnification written notice as soon as practicable but no later
than 5 business days after the party becomes aware of the facts, conditions or
events that give rise to the claim for indemnification if:
a) any claim or demand is made or liability is asserted
against Indemnitee; or
b) any suit, action, or administrative or legal proceeding
is instituted or commenced in which Indemnitee is involved
or is named as a defendant either individually or with
others.
7.3.4 FAILURE TO PROVIDE NOTICE. Failure to give notice as
described in this Section does not modify the indemnification obligations of
this provision, except if Indemnitee is harmed by failure to provide timely
notice to Indemnitor, then Indemnitor does not have to indemnify Indemnitee
for the harm caused by the failure to give the timely notice.
7.3.5 DEFENSE BY INDEMNITOR. If within thirty (30) days after
giving notice Indemnitee receives written notice from Indemnitor stating that
Indemnitor disputes or intends to defend against the claim, demand, liability,
suit, action or proceeding, then Indemnitor will have the right to select
counsel of its choice and to dispute or defend against the claim, demand,
liability, suit, action or proceeding, at its expense.
7.3.6 DEFENSE BY INDEMNITEE. If no notice of intent to dispute
or defend is received by Indemnitee within the 30-day period, or if a diligent
and good faith defense is not being or ceases to be conducted, Indemnitee has
the right to dispute and defend against the claim, demand or other liability,
and in either event to be indemnified as provided in this Section. Indemnitee
is not permitted to settle the dispute or claim without the prior written
approval of Indemnitor, which approval will not be unreasonably withheld.
7.3.7 COSTS. Indemnitor's indemnity obligation includes
reasonable attorneys' fees, investigation costs, and all other reasonable
costs and expenses incurred by Indemnitee from the first notice that any claim
or demand has been made or may be made, and is not limited in any way by any
limitation on the amount or type of damages, compensation, or benefits payable
under applicable Construction Services compensation acts, disability benefit
acts, or other employee benefit acts.
7.4 JOINT AND SEVERAL RESPONSIBILITY. SpectraSite Communications,
Inc. and SpectraSite Construction, Inc. shall be jointly and severally
responsible for the performance of SpectraSite's obligations under this
Agreement, including, without limitation, the payment of money.
7.5 ASSIGNMENT. Without the other Party's consent, which shall not
be unreasonably be withheld, neither Party may assign or otherwise transfer
all or any part of its duties,
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obligations, or interest in or pursuant to this Agreement; provided, however,
that upon thirty (30) days' prior written notice to the other Party, a Party
may assign or otherwise transfer such interest to its parent company, any
subsidiary or affiliate, or to any successor-in-interest or entity acquiring a
controlling interest (greater than 30%) in its stock or assets. Assignment
shall not release a Party from any liability for performance of its covenants,
agreements, and obligations (including payment of any Fees and Costs due and
owing) as set forth in this Agreement.
7.6 REPRESENTATIONS AND WARRANTIES. In order to induce the other
Party to enter into this Agreement, each Party represents and warrants:
7.6.1 It has all requisite power and authority and the legal
right to own its properties and to conduct its business as currently
conducted, and to execute, deliver and perform this Agreement.
7.6.2 Its execution, delivery, and performance of this
Agreement have been duly and validly authorized by all necessary corporate
action.
7.6.3 This Agreement has been duly executed and delivered and
constitutes its valid and binding obligation, enforceable in accordance with
its terms.
7.6.4 Neither the execution, delivery, or performance of this
Agreement, nor the consummation of the transaction contemplated hereby will,
with or without the giving of notice or the passage of time, or both, violate
any provisions of, conflict with, result in a breach of, constitute a default
under, or result in the creation or imposition of any Lien or condition under,
(i) any federal, state or local law, statute, ordinance, regulation or rule,
which is applicable to Licensee or the Purchased Assets; (ii) any contract,
indenture, instrument, agreement, mortgage, lease, right or other obligation
or restriction to which Licensee is a party or by which Licensee or the
Purchased Assets is or may be bound; or (iii) any order, judgment, writ,
injunction, decree, license, franchise, permit or other authorization of any
federal, state or local court, arbitration tribunal or governmental agency by
which Licensee or the Purchased Assets is or may be bound.
7.7 DISPUTE RESOLUTION. In the event of a dispute between the
parties regarding the interpretation of this Agreement, the Parties shall
negotiate in good faith to resolve the dispute to their mutual benefit. In
the event they cannot resolve the dispute, the matter shall be submitted to
binding arbitration before one arbitrator who has not previously been employed
by either party and who does not have a direct or indirect interest in either
party or the subject matter of the arbitration. The arbitrator shall either
be mutually agreed to by the Parties within thirty (30) days after written
notice from either party requesting arbitration, or failing agreement, shall
be selected pursuant to the Commercial Construction Rules of the American
Arbitration Association. Any party may initiate arbitration by written notice
to the other party and the arbitration shall be conducted according to the
following:
a) Not later than seven (7) days prior to the hearing date
set by the arbitrator, each party shall submit a brief
with a single proposal for settlement;
13
b) The arbitrator shall simultaneously distribute a copy
of each party's proposal to the other party;
c) The hearing shall be conducted on a confidential basis;
d) The arbitrator shall be limited to selecting only one
of the proposals submitted by the Parties;
e) The Parties shall divide equally the fees and costs of
the arbitrator and the hearing and each party shall be
responsible for its own expenses and those of its
counsel and representatives; and
f) Evidence concerning the net worth, ability to pay, or
organizational make up of the Parties, any offer made
or the details of any negotiation prior to
arbitration, and the cost to the Parties of their
representatives and counsel shall not be admissible.
The award of the arbitrator may be enforced as a
judgment by any court of competent jurisdiction.
7.8 ENTIRE AGREEMENT. This Agreement constitute the entire
agreement and understanding between the Parties, and supersedes all offers,
negotiations, or prior agreements concerning the subject matter contained
herein. Any amendments to this Agreement must be in writing and executed by
both Parties.
7.9 SEVERABILITY. If any provision of this Agreement is deemed
invalid or unenforceable with respect to any Party by a court of competent
jurisdiction, the remainder of this Agreement (or the application of such
provision to persons other than those as to whom it is held invalid or
unenforceable) shall not be affected and each provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law.
7.10 SUCCESSORS AND ASSIGNS. This Agreement shall be binding on and
inure to the benefit of the successors and permitted assignees.
7.11 NOTICES. Any notice or demand required to be given herein shall
be made by certified or registered mail, return receipt requested, or reliable
overnight courier, to the address of the respective Parties set forth below:
SPECTRASITE: UBIQUITEL:
SpectraSite Communications, Inc. Ubiquitel Leasing Company
0000 Xxxx Xxxxxx Xxxxx 0 Xxxx Xxxxx Xxxx
Xxx Xxxxx, XX 00000 Xxxx Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
14
WITH A COPY TO: With a copy to:
SpectraSite Communications, Inc. Xxx X. Xxxxx, Esq.
100 Regency Forest Drive, Suite 400 Xxxxxxxxx Xxxxxxx
Xxxx, Xxxxx Xxxxxxxx, 00000 0000 Xxxxxx Xxxxxxxxx
Xxxx: General Counsel Xxxxx 0000
Xxxxxx Xxxxxx, XX 00000
SpectraSite Construction, Inc.
7.12 CHOICE OF LAW/VENUE. The laws of the state of Delaware, without
giving effect to the principles of conflict of laws thereof. The Parties
hereby consent to the jurisdiction of the courts of the state of Delaware, as
the exclusive jurisdiction for any proceedings brought hereunder or in
connection with or arising from this Agreement. In any such proceeding, the
Parties hereby agree to waive, to the extent lawfully possible, any defense
based on forum non conveniens or lack of personal jurisdiction.
7.13 WAIVER OF CLAIMS FOR CONSEQUENTIAL DAMAGES. Each Party agrees
and hereby waives any claim for consequential or incidental damages as to the
other Party.
7.14 CONFIDENTIAL INFORMATION. Except as specifically authorized by
this Agreement, each of the Parties shall for the term of this Agreement and
for three (3) years thereafter, keep confidential, not disclose to others and
use only for the purposes authorized in this Agreement all confidential
information disclosed by the other Party to the Party in connection with this
Agreement to anyone without the prior written consent of the disclosing Party.
7.14.1 Confidential Information may be disclosed if:
a) is disclosed to a third party consistent with the terms
of the written approval of the Party originally disclosing
the information;
b) is required by the receiving Party to be produced under
order of a court of competent jurisdiction or other
similar requirements of a governmental agency, and the
Confidential Information will otherwise continue to be
Confidential Information required to be held confidential
for purposes of this Agreement;
c) is required by the receiving Party to be disclosed by
applicable law or a stock exchange or association on
which the receiving Party's securities (or those of its
subsidiaries) are or may become listed; or
d) is disclosed by the receiving Party to a financial
institution or an accredited investor (as that term is
defined in Rule 501(a) under the Securities Act of 1933)
that is considering providing funding to the receiving
Party and which financial institution or accredited
investor has agreed to keep the Confidential Information
confidential in accordance
15
with an agreement at least as restrictive as this
Section 5.13.
7.14.2 Notwithstanding the foregoing, the Parties authorize each
other to disclose to the public in regulatory filing the other's identity and
the service area to be developed and managed by the Parties
7.14.3 The Party making a disclosure under this Section 5.13
must inform the disclosing Party as promptly as is reasonably necessary to
enable the disclosing party to take action to, and use the Party's reasonable
best efforts, limit the disclosure and maintain confidentiality to the extent
practicable.
7.15 DEFAULT/TERMINATION.
7.15.1 EVENTS OF DEFAULT. An event of default under this
Agreement shall be deemed to exist upon the occurrence of any one or more of the
following:
a) Failure by any party to make payment of any amount due
under this Agreement, which failure continues for a period
of twenty (20) days following written notice that the
amount is past due; or
b) Failure by any party to perform any other material
provision of this Agreement and such failure continues
for a period of thirty (30) days after written notice of
non-performance. If the cure cannot be completed within
thirty (30) days, the non-performing party shall not be
considered to be in default if the non-performing party
commences a cure within such thirty (30) days and
thereafter proceeds with reasonable diligence to cure such
failure.
7.15.2 REMEDIES. Upon the occurrence of any event of default,
the non-defaulting party shall have the right to recover monetary damages from
the defaulting party and to pursue any other remedy available at law or in
equity including the right to terminate this Agreement.
7.16 TAXES. SpectraSite shall pay all sales, consumer, use and other
similar taxes.
7.17 PERMITS. SpectraSite shall pay all charges associated with
building and other permits or governmental approvals, licenses or inspections
necessary for the proper execution and completion of the Construction Services.
7.18 COST CONTROL. Each Party shall use its best efforts to keep
costs low and consult with the other Party while making decisions that would
impact significantly the pricing of the services to be delivered.
16
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
SPECTRASITE: UBIQUITEL:
SpectraSite Communications, Inc. Ubiquitel Leasing Company
By: By:
-------------------------------- -----------------------------
Name: Name:
-------------------------------- -----------------------------
Title: Title:
-------------------------------- -----------------------------
SpectraSite Construction, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
17
EXHIBIT A
(MARKETS)
--------------------------------------------------------------------------------------------------------------------
Market BTA NUMBER BTA NAME
--------------------------------------------------------------------------------------------------------------------
Market 1 - Northern California 485 (Partial) Xxxx Xxxx - Xxxxxxxxxx
--------------------------------------------------------------------------------------------------------------------
Xxxxxx 0 - Xxxxxxxx Xxxxxxxxxx 79 Chico
--------------------------------------------------------------------------------------------------------------------
Market 1 - Northern California 371 Redding
--------------------------------------------------------------------------------------------------------------------
Market 1 - Northern California 134 Eureka
--------------------------------------------------------------------------------------------------------------------
Market 1 - Northern California 389 (Partial) Sacramento
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 425 (Partial) Spokane
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 000 Xxxxxxxx - Xxxxxx, XX
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 300 Missoula
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 224 Kilispell
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 64 Butte
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 188 Helena
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 171 Great Falls
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 53 Bozeman
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 41 Billings
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 50 Boise
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 000 Xxxx Xxxxx
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 000 Xxxxx Xxxxx
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 353 Pocatello
--------------------------------------------------------------------------------------------------------------------
Market 2 - Spokane MTA 258 Xxxxx
--------------------------------------------------------------------------------------------------------------------
Market 4 - Southern Utah & Nevada 365 (Partial) Provo
--------------------------------------------------------------------------------------------------------------------
Market 4 - Southern Utah & Nevada 399 (Partial) Xxxx Xxxx Xxxx
--------------------------------------------------------------------------------------------------------------------
Xxxxxx 0 - Xxxxxxxx Xxxx & Nevada 000 Xx. Xxxxxx
--------------------------------------------------------------------------------------------------------------------
Market 4 - Southern Utah & Nevada 245 (Partial) Las Vegas
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 15 (Partial) Anderson, IN
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 47 Bloomington-Bedford, IN
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 81 (Parts) Cincinnati, OH
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Xxxxxxx & Xxxxxxxx 00 Xxxxxxxx, XX
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 135 Evansville, IN
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 204 (Parts) Indianapolis, IN
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 263 (Parts) Louisville, KY
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 000 Xxxxxxxxx, XX
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 373 Richmond, IN
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 442 (Parts) Terre Haute, IN
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 457 Vincennes-Washington, IN
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 000 Xxxxxxxxxxxx, XX
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 000 Xxxxxxx-Xxxxxx-Xxxxxxxx, XX
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 00 Xxxxxxxxxxx, XX, Xxxxxxxxxxxx, XX
--------------------------------------------------------------------------------------------------------------------
Market 5 - So. Indiana & Kentucky 00 Xxxxxxx Xxxxx-Xxxxxxx, XX
--------------------------------------------------------------------------------------------------------------------
18
EXHIBIT B-1
CONSTRUCTION SCOPE OF WORK
(INSERT CONSTRUCTION SPECIFICATIONS)
19
EXHIBIT B-2
CONSTRUCTION WORK ORDER
SITE INFORMATION
SITE NAME OR IDENTIFICATION NUMBER:____________________________________
SITE ADDRESS:__________________________________________________________________
STATE:________, COUNTY:_______________, LAT:_________________, LONG:___________
SITE LEGAL DESCRIPTION: (Attach as Schedule "A")
SCHEDULE OF CONSTRUCTION SERVICES: (Attach as Schedule "C")
START DATE:_____________________________
COMPLETION DATE:________________________
CONTRACT SUM BUDGET:___$______________________
This Contract Sum Budget shall be computed as provided in paragraph 8 of the
Agreement.
SpectraSite Construction Management Team Representative:____________________
UBIQUITEL CONSTRUCTION MANAGEMENT TEAM REPRESENTATIVE: _____________________
SPECIAL CONDITIONS:____________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
___________________________
SPECTRASITE COMMUNICATIONS, INC. ("SpectraSite") agrees to perform the
services described in the Scope of Work ("Construction Services") on behalf of
UBIQUITEL LEASING COMPANY ("Ubiquitel") according to the terms of this
Construction Work Order, the Master Design, Build and License Agreement and
any Change Order.
ENTIRE AGREEMENT. This Construction Work Order together with the Master
Design, Build and License Agreement and any Change Order, represent the entire
agreement between SpectraSite and Ubiquitel with respect to the subject matter
hereof and supersedes all prior negotiations, representations, or agreements
either written or oral.
GOVERNING LAW. This Construction Work Order shall be governed by and
construed under the laws of the State of North Carolina.
20
IN WITNESS WHEREOF, the Parties hereby execute this Construction Work
Order effective the day and year last written below.
SPECTRASITE: UBIQUITEL:
SpectraSite Communications, Inc. Ubiquitel Leasing Company
By: By:
----------------------------- ---------------------------
Name: Name:
----------------------------- -------------------------
Title: Title:
----------------------------- ------------------------
Date: Date:
----------------------------- ------------------------
21
EXHIBIT B-3
CONSTRUCTION CHANGE ORDER
Change Order No:___________________________ Date:_________________
SITE NAME OR IDENTIFICATION NO.:_______________________________________________
UBIQUITEL: _______________________
_______________________
_______________________
-------------------------------------------------------------------------------
Construction Manager: ________________________
SpectraSite: SpectraSite Communications, Inc.
_____________________________
_____________________________
Construction Manager:____________________________________
CHANGE ORDER SCOPE OF CONSTRUCTION SERVICES: SpectraSite agrees to provide
the following additional Scope of Construction Services:
(Scope of additional Construction Services - see Exhibit "A")
CHANGE ORDER DOCUMENTS: Specifically identified as follows:
Change Order Scope of Construction Services (Exhibit "A") Dated:_______
(A/E name) Drawing_________ Dated:_______
(A/E name) Drawing_________ Dated:_______
Schedule of Values (Exhibit "B") Dated:_______
(SpectraSite Proposal) (Exhibit "C") Dated:_______
(Other) (Exhibit "D") Dated:_______
CHANGE ORDER RECAP:
Original Construction Agreement Amount $_________________
Change Order #_____________ Amount $_________________
Revised Construction Agreement Amount $_________________
Construction Services performed under this Change Order is subject to the
terms and conditions of the Construction Work Order dated ________________
SpectraSite agrees to complete the additional Scope of Construction Services
provided for in this Change Order on or before ___________________
22
which shall extend the time to complete the Construction Work Order by
_____days; not including previous extensions allowed.
SPECTRASITE: UBIQUITEL:
SpectraSite Communications, Inc. Ubiquitel Leasing Company
By: By:
----------------------------- ---------------------------
Name: Name:
----------------------------- -------------------------
Title: Title:
----------------------------- ------------------------
Date: Date:
----------------------------- ------------------------
23
EXHIBIT B-4
(Fixed Fee Schedule)
24
