EXHIBIT 10.19
INSTALLATION CONTRACTOR AGREEMENT
AGREEMENT (the "Agreement") made on this _____ day of September, 1997, by
and between CS Wireless Systems, Inc., a Delaware corporation having its
principal place of business at 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxx
00000 (the "Company") and ACS Telecommunications Systems, Inc. ("ACS"), a
Delaware corporation having its principal place of business at 00 Xxxx Xxxxxx
Xxxx, Xxxxx X-000, Xxxxxxxxxx, XX, 00000 ("Contractor").
WITNESSETH
WHEREAS, Company desires to have certain work performed by Contractor in
connection with its wireless television systems in the Dallas, Texas
vicinity (the "Initial System") and such other markets as mutually agreed to
by Company and Contractor (each such additional System defined as the
"Additional System" and each particular System defined as a "System");
WHEREAS, Contractor desires and is able to perform such task upon the
terms and conditions hereafter set forth;
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby
agree to the following:
1. THE WORK
Contractor agrees to perform in accordance with the specifications set
forth in EXHIBIT A in a good and workmanlike manner the services
described on EXHIBIT B, which services shall be collectively referred to
as the "Work". Contractor and Company shall mutually agree on the
specifications for performance of work with respect to each Additional
System and the term of such specifications shall be incorporated into an
addendum which shall be attached and made a part of this Agreement.
Payments required to be made to Contractor pursuant to SECTION 7 shall
be with respect to the Work. In the event that Company desires that
Contractor provide additional services which are not set forth on
EXHIBIT A or EXHIBIT B, Company and Contractor shall agree upon the
terms and conditions, including compensation, for such additional
services. Notwithstanding anything in this Agreement to the contrary,
compensation for such additional services shall not be included in the
calculation of Additional Market Fees, as prescribed by Exhibit B.
2. INDEPENDENT CONTRACTOR
Contractor shall furnish all labor, transportation, tools and equipment,
other than customer premises equipment to be installed at a customer's
location, necessary to
INSTALLATION CONTRACTOR AGREEMENT PAGE 1
perform the Work. Contractor shall ensure that (i) its personnel,
sufficient in number and training, arrive at all Work Sites (defined in
SECTION 17) designated by the Company and perform the Work, and (ii) its
personnel are available to receive and address customer calls. It is
specifically contemplated and agreed between the parties hereto that
Contractor shall perform the Work as an independent contractor as that
term is defined under applicable law. Other than as may be otherwise
provided herein, Contractor alone shall hire, fire, direct, supervise
and pay its employees.
2.1 Contractor will not, directly or indirectly, act as an agent,
servant, or employee of Company, or make any commitments or incur
any liabilities on behalf of Company.
2.2 All personnel assigned by Contractor to perform the Work will be
employees or subcontractors of Contractor. Contractor shall be wholly
and solely responsible for all federal and state income taxes,
withholding taxes, social security taxes, workers' compensation
insurance, employee benefits and all reporting and filings associated
with any of the foregoing.
3. TERM
The term of this Agreement will commence on the date signed and shall
continue in force for two (2) years, or until earlier terminated by
either party in accordance with the terms hereof.
4. COMPLIANCE WITH LAWS
4.1 The Work shall be constructed and completed by the Contractor in
strict compliance with all applicable laws, ordinances, rules,
regulations and agreements including, without limitation, those
established by the Federal Communications Commission; the Federal
Aviation Administration; National Institute of Safety and Health; the
National Electric Safety Code; the Occupational Safety and Health
Administration; the Immigration Reform and Control Act of 1984; and all
other entities or agencies having jurisdiction over Contractor or the
Work or any aspect thereof.
4.2 Company shall have the right, but not the duty, to enter upon any
Work site and to conduct inspections of the Work at any time, to ensure
compliance with this Agreement. If any deficiencies are noted, Company
may require immediate remedial and curative measures.
4.3 Company requires Contractor to have in effect and regularly monitor
a safety program that is in compliance with the requirements and
guidelines of all agencies listed in SECTION 4.1. In lieu of a
specific program, Contractor may agree in writing to adhere to all
safety policies described in Company's safety manual.
INSTALLATION CONTRACTOR AGREEMENT PAGE 2
5. EMPLOYEES OF CONTRACTOR
5.1 Contractor will employ only skilled, trained and competent
employees and, upon request of Company, will dismiss such employees as
Company may deem incompetent. Contractor shall have a competent
supervisor who (i) may be contacted at all times, (ii) is acceptable to
Company, and (iii) shall have the authority to act for Contractor in all
matters pertaining to the Agreement. Contractor will, at all times,
conduct its operations in such a manner that its actions will not
jeopardize Company's relations with the public and governmental agencies
in the geographic areas in which Company does business. The officers of
Contractor shall give the Work such personal supervision as is deemed
necessary by Company to ensue that all Work is properly prepared and
carried out in accordance with Company specifications and scheduled to
ensure a good and workmanlike job.
5.2 To the extent Contractor employs others, it agrees to comply with
the Equal Employment Opportunities ("EEO") provisions of The Cable
Communications Policy Act of 1984 and the Company's EEO Program which
require Contractors to seek the broadest recruitment base in order that
a representative cross section of employees might be obtained. It is
Company's policy to afford equal employment opportunity to qualified
individuals regardless of their race, color, religion, sex, national
origin, age, non-disqualifying physical or mental handicap, or who are
disabled veterans or veterans of the Vietnam War, and to conform
employment practices to applicable laws and regulations.
5.3 Contractor shall maintain such policies regarding attire, uniforms,
and appearance as necessary to ensure an appearance of all of its
personnel suitable for the prosecution of the Work.
5.4 Contractor shall be responsible for the transportation of its
personnel to all Work sites and Company warehouse locations.
6. SCHEDULE
Time is of the essence with respect to Contractor's performance of its
obligations pursuant to this Agreement. Contractor shall commence Work
within seven (7) days after a notice to commence is given by Company and
shall thereafter diligently prosecute the Work in accordance with the
schedule for completion set forth in EXHIBIT A. If, in the opinion of
Company, in order to maintain the schedule for completion set forth in
EXHIBIT A it becomes necessary for Contractor's employees to work after
regular working hours and/or to increase the size of its work force,
Contractor shall take such steps without additional cost to Company, or
Company at its option, may hire such additional personnel as it deems
necessary and as provided for in SECTION 11 hereof.
INSTALLATION CONTRACTOR AGREEMENT PAGE 3
7. PAYMENT
7.1 Company shall pay Contractor for the Work to be performed hereunder
at the rates set forth in EXHIBIT B. The Monthly Service Fee (described
in EXHIBIT B) shall be payable in advance commencing on the date first
set forth above and continuing thereafter on the 15th day of each month,
unless such date is a holiday or weekend day, in which event payment
shall be made on the next business day. Payment for the Work shall be
made within seven (7) days of receipt of an invoice from Contractor.
Prior to issuance of an invoice, the form and substance of same shall be
reviewed and mutually agreed to by duly authorized representatives of
Contractor and Company. Company will advise Contractor of any defects in
workmanship and materials (other than customer premises equipment
furnished by Company) and Contractor will remedy such defects as
provided for in SECTION 10 hereof.
7.2 In the event that this Agreement is terminated by either party for
any reason, Company will have sixty (60) days to pay the final invoice
to ensure compliance with EXHIBIT A, subject to such rights of offset or
recoupment Company may have.
7.3 In recognition of the right of the parties hereto to charge-back
one another with respect to certain services, call responses and
equipment failures, duly authorized representatives of Company and
Contractor shall meet daily, either in person or telephonically, to
discuss and agree upon such charge-backs and adjustments as may be
reasonably appropriate in light of the circumstances known to the
parties. Company and Contractor may agree, from time-to-time, to modify
the procedures set forth in this SECTION 7.3.
8. FORCE MAJEURE
If the performance by Contractor or Company of any of the provisions of
this Agreement, other than payment by Company in accordance with the terms
hereof, shall be delayed or prevented by governmental order or decree, or
riot, strike, lockout or other industrial disturbance, fire, flood, acts of
God (excepting foreseeable weather conditions) or by any other cause beyond
the control of the Contractor or Company, as the case may be, then the time
for completion shall be extended until such cause is removed. Company may
terminate this Agreement in accordance with SECTION 14 if Contractor's
performance hereunder is unreasonably delayed by any such event of force
majeure for more than thirty (30) days. Contractor may, upon thirty (30)
days written notice, terminate this Agreement with respect to a System if
Contractor's performance with respect to such System is unreasonably
delayed by any such event of force majeure for more than thirty (30) days.
INSTALLATION CONTRACTOR AGREEMENT PAGE 4
9. TRAINING
Each of the Contractor's employees (and, if applicable, subcontractors
retained by Contractor to perform all or any part of the Work) shall, at
the request of Company, attend training and instruction sessions to be
given by Contractor or Company for the purpose of learning and adhering to
the specifications set forth in EXHIBIT A attached hereto and made a part
hereof. Such training and instruction may include, without limitation,
universal training and training through third-parties such as Alliance for
Higher Education. Company shall be responsible for the cost of preparing
and making available training materials and facilities. Contractor shall
be responsible for all costs associated with the attendance of its
personnel at all training sessions, including compensation and travel
expenses.
10. WARRANTIES
10.1 Contractor warrants that the Work performed by it will be good and
workmanlike and free from defects and will conform to Company's
specifications set forth in EXHIBIT A. Non-conformity with respect to
such specifications shall be corrected by Contractor, at its sole
expense, within forty- eight (48) hours after notice from Company, or
such longer period (i) as may be necessary to suit the customers
convenience, (ii) as may be required due to unavailability of materials
or (iii) due to technical difficulty beyond the control of Contractor.
Situations resulting with "no pictures" will be addressed immediately
and resolved within twenty-four (24) hours. In no case shall any
problem or complaint go unresolved for more than seven (7) days after
notice from Company. Except as expressly provided for herein, for a
period of three hundred and sixty five (365) days following installation
(the "Warranty Period") Contractor warrants the workmanship and material
(except for customer premises equipment furnished by Company) with
respect to the equipment and materials installed and services provided
by Contractor pursuant to this Agreement. Contractor will, at its own
risk and expense, correct any and all faulty workmanship and defects
made known to it during the Warranty Period. Company shall be
responsible for defects in customer premises equipment furnished by
Company. Notwithstanding the term of the Warranty Period and
obligations of Contractor during such period, Company and Contractor
agree to fairly apportion in a timely manner responsibility for signal
blockage arising with respect to installations completed during the
months of November through March.
10.2 Contractor agrees to accept responsibility for any installation
related roof leaks reported during a period of one hundred and eighty
(180) days after the date of final acceptance of the Work by Company.
All roof leaks and subsequent damage which are not the result of
substandard workmanship become the sole responsibility of the Company
after such one hundred and eighty (180) day period elapsed.
INSTALLATION CONTRACTOR AGREEMENT PAGE 5
10.3 Contractor shall be responsible for damage to all installations
caused by or arising from any wind related failure, unless such damage
occurs after the Warranty Period or is directly caused by sustained wind
forces at the site of the damaged installation exceeding fifty-nine (59)
miles per hour.
11. CHANGES AND EXTRAS
11.1 Company at its option, with ten (10) days notice, may increase or
decrease the total volume of Work to be performed by Contractor;
provided, however, that Contractor shall be provided an additional
thirty (30) days notice for increases or decreases in excess of twenty
percent (20%) of the average volume for the preceding three (3) months.
11.2 Contractor shall perform Work for which there is no price included
in this Agreement whenever it is deemed necessary or desirable by
Company to complete the project satisfactorily, and such extra Work
shall be performed in accordance with the specifications and as directed
by Company's designated representative. Prior to the commencement of
any extra Work at the request of anyone other than Company's designated
representative, Contractor shall obtain a written order from Company.
No extra Work will be paid for unless (i) ordered by Company's
designated representative, or (ii) in writing by Company.
11.3 Extra Work and material will be paid for at unit prices or in a
lump sum agreed to in writing by Company's representative and the
Contractor's representative before the extra Work commences. Payments
for extra Work will be subjected to the provisions of SECTION 7 hereof.
11.4 Contractor is the primary installation contractor for Company;
however, Company reserves the right to perform occasional installations
(which may, in the aggregate, account for up to ten percent (10%) of all
installations performed for the benefit of the Company) similar to those
covered by this Agreement using Company employees.
11.5 Within three (3) days after receipt of notice of request to
increase the total volume of Work, Contractor shall advise Company if it
can or can not perform the additional Work for which notification is
provided pursuant to SECTION 11.1. At its option, Company may, but is
not obligated to, solicit and procure the services of other Contractors
to perform the additional Work.
12. DEFAULT BY CONTRACTOR
If the Contractor (i) shall fail to begin or to prosecute the Work in a
timely manner under this Agreement; (ii) shall fail to perform the Work
with sufficient workmen; (iii) shall perform the Work unsatisfactorily;
(iv) shall neglect or refuse to remove materials; (v) performs the Work
in such a manner as to cause it to be defective or unsuitable; (vi)
shall
INSTALLATION CONTRACTOR AGREEMENT PAGE 6
discontinue the prosecution of the Work without proper cause; (vii) shall
become insolvent or be declared bankrupt; (viii) shall commit any act of
bankruptcy or insolvency, (ix) shall make an assignment for the benefits of
creditors; (x) shall fail to comply with any provisions of the Agreement or
the Exhibits attached hereto; (xi) for any other reason, shall not carry on
the Work in an acceptable manner, the Company's designated representative
shall advise the Contractor of such failure or occurrence, which shall be
deemed an event of default, and direct the Contractor to correct such
default. If the Contractor shall not correct such default within seven
(7) days after receipt of such notice, the Company may upon written notice
from Company's designated representative reciting the fact of such default
and the failure of the Contractor to comply with the directions given in
such notice, take the prosecution of the Work out of the hands of the
Contractor, use any raw materials or equipment on the job site or in
storage as may be suitable and acceptable, enter into agreement with
another Contractor for the completion of the project, or take such other
reasonable actions as in the opinion of Company shall be required for the
completion of the Work. Company may also elect to terminate this Agreement
pursuant to SECTION 14.
13. DEFAULT BY COMPANY; LIQUIDATED DAMAGES
13.1 If Company does not pay Contractor the full amount due within
seven (7) days after any date established in the Agreement for payment,
the Contractor, upon three (3) additional days written notice to
Company, may stop Work until payment of the amount owing has been
received.
13.2 In the event Company terminates this Agreement without cause or
fails to pay Contractor any sums when due (which failure is not timely
cured pursuant to SECTION 13.1) within the first twelve (12) months of
this Agreement, Contractor shall be entitled to receive, in satisfaction
of any and all claims against Company, liquidated damages equal to the
product of the minimum monthly payment calculated in accordance with
EXHIBIT B times twelve (12).
13.3 In the event Company terminates this Agreement without cause or
fails to pay Contractor any sums when due (which failure is not timely
cured pursuant to SECTION 13.1) within the second twelve (12) months of
this Agreement, Contractor shall be entitled to receive, in satisfaction
of any and all claims against Company, liquidated damages equal to the
product of the minimum monthly payment calculated in accordance with
EXHIBIT B times six (6).
14. TERMINATION
Upon (i) the occurrence of a default by Contractor pursuant to SECTION 12,
which default is not timely cured, or (ii) the expiration of thirty (30)
days following the occurrence of an event of force majeure which
unreasonably delays Contractor's performance for such
INSTALLATION CONTRACTOR AGREEMENT PAGE 7
period, Company may, at its discretion, permanently or temporarily stop
performance of the Contractor hereunder and terminate this Agreement
upon five (5) days written notice to the Contractor. In such event, the
Contractor shall be paid for all Work completed as of the date specified
in the notice and which is in compliance with the specifications on
EXHIBIT A attached hereto.
15. INSURANCE
15.1 Contractor and, unless otherwise specified by Company in writing,
each of Contractor's subcontractors shall obtain and maintain insurance
with coverage and limits as follows:
A. WORKERS COMPENSATION AND OCCUPATIONAL DISEASE INSURANCE: At
statutory limits as provided by the State of Texas, and Employee's
Liability Insurance at a limit of not less than Three Hundred
Thousand Dollars ($300,000.00) for all damages arising from each
accident or occupational disease.
B. COMPREHENSIVE GENERAL LIABILITY INSURANCE: Covering Operations
and Premises Liability; Contractor's Protective Liability;
Completed Operations; Product Liability Contractual Liability;
Personal Injury; Property Damage caused by explosion, collapse and
underground damage; and Broad-Form Property Damage Endorsement.
The limits of such liability insurance shall be no less than One
Million Dollars ($1,000,000.00) combined single limit of liability.
Also General AGG Coverage in the amount of Two Million Dollars
($2,000,000.00) and with a deductible not to exceed Five Hundred
Dollars ($500.00).
C. AUTO LIABILITY: Coverage in an amount no less than One Million
Dollars ($1,000,000.00) combined single limit.
15.2 All such insurance shall be carried with companies satisfactory to
Company and licensed to do business in the jurisdiction where the Work
hereunder is to be performed, and the policies shall name Company and
its officers, employees and agents as additional insured parties.
15.3 CONTRACTOR SHALL NOT COMMENCE WORK UNDER THIS AGREEMENT UNTIL IT
HAS OBTAINED ALL INSURANCE REQUIRED HEREUNDER AND CERTIFICATES
EVIDENCING SUCH INSURANCE HAVE BEEN SUBMITTED TO AND APPROVED BY
COMPANY. Contractor shall not allow arrangement with anyone for the
performance of any Work contemplated hereby which does not (i) embody
the substance of these provisions concerning insurance protection for
Company and (ii) require the
INSTALLATION CONTRACTOR AGREEMENT PAGE 8
delivery to Company of certificates evidencing insurance coverage
required hereunder in form acceptable to the Company in its discretion.
15.4 Each policy shall provide that it will not be canceled or amended
except after thirty (30) days advance written notice to Company, mailed
to the address indicated herein, and the policy, policy endorsement and
certificate of insurance shall so state.
15.5 Contractor agrees Company may, from time to time during the term
of this Agreement, require that additional insurance be obtained and
maintained in amounts reasonably related to the scope and the nature of
the construction being undertaken.
15.6 In the event of any cancellation or any policy change not
acceptable to Company, Company reserves the right to provide replacement
insurance coverage and to charge any premium expense therefor to
Contractor and to deduct such cost from any amounts due or to become due
to Contractor hereunder.
15.7 In the event Contractor utilizes subcontractors to perform any of
the Work, Contractor shall ensure that each subcontractor delivers to
Company evidence of insurance as satisfactory to Company in its sole
discretion.
16. INDEMNIFICATION
16.1 Contractor shall indemnify, defend and hold harmless Company, its
employees and agents, from and against:
A. All mechanics' and material suppliers' liens and all costs,
attorneys' fees and expenses incurred in connection with any such liens
which arise by reason of or are related to the Work or any part thereof,
except customer premises equipment furnished by Company; and
B. All claims, liability, fines, penalties, damages, losses, costs,
expenses, actions, suits, judgments and executions (including but not
limited to attorneys' fees) arising out of or in connection with any of
the following:
(i) Any injury, damage or loss to persons (including, without
limitation, injury to Contractor's employees) or property,
occurring during, arising from or in connection with: a) the Work;
or b) the entry upon or possession of the Work site by Contractor,
any agents, employees, invitees of Contractor or any other person
for whom Contractor is responsible except for customer premises
equipment furnished by Company; or
(ii) The failure of Contractor to perform the Work in accordance
with the Agreement or the Exhibits attached hereto.
INSTALLATION CONTRACTOR AGREEMENT PAGE 9
16.2 Company shall indemnify, defend and hold harmless Contractor, its
employees and agents, from and against:
A. All mechanics' and material suppliers' liens and all costs,
attorneys' fees and expenses incurred in connection with any such liens
which arise by reason of or are related to customer premises equipment
furnished by Contractor; and
B. All claims, liability, fines, penalties, damages, losses, costs,
expenses, actions, suits, judgments and executions (including but not
limited to attorneys' fees) arising out of or in connection with any
injury, damage or loss to persons (including, without limitation, injury
to Company's employees) or property, occurring during, arising from or
in connection with the customer premises equipment furnished by Company.
16.3 One party's liability to the other for any of the matters set forth
in this SECTION 16 shall not be limited by the insurance policies
required hereunder or the recovery of any amount thereunder.
17. PROTECTION OF PROPERTY; CLEANING UP AND RESTORATION
Contractor shall properly protect the equipment and the property where
all Work is to be done and Contractor shall take all necessary
precautions for the safety of the employees and its personnel on the
Work Sites; for the purpose of this Agreement, Work Site is defined to
be the interior and exterior of any of any building or house at which
Work is performed and the adjacent real property. Contractor shall at
all times keep all Work Sites and premises adjoining where it is
performing Work, driveways and streets clear of rubbish caused by
Contractor's operations, and at completion of the Work shall remove all
its tools, equipment, temporary work and surplus materials. In all
events any Work Site shall be left clean and restored to the condition
prior to the commencement of construction. If Contractor does not attend
to such cleaning or restoration within two (2) days after request,
Company may cause such cleaning or restoration to be done by others and
charge the costs of the same to Contractor.
18. MISCELLANEOUS
18.1 This Agreement, including any and all attached Exhibits, contains
the entire Agreement between Company and Contractor. There are no other
agreements or understanding stated or implied except as contained
herein. Contractor acknowledges the Company has not made any promises of
Work or volume of Work other than those which are specifically set forth
in this Agreement. This Agreement may not be modified or amended except
by a written instrument executed by the parties hereto.
INSTALLATION CONTRACTOR AGREEMENT PAGE 10
18.2 Any specific provision of the Exhibits shall prevail over any
contradictory provision of this Agreement.
18.3 This Agreement shall be binding upon the heirs, executors,
successors, administrators, and assigns of the parties hereto. This
Agreement may not be assigned by Contractor in whole or part,
voluntarily or by operation of law, without the prior written consent of
Company. Company may terminate this Agreement upon any transfer of the
ownership or control of the Company's business or substantially of the
assets of Contractor; provided, however, this Agreement shall be binding
on the purchaser of any System, or combination of System which
constitute less than substantially all of the assets of the Company.
18.4 Any notice given under this Agreement shall be in writing, and
shall be transmitted by personal delivery; by overnight courier; by
registered or certified mail, return receipt requested, postage prepaid;
or by telecopier and addressed to the other party at the following
address:
If addressed to the CONTRACTOR:
ACS Telecommunications Systems, Inc.
00 Xxxx Xxxxxx Xxxx, Xxxxx X-000
Xxxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxxxx
Telecopier No. (000) 000-0000
With copy to: ACS Telecommunications Systems, Inc.
Xxxxx 0, Xxx 000-X00
Xxxxxxx, Xxxxx 00000
Attn: Xxx Xxxxx
Telecopier No. (000) 000-0000
If Addressed to the COMPANY:
CS Wireless Systems, Inc.
000 Xxxxxxxx Xxxxx
Xxxxx 000
Xxxxx, Xxxxx 00000
Attention: Xxxxx Xxxxx
Telecopier No. (000) 000-0000
With copy to: CS Wireless Systems, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx, Xxxxx 00000
Attention: Xxx Xxxxx
Telecopier No. (000) 000-0000
INSTALLATION CONTRACTOR AGREEMENT PAGE 11
or to such other address as either party may specified.
18.5 Contractor understands and hereby agrees that the laws of the
State of Texas shall to the extent legally permissible govern the Work
to be performed hereunder and the provisions of this Agreement.
18.6 The captions in this Agreement are for convenience and reference
only and shall not in any way affect the meaning or interpretation of
the Agreement.
18.7 Any waiver by Company or Contractor of any default hereunder shall
not be effective unless in writing and duty executed, and in no event
shall constitute a waiver of any other default or breach of the
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date set forth above.
ACS TELECOMMUNICATIONS SYSTEMS, INC.
By: /s/ Xxxx Xxxxxxxxxx DATE: September 23, 1997
---------------------------------
Name: Xxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
ATTEST:
-----------------------------
CS WIRELESS SYSTEMS, INC.
By /s/ Xxxxx X. Xxxx DATE: September 23, 1997
---------------------------------
Name: Xxxxx X. Xxxx
Title: Chief Executive Officer
ATTEST:
-----------------------------
Xxxxx X. Xxxxx
INSTALLATION CONTRACTOR AGREEMENT PAGE 12
